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Table of Contents
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13E-3
(Amendment No. 3)
RULE 13e-3 TRANSACTION STATEMENT
(Pursuant to Section 13(e) of the Securities Exchange Act of 1934)
China Ming Yang Wind Power Group Limited
(Name of the Issuer)
China Ming Yang Wind Power Group Limited
Zhongshan Ruisheng Antai Investment Co., Ltd
Regal Concord Limited
Regal Ally Limited
Chuanwei Zhang
First Windy Investment Corp.
Ling Wu
Rich Wind Energy Three Corp.
Jiawan Cheng
Yunshan Jin
Zhongmin Shen
Jinfa Wang
Jianren Wen
Rui Zhang
Anhui Zhongan Xinzhao Private Equity Investment LLP
Shenzhen Xinzhao Zhongan Capital Management Limited Liability Company
China Merchants Kunlun Capital Co., Ltd.
Dajun Shengshi Selection Investment Fund
Shanghai Dajun Asset Management Fund
Shanghai Dajun Guancheng Capital Fund
Zhejiang Dajun Asset Management Company Limited
Xiang Hu
Guangzhou Huifu Kaile Investment (L.P.)
Guangzhou Huiyin Bosen Investment (L.P.)
Guangzhou HYAF Fund Management Ltd. Company
(Names of Persons Filing Statement)
Ordinary Shares, par value $0.001 per share
American Depositary Shares, each representing one Ordinary Share
(Title of Class of Securities)
16951C108
(CUSIP Number)1
China Ming Yang Wind Power Group Limited
Ming Yang Industry Park
22 Torch Road, Torch Development Zone
Zhongshan, Guangdong 528437
People’s Republic of China
Attention: Ng Kwok Yin, Ricky
Telephone: +86 760-2813-8666
Zhongshan Ruisheng Antai Investment Co., Ltd
Room 101, Ming Yang Electrical Office Building
25 Jiang Ling West Road, Torch Development Zone
Zhongshan, Guangdong 528437
People’s Republic of China
Attention: Chuanwei Zhang
Telephone: +86 760-2813-8888
Regal Concord Limited
Ming Yang Industry Park
22 Torch Road, Torch Development Zone
Zhongshan, Guangdong 528437
People’s Republic of China
Attention: Chuanwei Zhang
Telephone: +86 760-2813-8666
Regal Ally Limited
Unit 201, 2/F, Malaysia Building
50 Gloucester Road
Wanchai, Hong Kong
Attention: Nana Wong
Telephone: +852 2527-5497
Chuanwei Zhang
First Windy Investment Corp.
Ling Wu
Rich Wind Energy Three Corp.
Jiawan Cheng
Yunshan Jin
Zhongmin Shen
Jinfa Wang
Jianren Wen
Rui Zhang
c/o China Ming Yang Wind Power Group Limited
Ming Yang Industry Park
22 Torch Road, Torch Development Zone
Zhongshan, Guangdong 528437
People’s Republic of China
Telephone: +86 760-2813-8666
Anhui Zhongan Xinzhao Private Equity Investment LLP
Shenzhen Xinzhao Zhongan Capital Management Limited
Liability Company
China Merchants Kunlun Capital Co., Ltd.
20F Tower B, East Pacific International Center,
No.7888 Shennan Avenue, Futian District,
Shenzhen 518040
People’s Republic of China
Attention: Duanyi Mao
Telephone: +86 755-8891-7931
Dajun Shengshi Selection Investment Fund
Shanghai Dajun Asset Management Fund
Shanghai Dajun Guancheng Capital Fund
Zhejiang Dajun Asset Management Company Limited
Xiang Hu
Room 1601, Taikang International Building, No.2
Wudinghou Street, Xicheng District,
Beijing, 100140, People’s Republic of China
Attention: Qiaoning Chen
Telephone: +86 10-5608-6973
Guangzhou HYAF Fund Management Ltd. Company
Guangzhou Huifu Kaile Investment (L.P.)
Guangzhou Huiyin Bosen Investment (L.P.)
Room 5205, International Finance Centre,
Zhujiang West Road, Zhujiang New Town,
Guangzhou, People’s Republic of China
Attention: Junshi Wu
Tel: +86 20-2338-8666
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
With copies to:
Peter X. Huang, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
30/F, China World Office 2
No. 1, Jian Guo Men Wai Avenue
Beijing 100004, People’s Republic of China
Telephone: +86 10 6535-5577
Karen M. Yan, Esq.
Fenwick & West LLP
Kathryn King Sudol, Esq.
Simpson Thacher & Bartlett
35/F ICBC Tower
3 Garden Road
Central, Hong Kong
Facsimile: +852 28697694
Unite 908, Kerry Parkside Office
No. 1155 Fang Dian Road
Pudong, Shanghai 201204, People’s Republic of China
Telephone: +86 21 8017-1206
This statement is filed in connection with (check the appropriate box):
a
The filing of solicitation materials or an information statement subject to Regulation 14A, Regulation 14-C or Rule 13e-3(c)
under the Securities Exchange Act of 1934.
b The filing of a registration statement under the Securities Act of 1933.
c
A tender offer
d None of the above
Check the following box if the soliciting materials or information statement referred to in checking box (a) are preliminary
copies: 
Check the following box if the filing is a final amendment reporting the results of the transaction: 
Calculation of Filing Fee
Transactional Valuation*
Amount of Filing Fee**
$204,164,489
$20,559.36
*
Calculated solely for the purpose of determining the filing fee in accordance with Rule 0-11(b)(1) under the Securities Exchange
Act of 1934, as amended. The filing fee is calculated based on the sum of (a) the aggregate cash payment for the proposed per
share cash payment of $2.51 for 80,419,301 issued and outstanding ordinary shares of the issuer (including shares represented by
the American depositary shares) subject to the transaction and (b) the product of 1,895,118 ordinary shares issuable under all
outstanding options and share purchase right multiplied by $1.22 per share (which is the difference between $2.51 per share
merger consideration and the weighted average exercise price of $1.29 per share (the “Transaction Valuation”))
**
The amount of the filing fee, calculated in accordance with Exchange Act Rule 0-11(b)(1) and the Securities and
Exchange Commission Fee Rate Advisory #1 for Fiscal Year 2016, was calculated by multiplying the Transaction
Valuation by 0.0001007.
 Check box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting of the
fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its
filing.
1
Amount Previously Paid:
Filing Party:
Form or Registration No.:
Date Filed:
This CUSIP applies to the American Depositary Shares, evidenced by American Depositary Receipts, each representing one
ordinary share.
Table of Contents
TABLE OF CONTENTS
Page
Item 15
Additional Information
2
Item 16
Exhibits
3
Table of Contents
INTRODUCTION
This Amendment No. 3 to the Rule 13E-3 transaction statement on Schedule 13E-3, together with the exhibits hereto (this
“Transaction Statement”), is being filed with the Securities and Exchange Commission (the “SEC”) pursuant to Section 13(e) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), jointly by the following persons (each, a “Filing Person,” and
collectively, the “Filing Persons”): (a) China Ming Yang Wind Power Group Limited, an exempted company with limited liability
incorporated under the laws of the Cayman Islands (the “Company”), the issuer of ordinary shares, par value US$0.001 per share
(collectively the “Shares” and each a “Share”), including the Shares represented by the American depositary shares (“ADSs”), each
representing one ordinary share of the Company, that is subject to the transaction pursuant to Rule 13e-3 under the Exchange Act; (b)
Mr. Chuanwei Zhang (“Mr. Zhang”), a citizen of the People’s Republic of China; (c) First Windy Investment Corp., a business
company with limited liability incorporated under the laws of the British Virgin Islands; (d) Ms. Ling Wu, a citizen of Saint
Christopher and Nevis; (e) Rich Wind Energy Three Corp., a business company with limited liability incorporated under the laws of
the British Virgin Islands; (f) Mr. Jinfa Wang, a citizen of the People’s Republic of China; (g) Mr. Jianren Wen, a citizen of the
People’s Republic of China; (h) Mr. Yunshan Jin, a citizen of the People’s Republic of China; (i) Mr. Jiawan Cheng, a citizen of the
People’s Republic of China; (j) Mr. Zhongmin Shen, a resident of the Hong Kong Special Administrative Region; (k) Mr. Rui Zhang,
a citizen of the People’s Republic of China; (l) Shanghai Dajun Guancheng Capital Fund, a limited partnership formed under the laws
of the People’s Republic of China; (m) Shanghai Dajun Asset Management Fund, a limited partnership formed under the laws of the
People’s Republic of China; (n) Zhejiang Dajun Asset Management Company Limited, a limited liability company organized under
the laws of the People’s Republic of China; (o) Dajun Shengshi Selection Investment Fund, a private investment fund raised under the
laws of the People’s Republic of China and managed by Zhejiang Dajun Asset Management Company Limited; (p) Mr. Xiang Hu, a
citizen of the People’s Republic of China; (q) Guangzhou HYAF Fund Management Ltd. Company, a limited liability company
organized under the laws of the People’s Republic of China; (r) Guangzhou Huifu Kaile Investment (L.P.), a limited partnership
formed under the laws of the People’s Republic of China; (s) Guangzhou Huiyin Bosen Investment (L.P.), a limited partnership
formed under the laws of the People’s Republic of China; (t) Anhui Zhongan Xinzhao Private Equity Investment LLP, a limited
partnership formed under the laws of the People’s Republic of China; (u) Shenzhen Xinzhao Zhongan Capital Management Limited
Liability Company, a limited liability company incorporated under the laws of the Peoples’ Republic of China; (v) China Merchants
Kunlun Capital Co., Ltd., a limited liability company incorporated under the laws of the Peoples’ Republic of China; (w) Zhongshan
Ruisheng Antai Investment Co., Ltd, a limited liability company incorporated under the laws of the People’s Republic of China
(“Holdco”), (x) Regal Concord Limited, a business company with limited liability incorporated under the laws of the British Virgin
Islands (“Parent”); and (y) Regal Ally Limited, an exempted company with limited liability incorporated under the laws of the
Cayman Islands and a wholly-owned subsidiary of Parent (“Merger Sub”). Mr. Zhang, First Windy Investment Corp., Ms. Ling Wu,
Rich Wind Energy Three Corp., Mr. Jinfa Wang, Mr. Jianren Wen, Mr. Yunshan Jin, Mr. Jiawan Cheng, Mr. Zhongmin Shen and
certain other rollover shareholders, namely Yuan Li, Eapard Investment Management Co., Ltd., Cai Stephanie Ye, SCGC Capital
Holding Company Limited, Ironmont Investment Co., Ltd., Guomin Chen, Xueliang Ma, Yanhua Li, Renjing Cao and Longquan Yan,
are collectively referred to herein as the “Rollover Shareholders.” Shanghai Dajun Guancheng Capital Fund, Shanghai Dajun Asset
Management Fund, Zhejiang Dajun Asset Management Company Limited, Dajun Shengshi Selection Investment Fund, Guangzhou
HYAF Fund Management Ltd. Company, Guangzhou Huifu Kaile Investment (L.P.), Guangzhou Huiyin Bosen Investment (L.P.),
and Anhui Zhongan Xinzhao Private Equity Investment LLP are collectively referred to herein as the “Sponsors.” Holdco, Parent,
Merger Sub, the Sponsors and the Rollover Shareholders are collectively referred to herein as the “Buyer Group.” Mr. Zhang, First
Windy Investment Corp., Ms. Ling Wu, Rich Wind Energy Three Corp., Mr. Rui Zhang, Mr. Jinfa Wang, Mr. Jianren Wen, Mr.
Yunshan Jin, Mr. Jiawan Cheng, Mr. Zhongmin Shen, Sponsors, Mr. Xiang Hu, Shenzhen Xinzhao Zhongan Capital Management
Limited Liability Company, China Merchants Kunlun Capital Co., Ltd., Holdco, Parent and Merger Sub are collectively referred to
herein as the “Buyer Group Filing Persons.”
The Transaction Statement relates to the agreement and plan of merger dated as of February 2, 2016 (the “Merger Agreement”), by
and among the Company, Holdco, Parent and Merger Sub, pursuant to which the Merger Sub was merged with and into the Company
with the Company continuing as the surviving corporation and becoming a wholly owned subsidiary of Parent (the “Merger”).
This final Amendment is being filed pursuant to Rule 13e-3(d)(3) to report the results of the transaction that is the subject of the
Transaction Statement.
All information in this Amendment concerning each Filing Person has been supplied by such Filing Person. No Filing Person,
including the Company, has supplied any information with respect to any other Filing Person.
1
Table of Contents
Item 15
Additional Information
The disclosure under Item 15 required by Item 1011(c) of Regulation M-A is as follows:
On June 6, 2016, an extraordinary general meeting of the shareholders of the Company was held at 9:00 a.m. (Beijing time) at
Mingyang Industry Park, 22 Torch Road, Torch Development Zone, Zhongshan, Guangdong, People’s Republic of China. At the
extraordinary general meeting, the shareholders of the Company authorized and approved the Merger Agreement, the plan of merger
required to be filed with the Registrar of Companies of the Cayman Islands (the “Cayman Registrar”) in connection with the Merger
(the “Plan of Merger”) and the transactions contemplated by the Merger Agreement and the Plan of Merger (collectively, the
“Transactions”), including the Merger.
On June 22, 2016 (Cayman Islands time), the Company and Merger Sub filed the Plan of Merger with the Cayman Registrar, which
was registered by the Cayman Registrar as of June 22, 2016, pursuant to which the Merger became effective on June 22, 2016. As a
result of the Merger, the Company will continue its operations as a wholly owned subsidiary of Parent.
At the effective time of the Merger (the “Effective Time”), each Share, including Shares represented by ADSs, issued and outstanding
immediately prior to the Effective Time, other than (a) Shares beneficially owned by the Rollover Shareholders (the “Rollover
Shares”), (b) Shares owned by shareholders who have validly exercised and have not effectively withdrawn or lost their dissenters’
rights under the Companies Law (2013 Revision) of the Cayman Islands (the “Cayman Islands Companies Law”) (the “Dissenting
Shares”), (c) Shares owned by any of the Company and its subsidiaries (the “Group Companies”) (if any) and (d) Shares (including
Shares held by the ADS Depositary (as defined below) in respect of ADSs) reserved (but not yet allocated) by the Company,
immediately prior to the Effective Time, for issuance and allocation upon exercise or settlement of each outstanding option award
issued by the Company pursuant to the Company’s 2010 Equity Incentive Plan (as amended on September 1, 2013) (the “Share
Incentive Plan”) that entitles the holder thereof to purchase one Share upon the vesting of such award (Shares described under (a)
through (d) above are collectively referred to herein as the “Excluded Shares”), was cancelled and ceased to exist in exchange for the
right to receive US$2.51 (the “Per Share Merger Consideration”) and each ADS issued and outstanding immediately prior to the
Effective Time (other than ADSs that represent Excluded Shares) was cancelled in exchange for the right to receive US$2.51 (the “Per
ADS Merger Consideration”) (less an ADS cancellation fee of US$0.05 per ADS), in each case, in cash, without interest and net of
any applicable withholding taxes. Each Rollover Share issued and outstanding immediately prior to the Effective Time was converted
into one ordinary share of the Surviving Company at the Effective Time and holders thereof were not entitled to receive the
consideration described in the immediately preceding sentence. The Excluded Shares (other than the Dissenting Shares), including
Excluded Shares represented by ADSs (other than ADSs that represent the Dissenting Shares), issued and outstanding immediately
prior to the Effective Time, were cancelled and ceased to exist without payment of any consideration or distribution therefor. The
Dissenting Shares issued and outstanding immediately prior to the Effective Time were cancelled and the former holders thereof shall
have the right to receive only the payment of the fair value of such Dissenting Shares as determined in accordance with the Cayman
Islands Companies Law.
At the Effective Time, each option to purchase Shares (the “Company Option”) under the Share Incentive Plan that is then vested,
outstanding and unexercised was cancelled and the former holder thereof shall have the right to receive as soon as practicable
following the Effective Time an amount in cash equal to the excess of US$2.51 over the applicable per share exercise price of such
Company Option multiplied by the number of Shares underlying such Company Option, without interest and net of any applicable
withholding taxes. If consented to by the holder of such unvested Company Option, each Company Option under the Share Incentive
Plan that was unvested and outstanding immediately prior to the Effective Time was cancelled without any payment therefor with
such cancellation effective as of the Effective Time. In consideration for the cancellation of the unvested Company Options , each
former holder has the opportunity to purchase (the “Purchase Opportunity”), as soon as is practicable following the Effective Time,
that number of the Surviving Company’s ordinary shares that is equal to the aggregate spread value of his or her cancelled unvested
Company Options immediately prior to the Merger by paying US$0.001 per ordinary share of the Surviving Company (which amount
represents the par value of an ordinary share of the Surviving Company). The “spread value” of an unvested Company Option will be
calculated as US$2.51 minus the per share exercise price of the unvested Company Option multiplied by the number of the
Company’s Shares that were subject to the unvested Company Option immediately prior to the Effective Time. If a holder of an
unvested Company Option did not consent to the treatment described above, such holder’s Company Options were treated as vested
Company Options.
As a result of the Merger, the ADSs of the Company will no longer be listed on any securities exchange or quotation system, including
the New York Stock Exchange. In addition, 90 days after the filing of Form 25 in connection with the Transactions, or such shorter
period as may be determined by the SEC, the deregistration of the ADSs of the Company and the Shares underlying them will become
effective and the reporting obligations of the Company under the Exchange Act will be terminated. The Company intends to suspend
its reporting obligations under the Exchange Act by filing a certification and notice on Form 15 with the SEC. The Company’s
reporting obligations under the Exchange Act will be suspended immediately as of the filing date of the Form 15 and will terminate
once the deregistration becomes effective.
On June 22, 2016, Mr. Zhang, First Windy Investment Corp., Ms. Ling Wu and Rich Wind Energy Three Corp, together with the
Rollover Shareholders, entered into an amended and restated rollover agreement with Parent (the “Amended Rollover Agreement”),
pursuant to which the Rollover Shareholders agreed to convert, for nil consideration, 71,250,555 Ordinary Shares beneficially owned
by them, into newly issued ordinary shares of the Surviving Company at the effective time of the Merger. The description of the
Amended Rollover Agreement contained herein is qualified in its entirety by reference to Exhibit (d)-(9), which Exhibit is
incorporated herein by reference.
On June 22, 2016, the members of the Buyer Group entered into an amended and restated consortium agreement (the “Amended
Consortium Agreement”) relating to the Proposed Transaction to reflect, among other things, the change in the number of rollover
shares and the consequential changes to the capitalization of the Surviving Company. The description of the Amended Consortium
Agreement contained herein is qualified in its entirety by reference to Exhibit (d)-(10), which Exhibit is incorporated herein by
reference.
2
Table of Contents
Item 16
Exhibits
(a)-(1)**
Proxy Statement of the Company dated May 5, 2016 (the “Proxy Statement”).
(a)-(2)
Notice of Extraordinary General Meeting of Shareholders of the Company, incorporated herein by reference to the Proxy
Statement.
(a)-(3)
Depositary’s Notice, incorporated herein by reference to the Proxy Statement.
(a)-(4)
Form of Proxy Card, incorporated herein by reference to the Proxy Statement.
(a)-(5)
Form of ADS Voting Instruction Card, incorporated herein by reference to the Proxy Statement.
(a)-(6)
Press Release issued by the Company, dated February 3, 2016, incorporated herein by reference to Exhibit 99.1 to the
Report on Form 6-K furnished by the Company to the SEC on February 3, 2016.
(a)-(7)
Press Release issued by the Company, dated May 5, 2016, incorporated herein by reference to Exhibit 99.1 to the Report
on Form 6-K furnished by the Company to the SEC on May 5, 2016.
(a)-(8)
Press Release issued by the Company, dated June 6, 2016, incorporated herein by reference to Exhibit 99.1 to the Report
on Form 6-K furnished by the Company to the SEC on June 6, 2016.
(b)-(1)
Equity Commitment Letter, dated as of February 4, 2016, by Chuanwei Zhang in favor of Regal Concord Limited,
incorporated herein by reference to Exhibit 99.E to Schedule 13D, as amended, filed with the SEC by Chuanwei Zhang,
First Windy Investment Corp., Ling Wu and Rich Wind Energy Three Corp. on February 5, 2016.
(b)-(2)
Equity Commitment Letter, dated as of February 4, 2016, by Anhui Zhongan Xinzhao Private Equity Investment LLP in
favor of Zhongshan Ruisheng Antai Investment Co., Ltd, incorporated herein by reference to Exhibit 99.F to Schedule
13D, as amended, filed with the SEC by Chuanwei Zhang, First Windy Investment Corp., Ling Wu and Rich Wind
Energy Three Corp. on February 5, 2016.
(b)-(3)
Equity Commitment Letter, dated as of February 2, 2016, by Guangzhou HYAF Fund Management Ltd. Company,
Guangzhou Huifu Kaile Investment (L.P.) and Guangzhou Huiyin Bosen Investment (L.P.) in favor of Zhongshan
Ruisheng Antai Investment Co., Ltd, incorporated herein by reference to Exhibit 99.G to Schedule 13D, as amended, filed
with the SEC by Chuanwei Zhang, First Windy Investment Corp., Ling Wu and Rich Wind Energy Three Corp. on
February 5, 2016.
(b)-(4)
Equity Commitment Letter, dated as of February 2, 2016, by Shanghai Dajun Guancheng Capital Fund, Shanghai Dajun
Asset Management Fund, Zhejiang Dajun Asset Management Company Limited and Dajun Shengshi Selection
Investment Fund in favor of Zhongshan Ruisheng Antai Investment Co., Ltd, incorporated herein by reference to Exhibit
99.H to Schedule 13D, as amended, filed with the SEC by Chuanwei Zhang, First Windy Investment Corp., Ling Wu and
Rich Wind Energy Three Corp. on February 5, 2016.
3
Table of Contents
(b)-(5)
Debt Commitment Letter, dated as of February 2, 2016, by Guangdong Branch of China Construction Bank in favor of
Zhongshan Ruisheng Antai Investment Co., Ltd, incorporated herein by reference to Exhibit 99.I to Schedule 13D, as
amended, filed with the SEC by Chuanwei Zhang, First Windy Investment Corp., Ling Wu and Rich Wind Energy Three
Corp. on February 5, 2016.
(c)-(1)
Opinion of Duff & Phelps, LLC, dated February 2, 2016, incorporated herein by reference to Annex C to the Proxy
Statement.
(c)-(2)*
Discussion Materials prepared by Duff & Phelps, LLC for discussion with the special committee of the board of directors
of the Company, dated February 2, 2016.
(d)-(1)
Agreement and Plan of Merger, dated as of February 2, 2016, among China Ming Yang Wind Power Group Limited,
Zhongshan Ruisheng Antai Investment Co., Ltd, Regal Concord Limited and Regal Ally Limited, incorporated herein by
reference to Annex A to the Proxy Statement.
(d)-(2)
Limited Guarantee, dated as of February 4, 2016, by Chuanwei Zhang in favor of China Ming Yang Wind Power Group
Limited, incorporated herein by reference to Exhibit 99.1 to the Report on Form 6-K furnished by the Company to the SEC
on March 2, 2016.
(d)-(3)
Limited Guarantee, dated as of February 2, 2016, by Shanghai Dajun Guancheng Capital Fund in favor of China Ming
Yang Wind Power Group Limited, incorporated herein by reference to Exhibit 99.4 to the Report on Form 6-K furnished
by the Company to the SEC on February 3, 2016.
(d)-(4)
Limited Guarantee, dated as of February 2, 2016, by Guangzhou Huifu Kaile Investment (L.P.) in favor of China Ming
Yang Wind Power Group Limited, incorporated herein by reference to Exhibit 99.5 to the Report on Form 6-K furnished
by the Company to the SEC on February 3, 2016.
(d)-(5)
Limited Guarantee, dated as of February 4, 2016, by Anhui Zhongan Xinzhao Private Equity Investment LLP in favor of
China Ming Yang Wind Power Group Limited, incorporated herein by reference to Exhibit 99.2 to the Report on Form
6-K furnished by the Company to the SEC on March 2, 2016.
(d)-(6)
Consortium Agreement, dated as of February 2, 2016, by and among Chuanwei Zhang, Ling Wu, First Windy Investment
Corp., Rich Wind Energy Three Corp., Guangzhou Huifu Kaile Investment (L.P.) and Shanghai Dajun Guancheng Capital
Fund incorporated herein by reference to Exhibit 99.C to Schedule 13D, as amended, filed with the SEC by Chuanwei
Zhang, First Windy Investment Corp., Ling Wu and Rich Wind Energy Three Corp. on February 5, 2016.
(d)-(7)
Rollover Agreement, dated as of February 2, 2016, by and among Chuanwei Zhang, First Windy Investment Corp., Ling
Wu, Rich Wind Energy Three Corp., Yuan Li, Eapard Investment Management Co.Ltd, Cai Stephanie Ye, SCGC Capital
Holding Company Limited, Ironmont Investment Co., Ltd., Jinfa Wang, Jianren Wen, Guomin Chen, Xueliang Ma,
Yunshan Jin, Yanhua Li, Renjing Cao, Jiawan Cheng, Longquan Yan, Zhongmin Shen and Regal Concord Limited,
incorporated herein by reference to Exhibit 99.J to Schedule 13D, as amended, filed with the SEC by Chuanwei Zhang,
First Windy Investment Corp., Ling Wu and Rich Wind Energy Three Corp. on February 5, 2016.
(d)-(8)
Support Agreement, dated as of February 2, 2016, by and among Chuanwei Zhang, First Windy Investment Corp., Ling
Wu, Rich Wind Energy Three Corp., Yuan Li, Eapard Investment Management Co.Ltd, Cai Stephanie Ye, SCGC Capital
Holding Company Limited, Ironmont Investment Co., Ltd., Jinfa Wang, Jianren Wen, Guomin Chen, Xueliang Ma,
Yunshan Jin, Yanhua Li, Renjing Cao, Jiawan Cheng, Longquan Yan, Zhongmin Shen and Regal Concord Limited,
incorporated herein by reference to Exhibit 99.J to Schedule 13D, as amended, filed with the SEC by Chuanwei Zhang,
First Windy Investment Corp., Ling Wu and Rich Wind Energy Three Corp. on February 5, 2016.
(d)-(9)
Amended and Restated Rollover Agreement, dated June 22, 2016, by and among Chuanwei Zhang, First Windy
Investment Corp., Ling Wu, Rich Wind Energy Three Corp., Yuan Li, Eapard Investment Management Co.Ltd, Cai
Stephanie Ye, SCGC Capital Holding Company Limited, Ironmont Investment Co., Ltd., Jinfa Wang, Jianren Wen,
Guomin Chen, Xueliang Ma, Yunshan Jin, Yanhua Li, Renjing Cao, Jiawan Cheng, Longquan Yan, Zhongmin Shen and
Regal Concord Limited.
(d)-(10)
Amended and Restated Consortium Agreement, dated June 22, 2016, by and among Chuanwei Zhang, Ling Wu, First
Windy Investment Corp., Rich Wind Energy Three Corp., Anhui Zhongan Xinzhao Private Equity Investment LLP,
Guangzhou Huifu Kaile Investment (L.P.) and Shanghai Dajun Guancheng Capital Fund.
4
Table of Contents
(f)-(1)
Dissenters’ Rights, incorporated herein by reference to the section entitled “Dissenters’ Rights” in the Proxy Statement.
(f)-(2)
Section 238 of the Cayman Islands Companies Law Cap. 22 (Law 3 of 1961, as consolidated and revised), incorporated herein by reference to Annex D to the Proxy
Statement.
(g)
Not applicable.
*
**
Previously filed on March 2, 2016.
Previously filed on May 5, 2016.
5
Table of Contents
SIGNATURES
After due 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.
Date: June 22, 2016
China Ming Yang Wind Power Group Limited
By
/s/ Stephen Markscheid
Name:
Title:
Stephen Markscheid
Director
[Signature Page to Schedule 13E-3/A]
Table of Contents
SIGNATURES
After due 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.
Date: June 22, 2016
Zhongshan Ruisheng Antai Investment Co., Ltd
By
/s/ Chuanwei Zhang
Name:
Title:
Chuanwei Zhang
Director
Regal Concord Limited
By
/s/ Chuanwei Zhang
Name:
Title:
Chuanwei Zhang
Director
Regal Ally Limited
By
/s/ Chuanwei Zhang
Name:
Title:
Chuanwei Zhang
Director
[Signature Page to Schedule 13E-3/A]
Table of Contents
SIGNATURES
After due 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.
Date: June 22, 2016
Chuanwei Zhang
/s/ Chuanwei Zhang
First Windy Investment Corp.
By
/s/ Chuanwei Zhang
Name:
Title:
Chuanwei Zhang
Director
Ling Wu
/s/ Ling Wu
Rich Wind Energy Three Corp.
By
/s/ Ling Wu
Name:
Title:
Ling Wu
Director
[Signature Page to Schedule 13E-3/A]
Table of Contents
SIGNATURES
After due 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.
Date: June 22, 2016
Shanghai Dajun Guancheng Capital Fund
By
/s/ Xiang Hu
Name:
Title:
Xiang Hu
Executive Partner Delegate
Shanghai Dajun Asset Management Fund
By
/s/ Xiang Hu
Name:
Title:
Xiang Hu
Executive Partner Delegate
Zhejiang Dajun Asset Management Company
Limited
By
/s/ Xiang Hu
Name:
Title:
Xiang Hu
General Manager
Dajun Shengshi Selection Investment Fund
By
/s/ Xiang Hu
Name:
Title:
Xiang Hu
Authorized Signatory
Xiang Hu
/s/ Xiang Hu
[Signature Page to Schedule 13E-3/A]
Table of Contents
SIGNATURES
After due 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.
Date: June 22, 2016
Guangzhou HYAF Fund Management Ltd.
Company
By
/s/ Luo Jin
Name:
Title:
Luo Jin
Chairman
Guangzhou Huifu Kaile Investment (L.P.)
By
/s/ Li Xiangmin
Name:
Title:
Li Xiangmin
Appointed Representative
Guangzhou Huiyin Bosen Investment (L.P.)
By
/s/ Li Xiangmin
Name:
Title:
Li Xiangmin
Appointed Representative
[Signature Page to Schedule 13E-3/A]
Table of Contents
SIGNATURES
After due 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.
Date: June 22, 2016
Anhui Zhongan Xinzhao Private Equity
Investment LLP
By
/s/ Guang Yang
Name:
Title:
Guang Yang
Executive Partner Delegate
Shenzhen Xinzhao Zhongan Capital Management
Limited Liability Company
By
/s/ Guang Yang
Name:
Title:
Guang Yang
Executive Partner Delegate
China Merchants Kunlun Capital Co., Ltd.
By
/s/ Guang Yang
Name:
Title:
Guang Yang
Executive Partner Delegate
[Signature Page to Schedule 13E-3/A]
Table of Contents
SIGNATURES
After due 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.
Date: June 22, 2016
Jinfa Wang
/s/ Jinfa Wang
[Signature Page to Schedule 13E-3/A]
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SIGNATURES
After due 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.
Date: June 22, 2016
Jianren Wen
/s/ Jianren Wen
[Signature Page to Schedule 13E-3/A]
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SIGNATURES
After due 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.
Date: June 22, 2016
Yunshan Jin
/s/ Yunshan Jin
[Signature Page to Schedule 13E-3/A]
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SIGNATURES
After due 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.
Date: June 22, 2016
Jiawan Cheng
/s/ Jiawan Cheng
[Signature Page to Schedule 13E-3/A]
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SIGNATURES
After due 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.
Date: June 22, 2016
Zhongmin Shen
/s/ Zhongmin Shen
[Signature Page to Schedule 13E-3/A]
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SIGNATURES
After due 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.
Date: June 22, 2016
Rui Zhang
/s/ Rui Zhang
[Signature Page to Schedule 13E-3/A]
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EXHIBIT INDEX
(a)-(1)**
Proxy Statement of the Company dated May 5, 2016 (the “Proxy Statement”).
(a)-(2)
Notice of Extraordinary General Meeting of Shareholders of the Company, incorporated herein by reference to the Proxy
Statement.
(a)-(3)
Depositary’s Notice, incorporated herein by reference to the Proxy Statement.
(a)-(4)
Form of Proxy Card, incorporated herein by reference to the Proxy Statement.
(a)-(5)
Form of ADS Voting Instruction Card, incorporated herein by reference to the Proxy Statement.
(a)-(6)
Press Release issued by the Company, dated February 3, 2016, incorporated herein by reference to Exhibit 99.1 to the
Report on Form 6-K furnished by the Company to the SEC on February 3, 2016.
(a)-(7)
Press Release issued by the Company, dated May 5, 2016, incorporated herein by reference to Exhibit 99.1 to the Report
on Form 6-K furnished by the Company to the SEC on May 5, 2016.
(a)-(8)
Press Release issued by the Company, dated June 6, 2016, incorporated herein by reference to Exhibit 99.1 to the Report
on Form 6-K furnished by the Company to the SEC on June 6, 2016
(b)-(1)
Equity Commitment Letter, dated as of February 4, 2016, by Chuanwei Zhang in favor of Regal Concord Limited,
incorporated herein by reference to Exhibit 99.E to Schedule 13D, as amended, filed with the SEC by Chuanwei Zhang,
First Windy Investment Corp., Ling Wu and Rich Wind Energy Three Corp. on February 5, 2016.
(b)-(2)
Equity Commitment Letter, dated as of February 4, 2016, by Anhui Zhongan Xinzhao Private Equity Investment LLP in
favor of Zhongshan Ruisheng Antai Investment Co., Ltd, incorporated herein by reference to Exhibit 99.F to Schedule
13D, as amended, filed with the SEC by Chuanwei Zhang, First Windy Investment Corp., Ling Wu and Rich Wind
Energy Three Corp. on February 5, 2016.
(b)-(3)
Equity Commitment Letter, dated as of February 2, 2016, by Guangzhou HYAF Fund Management Ltd. Company,
Guangzhou Huifu Kaile Investment (L.P.) and Guangzhou Huiyin Bosen Investment (L.P.) in favor of Zhongshan
Ruisheng Antai Investment Co., Ltd, incorporated herein by reference to Exhibit 99.G to Schedule 13D, as amended, filed
with the SEC by Chuanwei Zhang, First Windy Investment Corp., Ling Wu and Rich Wind Energy Three Corp. on
February 5, 2016.
(b)-(4)
Equity Commitment Letter, dated as of February 2, 2016, by Shanghai Dajun Guancheng Capital Fund, Shanghai Dajun
Asset Management Fund, Zhejiang Dajun Asset Management Company Limited and Dajun Shengshi Selection
Investment Fund in favor of Zhongshan Ruisheng Antai Investment Co., Ltd, incorporated herein by reference to Exhibit
99.H to Schedule 13D, as amended, filed with the SEC by Chuanwei Zhang, First Windy Investment Corp., Ling Wu and
Rich Wind Energy Three Corp. on February 5, 2016.
(b)-(5)
Debt Commitment Letter, dated as of February 2, 2016, by Guangdong Branch of China Construction Bank in favor of
Zhongshan Ruisheng Antai Investment Co., Ltd, incorporated herein by reference to Exhibit 99.I to Schedule 13D, as
amended, filed with the SEC by Chuanwei Zhang, First Windy Investment Corp., Ling Wu and Rich Wind Energy Three
Corp. on February 5, 2016.
(c)-(1)
Opinion of Duff & Phelps, LLC, dated February 2, 2016, incorporated herein by reference to Annex C to the Proxy
Statement.
(c)-(2)*
Discussion Materials prepared by Duff & Phelps, LLC for discussion with the special committee of the board of directors
of the Company, dated February 2, 2016.
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(d)-(1)
Agreement and Plan of Merger, dated as of February 2, 2016, among China Ming Yang Wind Power Group Limited,
Zhongshan Ruisheng Antai Investment Co., Ltd, Regal Concord Limited and Regal Ally Limited, incorporated herein by
reference to Annex A to the Proxy Statement.
(d)-(2)
Limited Guarantee, dated as of February 4, 2016, by Chuanwei Zhang in favor of China Ming Yang Wind Power Group
Limited, incorporated herein by reference to Exhibit 99.1 to the Report on Form 6-K furnished by the Company to the SEC
on March 2, 2016.
(d)-(3)
Limited Guarantee, dated as of February 2, 2016, by Shanghai Dajun Guancheng Capital Fund in favor of China Ming
Yang Wind Power Group Limited, incorporated herein by reference to Exhibit 99.4 to the Report on Form 6-K furnished
by the Company to the SEC on February 3, 2016.
(d)-(4)
Limited Guarantee, dated as of February 2, 2016, by Guangzhou Huifu Kaile Investment (L.P.) in favor of China Ming
Yang Wind Power Group Limited, incorporated herein by reference to Exhibit 99.5 to the Report on Form 6-K furnished
by the Company to the SEC on February 3, 2016.
(d)-(5)
Limited Guarantee, dated as of February 4, 2016, by Anhui Zhongan Xinzhao Private Equity Investment LLP in favor of
China Ming Yang Wind Power Group Limited, incorporated herein by reference to Exhibit 99.2 to the Report on Form
6-K furnished by the Company to the SEC on March 2, 2016.
(d)-(6)
Consortium Agreement, dated as of February 2, 2016, by and among Chuanwei Zhang, Ling Wu, First Windy Investment
Corp., Rich Wind Energy Three Corp., Guangzhou Huifu Kaile Investment (L.P.) and Shanghai Dajun Guancheng Capital
Fund incorporated herein by reference to Exhibit 99.C to Schedule 13D, as amended, filed with the SEC by Chuanwei
Zhang, First Windy Investment Corp., Ling Wu and Rich Wind Energy Three Corp. on February 5, 2016.
(d)-(7)
Rollover Agreement, dated as of February 2, 2016, by and among Chuanwei Zhang, First Windy Investment Corp., Ling
Wu, Rich Wind Energy Three Corp., Yuan Li, Eapard Investment Management Co. Ltd, Cai Stephanie Ye, SCGC Capital
Holding Company Limited, Ironmont Investment Co., Ltd., Jinfa Wang, Jianren Wen, Guomin Chen, Xueliang Ma,
Yunshan Jin, Yanhua Li, Renjing Cao, Jiawan Cheng, Longquan Yan, Zhongmin Shen and Regal Concord Limited,
incorporated herein by reference to Exhibit 99.J to Schedule 13D, as amended, filed with the SEC by Chuanwei Zhang,
First Windy Investment Corp., Ling Wu and Rich Wind Energy Three Corp. on February 5, 2016.
(d)-(8)
Support Agreement, dated as of February 2, 2016, by and among Chuanwei Zhang, First Windy Investment Corp., Ling
Wu, Rich Wind Energy Three Corp., Yuan Li, Eapard Investment Management Co. Ltd, Cai Stephanie Ye, SCGC Capital
Holding Company Limited, Ironmont Investment Co., Ltd., Jinfa Wang, Jianren Wen, Guomin Chen, Xueliang Ma,
Yunshan Jin, Yanhua Li, Renjing Cao, Jiawan Cheng, Longquan Yan, Zhongmin Shen and Regal Concord Limited,
incorporated herein by reference to Exhibit 99.J to Schedule 13D, as amended, filed with the SEC by Chuanwei Zhang,
First Windy Investment Corp., Ling Wu and Rich Wind Energy Three Corp. on February 5, 2016.
(d)-(9)
Amended and Restated Rollover Agreement, dated June 22, 2016, by and among Chuanwei Zhang, First Windy
Investment Corp., Ling Wu, Rich Wind Energy Three Corp., Yuan Li, Eapard Investment Management Co.Ltd, Cai
Stephanie Ye, SCGC Capital Holding Company Limited, Ironmont Investment Co., Ltd., Jinfa Wang, Jianren Wen,
Guomin Chen, Xueliang Ma, Yunshan Jin, Yanhua Li, Renjing Cao, Jiawan Cheng, Longquan Yan, Zhongmin Shen and
Regal Concord Limited.
(d)-(10)
Amended and Restated Consortium Agreement, dated June 22, 2016, by and among Chuanwei Zhang, Ling Wu, First
Windy Investment Corp., Rich Wind Energy Three Corp., Anhui Zhongan Xinzhao Private Equity Investment LLP,
Guangzhou Huifu Kaile Investment (L.P.) and Shanghai Dajun Guancheng Capital Fund.
(f)-(1)
Dissenters’ Rights, incorporated herein by reference to the section entitled “Dissenters’ Rights” in the Proxy Statement.
(f)-(2)
Section 238 of the Cayman Islands Companies Law Cap. 22 (Law 3 of 1961, as consolidated and revised), incorporated
herein by reference to Annex D to the Proxy Statement.
(g)
Not applicable.
*
**
Previously filed on March 2, 2016.
Previously filed on May 5, 2016.
Exhibit (d)-(9)
Final Version
AMENDED AND RESTATED ROLLOVER AGREEMENT
This AMENDED AND RESTATED ROLLOVER AGREEMENT (this “Agreement”) is made and entered into as of June 22,
2016 by and among Regal Concord Limited, an exempted company with limited liability incorporated under the laws of the British
Virgin Islands (“ Parent ”), and Chuanwei Zhang, First Windy Investment Corp., Ling Wu, Rich Wind Energy Three Corp., Yuan Li,
Eapard Investment Management Co., Ltd., Stephanie Ye Cai, SCGC Capital Holding Company Limited, Ironmont Investment Co.,
Ltd., and the management shareholders signatory hereto (each a “ Rollover Shareholder ”), each a shareholder of China Ming Yang
Wind Power Group Limited, a Cayman Islands exempted company (the “ Company ”). Capitalized terms used but not defined herein
shall have the meanings ascribed to such terms in the Merger Agreement (as defined below).
RECITALS
WHEREAS, Parent and the Rollover Shareholders entered into a Rollover Agreement dated as of February 2, 2016 (the “
Existing Rollover Agreement ”), and Parent and the Rollover Shareholders would like to amend and restate in its entirety the Existing
Rollover Agreement as set forth hereinafter.
WHEREAS, concurrently with the entry into the Existing Rollover Agreement, Parent, Regal Ally 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 the Company entered into an Agreement and Plan of Merger (as may be amended, supplemented or otherwise modified,
the “ Merger Agreement ”), pursuant to which Merger Sub will merge with and into the Company, with the Company continuing as
the surviving corporation and a wholly-owned subsidiary of Parent (the “ Merger ”);
WHEREAS, as of the date hereof, the Rollover Shareholder is the registered holder and “beneficial owner” (within the meaning
of Rule 13d-3 under the Exchange Act) of the number of ordinary shares, par value $0.001 per share, of the Company (the “ Shares ”),
including Shares represented by American Depositary Shares, each representing one Share (collectively, the “ Owned Shares ”), as set
forth in the column titled “Owned Shares” opposite such Rollover Shareholder’s name on Schedule A ;
WHEREAS, in connection with the consummation of the transactions contemplated by the Merger Agreement, including the
Merger, each Rollover Shareholder agrees to the conversion (for nil consideration) of the number of Owned Shares as set forth
opposite its name in the column titled “Rollover Shares” on Schedule A (such Shares, the “ Rollover Shares ”) into newly issued
ordinary shares of the Surviving Company (the “ Surviving Company Shares ”) at the Effective Time;
WHEREAS, in order to induce Parent, Merger Sub and the Company to enter into the Merger Agreement and consummate the
transactions contemplated thereby, including the Merger, each Rollover Shareholder is entering into this Agreement; and
WHEREAS, each Rollover Shareholder acknowledges that Parent, Merger Sub and the Company are entering into the Merger
Agreement in reliance on the representations, warranties, covenants and other agreements of each Rollover Shareholder set forth in
this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein, and
intending to be legally bound hereby, Parent and each Rollover Shareholder hereby agree as follows:
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1. Conversion of Rollover Shares into Surviving Company Shares. At the Effective Time, each Rollover Share shall be
converted (for nil consideration) into the number of Surviving Company Shares as set forth on Schedule A . Each Rollover
Shareholder hereby acknowledges and agrees that, subject to receipt of the Surviving Company Shares, it shall have no right to
any Merger Consideration in respect of the Rollover Shares.
2. Cancellation of Rollover Shares. Subject to the terms and conditions set forth herein, (a) each Rollover Shareholder agrees
that its Rollover Shares shall be cancelled at the Closing for nil consideration, and (b) other than its Rollover Shares, all equity
securities of the Company held by such Rollover Shareholder shall be treated as set forth in the Merger Agreement and not be affected
by the provisions of this Agreement.
3. Closing; Conditions to Closing. Subject to the satisfaction in full (or waiver) of all of the conditions set forth in Sections 7.01
and 7.02 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 Surviving Company Shares contemplated hereby shall take place at or
immediately prior to the Closing.
4. Deposit of Rollover Shares. No later than three (3) Business Days prior to the Closing, each Rollover Shareholder and any
agent of such Rollover Shareholder holding certificates evidencing any Rollover Shares shall deliver or cause to be delivered to Parent
all certificates representing Rollover Shares in such Persons’ possession, (a) duly endorsed for transfer or (b) with executed stock
powers, in each case reasonably acceptable in form and substance to Parent and sufficient to transfer such shares to Parent, for
disposition in accordance with the terms of this Agreement; such certificates and documents shall be held by Parent or any agent
authorized by Parent until the Closing.
5. Irrevocable Election.
(a) The execution of this Agreement by each Rollover Shareholder evidences, subject to Section 9, the irrevocable election
and agreement by such Rollover Shareholder to convert its Rollover Shares into Surviving Company Shares and agree to the
cancellation of the Rollover Shares on the terms and conditions set forth herein. In furtherance of the foregoing, each Rollover
Shareholder covenants and agrees that from the date hereof until any termination of this Agreement pursuant to Section 9, such
Rollover Shareholder shall not, directly or indirectly, (i) tender any Owned Shares into any tender or exchange offer, (ii) sell
(constructively or otherwise), transfer, pledge, hypothecate, grant, encumber, assign or otherwise dispose of (collectively, “ Transfer
”), or enter into any Contract, option or other arrangement or understanding with respect to the Transfer of, any Owned Shares or any
right, title or interest thereto or therein (including by operation of law) 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 Owned Shares and (x) has, or would reasonably be expected to have, the effect of reducing or limiting such Rollover
Shareholder’s economic interest in such Owned Shares and/or (y) grants a third party the right to vote or direct the voting of such
Owned Shares (any such transaction, a “ Derivative Transaction ”), (iii) deposit any Owned Shares into a voting trust or grant any
proxy or power of attorney or enter into a voting agreement (other than that certain Voting Agreement dated as of February 2, 2016 by
and among Parent and certain shareholders of the Company (the “ Voting Agreement ”) and the Amended and Restated Consortium
Agreement dated as of June 22, 2016, by and among the Chairman Parties, Anhui Zhongan Xinzhao Private Equity Investment LLP (
), Dajun Guangcheng (Shanghai) Capital Fund I, L.P. (
)and Guangzhou Huifu Kaile Investment (L.P.) (
) (the “Consortium Agreement”)) with respect to any Owned Shares, (iv) knowingly 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 such Rollover Shareholder from performing any of its obligations under this
Agreement, or (v) agree (whether or not in writing) to take any of the actions referred to in the foregoing clauses (i) through (iv). Any
purported Transfer in violation of this paragraph shall be void ab initio .
2
(b) Each Rollover Shareholder further covenants and agrees that such Rollover Shareholder shall promptly (and
in any event within twenty-four (24) hours) notify Parent and the Company of (i) 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,
including any Company Share Awards, after the date hereof and (ii) any Owned Shares with respect to which beneficial
ownership is transferred or disposed to any other person.
6. Representations and Warranties of each Rollover Shareholder. To induce the Parent to cause the Surviving Company to issue
the Surviving Company Shares, each Rollover Shareholder makes the following representations and warranties to Parent, each and all
of which shall be true and correct as of the date of this Agreement and as of the Closing:
(a) Ownership of Shares. (i) Each Rollover Shareholder (A) is and will be the beneficial owner of, and has and will have
good and valid title to, the Owned Shares, free and clear of Liens, and (B) has and will have sole or shared (together with affiliates
controlled by such Rollover Shareholder) voting power, power of disposition, and power to demand dissenter’s rights (if applicable),
in each case with respect to all of the Owned Shares, with no limitations, qualifications, or restrictions on such rights, subject to
applicable Laws; (ii) the Owned Shares 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 Owned Shares; and (iii) such Rollover
Shareholder has not Transferred any Rollover Share pursuant to any Derivative Transaction, in each case of clause (i) through (iii),
except as pursuant to this Agreement, the Voting Agreement and the Consortium Agreement. As of the date hereof, (x) other than the
Owned 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 (y) such Rollover Shareholder has not
appointed or granted any proxy or power of attorney that is still in effect with respect to any Owned Shares, except as contemplated by
this Agreement the Voting Agreement or the Consortium Agreement.
(b) Organization, Standing and Authority. Each Rollover Shareholder that is an organization is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its formation and has all requisite power and authority to execute
and deliver this Agreement and to perform its obligations hereunder. Such Rollover Shareholder has full legal power and capacity to
execute and deliver this Agreement and to perform its obligations hereunder. This Agreement has been duly and validly executed and
delivered by such Rollover Shareholder and, assuming due authorization, execution and delivery by Parent, constitutes a legal, valid
and binding obligation 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).
3
(c) Consents and Approvals; No Violations. 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
each 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) require the consent or approval of any other person pursuant to any agreement, obligation or
instrument binding on such Rollover Shareholder or its properties or assets, (B) conflict with or violate any provision of the
organizational documents of such Rollover Shareholder which is an entity, (C) 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, or (D) violate any
order, writ, injunction, decree, statute, rule or regulation applicable to such Rollover Shareholder or any of its properties or
assets.
(e) Litigation. There is no Action pending against any 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 on a timely basis.
(f) Reliance. Each Rollover Shareholder understands and acknowledges that Parent, Merger Sub and the Company are
entering into the Merger Agreement in reliance upon such Rollover Shareholder’s execution and delivery of this Agreement and the
representations and warranties of such Rollover Shareholder contained herein.
(g) Receipt of Information. Each Rollover Shareholder has been afforded the opportunity to ask such questions as he, she,
or it has deemed necessary of, and to receive answers from, representatives of Parent concerning the terms and conditions of the
transactions contemplated hereby and the merits and risks of owning the Surviving Company Shares. 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.
(h) Pledge of Shares for Debt Financing. Each Rollover Shareholder acknowledges that Debt Financing or Alternative
Financing will be arranged in order to consummate the transaction contemplated hereby and agrees to use its best efforts to provide
cooperation in connection with such Debt Financing or Alternative Financing, including but not limited to, pledging its Shares as
collateral as part of the arrangements of the Debt Financing or Alternative Financing.
7. Representations and Warranties of Parent. Parent makes the following representations and warranties to the Rollover
Shareholder, each and all of which shall be true and correct as of the date of this Agreement and as of the Closing:
(a) Organization, Standing and Authority. Parent 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. This Agreement has been duly and validly executed and delivered by Parent and, assuming due authorization, execution
and delivery by each Rollover Shareholder, constitutes a legal, valid and binding obligation of Parent, enforceable against Parent 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).
4
(b) Consents and Approvals; No Violations. Except for the applicable requirements of the Exchange Act and
laws of the British Virgin Islands, (i) no filing with, and no permit, authorization, consent or approval of, any Governmental
Authority is necessary on the part of Parent for the execution, delivery and performance of this Agreement by Parent or the
consummation by Parent of the transactions contemplated hereby, and (ii) neither the execution, delivery or performance of
this Agreement by Parent, nor the consummation by Parent of the transactions contemplated hereby, nor compliance by
Parent with any of the provisions hereof shall (A) require the consent or approval of any other person pursuant to any
agreement, obligation or instrument binding on each Rollover Shareholder or its properties or assets, (B) conflict with or
violate any provision of the organizational documents of Parent, (C) 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
Parent pursuant to, any Contract to which Parent is a party or by which Parent or any of their property or asset is bound or
affected, or (D) violate any order, writ, injunction, decree, statute, rule or regulation applicable to Parent or any of their
properties or assets.
(c) Capitalization. Parent was duly incorporated on December 29, 2015. At and immediately after the Closing, the
authorized capital stock of Parent shall consist of 50,000 ordinary shares, of which, as of the date hereof, 50,000 ordinary shares are
issued and outstanding and owned of record as set forth on Schedule B hereto. At and immediately after the Closing, there shall be
(i) no options, warrants, or other rights to acquire shares of the capital stock of Parent or the Surviving Company, (ii) no outstanding
securities exchangeable for or convertible into shares of the capital stock of Parent or the Surviving Company, and (iii) no outstanding
rights to acquire or obligations to issue any such options, warrants, rights or securities.
(d) Valid Issuance of Shares. At Closing, the Surviving Company 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 non-assessable ordinary shares of the Surviving Company, free and clear of all claims, liens and encumbrances, other than
restrictions arising under applicable securities laws.
8. Other Covenants and Agreements.
(a) Tax Related Matters. The Rollover Shareholder shall bear and pay, reimburse, indemnify and hold harmless Parent,
Merger Sub, the Company and any affiliate thereof (collectively, the “ Indemnified Parties ”) for, from and against (x) any and all
liabilities for PRC Taxes imposed upon, incurred by or asserted against any of the Indemnified Parties, arising from or attributable to
(A) the receipt of any Merger Consideration by the Rollover Shareholder or its affiliates pursuant to the Merger Agreement and/or
(B) the receipt of Parent Shares by the Rollover Shareholder or its affiliates pursuant to this Agreement (collectively, the “ Tax
Liabilities ”) and (y) any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, interests, damages
or liabilities incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or
investigative, arising out of the Tax Liabilities. For the avoidance of doubt, the term “Tax Liabilities” shall include any and all liability
for PRC Taxes suffered by any of the Indemnified Parties as a result of the payments described in clause (x) above, including without
limitation, any liability for withholding Taxes. The Rollover Shareholder shall take, or cause to be taken, all actions and to do, or
cause to be done, all things necessary, proper or advisable to ensure that the Rollover Shareholder has adequate capital resources
available to satisfy its indemnification obligations in accordance with this Section 8(a).
(b) Disclosures. Each Rollover Shareholder agrees that, to the extent it is required by the United States Securities and
Exchange Commission or another regulatory body or international stock exchange having jurisdiction over such Rollover Shareholder
to make any disclosures regarding the Merger Agreement and the transactions contemplated thereby, such Rollover Shareholder shall
make such disclosure only after the form and terms thereof have been notified to Parent and Parent has had a reasonable opportunity to
comment thereon.
5
9. Termination. This Agreement, and the agreement of each Rollover Shareholder to the conversion and cancellation of its
Rollover Shares, will terminate immediately upon the valid termination of the Merger Agreement in accordance with its terms;
provided , that this Section 9 and Section 11 shall survive the termination of this Agreement, and such Rollover
Shareholder shall continue to be liable for breaches of this Agreement occurring prior to the termination of this Agreement.
10. Further Assurances. Each Rollover Shareholder hereby covenants that, from time to time, such Rollover Shareholder will do,
execute, acknowledge and deliver, or will cause to be done, executed, acknowledged and delivered, such further acts, conveyances,
transfers, assignments, powers of attorney and assurances necessary to cancel all of its Rollover Shares in accordance with the terms
of this Agreement.
11. Miscellaneous.
(a) Amendments and Modification. This Agreement may not be amended, altered, supplemented or otherwise modified
except upon the execution and delivery of a written agreement executed by each party hereto and with the Company’s prior written
consent (not to be unreasonably withheld) if such amendment, alteration or supplement would adversely affect in any material respect
the ability of Parent or Merger Sub to consummate the transaction contemplated by the Merger Agreement in accordance therewith.
(b) Waiver. No failure or delay of any party in exercising any right or remedy hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such right
or power, or any course of conduct, preclude any other or further exercise thereof or the exercise of any other right or power. The
rights and remedies of the parties hereunder are cumulative and are not exclusive of any rights or remedies which they would
otherwise have hereunder. Any agreement on the part of a party to any such waiver shall be valid only if set forth in a written
instrument executed and delivered by such party.
(c) Survival of Representations and Warranties. All representations, warranties, covenants and agreements of each
Rollover Shareholder and Parent contained herein shall survive the execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby indefinitely.
(d) Notices. All notices and other communications hereunder shall be in writing (in the English language) and shall be
deemed duly given (i) upon receipt if delivered personally, or if by email or facsimile, upon confirmation of receipt by email or
facsimile, (ii) one Business Day after being sent by express courier service, or (iii) three Business Days after being sent by registered
or certified mail, return receipt requested. 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 any Rollover Shareholder, in accordance with the contact information set forth next to such Rollover Shareholder’s
name on Schedule A .
If to Parent:
Unit 201, 2/F, Malaysia Building
50 Gloucester Road
Wanchai, Hong Kong
Attention: Nana Wong
Telephone: +852-25275497
6
with a copy (which shall not constitute notice) to:
Simpson Thacher & Bartlett
35/F ICBC Tower
3 Garden Road
Central, Hong Kong
Attention: Kathryn King Sudol
Facsimile: + (852) 2869-7622
Email: [email protected]
If to the Company:
China Ming Yang Wind Power Group Limited
Ming Yang Industrial Park, 22 Torch Road
Torch Development Zone
Zhongshan, Guangdong, P.R. China
Attention: Ricky Ng
Facsimile: + 86-760-2813-8214
Email: [email protected]
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Meagher & Flom LLP
30th Floor, China World Office 2
1 Jianguomenwai Avenue
Beijing 100004, PRC
Attention: Peter X. Huang, Esq.
Facsimile: +86 10 6535 5577
e-mail: [email protected]
(e) Entire Agreement. This Agreement (together with the Merger Agreement and the Voting Agreement to the extent
referred to in this Agreement) constitutes the entire agreement among the parties hereto with respect to the subject matter hereof, and
supersedes all other prior agreements and understandings, both written and oral, among the parties, with respect to the subject matter
hereof.
(f) Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any
Person other than the parties hereto 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, except as specifically set forth in 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, temporary restraining order or other equitable relief, to prevent breaches of this Agreement by the parties
hereto, in addition to any other remedy at law or equity.
(g) Governing Law; Consent to Jurisdiction. This Agreement shall be governed and construed in accordance with the laws
of the State of New York, without regard to any applicable conflicts of law principles that would cause the application of the laws of
any other jurisdiction. The parties agree that any Action brought by any party to enforce any provision of, or based on any matter
arising out of or in connection with, this Agreement or the transactions contemplated hereby shall be brought in any State of New
York or United States Federal court sitting in the Borough of Manhattan, the City of New York. Each of the parties submits to the
jurisdiction of any such court in any Action seeking to enforce any provision of, or based on any matter arising out of, or in connection
with, this Agreement or the transactions contemplated hereby, and hereby irrevocably waives the benefit of jurisdiction derived from
present or future domicile or otherwise in such Action. Each party irrevocably waives, to the fullest extent permitted by law, any
objection that it may now or hereafter have to the laying of the venue of any such Proceeding in any such court or that any such
Proceeding brought in any such court has been brought in an inconvenient forum.
7
(h) Remedies; Specific Performance.
(i) The parties hereto agree that this Agreement shall be enforceable by all available remedies at law or in equity
(including, without limitation, specific performance). In the event any breach of this Agreement by any Rollover Shareholder
(including, without limitation, any failure by such Rollover Shareholder to deliver the Rollover Shares for cancellation or to convert
its Rollover Shares into Surviving Company Shares) which causes, directly or indirectly, either a failure of any closing condition
applicable to Parent and Merger Sub in the Merger Agreement or a termination right of the Company under the Merger Agreement,
such Rollover Shareholder agrees to (A) indemnify and hold harmless Parent, the Sponsors and the Sponsor Guarantors from the
aggregate out-of-pocket damages (including all costs and expenses) incurred by any of them in connection therewith, including the
amount of any termination fee paid or payable by Parent to the Company under the Merger Agreement and, without duplication, all
amounts paid or payable under any Limited Guarantees by the Sponsor Guarantors, provided that, none of Parent, the Sponsors and
any Sponsor Guarantor shall have the right to recover lost profits or benefit of the bargain damages from such Rollover Shareholder;
and (B) reimburse all out-of-pocket expenses incurred by any of them in connection with the transactions contemplated by the Merger
Agreement and this Agreement, including, without limitation, the reasonable fees, expenses and disbursements of lawyers,
accountants, consultants and other advisors retained by any of them in connection therewith, together with any costs of enforcement
incurred by any of them in seeking to enforce such remedy against such Rollover Shareholder. Each Rollover Shareholder further
agrees to pay or reimburse Parent, the Sponsors and/or the Sponsor Guarantors, as applicable, within ten (10) Business Days following
receipt of a written notice from any of them setting forth in reasonable detail the amount of any losses, damages, liabilities or expenses
incurred by any of them which are indemnifiable or reimbursable hereunder. The parties hereto agree that the Sponsors and the
Sponsor Guarantors shall be third-party beneficiaries of this Section 11(h).
(ii) Each Rollover Shareholder further 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 Parent and the Company 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. Such 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 Parent shall not preclude the
simultaneous or later exercise of any other such right, power or remedy by Parent.
(j) Assignment; Binding Effect. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be
assigned 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 Parent may assign this Agreement (in whole but not in part) in connection with a permitted assignment
of the Merger Agreement by Parent, as applicable. 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.
8
(k) Severability. Whenever possible, each provision or portion of any provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law, but if any provision or portion of any provision
of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or portion of any provision in
such jurisdiction, and this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been contained herein.
(l) Waiver of Jury Trial. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO TRIAL BY JURY IN ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY DOCUMENTS OR
INSTRUMENTS REFERRED TO IN THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY,
OR THE ACTIONS OF EACH OF THE PARTIES IN NEGOTIATION, ADMINISTRATION, PERFORMANCE AND
ENFORCEMENT OF THIS AGREEMENT.
(m) Counterparts. This Agreement may be executed in two or more counterparts, and by facsimile or, pdf format, all of
which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other party.
(n) 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.
(o) Expenses. Each of the parties to this Agreement shall bear the fees and expenses incurred by such party in the
preparation, negotiation and implementation of this Agreement.
(p) Existing Rollover Agreement. The Existing Rollover Agreement shall be amended and restated with immediate effect
upon the execution of this Agreement. Each of the parties to the Existing Rollover Agreement hereby releases and discharges all
obligations and liabilities of the other parties thereunder, effective as of the date of this Agreement. Such amendment and restatement
under this Section 11(p) shall be without prejudice to any claims for damages or other remedies that the parties may have under the
Existing Rollover Agreement or applicable law.
[Signature page follows]
9
IN WITNESS WHEREOF, Parent and the Rollover Shareholder below have caused to be executed or executed this
Agreement as of the date first written above.
PARENT:
REGAL CONCORD LIMITED
By:
Name:
Title:
/s/ Chuanwei Zhang
Chuanwei Zhang
Sole Director
[Signature Page to Rollover Agreement]
IN WITNESS WHEREOF, Parent and the Rollover Shareholder below have caused to be executed or executed this
Agreement as of the date first written above.
ROLLOVER SHAREHOLDER:
CHUANWEI ZHANG
/s/ CHUANWEI ZHANG
11
IN WITNESS WHEREOF, Parent and the Rollover Shareholder below have caused to be executed or executed this
Agreement as of the date first written above.
ROLLOVER SHAREHOLDER:
FIRST WINDY INVESTMENT CORP.
By:
Name:
Title:
/s/ Chuanwei Zhang
Chuanwei Zhang
Sole Director
12
IN WITNESS WHEREOF, Parent and the Rollover Shareholder below have caused to be executed or executed this
Agreement as of the date first written above.
ROLLOVER SHAREHOLDER:
LING WU
/s/ LING WU
13
IN WITNESS WHEREOF, Parent and the Rollover Shareholder below have caused to be executed or executed this
Agreement as of the date first written above.
ROLLOVER SHAREHOLDER:
RICH WIND ENERGY THREE CORP.
By:
Name:
Title:
/s/ Ling Wu
Ling Wu
Sole Director
14
IN WITNESS WHEREOF, Parent and the Rollover Shareholder below have caused to be executed or executed this
Agreement as of the date first written above.
ROLLOVER SHAREHOLDER:
YUAN LI
/s/ YUAN LI
15
IN WITNESS WHEREOF, Parent and the Rollover Shareholder below have caused to be executed or executed this
Agreement as of the date first written above.
ROLLOVER SHAREHOLDER:
EAPARD INVESTMENT
MANAGEMENT CO., LTD.
16
IN WITNESS WHEREOF, Parent and the Rollover Shareholder below have caused to be executed or executed this
Agreement as of the date first written above.
ROLLOVER SHAREHOLDER:
CAI STEPHANIE YE
/s/ CAI STEPHANIE YE
17
IN WITNESS WHEREOF, Parent and the Rollover Shareholder below have caused to be executed or executed this
Agreement as of the date first written above.
ROLLOVER SHAREHOLDER:
SCGC CAPITAL HOLDING
COMPANY LIMITED
By:
/s/ Zewang Ni
Name:
Title:
Zewang Ni
Chairman
18
IN WITNESS WHEREOF, Parent and the Rollover Shareholder below have caused to be executed or executed this
Agreement as of the date first written above.
ROLLOVER SHAREHOLDER:
IRONMONT INVESTMENT CO., LTD.
By:
/s/ Cheng Xie
Name:
Title:
Cheng Xie
Director
19
IN WITNESS WHEREOF, Parent and the Rollover Shareholder below have caused to be executed or executed this
Agreement as of the date first written above.
ROLLOVER SHAREHOLDER:
JINFA WANG
/s/ JINFA WANG
20
IN WITNESS WHEREOF, Parent and the Rollover Shareholder below have caused to be executed or executed this
Agreement as of the date first written above.
ROLLOVER SHAREHOLDER:
JIANREN WEN
/s/ JIANREN WEN
21
IN WITNESS WHEREOF, Parent and the Rollover Shareholder below have caused to be executed or executed this
Agreement as of the date first written above.
ROLLOVER SHAREHOLDER:
GUOMIN CHEN
/s/ GUOMIN CHEN
22
IN WITNESS WHEREOF, Parent and the Rollover Shareholder below have caused to be executed or executed this
Agreement as of the date first written above.
ROLLOVER SHAREHOLDER:
XUELIANG MA
/s/ XUELIANG MA
23
IN WITNESS WHEREOF, Parent and the Rollover Shareholder below have caused to be executed or executed this
Agreement as of the date first written above.
ROLLOVER SHAREHOLDER:
YUNSHAN JIN
/s/ YUNSHAN JIN
24
IN WITNESS WHEREOF, Parent and the Rollover Shareholder below have caused to be executed or executed this
Agreement as of the date first written above.
ROLLOVER SHAREHOLDER:
YANHUA LI
/s/ YANHUA LI
25
IN WITNESS WHEREOF, Parent and the Rollover Shareholder below have caused to be executed or executed this
Agreement as of the date first written above.
ROLLOVER SHAREHOLDER:
RENJING CAO
/s/ RENJING CAO
26
IN WITNESS WHEREOF, Parent and the Rollover Shareholder below have caused to be executed or executed this
Agreement as of the date first written above.
ROLLOVER SHAREHOLDER:
JIAWAN CHENG
/s/ JIAWAN CHENG
27
IN WITNESS WHEREOF, Parent and the Rollover Shareholder below have caused to be executed or executed this
Agreement as of the date first written above.
ROLLOVER SHAREHOLDER:
LONGQUAN YAN
/s/ LONGQUAN YAN
28
IN WITNESS WHEREOF, Parent and the Rollover Shareholder below have caused to be executed or executed this
Agreement as of the date first written above.
ROLLOVER SHAREHOLDER:
ZHONGMIN SHEN
/s/ ZHONGMIN SHEN
29
Schedule A1
Rollover
Shareholder
Address
Owned Shares
Rollover
Shares
Non-Rollover
Shares
Surviving
Company
Shares
First Windy Investment Corp.
Unit 201, 2/F, Malaysia
Building
50 Gloucester Road
Wanchai, Hong Kong
Attention: Nana Wong
Telephone: +852-25275497
12,134,593
Shares
12,134,593 nil
Shares
16,425,590 shares
Ling Wu
Jianye Road, Mingyang
20,539,306
Industry Park
Shares
National Hi-Tech Industrial
Development Zone
Zhongshan, Guangdong 528437
People’s Republic of China
Attention: Ling Wu
20,539,306 nil
Shares
27,802,352 shares
Rich Wind Energy Three Corp.
Unit 201, 2/F, Malaysia
Building
50 Gloucester Road
Wanchai, Hong Kong
Attention: Nana Wong
Telephone: +852-25275497
19,755,000
Shares
19,755,000 nil
Shares
26,740,702 shares
Yuan Li
5-1-202, Changchunteng
Garden, Weishan Nan Road
West
Shuanggang Town, Jinnan
District
Tianjin, 300350
People’s Republic of China
Attention: Yuan Li
7,605,163
Shares
7,605,163
Shares
nil
10,294,477 shares
Eapard Investment Management
Co., Ltd.
Room 1403, Unit 1, Block 38,
Xing Fu Er Cun,
Chaoyang District
Beijing, 100027
People’s Republic of China
550,000
Shares
550,000
Shares
nil
744,489 shares
CAI Stephanie Ye
Room 1101, No. 5, Lane 401
Jiangying Road ,Huangpu
District
Shanghai, 200003
People’s Republic of China
Attention: CAI Stephanie Ye
286,896
Shares
286,896
Shares
nil
388,347 shares
30
Rollover
Shareholder
Address
Owned Shares
Rollover
Shares
Non-Rollover
Shares
Surviving
Company
Shares
SCGC Capital Holding
Company Limited
11F, Shenzhen Investment 4,721,800 Shares
Building
4009 Shennan Avenue,
Futian District
Shenzhen, 518048
People’s Republic of China
4,721,800
Shares
nil
6,391,508 shares
Ironmont Investment Co., Ltd.
Room 905, 9F, Tai Tung
Building
8 Fleming Road
Wanchai, Hong Kong
3,653,900
Shares
nil
4,945,981 shares
Jinfa Wang
China Ming Yang Wind
693,897 Shares
Power Group Limited,
Ming Yang Industrial Park,
22 Torch Road, Torch
Development Zone
Zhongshan, Guangdong
528437
Attention: Jinfa Wang
693,897
Shares
nil
939,271 shares
Jianren Wen
China Ming Yang Wind
320,000 Shares
Power Group Limited,
Ming Yang Industrial Park,
22 Torch Road, Torch
Development Zone
Zhongshan, Guangdong
528437
People’s Republic of China
Attention: Jianren Wen
320,000
Shares
nil
433,157 shares
Guomin Chen
China Ming Yang Wind
140,000 Shares
Power Group Limited,
Ming Yang Industrial Park,
22 Torch Road, Torch
Development Zone
Zhongshan, Guangdong
528437
People’s Republic of China
Attention: Guomin Chen
140,000
Shares
nil
189,506 shares
Xueliang Ma
China Ming Yang Wind
40,000 Shares
Power Group Limited,
Ming Yang Industrial Park,
22 Torch Road, Torch
Development Zone
Zhongshan, Guangdong
528437
People’s Republic of China
Attention: Xueliang Ma
40,000 Shares
nil
54,145 shares
Yunshan Jin
China Ming Yang Wind
300,000 Shares
Power Group Limited,
Ming Yang Industrial Park,
22 Torch Road, Torch
Development Zone
300,000
Shares
nil
406,085 shares
3,653,900 Shares
Zhongshan, Guangdong
528437
People’s Republic of China
Attention: Yunshan Jin
31
Rollover
Shareholder
Yanhua Li
Address
Owned Shares
China Ming Yang Wind
Power Group Limited, Ming
Yang Industrial Park, 22
Torch Road, Torch
Development Zone
Zhongshan, Guangdong
528437
People’s Republic of China
Attention: Yanhua Li
Renjing Cao
China Ming Yang Wind
Power Group Limited, Ming
Yang Industrial Park, 22
Torch Road, Torch
Development Zone
Zhongshan, Guangdong
528437
People’s Republic of China
Attention: Renjing Cao
Jiawan Cheng
Rollover
Shares
Non-Rollover
Shares
100,000
Shares
100,000
Shares
nil
135,362
shares
150,000
Shares
150,000
Shares
nil
203,043
shares
60,000 Shares
60,000 Shares
nil
81,217
shares
50,000 Shares
50,000 Shares
nil
67,681
shares
150,000
Shares
150,000
Shares
nil
203,043
shares
China Ming Yang Wind
Power Group Limited, Ming
Yang Industrial Park, 22
Torch Road, Torch
Development Zone
Zhongshan, Guangdong
528437
People’s Republic of China
Attention: Jiawan Cheng
Longquan Yan
China Ming Yang Wind
Power Group Limited, Ming
Yang Industrial Park, 22
Torch Road, Torch
Development Zone
Zhongshan, Guangdong
528437
People’s Republic of China
Attention: Longquan Yan
Zhongmin Shen
China Ming Yang Wind
Power Group Limited, Ming
Yang Industrial Park, 22
Torch Road, Torch
Development Zone
Zhongshan, Guangdong
528437
People’s Republic of China
Attention: Zhongmin Shen
1
For the avoidance of doubt, the numbers set forth below are as of the date of this Agreement.
32
Surviving
Company
Shares
Schedule B
Shareholders
Ordinary Shares of Parent
Regal Ally Limited
Rich Wind Energy Three Corp
46,412
3,588
33
Exhibit (d)-(10)
Final Version
AMENDED AND RESTATED CONSORTIUM AGREEMENT
among
CHUANWEI ZHANG
LING WU
FIRST WINDY INVESTMENT CORP.
RICH WIND ENERGY THREE CORP.
and
ANHUI ZHONGAN XINZHAO PRIVATE EQUITY INVESTMENT LLP
GUANGZHOU HUIFU KAILE INVESTMENT (L.P.)
SHANGHAI DAJUN GUANCHENG CAPITAL FUND
Dated as of June 22, 2016
TABLE OF CONTENTS
Page
ARTICLE I PROPOSAL; DEBT FINANCING; SURVIVING COMPANY OWNERSHIP
SECTION 1.01.
Participation in Transaction
2
Transaction Process
3
Debt Financing
3
Transaction Vehicles
3
Post-Closing Ownership
ARTICLE II PARTICIPATION IN TRANSACTION; ADVISORS; APPROVALS
4
Participation in the Transaction
5
Information Sharing and Roles
5
Appointment of Advisors
5
Waivers and Consents
ARTICLE III TRANSACTION COSTS
6
Expenses and Fee Sharing
ARTICLE IV LIMITATION OF LIABILITY
6
Limitation of Liability
7
SECTION 1.02.
SECTION 1.03.
SECTION 1.04.
SECTION 1.05.
SECTION 2.01.
SECTION 2.02.
SECTION 2.03.
SECTION 2.04.
SECTION 3.01.
SECTION 4.01.
ARTICLE V EXCLUSIVITY
SECTION 5.01.
Exclusivity Period
8
ARTICLE VI TERMINATION
SECTION 6.01.
Failure to Agree
9
Effect of Termination For Failure to Agree
ARTICLE VII ANNOUNCEMENTS AND CONFIDENTIALITY
9
SECTION 6.02.
SECTION 7.01.
Announcements
10
Confidentiality
Permitted Disclosures
10
10
SECTION 7.02.
SECTION 7.03.
ARTICLE VIII NOTICES
SECTION 8.01.
Notices
11
ARTICLE IX REPRESENTATIONS AND WARRANTIES
SECTION 9.01.
Representations and Warranties
12
Target Ordinary Shares
12
SECTION 9.02.
Page
ARTICLE X MISCELLANEOUS
SECTION 10.01.
Entire Agreement
13
Further Assurances
13
Severability
13
Amendments; Waivers
13
Assignment; No Third Party Beneficiaries
14
No Partnership or Agency
14
Counterparts
14
Governing Law
14
Dispute Resolution
14
Remedies
14
Existing Consortium Agreement
ARTICLE XI DEFINITIONS AND INTERPRETATION
14
Definitions
15
Statutory Provisions
19
Recitals and Schedules
19
SECTION 11.05.
SECTION 11.06.
Meaning of References
Headings
Negotiation of the Agreement
19
20
20
Schedule A
Schedule B
Schedule C
Existing Share Ownership
Capitalization Table of Surviving Company Immediately After Closing
Form of Adherence Agreement
SECTION 10.02.
SECTION 10.03.
SECTION 10.04.
SECTION 10.05.
SECTION 10.06.
SECTION 10.07.
SECTION 10.08.
SECTION 10.09.
SECTION 10.10.
SECTION 10.11.
SECTION 11.01.
SECTION 11.02.
SECTION 11.03.
SECTION 11.04.
THIS AMENDED AND RESTATED CONSORTIUM AGREEMENT is made as of June 22, 2016, among Chuanwei
Zhang (the “ Founder ”), Ling Wu (“ Ms. Wu” ), First Windy Investment Corp., a company incorporated under the laws of the
British Virgin Islands (“ Founder Vehicle 1”), Rich Wind Energy Three Corp., a company incorporated under the laws of the
British Virgin Islands (“ Founder Vehicle 2 ” and together with Founder Vehicle 1, Ms. Wu and the Founder, the “ Founder
Parties ”), and Anhui Zhongan Xinzhao Private Equity Investment LLP, Guangzhou Huifu Kaile Investment (L.P.) and Shanghai
Dajun Guancheng Capital Fund (each a “ Sponsor ” and together with any other financials sponsor which becomes a party to this
Agreement in accordance with this Agreement, the “ Sponsors ”). Each of the Founder Parties (taken as a whole), and the
Sponsors is referred to herein as a “ Party ” and collectively, the “ Parties ” or the “ Consortium ”.
WHEREAS, the Founder Parties, Guangzhou Huifu Kaile Investment (L.P.) and Shanghai Dajun Guancheng Capital Fund
entered into a Consortium Agreement dated as of February 2, 2016 and Anhui Zhongan Xinzhao Private Equity Investment LLP
entered into an Adherence Agreement with the other Parties hereto dated as of February 4, 2016 (together the “ Existing Consortium
Agreement ”), and each of the Parties would like to amend and restate in its entirety the Existing Consortium Agreement as set forth
hereinafter.
WHEREAS, the Parties propose to undertake a transaction (the “Transaction”) with respect to China Ming Yang Wind Power
Group Limited (the “ Target ”), a company listed on the New York Stock Exchange (“ NYSE ”), in which the Founder (whether
directly or through Founder Vehicle 1) holds 12,134,593, or approximately 7.67%, and Ms. Wu (whether directly or through Founder
Vehicle 2) holds 40,294,306, or approximately 25.47% of the issued and outstanding ordinary shares, par value US$0.001 per share (“
Target Ordinary Shares ”) as of the date of this Agreement, and none of the Sponsors nor any of their respective Affiliates beneficially
own any of the issued and outstanding Target Ordinary Shares (and does not beneficially own any options, warrants or other rights
which are exercisable or exchangeable for, or convertible into, Target Ordinary Shares) as of the date of this Agreement. The purpose
of the Transaction is to acquire the Target which would result in a delisting of the Target from NYSE and deregistering the Target
under the United States Securities Exchange Act of 1934, as amended (the “ Exchange Act ”);
WHEREAS, in connection with the Transaction, the Parties propose (i) to form a new company (“Holdco”) under the laws of the
PRC, (ii) to cause Holdco to form a direct, wholly-owned subsidiary (“ BVI I ”) under the laws of the British Virgin Islands, (iii)to
cause BVI I to form a direct, wholly-owned subsidiary (“ Parent ”) under the laws of the British Virgin Islands and (iv)to cause Parent
to form a direct, wholly-owned subsidiary (“ Merger Sub ”) under the laws of the Cayman Islands. At the Closing (as defined below),
the Parties intend that (a) Merger Sub will be merged with and into the Target (the “ Merger ”), with the Target being the surviving
company (the “ Surviving Company ”) and becoming a direct subsidiary of Parent, (b) each outstanding Target Ordinary Share as
specified in Schedule A, other than the Rollover Shares (as defined below) held by the Rollover Shareholders (subject to any
exceptions to be agreed between the Parties), will be cancelled in consideration for the right to receive the merger consideration per
Target Ordinary Share to be set forth in the Merger Agreement (as defined below) (the “ Merger Consideration ”), (c) each vested
Target option (subject to any exceptions to be agreed between the Parties) shall be cancelled in the Merger in consideration for a right
to receive cash with a value equal to the product of (i) the excess, if any, of the Merger Consideration over the exercise price of such
vested Target option and (ii) the number of Target Ordinary Shares underlying such vested Target option, net of any applicable
withholding taxes; provided that if the exercise price of any such vested Target option is equal to or greater than the Merger
Consideration, such vested Target option shall be cancelled without any payment therefor, (d) each unvested Target option and each
restricted share award of the Target shall be cancelled in the Merger without the payment of any consideration to the holder thereof or
assumed by Parent or one of its affiliates after the Effective Time, and (e) all Target Ordinary Shares held by the Rollover
Shareholders, as specified in Schedule A (collectively, the “ Rollover Shares ”) will be converted into Common Shares (as defined
below) at the effective time of the Merger (subject to any exceptions to be agreed between the Parties);
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WHEREAS, the Founder has submitted a non-binding proposal, dated as of November 2, 2015 (the “ Proposal ”) to the
Target’s board of directors in connection with the Transaction; and
WHEREAS, in accordance with the terms of this Agreement, the Parties will cooperate and participate in (a) the evaluation of
the Target, including conducting due diligence of the Target and its business, (b) discussions regarding the Proposal with the Target,
(c) the negotiation of the terms of definitive documentation in connection with the Transaction (in which negotiations the Parties
expect that the Target will be represented by a special committee of independent and disinterested directors of the Target), including
an agreement and plan of merger among Holdco, Parent, Merger Sub and the Target in the form to be agreed by the Parties (the “
Merger Agreement ”), which shall be subject to the approval of the board of directors of the Target, and (d) the finalization of
definitive debt financing documents or additional equity investments in connection with the Transaction.
NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual agreements and covenants set forth herein, and
for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be
legally bound, hereby agree to amend and restate the Existing Consortium Agreement as follows:
ARTICLE I
PROPOSAL; DEBT FINANCING; SURVIVING COMPANY OWNERSHIP
SECTION 1.01. Participation in Transaction. The Parties agree to participate in the Transaction on the terms set forth in this
Agreement. The Parties further agree that, the admission of any new party as a member of the Consortium to participate in the
Transaction shall be subject to the prior approval of the Founder and the Sponsors, and upon such approval (if required) by the
Founder and the Sponsors, such new party shall execute an Adherence Agreement agreeing to be bound by the terms hereof as a
“Sponsor”, a form of which is attached hereto as Schedule C.
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SECTION 1.02. Transaction Process. The Parties shall: (a) undertake due diligence with respect to the Target and its
business; (b) engage in discussions with the Target regarding the Proposal; and (c) negotiate in good faith the terms of the
Documentation (including the terms of any other agreements between the Parties required to support the Proposal or to regulate
the relationship between the Parties). The Parties agree to negotiate in good faith to reach agreement on a shareholders’
agreement of the Surviving Company (the “ Shareholders’ Agreement ”) that would, among other things, govern the relationship
of the shareholders in the Surviving Company, subject to the finalization of the rollover arrangements (“ Rollover Agreement ”)
with the Rollover Shareholders in accordance with Section 1.04(c) and Section 1.05, following the Closing, and that would
contain provisions customary for transactions of this type. This Agreement constitutes preliminary arrangements among the
Parties with respect to their relationship as Consortium members and does not constitute any binding commitment by any Party
to consummate the Transaction. Such binding commitment to consummate the Transaction will result only upon agreement and
execution of the Documentation, and in no event will any Party be obligated to enter into any Documentation without such
Party’s consent.
SECTION 1.03. Debt Financing.
(a) The Founder and the Sponsors shall use their respective reasonable best efforts and cooperate in good faith to arrange debt
financing (“ Debt Financing ”) for the Target to be implemented through Holdco at or following the Closing on market terms (as
mutually agreed by the Parties). The Founder and the Sponsors shall coordinate with banks and other financing sources identified by
the Founder (the “ Financing Banks ”) in connection with the Debt Financing, and the Founder Parties and the Sponsors shall provide
such assistance in connection with arranging the Debt Financing as may be reasonably requested by the Founder. Notwithstanding the
foregoing, the Founder shall (i) consult with the Sponsors on the terms of all Debt Financing documentation, the agreement of which
shall be subject to the mutual consent of the Founder and the Sponsors, (ii) not agree to any terms of the Debt Financing that would
reasonably be expected to disproportionately (as compared to the Founder) and adversely impact the Sponsors without the consent of
the Sponsors, (iii) circulate to the Sponsors all drafts of the Debt Financing documentation, (iv) inform the Sponsors of the status of
discussions and negotiations with the sources of the Debt Financing, and (v) include the Sponsors in such discussions and negotiations
if so reasonably requested.
(b) Each of the Parties shall (i) furnish the Financing Banks with financial and other pertinent information as may be reasonably
requested by the Financing Banks as promptly as practicable, including all financial statements, business plans, forecasts and
projections, and financial and other data of the type and form customarily required to consummate the facilities contemplated by the
Debt Financing, subject to appropriate confidentiality undertakings, (ii) assisting with the preparation of materials for bank
information memoranda and similar documents required in connection with the Debt Financing, and (iii) taking all corporate actions
reasonably requested by the Financing Banks to permit the consummation of the Debt Financing, including facilitating the pledging of
collateral and, in connection therewith, executing and delivering any pledge and security documents (including with respect to the
securities of Holdco, BVI I, Parent and the Surviving Company), other definitive financing documents or other certificates, or
documents as may be requested by the Financing Banks.
SECTION 1.04. Transaction Vehicles.
(a) Unless the Parties otherwise agree, the Founder and the Sponsors shall:
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(i) prior to the execution of the Merger Agreement, incorporate Holdco, cause Holdco to
incorporate BVI I, cause BVI I to incorporate Parent, and cause Parent to incorporate Merger Sub;
(ii) negotiate in good faith and agree on a term sheet setting forth the key terms of the Shareholders’ Agreement
and commence negotiation of the Shareholders’ Agreement with a view to finalizing such agreement no later than the Closing, upon
which such agreement shall become effective; and
(iii) negotiate in good faith and use commercially reasonable efforts to agree on the memorandum and articles of
association of Holdco, BVI I, Parent and Merger Sub, and the memorandum and articles of association of Merger Sub shall become
the memorandum and articles of association of the Surviving Company upon the Closing.
(b) The relative ownership of the equity interest in Holdco (“Holdco Shares”) among the Founder and the Sponsors shall
be based on their relative capital contributions to Holdco to be made in accordance with a subscription agreement to be entered into by
and among Holdco and the Sponsors (“ Subscription Agreement ”).
(c) In connection with the execution of the Merger Agreement, each of the Rollover Shareholders are currently
contemplated to enter into a rollover agreement in customary form, pursuant to which they agree that, at the Closing, at least
70,528,755 Target Ordinary Shares, representing at least 44.6% of the fully diluted share capital of the Target as of the date of this
Agreement, shall be converted into such number of Common Shares (as defined below) at the effective time of the Merger as
calculated in accordance with Section 1.05.
SECTION 1.05. Post-Closing Ownership. Subject to the finalization of the rollover arrangements with the Rollover
Shareholders in accordance with Section 1.04(c), the Rollover Shareholders are currently contemplated to convert their respective
Rollover Shares into newly issued common shares of the Surviving Company (the “ Common Shares ”) at the effective time of the
Merger and upon such conversion and issuance of the Common Shares, each Rollover Shareholder shall pledge all the Common
Shares owned by such Rollover Shareholder as part of the collateral to the Debt Financing as prescribed in Section 1.03(b)(iii). A
capitalization table of the Surviving Company immediately after the Closing as currently contemplated is attached hereto as
Schedule B , which reflects the Parties’ and the Rollover Shareholders’ relative direct or indirect ownership of Common Shares (based
on their relative direct or indirect capital contributions to the Surviving Company, as adjusted for their relative collateral contribution
to the Debt Financing); provided , that (i) each Rollover Share shall be valued at the Merger Consideration, (ii) the Sponsor’s capital
contribution to the Surviving Company shall be deemed to be the amount of its equity contribution to Holdco and (iii) the capital
contribution to the Surviving Company by each of the Founder Parties, shall be deemed to be the sum of (A) the value of the Rollover
Shares held by each of them (valued at the Merger Consideration) and (B) the amount of the equity contribution to Holdco by each of
them (if applicable). For the avoidance of doubt, the Parties agree that the obligation of the Parties and the Rollover Shareholders to
purchase and pay for any Common Shares to be purchased by them shall be subject to the satisfaction or waiver of the various
conditions to the obligations of Parent and Merger Sub to be set forth in the Merger Agreement.
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ARTICLE II
PARTICIPATION IN TRANSACTION; ADVISORS; APPROVALS
SECTION 2.01. Participation in the Transaction. Each Party shall participate in the negotiation of the terms of the
Documentation in connection with the Transaction and shall use its reasonable best efforts to (a) comply with any information
delivery or other requirements (including confidentiality agreements with the Target) entered into by Holdco, BVI I, Parent, a Party or
an Affiliate of a Party and shall not, and shall direct that its Representatives do not, cause (by their action or omission) any other
person to breach such arrangements or obligations, (b) participate in meetings with the Special Committee and its advisors and (c)
execute any confidentiality agreements reasonably required by the Target in connection with gaining access to information with
respect to the Target in connection with the Transaction.
SECTION 2.02. Information Sharing and Roles.
(a) Each Party shall cooperate in good faith in connection with the Proposal and the Transaction, including by (i) sharing all
information reasonably necessary to evaluate the Target, including technical, operational, legal, accounting and financial materials and
relevant consulting reports and studies, (ii) providing each other, Holdco, BVI I or Parent with all information reasonably required
concerning such Party or any other matter relating to such Party in connection with the Transaction and any other information a Party
may reasonably require in respect of the other Party and its Affiliates for inclusion in the Documentation, (iii) providing timely
responses to requests by another Party for information, (iv) applying the level of resources and expertise that such Party considers is
necessary and appropriate to meet its obligations under this Agreement, and (v) conducting negotiations with the Special Committee,
its advisors and other parties in connection with the Transaction and in coordination with each other. Unless the Parties otherwise
agree, none of the Parties shall commission a report, opinion or appraisal (within the meaning of Item 1015 of Regulation MA of the
Exchange Act).
(b) The Parties shall work together in good faith to agree on necessary public statements about their intentions in relation to the
Target. The issuance of any such public statement shall be subject to Section 7.01.
(c) Notwithstanding Section 2.02(a) and except as may otherwise be required by Applicable Laws (including in connection with
any Documentation required to be filed with or submitted to any governmental agency), no Party is required to make available to the
other Parties any information which it considers to be commercially sensitive information, or which it otherwise held subject to an
obligation of confidentiality.
SECTION 2.03. Appointment of Advisors. (a) The Parties shall agree to the scope and engagement terms of all joint Advisors to
Holdco, BVI I, Parent and/or the Parties in connection with the Transaction. The following Advisors have been jointly selected by the
Parties to represent the Consortium in connection with the Transaction: (1) Simpson Thacher & Bartlett as international counsel, (2)
King & Wood Mallesons as PRC counsel (“ King & Wood ”), (3) Travers Thorp Alberga as Cayman Islands counsel and (4) KPMG
as PRC accounting and tax advisor (“ KPMG ”).
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(b) If a Party requires separate representation in connection with any issues arising out of the Proposal or the Transaction
(including any due diligence investigation with respect thereto) or other matters contemplated by the Documentation, it may
retain other Advisors (the “ Separate Advisors ”) to advise it. Notwithstanding anything to the contrary contained herein, each
Party which engages any Separate Advisors shall be solely responsible for the fees and expenses of any such separate Advisors
unless otherwise agreed to in advance by the Parties in writing. Each Party which engages any Separate Advisors other than
those advisors set forth in this Section 2.03 shall provide prior notice to the other Parties of such engagement together with an
estimate of fees and expenses of such Separate Advisors.
SECTION 2.04. Waivers and Consents. Each Party shall use reasonable best efforts, and shall provide all cooperation as may be
reasonably requested by the other Party, to obtain all applicable governmental, statutory, regulatory or other consents, licenses,
waivers or exemptions required for the consummation of the Transaction. Each Party shall bear the cost of obtaining any such waivers
and consents required to be obtained solely by such Party. The costs of obtaining any such waivers and consents required to be
obtained by all Parties as a condition to consummation of the Transaction shall be borne by all Parties in accordance with Section
3.01.
ARTICLE III
TRANSACTION COSTS
SECTION 3.01. Expenses and Fee Sharing. (a) If theTransaction is consummated then, at or immediately following the Closing,
the Surviving Company shall reimburse the Parties for, or pay on behalf of the Parties, all of their out-of-pocket costs and expenses
incurred prior to the Closing in connection with (i) the negotiation, delivery and execution of this Agreement, the Merger Agreement,
any Debt Financing documentation and the other Documentation, and (ii) any actions taken in accordance with the terms of the
Documentation, including regulatory filings made or to be made pursuant to the Merger Agreement, including, without limitation, the
reasonable fees, expenses and disbursements of Advisors retained by the Parties pursuant to Section 2.03(a) incurred in connection
with the foregoing and any Claims paid by any Party (other than as a result of the fraud, willful misconduct or breach of this
Agreement by such Party) (collectively, the “ Investor Expenses ”); provided, however, that the Surviving Company shall not be
required to reimburse any Party for any out-of-pocket costs, expenses and fees applicable solely to such Party in connection with its
Participation in the Transaction, including any costs, expenses and fees incurred by such Party (x) in connection with any separate
representation of such Party as contemplated by Section 2.03(b) of this Agreement, (y) to obtain approvals or waivers and consents
applicable solely to such Party as contemplated by Section 2.04 of this Agreement (collectively the “ Excluded Investor Expenses ”),
which shall be borne solely by the Party incurring such costs, expenses and fees unless otherwise agreed to in advance by the Parties
in writing.
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(b) If the Transaction is not eventually consummated without any breach by any Party, the Parties agree to share, on a pro
rata basis in accordance with their Respective Proportions, out-of-pocket costs, expenses and fees incurred by the Parties in
connection with the Transaction, including (i) any costs, expenses and fees payable to Advisors appointed by the Parties under
Section 2.03(a) of this Agreement, and (ii) any termination or other fees or amounts payable to the Target by Parent or Merger
Sub (or one or more of its Affiliates or designees) pursuant to the Merger Agreement, (iii) any costs, fees and expenses payable
by any Party incurred in the defense, pursuit or settlement of any disputes or litigation relating to the Transaction (whether or not
incurred prior to any termination of this Agreement) or (iv) any costs, fees and expenses related to the establishment and
deregistration of Holdco, BVI I, Parent and Merger Sub; provided , however , that none of the Parties shall be required to
share any Excluded Investor Expenses incurred by another Party, which shall be borne solely by such Party incurring such
Excluded Investor Expenses. Notwithstanding anything to the contrary contained herein, the Sponsors shall be solely responsible
for and share, on a pro rata basis in accordance with their Respective Proportions, the fees and expenses of King & Wood and
KPMG incurred in connection with any due diligence of the Target and its business conducted by King & Wood and KPMG (the
“ Sponsors Due Diligence Expenses ”).
(c) If the Transaction is not consummated due to the unilateral breach of this Agreement by one or more Parties, then the
breaching Party or Parties shall jointly and severally pay or reimburse (as applicable) any non-breaching Party for all of its
out-of-pocket costs, expenses and fees incurred in connection with this Transaction, including any such costs, expenses and fees set
forth in clauses (i), (ii) and (iii) of Section 3.01(b), and any Financing Banks engaged by the Consortium in connection with the Debt
Financing, in each case without prejudice to any rights and remedies otherwise available to such non-breaching Parties.
(d) Each Party shall be entitled to receive, on a pro rata basis in accordance with its Respective Proportion, any termination or
other fees or amounts payable to Parent or Merger Sub by the Target pursuant to the Merger Agreement, net of the expenses required
to be borne by them pursuant to Section 3.01(b).
ARTICLE IV
LIMITATION OF LIABILITY
SECTION 4.01. Limitation of Liability. Subject to Section 3.01(c), the obligations of each Party under this Agreement are
several (and not joint or joint and several) and each Party’s obligation for costs, expenses and fees pursuant to Article III is capped at
such Party’s Respective Proportion; provided that the obligations of the Founder Parties under this Agreement shall be joint and
several as among the Founder Parties and the Founder Parties’ joint Liability shall be capped at the aggregate amount of the Founder
Parties’ Respective Proportions. Subject to Section 3.01(c), each Party shall be responsible for any Claim against such Party and each
Party shall be responsible for any Claim against any of Holdco, BVI I, Parent or Merger Sub up to each Party’s Respective Proportion;
provided , that where any Claim has arisen as a result of the fraud, willful misconduct or breach of this Agreement by a Party, the
Liability for such Claim will rest solely with the Party who has committed such act of fraud, willful misconduct or breach. Subject to
Section 3.01(c), if the amount paid by a paying Party is more than such Party’s Respective Proportion of the relevant Liability, the
other Parties shall immediately upon demand by the paying Party, pay to the paying Party such sum as may be necessary to ensure that
each Party bears only its Respective Proportion of such Liability.
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ARTICLE V
EXCLUSIVITY
SECTION 5.01. Exclusivity Period. Subject to Article VI, during the Exclusivity Period each Party shall:
(a) work exclusively with the other Party to implement the Transaction, including to (i) evaluate the Target and its business; (ii)
engage in discussions with the Target regarding the Proposal; (iii) prepare and submit to the Target the Merger Agreement; (iv)
conduct negotiations, prepare and finalize the Documentation in the forms to be agreed by the Parties; and (v) vote, or cause to be
voted, at every shareholder meeting (whether by written consent or otherwise, all Securities beneficially owned by such Party and
which have voting rights against any Competing Proposal or matter that would facilitate a Competing Proposal and in favor of the
Transaction.
(b) not, without the written consent of the other Party, directly or indirectly, either alone or with any of its Representatives: (i)
make a Competing Proposal or join with, or invite, any other person to be involved in the making of any Competing Proposal; (ii)
provide any information to any third party with a view to the third party or any other person pursuing or considering to pursue a
Competing Proposal; (iii) finance or offer to finance any Competing Proposal, including by offering any equity or debt finance, or
contribution of Securities or provision of a voting agreement, in support of any Competing Proposal; (iv) enter into any written or oral
agreement, arrangement or understanding (whether legally binding or not) regarding, or do, anything which is directly inconsistent
with the Transaction as contemplated under this Agreement; (v) acquire or dispose of any Securities, and in the case of the Founder
Parties, directly or indirectly (A) sell, offer to sell, give, pledge, encumber, assign, grant any option for the sale of or otherwise
transfer or dispose of, or enter into any agreement, arrangement or understanding to sell or otherwise transfer or dispose of, an interest
in any Securities (“ Transfer ”) or permit the Transfer by any of their respective Affiliates of an interest in any Securities, in each case,
except as expressly contemplated under this Agreement and the Documentation, (B) enter into any contract, option or other
arrangement or understanding with respect to a Transfer or limitation on voting rights of any of the Securities, or any right, title or
interest thereto or therein, or (C) deposit any Securities into a voting trust or grant any proxies or enter into a voting agreement, power
of attorney or voting trust with respect to any Securities, (vi) take any action that would make have the effect of preventing, disabling
or delaying such Party from performing its obligations under this Agreement; or (vii) solicit, encourage, facilitate, induce or enter into
any negotiation, discussion, agreement or understanding (whether or not in writing) with any other person regarding the matters
described in Section 5.01(a) or 5.01(b);
(c) immediately cease and terminate, and cause to be ceased and terminated, all existing activities, discussions, conversations,
negotiations and other communications with all persons conducted heretofore with respect to a Competing Proposal; and
(d) notify the other Party promptly if it or any of its Representatives receives any approach or communication with respect to any
Competing Proposal and shall promptly disclose to the other Party the identity of any other persons involved and the nature and
content of the approach or communication and provide the other Parties with copies of any written communication.
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ARTICLE VI
TERMINATION
SECTION 6.01. Failure to Agree. (a) If the Parties are unable to agree either (i) as between themselves upon the material terms
of the Transaction or the Debt Financing for the Transaction, or (ii) with the Special Committee on the material terms of a Transaction
which the Special Committee agrees to recommend to the public shareholders of the Target, then (x) either the Founder Parties or a
Sponsor, as the case may be, may cease its participation in the Transaction by delivery of a written notice to the other Parties, and (y)
this Agreement shall terminate with respect to each such withdrawing Party, following which the provisions of Section 6.02(a) will
apply.
(b) After the execution of the Merger Agreement, no Party shall be entitled to cease its participation in the Transaction and this
Agreement shall only terminate, subject to Section 6.02(a), upon the earlier of (x) the Closing, and (y) the date that the Merger
Agreement is validly terminated in accordance with its terms.
(c) Subject to Section 6.02(b), this Agreement shall terminate with respect to all Parties upon the earlier to occur of (x) a written
agreement among the Parties to terminate this Agreement, and (y) the Closing.
SECTION 6.02. Effect of Termination For Failure to Agree. (a) Upon termination of this Agreement with respect to a Party
under Section 6.01(a) or Section 6.01(b), Article III ( Transaction Costs ), Article IV ( Limitation of Liability ), Article V ( Exclusivity
), Article VI ( Termination ), Section 7.02 ( Confidentiality ), Article VIII ( Notices ) and Article X ( Miscellaneous ) shall continue to
bind such Party and such Party shall be liable under Article III for its pro rata portion of any Investor Expenses incurred prior to the
termination of this Agreement with respect to such Party.
(b) Upon termination of this Agreement with respect to a Party under Section 6.01(c), Article III (Transaction Costs), Article VI
( Termination ), Section 7.02 ( Confidentiality ), Article VIII ( Notices ) and Article X ( Miscellaneous ) shall continue to bind such
Party and such Party shall be liable under Article III for its pro rata portion of any Investor Expenses incurred prior to the termination
of this Agreement with respect to such Party.
(c) Other than as set forth in Section 6.02(a) and Section 6.02(b) or in respect of a breach of this Agreement by any Party prior to
the termination of this Agreement with respect to such Party, the Parties shall otherwise not be liable to each other in relation to this
Agreement.
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ARTICLE VII
ANNOUNCEMENTS AND CONFIDENTIALITY
SECTION 7.01. Announcements. No announcements regarding the subject matter of this Agreement shall be issued by any
Party without the prior written consent of the other Parties, which consent shall not be unreasonably withheld or delayed, except to the
extent that any such announcements are required by law, a court of competent jurisdiction, a regulatory body or international stock
exchange (but only as far as practicable and lawful after the form and terms of that disclosure have been notified to the
non-announcing Party and the non-announcing Party has had a reasonable opportunity to comment on the form and terms of
disclosure, in each case, to the extent reasonably practicable). Any announcement to be made by the Parties or their Affiliates
(including Holdco, BVI I and Parent) in connection with the Transaction shall be jointly coordinated and agreed by the Parties.
SECTION 7.02. Confidentiality. (a) Except as permitted under Section 7.03, each Party shall not, and shall direct that its
Representatives do not, without the prior written consent of the other Party, disclose any Confidential Information received by it (the “
Recipient ”) from the other Party (the “Discloser”). Each Party shall not and shall direct its Representatives not to, use any
Confidential Information for any purpose other than for the purposes of this Agreement or the Transaction.
(b) Subject to Section 7.02(c), the Recipient shall safeguard and return to the Discloser any Confidential Information which falls
within paragraph (a) of the definition of Confidential Information, on demand, or in the case of electronic data (other than any
electronic data stored on the back-up tapes of the Recipient’s hardware), destroy at the option of the Recipient, any Confidential
Information contained in any material in its or its Representatives’ possession or control.
(c) Each Party may retain in a secure archive a copy of the Confidential Information referred to in Section 7.02(b) if the
Confidential Information is required to be retained by such Party by any Applicable Laws.
(d) Each Party acknowledges that, in relation to Confidential Information received from the other Party, the obligations
contained in Section 7.02(a) shall continue to apply for a period of twelve (12) months following termination of this Agreement unless
otherwise agreed in writing.
SECTION 7.03. Permitted Disclosures. A Party may make disclosures (a) to those of its Representatives as such Party
reasonably deems necessary to give effect to or enforce this Agreement but only on a confidential basis; (b) if required by law or a
court of competent jurisdiction, the SEC or another regulatory body or international stock exchange having jurisdiction over a Party or
pursuant to whose rules and regulations such disclosure is required to be made, but only as far as practicable and lawful after the form
and terms of that disclosure have been notified to the other Party and the other Party has had a reasonable opportunity to comment on
the form and terms of disclosure, in each case, to the extent reasonably practicable; (c) if the information is publicly available other
than through a breach of this Agreement by such Party or its Representatives; or (d) if such information was already available to such
Party or its Representatives on a non-confidential basis prior to its being furnished to such Party from another person.
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ARTICLE VIII
NOTICES
SECTION 8.01. Notices. Any notice, request, instruction or other document to be given hereunder by any Party to another Party
shall be in writing and delivered personally or sent by registered or certified mail, postage prepaid, by facsimile, overnight courier or
electronic mail:
If to the Founder Parties:
Mr. Chuanwei Zhang
Jianye Road, Mingyang Industry Park
National Hi-Tech Industrial Development Zone
Zhongshan, Guangdong 528437
People’s Republic of China
with a copy to:
Simpson Thacher & Bartlett
35/F ICBC Tower
3 Garden Road
Central, Hong Kong
Attention: Kathryn King Sudol and Ian C. Ho
Facsimile: + (852) 2869-7694
Email: [email protected] and [email protected]
If to the Sponsors:
Guangzhou Huifu Kaile Investment (L.P.)
Room 5205, International Finance Centre
Zhujiang West Road, Zhujiang New Town, Guangzhou, 510623
People’s Republic of China
Attention: Jessie Wu
Facsimile: +86 (020) 2338-8627
Email: [email protected]
Shanghai Dajun Guancheng Capital Fund
Room 1601, Taikang International Building
No.2 Wudinghou Street, Xicheng District, Beijing, 100140
People’s Republic of China
Attention: Qiaoning Chen
Facsimile: +86 (010) 5608-6961
Email: [email protected]
Anhui Zhongan Xinzhao Private Equity Investment LLP
20/F Tower B, East Pacific International Center, 7888 Shennan Avenue,
Futian District, Shenzhen 518040,
People’s Republic of China
Attention: Yu Han
Facsimile: +86 (0755) 88917931
Email: [email protected]
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or to such other address or facsimile number as such Party may hereafter specify for the purpose by notice to the other Party
hereto. All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if
received prior to 5:00 p.m. on a Business Day in the place of receipt. Otherwise, any such notice, request or communication shall be
deemed to have been received on the next succeeding Business Day in the place of receipt.
ARTICLE IX
REPRESENTATIONS AND WARRANTIES
SECTION 9.01. Representations and Warranties. Each Party hereby represents and warrants to the other (on behalf of such Party
only) that (a) it has the requisite power and authority to execute, deliver and perform this Agreement, (b) if such Party is a not a
natural person, the execution, delivery and performance of this Agreement by it have been duly authorized by all necessary action on
the part of such person and no additional corporate proceedings are necessary to approve this Agreement, and (c) this Agreement has
been duly executed and delivered by it and constitutes a valid and binding agreement of it enforceable in accordance with the terms
hereof. Each Party further represents and warrants to the other (on behalf of such Party only) that (i) its execution, delivery and
performance (including the provision and exchange of information) of this Agreement will not (A) conflict with, require a consent,
waiver or approval under, or result in a breach of or default under, any of the terms of any contract or agreement to which such person
is a party or by which such person is bound or office such person holds; (B) violate any order, writ, injunction, decree or statute, or
any rule or regulation, applicable to such person or any of the properties or assets of such person; or (C) result in the creation of, or
impose any obligation on such person to create, any lien, charge or other encumbrance of any nature whatsoever upon such person’s
properties or assets and (ii) no broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in
connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of such Party.
SECTION 9.02. Target Ordinary Shares. (a) As of the date of this Agreement, (i) each Founder Party holds of record the number
of outstanding Target Ordinary Shares set forth under the heading “Shares Held of Record” under its name on Schedule A , free and
clear of any encumbrances or restrictions and (ii) none of the Sponsors nor any of their respective Affiliates beneficially own any of
the issued and outstanding Target Ordinary Shares (and does not beneficially own any options, warrants or other rights which are
exercisable or exchangeable for, or convertible into, Target Ordinary Shares), and (b) each of the Founder Parties has the joint right
with one or more other Founder Parties to control the voting and disposition of the Target Ordinary Shares and any other Securities (if
any) held by such Founder Party.
(b) The Founder has the sole right to control the voting and disposition of the Target Ordinary Shares and any other Securities of
Target held by Founder Vehicle 1. Ms. Wu has the sole right to control the voting and disposition of the Target Ordinary Shares and
any other Securities of Target held by Founder Vehicle 2. The Founder and Ms. Wu have the shared right to control the voting and
disposition of the Target Ordinary Shares and any other Securities of Target held by each of Founder Vehicle 1 and Founder Vehicle
2.
12
(c) For purposes of this Section 9.02, “owns” means any person that (x) is the record holder of such security or (y) is the
“beneficial owner” (within the meaning of Rule 13d-3 under the Exchange Act) of such security.
SECTION 9.03. Separate Representations and Warranties. Each representation and warranty in Section 9.01 and Section 9.02 is
a separate representation and warranty. The interpretation of any representation and warranty may not be restricted by reference to or
inference from any other representation and warranty.
SECTION 9.04. Reliance. Each Party acknowledges that the other Parties have entered into this Agreement on the basis of and
reliance upon (among other things) the representations and warranties in Section 9.01 and Section 9.02 and have been inducted by
them to enter into this Agreement.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Entire Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes any
previous oral or written agreements or arrangements among them or between any of them relating to the subject matters contemplated
in this Agreement.
SECTION 10.02. Further Assurances. Each Party shall use all reasonable best efforts to take, or cause to be taken, all actions,
and to do, or cause to be done, and to assist and cooperate with the other Party in doing, all things necessary, proper or advisable to
carry out the intent and purposes of this Agreement.
SECTION 10.03. Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, it shall
be adjusted rather than voided, if possible, in order to achieve the intent of the Parties to the maximum extent possible. In any event,
the invalidity or unenforceability of any provision of this Agreement in any jurisdiction shall not affect the validity or enforceability of
the remainder of this Agreement in that jurisdiction or the validity or enforceability of this Agreement, including that provision, in any
other jurisdiction.
SECTION 10.04. Amendments; Waivers. Neither this Agreement nor any term hereof may be amended or otherwise modified
other than by an instrument in writing signed by the Parties. No provision of this Agreement may be waived, discharged or terminated
other than by an instrument in writing signed by the Party against whom the enforcement of such waiver, discharge or termination is
sought. No failure or delay by any Party in exercising any right, power or privilege under this Agreement shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right,
power or privilege.
13
SECTION 10.05. Assignment; No Third Party Beneficiaries. Other than as provided herein, the rights and obligations of
each Party shall not be assigned without the prior consent of the other Party; provided, however, each Sponsor may assign its
rights and obligations under this Agreement, in whole or in part, to any affiliated investment funds of such Sponsor, any
investment vehicles of such Sponsor or such funds (other than any portfolio companies of such Sponsor or such funds), but no
such assignment shall relieve such Sponsor from any of its obligations hereunder. This Agreement shall be binding upon the
respective heirs, successors, legal representatives and permitted assigns of the Parties. Nothing in this Agreement shall be
construed as giving any person, other than the Parties and their heirs, successors, legal representatives and permitted assigns, any
right, remedy or claim under or in respect of this Agreement or any provision hereof.
SECTION 10.06. No Partnership or Agency. The Parties are independent and nothing in this Agreement constitutes a Party as
the trustee, fiduciary, agent, employee, partner or joint venturer of the other Party.
SECTION 10.07. Counterparts. This Agreement may be executed in counterparts and all counterparts taken together shall
constitute one document. This Agreement shall not be effective until each Party has executed at least one counterpart.
SECTION 10.08. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of Hong
Kong.
SECTION 10.09. Dispute Resolution. Subject to Section 10.10, each of the Parties hereby agrees that any and all disputes or
claims arising out of or relating to this Agreement shall be exclusively referred to and finally resolved by the Hong Kong International
Arbitration Centre (“ HKIAC ”) in accordance with the Hong Kong International Arbitration Centre Administrated Rules (“ HKIAC
Rules ”), which are deemed to be incorporated by reference into this clause, except that any provisions in those Rules which relate to
the nationality of arbitrators shall be disapplied in their entirety. The procedure for arbitration will be as follows: the arbitral tribunal
(the “ Tribunal ”) shall consist of three arbitrators (each, an “ Arbitrator ”). The claimant(s), irrespective of number, shall nominate
jointly one Arbitrator; the respondent(s), irrespective of number, shall nominate jointly one Arbitrator; and a third Arbitrator will be
nominated jointly by the first two Arbitrators and shall serve as chairman of the Tribunal. In the event the claimant(s) or respondent(s)
or the first two Arbitrators shall fail to nominate or agree the joint nomination of an Arbitrator or the third Arbitrator within the time
limits specified by the HKIAC Rules, such Arbitrator shall be appointed promptly by the HKIAC. The seat of arbitration shall be
Hong Kong and the language of the arbitration shall be English. The Tribunal shall have no authority to award punitive or other
punitive-type damages.
SECTION 10.10. Remedies. Without prejudice to the rights and remedies otherwise available to any Party, including the right to
claim money damages for breach of any provision hereof, any Party may bring an action for specific performance and/or injunctive or
other equitable relief (without posting a bond or other security) to enforce or prevent any violations of any provision of this
Agreement.
SECTION 10.11. Existing Consortium Agreement. The Existing Consortium Agreement shall be amended and restated with
immediate effect upon the execution of this Agreement. Each of the parties to the Existing Consortium Agreement hereby releases and
discharges all obligations and liabilities of the other parties thereunder, effective as of the date of this Agreement. Such amendment
and restatement under this Section 10.11 shall be without prejudice to any claims for damages or other remedies that the parties may
have under the Existing Consortium Agreement or applicable law.
14
ARTICLE XI
DEFINITIONS AND INTERPRETATION
SECTION 11.01. Definitions. In this Agreement, unless the context requires otherwise:
“ADSs” means the American Depositary Shares of the Target, each of which currently represents one (1) Target Ordinary Share.
“Advisors” means the advisors and/or consultants of Holdco, BVI I, Parent, the Parties and/or a Party, as the case may be,
appointed in connection with the Transaction.
“Affiliate” means, with respect to any person, any other person that, directly or indirectly, Controls, is Controlled by or is under
common Control with such specified person and “Affiliates” shall be construed accordingly.
“Agreement” means this Consortium Agreement, as amended, modified or supplemented from time to time in accordance with
its terms.
“Applicable Laws” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment,
decree, other requirement or rule of law of any governmental authority.
“Arbitrator” has the meaning given in Section 10.09.
“Business Day” means any day (other than a Saturday or a Sunday) on which banks generally are open in the People’s Republic
of China, Hong Kong and in New York, New York, for the transaction of normal banking business.
“BVI I” has the meaning given in the recitals.
“Claim” means a claim against any one or more of the Parties arising from or relating to the Transaction in respect of which a
Party is, or is sought to be, made liable to pay any sum of money to any person other than a Party (or any of their respective
Affiliates), whether on a joint and several basis or on any other basis.
“Closing” means the consummation of the Transaction.
“Common Shares” has the meaning given in Section 1.04.
15
“Competing Proposal” means a proposal, offer or invitation to the Company, the Sponsor, the Founder Parties or any of
their respective Affiliates (other than the Proposal), that involves the acquisition of 10% or more of the Target Ordinary Shares, a
sale of all or a substantial part of the assets of the Target, a restructuring or recapitalization of the Target, or some other
transaction that would adversely affect, prevent or materially reduce the likelihood of the consummation of the Transaction with
the Parties.
“Confidential Information” includes (a) all written, oral or other information obtained in confidence by one Party from any other
Party in connection with this Agreement or the Transaction, unless such information is already known to such Party or to others not
known by such Party to be bound by a duty of confidentiality or such information is or becomes publicly available other than through
a breach of this Agreement by such Party and (b) the existence or terms of, and any negotiations or discussions relating to, the
Proposal.
“Control” means the possession, directly or indirectly, of the power to direct the management and policies of a person whether
through the ownership of voting securities, contract or otherwise.
“Debt Financing” has the meaning given in Section 1.03.
“Discloser” has the meaning given in Section 7.02(a).
“Documentation” means the documentation required to implement the Transaction, including the Proposal, the Merger
Agreement, Rollover Agreement, Support Agreement, Subscription Agreement, one or more equity commitment letters from each
Sponsor to Holdco with respect to the provision of equity financing to Holdco, one or more limited guarantees from each Sponsor to
the Target with respect to the guarantee of certain obligations of Parent and Merger Sub under the Merger Agreement, the
Shareholders’ Agreement, Debt Financing documents, filings with the SEC and other governmental agencies, and ancillary
documentation, in each case, in the form to be agreed by the Parties.
“Exchange Act” has the meaning given in the recitals..
“Excluded Investor Expenses” has the meaning given in Section 3.01(a).
“Exclusivity Period” means the period beginning on the date hereof and ending on the first to occur of: (a) the consummation of
the Transaction; and (b) the termination of the Merger Agreement in accordance with the terms thereof.
“Existing Consortium Agreement” has the meaning given in the recitals.
“Financing Banks” has the meaning given in Section 1.03.
“Founder” has the meaning given in the preamble.
16
“Founder Parties” has the meaning given in the preamble.
“Founder Vehicle 1” has the meaning given in the preamble.
“Founder Vehicle 2” has the meaning given in the preamble.
“HKIAC” has the meaning given in Section 10.09.
“HKIAC Rules” has the meaning given in Section 10.09.
“Holdco” has the meaning given in the recitals.
“Holdco Shares” has the meaning given in Section 1.04.
“Investor Expenses” has the meaning given in Section 3.01(a).
“KPMG” has the meaning given in Section 2.03(a).
“King & Wood” has the meaning given in Section 2.03(a).
“Liability” means a liability to pay a sum of money arising pursuant to a Claim (which sum is deemed to include all legal and
other costs, damages, losses and expenses incurred in connection with (or arising directly or indirectly from) defending, disputing or
otherwise dealing with any such Claim) where the liability arises from a judgment given by a court of competent jurisdiction, the final
decision given in any binding arbitration proceedings or the agreed settlement of the Claim.
“Merger” has the meaning given in the recitals.
“Merger Agreement” has the meaning given in the recitals.
“Merger Consideration” has the meaning given in the recitals.
“Merger Sub” has the meaning given in the recitals.
“Ms. Wu” has the meaning given in the preamble.
“NYSE” has the meaning given in the recitals.
“Parent” has the meaning given in the recitals.
“Parties” has the meaning given in the preamble.
“PRC” means the People’s Republic of China excluding, for the purpose of this Agreement, Hong Kong and Macau Special
Administrative Regions and Taiwan.
17
“Proposal” has the meaning given in the recitals.
“Recipient” has the meaning given in Section 7.02(a).
“Representative” of a Party means such Party’s officers, managers, directors, general partners, employees, outside counsel,
accountants, consultants, financial advisors, potential sources of equity or debt financing (and their respective counsel).
“Respective Proportion” means, with respect to a Party, (i) the proportion that such Party’s planned equity participation in
Common Shares bears to the aggregate amount of all of the Parties’ planned equity participation in Common Shares, including
Rollover Shares (ii) solely for purposes of apportioning the Sponsors Due Diligence Expenses in accordance with Section 3.01(b), the
proportion that such Sponsor’s planned equity participation in Common Shares bears to the aggregate amount of the planned equity
participation in Common Shares of the Sponsors.
“Rollover Shares” has the meaning given in the recitals.
“Rollover Shareholders” means the shareholders of Target listed on Schedule A hereto (including the Founder Parties), who are
currently contemplated to have all or a portion of their respective Target Ordinary Shares to be converted into certain Common Shares
at the effective time of the Merger in accordance with Section 1.04(c).
“SEC” means the United States Securities and Exchange Commission.
“Securities” means shares, warrants, options and any other securities which are convertible into or exercisable for shares in the
Target.
“Shareholders’ Agreement” has the meaning given in Section 1.02.
“Special Committee” means a special committee of independent directors of the Target that will be established to be responsible
for, among other matters, negotiating the terms of the Transaction.
“Sponsor” has the meaning given in the preamble.
“Support Agreement” means the agreement to be entered into by and among the Parent, Company and Rollover Shareholders.
“Sponsors Due Diligence Expenses” has the meaning given in Section 3.01(b).
“Surviving Company” has the meaning given in the recitals.
“Target” has the meaning given in the recitals.
“Target Ordinary Shares” has the meaning given in the recitals.
18
“Transaction” has the meaning given in the recitals.
“Transfer” has the meaning given in Section 5.01(b).
“Tribunal” has the meaning given in Section 10.09.
SECTION 11.02. Statutory Provisions. All references to statutes, statutory provisions, enactments, directives or regulations shall
include references to any consolidation, reenactment, modification or replacement of the same, any statute, statutory provision,
enactment, directive or regulation of which it is a consolidation, re-enactment, modification or replacement and any subordinate
legislation in force under any of the same from time to time.
SECTION 11.03. Recitals and Schedules. References to this Agreement include the recitals and schedules which form part of
this Agreement for all purposes. References in this Agreement to the Parties are references respectively to the Parties and their legal
personal representatives, successors and permitted assigns.
SECTION 11.04. Meaning of References. In this Agreement, unless the context requires otherwise:
(a) words importing one gender shall be treated as importing any gender, words importing individuals shall be treated as
importing corporations and vice versa, words importing the singular shall be treated as importing the plural and vice versa, and words
importing the whole shall be treated as including a reference to any part thereof;
(b) references to a “person” shall include any individual, firm, body corporate, unincorporated association, government, state or
agency of state, association, joint venture or partnership, in each case whether or not having a separate legal personality. References to
a “company” shall be construed so as to include any company, corporation or other body corporate wherever and however
incorporated or established;
(c) references to the word “include” or “including” (or any similar term) are not to be construed as implying any limitation;
(d) any reference to “writing” or “written” includes any method of reproducing words or text in a legible and non-transitory
form;
(e) references to any document (including this Agreement) are references to that document as amended, consolidated,
supplemented, novated or replaced from time to time;
(f) references to “US$” are to the lawful currency of the United States of America, as at the date of this Agreement; and
(g) references to “Target Ordinary Shares” shall include Target Ordinary Shares represented by ADSs.
19
SECTION 11.05. Headings. Section and paragraph headings and the table of contents are inserted for ease of reference
only and shall not affect construction.
SECTION 11.06. Negotiation of the Agreement. The Parties have participated jointly in the negotiation and drafting of this
Agreement. In the event that an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted
jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of
any provisions of this Agreement.
[Signature page follows]
20
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered as of the date first written
above.
/s/ Chuanwei Zhang
Chuanwei Zhang
/s/ Ling Wu
Ling Wu
FIRST WINDY INVESTMENT CORP.
By:
/s/ Chuanwei Zhang
Name: Chuanwei Zhang
Title: Director
RICH WIND ENERGY THREE CORP.
By:
/s/ Ling Wu
Name: Ling Wu
Title: Director
[Consortium Agreement Signature Page]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered as of the date first written
above.
GUANGZHOU HUIFU KAILE INVESTMENT
(L.P.)
(
)
By:
/s/ Li Xiangmin
Name: Li
Xiangmin
Title: Appointed
Representative
[Consortium Agreement Signature Page]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered as of the date first written
above.
SHANGHAI DAJUN GUANCHENG CAPITAL
FUND
(
)
By:
/s/ Xiang Hu
Name: Xiang Hu
Title: Executive Partner Delegate
[Consortium Agreement Signature Page]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered as of the date first written
above.
ANHUI ZHONGAN XINZHAO PRIVATE
EQUITY INVESTMENT LLP
(
)
By:
/s/ Guang Yang
Name: Guang
Yang
Title: Executive
Partner Delegate
[Consortium Agreement Signature Page]
SCHEDULE A
EXISTING SHARE OWNERSHIP
Founder Parties
Founder and Founder Vehicle 1
Target Ordinary Shares Held of Record by Founder and
Founder Vehicle 1 :
12,134,593 Ordinary Shares
Rollover Shares Held of Record or beneficially by Founder
12,134,593 Ordinary Shares
Ms. Wu and Founder Vehicle 2
Target Ordinary Shares Held of Record by Ms. Wu and
Founder Vehicle 2 :
40,294,306
Rollover Shares Held of Record or beneficially by
Ms. Wu :
40,294,306
Other Rollover Shareholders
Rollover Shareholder
Yuan Li
Eapard Investment Management Co. Ltd
CAI Stephanie Ye
SCGC Capital Holding Company Limited
Ironmont Investment Co., Ltd.
Jinfa Wang
Jianren Wen
Guomin Chen
Xeuliang Ma
Target Ordinary Shares
Held of Record
7,605,163
550,000
286,896
4,721,800
3,653,900
693,897
320,000
140,000
40,000
Rollover Shareholder
Yunshan Jin
Yanhua Li
Renjing Cao
Jiawan Cheng
Longquan Yan
Zhongmin Shen
Target Ordinary Shares
Held of Record
300,000
100,000
150,000
60,000
50,000
150,000
SCHEDULE B
CAPITALIZATION TABLE OF SURVIVING COMPANY IMMEDIATELY AFTER CLOSING
Shares
Founder and Founder Vehicle 1
Ms. Wu and Founder Vehicle 2
Rollover shareholders (1)
Parent
Percentage
16,425,590
54,543,055
25,477,312
61,772,919
10.3814%
34.4733%
16.1026%
39.0427%
158,218,876
100.0%
Note:
(1) Represents:
Yuan Li
Eapard Investment Management Co., Ltd.
CAI Stephanie Ye
SCGC Capital Holding Company Limited
Ironmont Investment Co., Ltd.
Jinfa Wang
Jianren Wen
Guomin Chen
Xeuliang Ma
Yunshan Jin
Yanhua Li
Renjing Cao
Jiawan Cheng
Longquan Yan
Zhongmin Shen
10,294,477
744,489
388,347
6,391,508
4,945,981
939,271
433,157
189,506
54,145
406,085
135,362
203,043
81,217
67,681
203,043
25,477,312
SCHEDULE C
FORM OF ADHERENCE AGREEMENT
FORM OF ADHERENCE AGREEMENT
THIS ADHERENCE AGREEMENT (this “Agreement”) is entered into on [
], by and among [
], a
[
] incorporated and existing under the laws of [
] (the “ New Sponsor ”) and the Existing Parties (as defined
below).
RECITALS:
A
On June 22, 2016, Mr. Chuanwei Zhang, Ms. Ling Wu, First Windy Investment Corp., Rich Wind Energy Three Corp. and
Guangzhou Huifu Kaile Investment (L.P.) and Shanghai Dajun Guancheng Capital Fund (the “ Existing Parties ”) entered into a
consortium agreement (the “ Consortium Agreement ”) and proposed to undertake a transaction (the “ Transaction ”) with
respect to China Ming Yang Wind Power Group Limited (the “ Target ”), a company listed on the New York Stock Exchange
(“ NYSE ”), pursuant to which the Target would be delisted from the NYSE and deregistered under the United States Securities
Exchange Act of 1934, as amended.
B
One or more additional parties may be admitted to the Consortium as a “Sponsor” pursuant to Section 1.01 of the Consortium
Agreement.
C
The New Sponsor now wishes to be admitted to the Consortium as a “Sponsor” and to participate in the Transaction
contemplated under the Consortium Agreement, to execute this Agreement and to be bound by the terms of the Consortium
Agreement as a Sponsor and a Party thereto.
Now, therefore, in consideration of the foregoing recitals and of the mutual agreements and covenants set forth herein, and for
other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows.
AGREEMENT:
1
Definitions and interpretation
1.1
Capitalized terms used and not otherwise defined herein shall have the meanings given to them in the Consortium Agreement.
1.2
This Agreement shall be incorporated into the Consortium Agreement as if expressly set forth at length in the Consortium
Agreement.
1.3
The section headings contained in this Agreement are included for convenience only and do not affect the interpretation of this
Agreement.
2
Undertakings
2.1
The New Sponsor acknowledges and undertakes, for the benefit of each of the Existing Parties that it shall, with effect from the
date hereof, perform and comply with each of the obligations of a Sponsor under the Consortium Agreement as if it had been a
Party thereto on the date of execution thereof. The New Sponsor further acknowledges and agrees that where there is reference
to the “Sponsor” or a “Party” in the Consortium Agreement, such reference shall be deemed to include a reference to the New
Sponsor, as applicable, and with effect from the date hereof, all of the rights of the Sponsor provided under the Consortium
Agreement will be accorded to the New Sponsor as if the New Sponsor had been a Sponsor and a Party under the Consortium
Agreement at the date of execution thereof.
3
3
Representations and Warranties
3.1
The New Sponsor represents and warrants to each of the Existing Parties as follows:
3.1.1 It is a company duly organized, established and validly existing under the laws of [
] and has all requisite
power and authority to own, lease and operate its assets and to conduct the business which it conducts.
3.1.2 It has full power and authority to execute and deliver this Agreement and the execution, delivery and performance of this
Agreement by the New Sponsor has been duly authorized by all necessary action on behalf of the New Sponsor.
3.1.3 This Agreement has been duly executed and delivered by the New Sponsor and constitutes the legal, valid and binding
obligation of the New Sponsor, enforceable against it in accordance with the terms hereof.
3.1.4 The New Sponsor acknowledges that each of the Existing Parties have entered into this Agreement on the basis of and
reliance upon (among other things) the representations and warranties made by the New Sponsor in this Sections 3 and
have been induced by them to enter into this Agreement.
4
Governing Law
4.1
This Agreement shall be governed by, and construed in accordance with, the laws of Hong Kong.
5
Dispute Resolution
5.1
Subject to Section 5.2 hereof, each of the Parties hereby agrees that any and all disputes or claims arising out of or relating to
this Agreement shall be exclusively referred to and finally resolved by the Hong Kong International Arbitration Centre
(“HKIAC”) in accordance with the Hong Kong International Arbitration Centre Administrated Rules (“HKIAC Rules”), which
are deemed to be incorporated by reference into this clause, except that any provisions in those Rules which relate to the
nationality of arbitrators shall be disapplied in their entirety. The procedure for arbitration will be as follows: the arbitral
tribunal (the “Tribunal”) shall consist of three arbitrators (each, an “Arbitrator”). The claimant(s), irrespective of number, shall
nominate jointly one Arbitrator; the respondent(s), irrespective of number, shall nominate jointly one Arbitrator; and a third
Arbitrator will be nominated jointly by the first two Arbitrators and shall serve as chairman of the Tribunal. In the event the
claimant(s) or respondent(s) or the first two Arbitrators shall fail to nominate or agree the joint nomination of an Arbitrator or
the third Arbitrator within the time limits specified by the HKIAC Rules, such Arbitrator shall be appointed promptly by the
HKIAC. The seat of arbitration shall be Hong Kong and the language of the arbitration shall be English. The Tribunal shall
have no authority to award punitive or other punitive-type damages.
4
5.2
Without prejudice to the rights and remedies otherwise available to any Party, including the right to claim money damages for
breach of any provision hereof, any Party may bring an action for specific performance and/or injunctive or other equitable
relief (without posting a bond or other security) to enforce or prevent any violations of any provision of this Agreement.
6
Counterparts
6.1
This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together
shall constitute one instrument. Facsimile and e-mailed copies of signatures in portable document format (PDF) shall be
deemed to be originals for purposes of the effectiveness of this Agreement.
[Signature page follows]
5
IN WITNESS WHEREOF, the New Sponsor has caused this Agreement to be duly executed by its respective authorized officers as of
the day and year first above written.
[NEW SPONSOR]
By:
Name:
Title:
[Signature page to Adherence Agreement]
Acknowledged and agreed:
Chuanwei Zhang
Ling Wu
FIRST WINDY INVESTMENT CORP.
By:
Name: Chuanwei Zhang
Title: Director
RICH WIND ENERGY THREE CORP.
By:
Name: Ling Wu
Title: Director
Acknowledged and agreed:
GUANGZHOU HUIFU KAILE INVESTMENT
(L.P.)
By:
Name: Li Xiangmin
Title: Appointed Representative
Acknowledged and agreed:
SHANGHAI DAJUN GUANCHENG CAPITAL
FUND
(
)
By:
Name: Xiang Hu
Title: Executive Partner Delegate
Acknowledged and agreed:
ANHUI ZHONGAN XINZHAO PRIVATE
EQUITY INVESTMENT LLP
(
)
By:
Name: Guang Yang
Title: Executive Partner
Delegate