As filed with the Securities and Exchange
Commission on August 11, 2017
Registration No. 333-
UNITED STATES SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
Form F-3
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933
JinkoSolar
Holding Co., Ltd.
(Exact name of Registrant as specified in its charter)
Cayman Islands
(State or other jurisdiction of
Incorporation or Organization)
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Not Applicable
(I.R.S. Employer
Identification Number.)
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1 Jingke Road
Shangrao Economic Development Zone
Jiangxi Province, 334100
People’s Republic of China
+86 793-846-9699
(Address and Telephone Number of Registrant’s
Principal Executive Office)
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JinkoSolar (U.S.) Inc.
595 Market St, Suite 2200,
San Francisco, California 94105
United States of America
+1 415-402-0502
(Name, Address, and Telephone Number for
Agent of Service)
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Copies to:
Shuang Zhao
Cleary Gottlieb Steen & Hamilton LLP
c/o 37th Floor, Hysan Place
500 Hennessy Road, Causeway Bay
Hong Kong
+852 2532 3783
Approximate date of commencement of
proposed sale to the public
: From time to time after the effective date of this registration statement, as determined by market
conditions and other factors.
If only securities being registered on
this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.
¨
If any of the securities being registered
on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the
following box.
x
If this Form is filed to register additional
securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities
Act registration statement number of the earlier effective registration statement for the same offering.
¨
If this Form is a post-effective amendment
filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same offering.
¨
If this Form is a registration statement
pursuant to General Instruction I.C. or a post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box.
¨
If this Form is a post-effective amendment
to a registration statement filed pursuant to General Instruction I.C. filed to register additional securities or additional classes
of securities pursuant to Rule 413(b) under the Securities Act, check the following box.
¨
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933. Emerging
growth company
¨
If an emerging growth company that prepares
its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended
transition period for complying with any new or revised financial accounting standards† provided pursuant to Section 7(a)(2)(B)
of the Securities Act .
¨
†
The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting
Standards Board to its Accounting Standards Codification after April 5, 2012.
CALCULATION OF REGISTRATION FEE
Title
of Each Class of Securities to be Registered
(1)
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Proposed
Maximum
Aggregate Offering
Price
(3)(4)
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Amount
of
Registration Fee
(4)
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Ordinary shares, par value US$0.00002 per share
(2)
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Debt securities
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Warrants
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Total
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US$
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200,000,000
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US$
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23,180
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(1)
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Includes (i) securities initially offered
and sold outside the United States that may be resold from time to time in the United
States either as part of their distribution or within 40 days after the later of the
effective date of this registration statement and the date the securities are first bona
fide offered to the public, and (ii) securities that are issuable upon the exercise
of the underwriters’ over-allotment option to purchase additional shares. These
securities are not being registered for the purposes of sales outside the United States.
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(2)
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American depositary shares issuable
upon deposit of the ordinary shares registered hereby have been or will be registered
under a separate registration statement on Form F-6 (Registration No. 333-164523).
Each American depositary share represents four ordinary shares.
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(3)
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The proposed maximum aggregate offering
price for each class of securities will be determined from time to time by the registrant
in connection with the issuance by the registrant of the securities registered hereunder
and is not specified as to each class of securities pursuant to General Instruction II.
C. of Form F-3 under the Securities Act of 1933, as amended.
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(4)
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Estimated solely for the purposes of
calculating the registration fee pursuant to Rule 457(o) of Regulation C under the
Securities Act of 1933, as amended.
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The Registrant hereby amends this
Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a
further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission,
acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete
and may be changed. These securities may not be sold until the registration statement filed with the Securities and Exchange Commission
is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities
in any jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED
August 11, 2017
PROSPECTUS
JinkoSolar Holding Co., Ltd.
(incorporated in the Cayman Islands
with limited liability)
Ordinary Shares
Debt Securities
Warrants
We may offer and sell ordinary shares, par
value US$0.00002 per share, including American depositary shares, or ADSs, each representing four ordinary shares, debt securities
or warrants in any combination from time to time in one or more offerings, at prices and on terms described in one or more supplements
to this prospectus. In addition, this prospectus may be used to offer securities for the account of persons other than us. The
aggregate initial offering price of the securities that we may offer and sell under this prospectus will not exceed $200,000,000.
Each time we or any selling security holder
sell securities, we will provide a supplement to this prospectus that contains specific information about the offering and the
terms of the securities. The supplement may also add, update or change information contained in this prospectus. We may also authorize
one or more free writing prospectuses to be provided in connection with a specific offering. You should read this prospectus,
any prospectus supplement and any free writing prospectus before you invest in any of our securities.
We or any selling security holder may sell
the securities independently or together with any other securities registered hereunder to or through one or more underwriters,
dealers and agents, or directly to purchasers, or through a combination of these methods, on a continuous or delayed basis. See
“Plan of Distribution.” If any underwriters, dealers or agents are involved in the sale of any of the securities,
their names, and any applicable purchase price, fee, commission or discount arrangements between or among them, will be set forth,
or will be calculable from the information set forth, in the applicable prospectus supplement.
Our ADSs are listed on the New York Stock
Exchange, or the NYSE, and are traded under the ticker symbol “JKS.”
Investing in our securities involves
risks. You should read the “Risk Factors” section contained in the applicable prospectus supplement, any related free
writing prospectus and the documents we incorporate by reference in this prospectus before investing in our securities.
Neither the Securities and Exchange
Commission nor any state securities commission has approved or disapproved of these securities or passed upon the accuracy or
completeness of this prospectus, including any prospectus supplement, free writing prospectus and documents incorporated by reference.
Any representation to the contrary is a criminal offense.
The date of this prospectus is
, 2017.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
Before you invest in any of our securities,
you should carefully read this prospectus and any prospectus supplement, together with the additional information described in
the sections entitled “Where You Can Find More Information About Us” and “Incorporation of Documents by Reference”
in this prospectus.
In this prospectus, unless otherwise indicated
or unless the context otherwise requires,
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“we,”
“us,” “our company,” “our” or “JinkoSolar”
refer to JinkoSolar Holding Co., Ltd., a Cayman Islands holding company, its current
and former subsidiaries for the relevant periods.
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“ADSs”
refers to our American depositary shares, each representing four ordinary shares, and
“ADRs” refers to the American depositary receipts that may evidence our ADSs;
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“CE”
refers to CE certification, a verification of electromagnetic compatibility (EMC) compliance
issued by SGS Taiwan Ltd. certifying compliance with the principal protection requirement
of directive 2004/108/EC of the European Union and EN61000-6-3:2001+A11:2004 and EN61000-6-1:2001
standards;
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“CQC”
refers to the certificate issued by China Quality Certification Centre certifying that
our solar modules comply with IEC61215:2005 and IEC61730-2:2004 standards;
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“JET”
refers to the certificate issued by Japan Electrical Safety & Environment Technology
Laboratories certifying that our modules comply with IEC61215:2005, IEC61730-1:2004 and
IEC61730-2:2004 standards;
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“MCS”
refers to MCS certificate of factory production control issued by British Approvals Board
for Telecommunications certifying that the production management system of our certain
types of solar panels complies with MCS005 Issue 2.3 and MCS010 Issue 1.5 standards;
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“NYSE”
or “New York Stock Exchange” refers to the New York Stock Exchange Inc.;
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“OEM”
refers to an original equipment manufacturer who manufactures products or components
that are purchased by another company and retailed under that purchasing company’s
brand name;
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“RMB”
refers to the legal currency of China;
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“PRC”
or “China” refers to the People’s Republic of China, excluding, for
purposes of this prospectus, Taiwan, Hong Kong and Macau;
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“shares”
or “ordinary shares” refers to our ordinary shares, par value US$0.00002
per share;
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“TÜV”
refers to TÜV certificates, issued by TÜV Rheinland Product Safety GmbH certifying
that certain types of our solar modules comply with IEC 61215:2005, EN 61215:2005, IEC
61730-1:2004, IEC 61730-2:2004, EN 61730-1:2007 and EN 61730-2:2007 standards;
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“UL”
refers to the certificate issued by Underwriters Laboratories Inc., to certify that certain
types of our solar modules comply with its selected applicable standards;
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“US$,”
“dollars” or “U.S. dollars” refers to the legal currency of the
United States; and
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“watt”
or “W” refers to the measurement of electrical power, where “kilowatt”
or “kW” means one thousand watts, “megawatt” or “MW”
means one million watts and “gigawatt” or “GW” means one billion
watts.
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This prospectus is part of a registration
statement on Form F-3 that we filed with the United States Securities and Exchange Commission, or SEC, utilizing a shelf registration
process permitted under the Securities Act of 1933, as amended, or the Securities Act. By using a shelf registration statement,
we or any selling security holder may sell any of our securities from time to time and in one or more offerings. Each time we
or any selling security holders sell securities, we may provide a supplement to this prospectus that contains specific information
about the securities being offered and the terms of that offering. The supplement may also add, update or change information contained
in this prospectus. If there is any inconsistency between the information in this prospectus and any prospectus supplement, you
should rely on the prospectus supplement.
You should rely only on the information
contained or incorporated by reference in this prospectus, in any applicable prospectus supplement or any related free writing
prospectus that we may authorize to be delivered to you. We have not authorized any other person to provide you with different
information. If anyone provides you with different or inconsistent information, you should not rely on it. We will not make an
offer to sell these securities in any jurisdiction where the offer or sale is not permitted. You should assume that the information
appearing in this prospectus, the applicable supplement to this prospectus or in any related free writing prospectus is accurate
as of its respective date, and that any information incorporated by reference is accurate only as of the date of the document
incorporated by reference, unless we indicate otherwise. Our business, financial condition, results of operations and prospects
may have changed since those dates.
INCORPORATION
OF DOCUMENTS BY REFERENCE
The SEC allows us to incorporate by reference
the information we file with them. This means that we can disclose important information to you by referring you to those documents.
Each document incorporated by reference is current only as of the date of such document, and the incorporation by reference of
such documents should not create any implication that there has been no change in our affairs since such date. The information
incorporated by reference is considered to be a part of this prospectus and should be read with the same care. When we update
the information contained in documents that have been incorporated by reference by making future filings with the SEC, the information
incorporated by reference in this prospectus is considered to be automatically updated and superseded. In other words, in the
case of a conflict or inconsistency between information contained in this prospectus and information incorporated by reference
into this prospectus, you should rely on the information contained in the document that was filed later.
We incorporate by reference the documents
listed below:
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our annual report
on Form 20-F for the fiscal year ended December 31, 2016 filed with the SEC on March
29, 2017, or the 2016 20-F;
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our current report
on Form 6-K filed with the SEC on June 6, 2017; and
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with respect
to each offering of securities under this prospectus, all our subsequent annual reports
on Form 20-F and any report on Form 6-K that indicates that it is being incorporated
by reference, in each case, that we file with the SEC on or after the date on which the
registration statement is first filed with the SEC and until the termination or completion
of the offering under this prospectus.
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Our 2016 20-F contains a description of
our business and audited consolidated financial statements with a report by our independent auditors. These financial statements
are prepared in accordance with accounting principles generally accepted in the United States, or U.S. GAAP.
Unless expressly incorporated by reference,
nothing in this prospectus shall be deemed to incorporate by reference information furnished to, but not filed with, the SEC.
We will provide to you, upon your written or oral request, without charge, a copy of any or all of the documents we refer to above
which we have incorporated in this prospectus by reference, other than exhibits to those documents unless such exhibits are specifically
incorporated by reference in the documents. You should direct your requests to our principal executive office located at 1 Jingke
Road, Shangrao Economic Development Zone, Jiangxi Province, 334100, People’s Republic of China. Our telephone number at
this address is (86-793) 846-9699 and our fax number is (86-793) 846-1152.
SPECIAL NOTE ON
FORWARD-LOOKING STATEMENTS
This prospectus, any accompanying prospectus
supplement and related free writing prospectus, and the information incorporated by reference herein and therein may contain “forward-looking
statements” within the meaning of, and intended to qualify for the safe harbor from liability established by, the United
States Private Securities Litigation Reform Act of 1995. These statements, which are not statements of historical fact, may contain
estimates, assumptions, projections and/or expectations regarding future events, which may or may not occur. These statements
involve known and unknown risks, uncertainties and other factors which may cause our actual results, performance or achievements
to be materially different from those expressed or implied by the forward-looking statements. In some cases, you can identify
these forward-looking statements by words or phrases such as “aim,” “anticipate,” “believe,”
“could,” “estimate,” “expect,” “intend,” “may,” “plan,”
“potential,” “should,” “will,” “would,” or similar expressions, including their
negatives. We have based these forward looking statements largely on our current expectations and projections about future events
and financial trends that we believe may affect our financial condition, results of operations, business strategy and financial
needs. These forward-looking statements include:
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general economic
conditions;
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the worldwide
demand for electricity and the market for solar power;
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the demand and
price trends of solar modules, solar cells and silicon wafers;
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the effects of
environmental regulation and long-term fossil fuel supply constraints;
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government support,
government subsidies and economic incentives to the solar power industry;
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the acceleration
of adoption of solar technologies;
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advancements
in our process technologies and cost savings from such advancements;
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the competitiveness
of our products;
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the advantages
of our business model;
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the scaling and
expansion of our production capacity;
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our ability to
maintain and expand our existing customer base both inside and outside of China;
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our current and
potential joint venture and other strategic investments;
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our ability to
enhance our revenue and profitability;
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the price trends
of our raw materials and our ability to secure raw materials in the future;
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the demand for
our products;
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our ability to
successfully implement our strategies;
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our ability to
secure sufficient funds to meet our cash needs for our operations and capacity expansion
and the availability of debt financing;
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our future business
development, results of operations and financial condition;
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the fair value
of our ordinary shares;
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competition from
other manufacturers of solar modules, solar cells and silicon wafers, other renewable
energy systems and conventional energy suppliers; and
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PRC government
policies regarding foreign investments.
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You should read thoroughly this prospectus,
any accompanying prospectus supplement and the documents that we reference in this prospectus and any applicable prospectus supplement
with the understanding that our actual future results may be materially different from and worse than what we expect. We qualify
all of our forward-looking statements by these cautionary statements. Factors that could cause or contribute to such differences
include, but are not limited to those discussed in the section titled “Risk Factors”. Moreover, we operate in an evolving
environment. New risk factors and uncertainties emerge from time to time and it is not possible for our management to predict
all risk factors and uncertainties, nor can we assess the impact of all factors on our business or the extent to which any factor,
or combination of factors, may cause actual results to differ materially from those contained in any forward-looking statements.
This prospectus also contains or incorporates
by reference data, including industry-demand and product-pricing data, related to the solar power market in several countries,
including China. These market data include projections that are based on a number of assumptions. If any one or more of the assumptions
underlying the market data proves to be incorrect, actual results may differ from the projections based on these assumptions.
You should not place undue reliance on these forward-looking statements.
The forward-looking statements and any
related statements made in this prospectus and the documents incorporated by reference are made as of the date of the respective
documents. The forward-looking statements obtained from third-party studies or reports are made as of the date of the corresponding
study or report. We undertake no obligation, beyond that required by law, to update any forward-looking statement to reflect events
or circumstances after the date on which the statement is made, even though circumstances may change in the future.
OUR COMPANY
We are a global leader in the photovoltaic
industry based in China. We have built a vertically integrated solar power product value chain, from recovering silicon materials
to manufacturing solar modules. We sell most of our solar modules under our own “JinkoSolar” brand, with a small portion
of solar modules on an OEM basis. We also sell silicon wafers and solar cells that we do not use in our solar module production.
We sell our products in major export
markets and China. We have 18 global sales offices in China, United
Kingdom, Bulgaria, Greece, Romania, United Arab Emirates, Jordan, Saudi Arabia, Kuwait, Egypt,
Morocco, Ghana, Kenya, Costa Rica, Colombia, Brazil and Mexico and 15 oversea subsidiaries in Japan, Singapore, India,
Turkey, Germany, Italy, Switzerland, United States, Canada, Mexico, Brazil, Chile, Australia and South Africa, to conduct
sales, marketing and brand development for our products around the world. As of March 31, 2017, we had an aggregate of more
than 1,500 customers for our solar modules globally, including distributors, project developers and system integrators.
Our solar modules utilize advanced solar
technologies. All of our solar modules sold in Europe are CE, IEC, TÜV, and MCS certified, all of our solar modules sold in
Japan are JET certified, all of our solar modules sold in North America are UL certified and our monocrystalline solar modules
sold in China are CQC certified. In 2013, our solar modules passed TÜV Nord’s Dust & Sand Certification Test, demonstrating
their suitability for installation in desert regions. We also unveiled our “Eagle II” solar modules, which represent
a new standard for performance and reliability. The “Eagle II” solar modules can reach peak power output of approximately
260 to 270 watts for a 60-cell module. We have also begun research on our “Eagle+” solar modules, which will be composed
of multicrystalline cells that reached conversion efficiencies of approximately 20.4% in lab tests by a third party.
We leverage our vertically integrated platform
and cost-efficient manufacturing capabilities in China to produce high quality products at competitive costs. Our solar cell and
silicon wafer operations support our solar module production. As of March 31, 2017, we had an integrated annual capacity of 5.0
GW for silicon ingots and wafers, 4.0 GW for solar cells and 6.5 GW for solar modules. Our manufacturing facilities are primarily
located in Jiangxi Province, Zhejiang Province and Xinjiang Uygur Autonomous Region of China and Penang of Malaysia providing convenient
and timely access to key resources and suppliers.
We no longer have any downstream solar power
projects in China after we disposed of our downstream solar power projects business in China in the fourth quarter of 2016, but
still have a few overseas solar power projects in Italy, Mexico, Argentina and Japan.
RISK FACTORS
Investing in our securities involves risk.
You should carefully consider the risk factors and uncertainties described under the heading “Item 3. Key Information—D.
Risk Factors” in our most recent annual report on Form 20-F, which is incorporated in this prospectus by reference, as updated
by our subsequent filings under the Securities Exchange Act of 1934, as amended, or the Exchange Act, and any risk factors and
other information described in the applicable prospectus supplement or relevant free writing prospectus before acquiring any of
our securities. These risks and uncertainties could materially affect our business, results of operations or financial condition
and cause the value of our securities to decline.
USE OF PROCEEDS
Unless we indicate otherwise in a prospectus
supplement, we plan to use the net proceeds from the sale of the securities for general corporate purposes. We will not receive
proceeds from sales of securities by persons other than us except as may otherwise be stated in any applicable prospectus supplement.
RATIO OF EARNINGS
TO FIXED CHARGES
The following table sets forth our
ratio of earnings to fixed charges on a historical basis for the period indicated. The ratio of earnings to fixed charges is
computed by dividing earnings by fixed charges.
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Year Ended December 31,
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2012
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2013
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2014
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2015
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2016
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Ratio of earnings to fixed charges
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(1)
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1.80
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2.48
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2.04
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2.35
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(1)
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Earnings for the year ended December 31, 2012 were insufficient to cover fixed charges by approximately
RMB1,547.4 million (US$248.4 million) as our operating results were negatively impacted by the downward market performance during
the whole year.
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DESCRIPTION OF
THE SECURITIES
We may issue from time to time, in one or
more offerings, the following securities:
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ordinary shares, including ordinary shares represented by ADSs;
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We will set forth in the applicable prospectus
supplement a description of the debt securities and warrants, and, in certain cases, the ordinary shares (including ordinary shares
represented by ADSs) that may be offered under this prospectus. The terms of the offering of securities, the initial offering
price and the net proceeds to us will be contained in the prospectus supplement, and other offering material, relating to such
offer. The supplement may also add, update or change information contained in this prospectus. You should carefully read this
prospectus and any supplement before you invest in any of our securities.
DESCRIPTION OF
SHARE CAPITAL
Introduction
We are a Cayman Islands exempted company
with limited liability and our affairs are governed by our memorandum and articles of association, as amended and restated from
time to time, the Companies Law (2016 Revision) of the Cayman Islands, which is referred to as the Companies Law below, and the
common law of the Cayman Islands. A Cayman Islands exempted company is a company that conducts its business outside of the Cayman
Islands, is exempted from certain requirements of the Companies Law, including a filing of an annual return of its shareholders
with the Registrar of Companies, does not have to make its register of shareholders open to inspection and may obtain an undertaking
against the imposition of any future taxation.
As of the date of this prospectus, we have
an authorized share capital of US$10,000 divided into 500,000,000 ordinary shares with a par value of US$0.00002 each, of which
130,186,074 shares are issued and outstanding. As of the date of this prospectus, there are vested and exercisable options to purchase
4,103,266 ordinary shares. The following are summaries of material provisions of our current memorandum and articles of association
which are currently effective and the Companies Law insofar as they relate to the material terms of our ordinary shares. You should
read the forms of our current memorandum and articles of association, which was filed as exhibits to our registration statement
on Form F--1 on February 9, 2010. For information on how to obtain copies of our current memorandum and articles of association,
see “Where You Can Find More Information About Us.”
Ordinary Shares
All of our issued and outstanding ordinary
shares are fully paid and non-assessable. Our ordinary shares are issued in registered form, and are issued when registered in
our register of members (shareholders). Our shareholders who are non-residents of the Cayman Islands may freely hold and vote
their shares.
Meetings
Subject to our current articles of association,
an annual general meeting and any extraordinary general meeting may be called by not less than 10 clear days’ notice in
writing. Notice of every general meeting will be given to all our shareholders other than to such shareholders as, under the provisions
of our current articles of association or the terms of issue of the shares they hold, are not entitled to receive such notices
from us, and also to our directors and auditors.
Notwithstanding that a meeting is called
by shorter notice than that mentioned above, it will be deemed to have been duly called, if it is so agreed (i) in the case of
a meeting called as an annual general meeting, by all our shareholders entitled to attend and vote at the meeting; or (ii) in
the case of any other meeting, by a majority in number of the shareholders having a right to attend and vote at the meeting, being
a majority together holding not less than 95% in nominal value of the issued shares giving that right.
No business other than the appointment
of a chairman of a meeting shall be transacted at any general meeting unless a quorum of shareholders is present at the time when
the meeting proceeds to business.
Two of our members entitled to vote and
present in person or by proxy or (in the case of a member being a corporation) by its duly authorized representative representing
not less than one-third in the nominal value of the total issued voting shares in our company throughout the meeting shall form
a quorum and a corporation being a shareholder shall be deemed for the purpose of our current articles of association to be present
in person if represented by its duly authorized representative being the person appointed by resolution of the directors or other
governing body of such corporation to act as its representative at the relevant general meeting or at any relevant general meeting
of any class of our shareholders. Such duly authorized representative shall be entitled to exercise the same powers on behalf
of the corporation which he represents as that corporation could exercise if it were our individual shareholder.
Voting Rights Attaching to t
h
e
Shares
Subject to any rights or restrictions attached
to any shares, at any general meeting on a show of hands every shareholder who is present in person or by proxy (or, in the case
of a shareholder being a corporation, by its duly authorized representative) shall have one vote, and on a poll every shareholder
present in person or by proxy (or, in the case of a shareholder being a corporation, by its duly appointed representative) shall
have one vote for each fully paid share of which such shareholder is the holder.
Any ordinary resolution to be passed by
our shareholders requires the affirmative vote of a simple majority of the votes cast at a meeting of our shareholders, while
a special resolution requires the affirmative votes of not less than two-thirds of the votes cast at a meeting of our shareholders.
See “— Modification of Rights.”
No shareholder shall, unless our board
of directors otherwise determines, be entitled to attend and vote or be reckoned in a quorum, in respect of any share unless such
shareholder is registered as our shareholder at the applicable record date for that meeting and all calls or installments due
by such shareholder to us have been paid.
If a recognized clearing house (or its
nominee(s)) is our shareholder, it may authorize such person or persons as it thinks fit to act as its representative(s) at any
meeting or at any meeting of any class of shareholders provided that, if more than one person is so authorized, the authorization
shall specify the number and class of shares in respect of which each such person is so authorized. A person authorized pursuant
to this provision is deemed to have been duly authorized without further evidence of the facts and be entitled to exercise the
same powers on behalf of the recognized clearing house (or its nominee(s)) as if such person was the registered holder of our
shares held by that clearing house (or its nominee(s)).
Protection of Minorities
The Grand Court of the Cayman Islands may,
on the application of shareholders holding not less than one-fifth of our shares in issue, appoint an inspector to examine our
affairs and to report thereon in a manner as the Grand Court shall direct.
Any shareholder may petition the Grand
Court of the Cayman Islands which may make a winding up order, if the court is of the opinion that it is just and equitable that
we should be wound up.
Claims against us by our shareholders must,
as a general rule, be based on the general laws of contract or tort applicable in the Cayman Islands or their individual rights
as shareholders as established by our current memorandum and articles of association.
The Cayman Islands courts ordinarily would
be expected to follow English case law precedents (namely the rule in Foss v. Harbottle and the exceptions thereto) which permit
a minority shareholder to commence a representative action against, or derivative actions in our name to challenge (a) an act
which is ultra vires or illegal, (b) an act which constitutes a fraud against the minority and the wrongdoers are themselves in
control of us, and (c) an irregularity in the passing of a resolution which requires a qualified (or special) majority.
Pre-emption Rights
There are no pre-emption rights applicable
to the issue of new shares under either Cayman Islands law or our current memorandum and articles of association.
Liquidation Rights
Subject to any special rights, privileges
or restrictions as to the distribution of available surplus assets on liquidation for the time being attached to any class or
classes of shares, if we shall be wound up the liquidator may, with the sanction of a special resolution and any other sanction
required by the Companies Law, divide among our shareholders in kind the whole or any part of our assets (whether they shall consist
of property of the same kind or not) and may, for that purpose, value any assets as the liquidator deems fair upon any asset and
determine how the division shall be carried out as between our shareholders or different classes of shareholders. The liquidator
may, with the like sanction, vest the whole or any part of such assets in trustees upon such trusts for the benefit of our shareholders
as the liquidator, with the like sanction, shall think fit, but so that no shareholders shall be compelled to accept any asset
upon which there is a liability. If we shall be wound up, and the assets available for distribution among our shareholders as
such shall be insufficient to repay the whole of the paid-up capital, such assets shall be distributed so that, as nearly as may
be, the losses shall be borne by our shareholders in proportion to the capital paid up, or which ought to have been paid up, at
the commencement of the winding up on the shares held by them respectively. If we shall be wound up, and the assets available
for distribution among our shareholders shall be more than sufficient to repay the whole of the capital paid up at the commencement
of the winding up, the excess shall be distributed pari passu amongst our shareholders in proportion to the amount paid up on
the shares held by them respectively at the commencement of the winding up, subject to a deduction from those shares in respect
of which there are monies due, of all monies payable to our company for unpaid calls or otherwise.
Modification of Rights
Except with respect to share capital (as
described below), alterations to our current memorandum and articles of association may only be made by special resolution of
not less than two-thirds of votes cast at a meeting of our shareholders.
Subject to the Companies Law, all or any
of the special rights attached to shares of any class (unless otherwise provided for by the terms of issue of the shares of that
class) may be varied, modified or abrogated with the sanction of a special resolution of not less than two-thirds of votes cast
at a separate meeting of our shareholders of that class.
The special rights conferred upon the holders
of any class of shares shall not, unless otherwise expressly provided in the rights attaching to or the terms of issue of such
shares, be deemed to be varied by the creation or issue of further shares ranking equally therewith.
Designations and Classes of Shares
All of our issued shares are ordinary shares.
Our current articles of association provide that our authorized unissued shares shall be at the disposal of our board of directors,
which may offer, allot, grant options over or otherwise dispose of them to such persons, at such times and for such consideration
and upon such terms and conditions as our board may in its absolute discretion determine but so that no shares shall be issued
at a discount. In particular, our board of directors is empowered to redesignate from time to time authorized and unissued ordinary
shares as other classes or series of shares, to authorize from time to time the issuance of one or more series of preferred shares
and to fix the designations, powers, preferences and relative, participating, optional and other rights, if any, and the qualifications,
limitations and restrictions thereof, if any, including without limitation, the number of shares constituting each such class
or series, dividend rights, conversion rights, redemption privileges, voting powers and liquidation preferences, and to increase
or decrease the size of any such class or series.
Transfer of Shares
Subject to the restrictions of our current
articles of association, any of our shareholder may transfer all or any of his or her shares by an instrument of transfer in the
usual or common form or in or such other form as prescribed by the Designated Stock Exchange or in any other form which the directors
may approve. Our directors may, in their absolute discretion and without assigning any reason therefor, decline to register any
transfer of any share (not being a fully paid up share). Our directors may also decline to recognize any instrument of transfer
unless:
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(a)
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the instrument of transfer is lodged with us accompanied by
the certificate for the ordinary shares to which it relates and such other evidence as
the directors may reasonably require to show the right of the transferor to make the
transfer;
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(b)
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the instrument of transfer is in respect of only one class
of share;
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(c)
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a fee, if any, of such maximum sum as the Designated Stock
Exchange may determine to be payable or such lesser sum as the directors may from time
to time require is paid to us in respect thereof; and
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(d)
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if applicable, the instrument of transfer is duly and properly
stamped.
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The registration of transfers may, after
compliance with any notice requirements of the Designated Stock Exchange, be suspended and the register closed at such times and
for such periods as the directors may from time to time determine, provided, however, that the registration of transfers shall
not be suspended nor the register closed for more than 30 days in any year.
Share Repurchase
We are empowered by the Companies Law and
our current articles of association to purchase our own shares. Our directors may only exercise this power on our behalf, subject
to the Companies Law, our current memorandum and articles of association and to any applicable requirements imposed from time
to time by the SEC, the NYSE or by any other recognized stock exchange on which our securities are listed.
Dividends
Subject to the Companies Law and our current
articles of association, we in general meeting or our board of directors may from time to time declare dividends in any currency,
but no dividends shall exceed the amount recommended by our board of directors. Under Companies Law, dividends may be declared
and paid out of either profit or share premium account, provided that in no circumstances may a dividend be paid if this would
result in the company being unable to pay its debts as they fall due in the ordinary course of business.
Unless and to the extent that the rights
attached to any shares or the terms of issue thereof otherwise provide, with respect to any shares not fully paid throughout the
period in respect of which the dividend is paid, all dividends shall be apportioned and paid pro rata according to the amounts
paid up on the shares during any portion or portions of the period in respect of which the dividend is paid. For these purposes
no amount paid up on a share in advance of calls shall be treated as paid up on the share.
Our board of directors may from time to
time pay to our shareholders such interim dividends as appear to our directors to be justified by our profits. Our directors may
also pay dividends semi-annually or at other intervals to be selected by them at a fixed rate if they are of the opinion that
the profits available for distribution justify the payment.
Our board of directors may retain any dividends
or other monies payable on or in respect of a share upon which we have a lien, and may apply the same in or towards satisfaction
of the debts, liabilities or engagements in respect of which the lien exists. Our board of directors may also deduct from any
dividend or other monies payable to any shareholder all sums of money, if any, presently payable by him or her to us on account
of calls or otherwise.
No dividend shall carry interest against
us.
Whenever our board of directors or we in
general meeting have resolved that a dividend be paid or declared on our share capital, the board of directors may further resolve:
(a) that such dividend be satisfied wholly or in part in the form of an allotment of shares credited as fully paid up, provided
that those of our shareholders entitled thereto will be entitled to elect to receive such dividend, or part thereof, in cash in
lieu of such allotment; or (b) that those of our shareholders entitled to such dividend will be entitled to elect to receive an
allotment of shares credited as fully paid up in lieu of the whole or such part of the dividend as our board of directors may
think fit. We may upon the recommendation of our board of directors by ordinary resolution resolve in respect of any one particular
dividend that notwithstanding the foregoing a dividend may be satisfied wholly in the form of an allotment of shares credited
as fully paid without offering any right to our shareholders to elect to receive such dividend in cash in lieu of such allotment.
Any dividend, interest or other sum payable
in cash to a holder of shares may be paid by cheque or warrant sent through the post addressed to the registered address of our
shareholder entitled, or in the case of joint holders, to the registered address of the person whose name stands first in our
register of shareholders in respect of the joint holding to such person and to such address as the holder or joint holders may
in writing direct. Every cheque or warrant so sent shall be made payable to the order of the holder or, in the case of joint holders,
to the order of the holder whose name stands first on our register of shareholders in respect of such shares, and shall be sent
at his or their risk and the payment of any such cheque or warrant by the bank on which it is drawn shall operate as a good discharge
to us in respect of the dividend and/or bonus represented thereby, notwithstanding that it may subsequently appear that the same
has been stolen or that any endorsement there on has been forged.
Any dividend unclaimed for six years from
the date of declaration of such dividend may be forfeited and shall revert to us.
Our board of directors may, or we in general
meeting direct that any dividend be satisfied wholly or in part by the distribution of specific assets of any kind, and in particular
of paid up shares, debentures or warrants to subscribe securities of us or any other company, and where any difficulty arises
in regard to such distribution our directors may settle it as they think expedient, and in particular may issue certificates in
respect of fractions of shares, disregard fractional entitlements or round the same up or down, and may fix the value for distribution
of such specific assets and may determine that cash payments shall be made to any of our shareholders upon the footing of the
value so fixed in order to adjust the rights of all parties, and may vest any such specific assets in trustees as may seem expedient
to our board of directors.
Untraceable Shareholders
We are entitled to sell any share of a
shareholder who is untraceable, provided that:
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(i)
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all cheques or warrants in respect of dividends of such shares,
not being less than three in number, for any sums payable in cash to the holder of such
shares have remained uncashed for a period of 12 years prior to the publication of the
advertisement and the expiry of three months (or such shorter period as may be permitted
by the Designated Stock Exchange) since the date of the advertisement;
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(ii)
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we have not during that time received any indication of the
existence of the shareholder or person entitled to such shares by death, bankruptcy or
operation of law; and
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(iii)
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we have caused an advertisement to be published in newspapers
in the manner stipulated by our current articles of association, giving notice of our
intention to sell these shares, and a period of three months or such shorter period as
may be allowed by the Designated Stock Exchange has elapsed since such advertisement.
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The net proceeds of any such sale shall
belong to us and when we receive these net proceeds we shall become indebted to the former shareholder for an amount equal to
such net proceeds.
Inspection of Books and Records
Holders of our shares will have no general
right under Cayman Islands law to inspect or obtain copies of our list of shareholders or our corporate records. However, we will
provide our shareholders with annual audited financial statements. See “Where You Can Find More Information About Us.”
Board of Directors
General
We are managed by a board of directors
which currently consists of seven members. Our current articles of association provide that the board of directors shall consist
of not less than two and not more than seven directors.
Our shareholders may by ordinary resolution
at any time remove any director before the expiration of his period of office notwithstanding anything in our current articles
of association or in any agreement between us and such director, and may by ordinary resolution elect another person in his stead.
Subject to our current articles of association, the directors will have power at any time and from time to time to appoint any
person to be a director, either to fill a casual vacancy or a vacancy created by the removal of a director, but so that the total
number of directors (exclusive of alternate directors) must not at any time exceed the maximum number fixed in our current articles
of association.
There are no share ownership qualifications
for directors.
Meetings of our board of directors may
be convened by the secretary on the request of a director or by any director.
A meeting of our board of directors will
be competent to make lawful and binding decisions if at least two directors are present or represented. At any meeting of our
directors, each director, be it by his or her presence or by his or her alternate, is entitled to one vote. A director may vote
in respect of any contract or transaction in which he is directly or indirectly interested, provided, such director must declare
the nature of his interest at the earliest meeting of the board at which it is practicable for him to do so, either specifically
or by way of a general notice stating that, by reason of the facts specified in the notice, he is to be regarded as interested
in any contracts of a specified description which we may subsequently make.
Questions arising at a meeting of our board
of directors are required to be decided by simple majority votes of the members of our board of directors present or represented
at the meeting. In the case of a tie vote, the chairman of the meeting shall have a second or deciding vote. Our board of directors
may also pass resolutions without a meeting by written consent.
The remuneration to be paid to the directors
shall be such remuneration as our board of directors may from time to time determine. Under our current articles of association,
the directors shall also be entitled to be paid their traveling, hotel and other expenses reasonably incurred by them in, attending
meetings of the directors, or any committee of the directors, or general meetings of our company, or otherwise in connection with
the discharge of his duties as director.
Differences in Corporate Law
The Companies Law is modeled after similar
law in England but does not necessarily always follow recent changes in English law. In addition, the Companies Law differs from
laws applicable to United States corporations and their shareholders. Set forth below is a summary of certain significant differences
between the provisions of the Companies Law applicable to us and the comparable provisions of the laws applicable to companies
incorporated in the United States and their shareholders.
We are an exempted company with limited
liability under the Companies Law. The Companies Law in the Cayman Islands distinguishes between ordinary resident companies and
exempted companies. Any company that is incorporated in the Cayman Islands but conducts business mainly outside of the Cayman
Islands may apply to be registered as an exempted company. The responsibilities for an exempted company are essentially the same
as for an ordinary company except for the exemptions and privileges listed below:
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an exempted company
does not have to file an annual return of its shareholders with the Registrar of Companies;
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an exempted company’s
register of members is not open to inspection;
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an exempted company
does not have to hold an annual general meeting;
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an exempted company
may issue no par value, negotiable or bearer shares;
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an exempted company
may obtain an undertaking against the imposition of any future taxation (such undertakings
are usually given for 20 years in the first instance);
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an exempted company
may register by way of continuation in another jurisdiction and be deregistered in the
Cayman Islands;
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an exempted company
may register as a limited duration company; and
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an exempted company
may register as a segregated portfolio company.
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Under the Companies Law, the liability
of the members of a “limited liability” company formed under the Companies Law may be limited to the amount, if any,
unpaid on the shares respectively held by them, provided that the memorandum of association contains a declaration that the liability
of its members is so limited.
Interested Directors
There are no provisions under Cayman Islands
law that require a director who is interested in a transaction entered into by a Cayman company to disclose his interest nor will
render such director liable to such company for any profit realized pursuant to such transaction.
Voting Rights and Quorum Requirements
Under Cayman Islands law, the voting rights
of shareholders are regulated by the company’s articles of association and, in certain circumstances, the Companies Law.
The articles of association will govern matters such as quorum for the transaction of business, rights of shares, and majority
votes required to approve any action or resolution at a meeting of the shareholders or board of directors. Under Cayman Islands
law, certain matters must be approved by a special resolution which requires the affirmative vote of no less than two-thirds of
the votes attached to the ordinary shares cast by those shareholders as, being entitled to do so, vote in person or, where proxies
are allowed, by proxy at a general meeting; otherwise, unless the articles of association otherwise provide, the majority is usually
a simple majority of votes cast by those shareholders entitled to vote who are present in person or by proxy at a general meeting.
Mergers and Similar Arrangements
The Companies Law permits mergers and consolidations
between Cayman Islands companies and between Cayman Islands companies and non-Cayman Islands companies. For these purposes, (a)
“merger” means the merging of two or more constituent companies and the vesting of their undertaking, property and
liabilities in one of such companies as the surviving company and (b) a “consolidation” means the combination of two
or more constituent companies into a consolidated company and the vesting of the undertaking, property and liabilities of such
companies to the consolidated company. In order to effect such a merger or consolidation, the directors of each constituent company
must approve a written plan of merger or consolidation (a “Plan”), which must then be authorized by (a) a special
resolution of the shareholders of each constituent company and (b) such other authorization, if any, as may be specified in such
constituent company’s articles of association. The Plan must be filed with the Registrar of Companies together with a declaration
as to the solvency of the consolidated or surviving company, a list of the assets and liabilities of each constituent company
and an undertaking that a copy of the certificate of merger or consolidation will be given to the members and creditors of each
constituent company and published in the Cayman Islands Gazette. Dissenting shareholders have the right to be paid the fair value
of their shares (which, if not agreed between the parties, will be determined by the Cayman Islands court) if they follow the
required procedures, subject to certain exceptions. Court approval is not required for a merger or consolidation which is effected
in compliance with these statutory procedures.
In addition, there are statutory provisions
that facilitate the reconstruction and amalgamation of companies, provided that the arrangement is approved by a majority in number
of each class of shareholders and creditors with whom the arrangement is to be made, and who must in addition represent three-fourths
in value of each such class of shareholders or creditors, as the case may be, that are present and voting either in person or
by proxy at a meeting, or meetings, convened for that purpose. The convening of the meetings and subsequently the arrangement
must be sanctioned by the Grand Court of the Cayman Islands. While a dissenting shareholder has the right to express to the court
the view that the transaction ought not to be approved, the court can be expected to approve the arrangement if it determines
that:
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the statutory
provisions as to majority vote have been met;
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the shareholders
have been fairly represented at the meeting in question;
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the arrangement
is such that a businessman would reasonably approve; and
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the arrangement
is not one that would more properly be sanctioned under some other provision of the Companies
Law.
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When a take-over offer is made and accepted
by holders of 90.0% of the shares within four months, the offerer may, within a two month period, require the holders of the remaining
shares to transfer such shares on the terms of the offer. An objection can be made to the Grand Court of the Cayman Islands but
this is unlikely to succeed unless there is evidence of fraud, bad faith or collusion.
If the arrangement and reconstruction is
thus approved, the dissenting shareholder would have no rights comparable to appraisal rights, which would otherwise ordinarily
be available to dissenting shareholders of United States corporations, providing rights to receive payment in cash for the judicially
determined value of the shares.
Shareholders’ Suits
In principle, we will normally be the proper
plaintiff and a derivative action may not be brought by a minority shareholder. However, based on English authorities, which would
likely be of persuasive authority in the Cayman Islands, the Cayman Islands courts can be expected to apply and follow the common
law principles (namely the rule in Foss v. Harbottle and the exceptions thereto) which permit a minority shareholder to commence
a class action against, or derivative actions in the name of, a company to challenge:
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an act which
is illegal or ultra vires and is therefore incapable of ratification by the shareholders;
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an action which
requires a resolution with a qualified or special majority which has not been obtained;
and
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an act which
constitutes a fraud on the minority where the wrongdoers are themselves in control of
the company.
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Corporate Governance
Cayman Islands laws do not restrict transactions
with directors, requiring only that directors exercise a duty of care and owe fiduciary duties to the companies for which they
serve. Under our memorandum and articles of association, subject to any separate requirement for audit committee approval under
the applicable rules of the NYSE or unless disqualified by the chairman of the relevant board meeting, so long as a director discloses
the nature of his interest in any contract or arrangement in which he is interested, such a director may vote in respect of any
contract or proposed contract or arrangement in which such director is interested and may be counted in the quorum at such meeting.
Indemnification of Directors and Executive Officers
and Limitation of Liability
Cayman Islands law does not limit the extent
to which a company’s articles of association may provide for indemnification of officers and directors, except to the extent
any such provision may be held by the Cayman Islands courts to be contrary to public policy, such as to provide indemnification
against civil fraud or the consequences of committing a crime. Our memorandum and articles of association permits the indemnification
of officers, directors and secretary for all actions, charges, losses, damages, costs and expenses incurred in their capacities
as such unless such losses or damages arise from dishonesty, fraud or default of such directors or officers or secretary.
Insofar as indemnification for liabilities
arising under the Securities Act may be permitted to our directors, officers or persons controlling us under the foregoing provisions,
we have been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities
Act and is therefore unenforceable as a matter of United States law.
Anti-takeover Provisions in the Current Memorandum
and Articles of Association
Cayman Islands law does not prevent companies
from adopting a wide range of defensive measures, such as staggered boards, blank check preferred shares, removal of directors
only for cause and provisions that restrict the rights of shareholders to call meetings, act by written consent and submit shareholder
proposals. Our current memorandum and articles of association provides for, among others, a staggered board, blank check preferred
stock and provisions that restrict the rights of shareholders to call shareholders’ meetings and eliminate their right to
act by written consent.
Directors’ Fiduciary Duties
Under Delaware corporate law, a director
of a Delaware corporation has a fiduciary duty to the corporation and its shareholders. This duty has two components: the duty
of care and the duty of loyalty. The duty of care requires that a director act in good faith, with the care that an ordinarily
prudent person would exercise under similar circumstances. Under this duty, a director must inform himself of, and disclose to
shareholders, all material information reasonably available regarding a significant transaction. The duty of loyalty requires
that a director act in a manner he reasonably believes to be in the best interests of the corporation. He must not use his corporate
position for personal gain or advantage. This duty prohibits self-dealing by a director and mandates that the best interest of
the corporation and its shareholders take precedence over any interest possessed by a director, officer or controlling shareholder
and not shared by the shareholders generally. In general, actions of a director are presumed to have been made on an informed
basis, in good faith and in the honest belief that the action taken was in the best interests of the corporation. However, this
presumption may be rebutted by evidence of a breach of one of the fiduciary duties. Should such evidence be presented concerning
a transaction by a director, a director must prove the procedural fairness of the transaction, and that the transaction was of
fair value to the corporation.
Under Cayman Islands law, at common law,
members of a board of directors owe fiduciary duties to the company to act in good faith in their dealings with or on behalf of
the company and exercise their powers and fulfill the duties of their office honestly. This duty has four essential elements:
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a duty to act
in good faith in the best interests of the company;
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a duty not to
personally profit from opportunities that arise from the office of director;
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a duty to avoid
conflicts of interest; and
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a duty to exercise
powers for the purpose for which such powers were intended.
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In general, the Companies Law imposes various
duties on officers of a company with respect to certain matters of management and admin
i
stration
of the company. The Companies Law contains provisions, which impose default fines on persons who fail to satisfy those requirements.
However, in many circumstances, an individual is only liable if he knowingly is guilty of the default or knowingly and willfully
authorizes or permits the default.
Shareholder Action by Written Consent
Under the Delaware General Corporation
Law, a corporation may eliminate the right of shareholders to act by written consent by amendment to its certificate of incorporation.
The articles of association of our company contain provisions that eliminate the right of shareholders to act by written consent.
Shareholder Proposals
Under the Delaware General Corporation
Law, a shareholder has the right to put any proposal before the annual meeting of shareholders, provided it complies with the
notice provisions in the governing documents. A special meeting may be called by the board of directors or any other person authorized
to do so in the governing documents, but shareholders may be precluded from calling special meetings.
The Companies Law does not provide shareholders
any right to bring business before a meeting or requisition a general meeting. However, these rights may be provided in articles
of association. Our current articles of association only allow a majority of our board of directors or the chairman of our board
of directors to call an extraordinary shareholder’s meeting. As an exempted Cayman Islands company, we are not obliged by
law to call shareholders’ annual general meetings. However, our current articles of association require us to call such
meetings.
Cumulative Voting
Under the Delaware General Corporation
Law, cumulative voting for election of directors are not permitted unless the corporation’s certificate of incorporation
specifically provides for it. Cumulative voting potentially facilitates the representation of minority shareholders on a board
of directors since it permits the minority shareholder to cast all the votes to which the shareholder is entitled on a single
director, which increases the shareholder’s voting power with respect to electing such director. While there is nothing
under Cayman Islands law which specifically prohibits or restricts the creation of cumulative voting rights for the election of
directors of a Company, our current articles of association do not provide for cumulative voting. As a result, our shareholders
are not afforded any less protections or rights on this issue than shareholders of a Delaware corporation.
Removal of Directors
Under the Delaware General Corporation
Law, a director of a corporation with a classified board may be removed only for cause with the approval of a majority of the
outstanding shares entitled to vote, unless the certificate of incorporation provides otherwise. Under our current articles of
association, directors may be removed, by way of an ordinary resolution of the shareholders.
Transactions with Interested Shareholders
The Delaware General Corporation Law contains
a business combination statute applicable to Delaware public corporations whereby, unless the corporation has specifically elected
not to be governed by such statute by amendment to its certificate of incorporation, it is prohibited from engaging in certain
business combinations with an “interested shareholder” for three years following the date that such person becomes
an interested shareholder. An interested shareholder generally is a person or group who or which owns or owned 15% or more of
the target’s outstanding voting stock within the past three years. This has the effect of limiting the ability of a potential
acquirer to make a two-tiered bid for the target in which all shareholders would not be treated equally. The statute does not
apply if, among other things, prior to the date on which such shareholder becomes an interested shareholder, the board of directors
approves either the business combination or the transaction which resulted in the person becoming an interested shareholder. This
encourages any potential acquirer of a Delaware public corporation to negotiate the terms of any acquisition transaction with
the target’s board of directors.
Cayman Islands law has no comparable statute.
As a result, we cannot avail ourselves of the types of protections afforded by the Delaware business combination statute. However,
although Cayman Islands law does not regulate transactions between a company and its significant shareholders, it does provide
that such transactions must be entered into bona fide in the best interests of the company and not with the effect of constituting
a fraud on the minority shareholders.
Sale of Assets
Contrary to the general practice in most
corporations incorporated in the United States, Cayman Islands incorporated companies may not generally require that shareholders
approve sales of all or substantially all of a company’s assets.
Dissolution; Winding up
Under the Delaware General Corporation
Law, unless the board of directors approves the proposal to dissolve, dissolution must be approved by shareholders holding 100%
of the total voting power of the corporation. Only if the dissolution is initiated by the board of directors may it be approved
by a simple majority of the corporation’s outstanding shares. Delaware law allows a Delaware corporation to include in its
certificate of incorporation a supermajority voting requirement in connection with dissolutions initiated by the board. Under
the Companies Law and our current articles of association, our company may be dissolved, liquidated or wound up by the vote of
holders of two-thirds of our shares voting at a meeting.
Variation of Rights of Shares
Under the Delaware General Corporation
Law, a corporation may vary the rights of a class of shares with the approval of a majority of the outstanding shares of such
class, unless the certificate of incorporation provides otherwise. Under our current articles of association and as permitted
by Cayman Islands law, if our share capital is divided into more than one class of shares, we may vary the rights attached to
any class only with the vote at a class meeting of holders of two-thirds of the shares of such class.
Amendment of Governing Documents
Under the Delaware General Corporation
Law, a corporation’s governing documents may be amended with the approval of a majority of the outstanding shares entitled
to vote, unless the certificate of incorporation provides otherwise. Under the Companies Law, our current memorandum and articles
of association may only be amended with the vote of holders of two-thirds of our shares voting at a meeting.
Rights of Non-resident or Foreign Shareholders
There are no limitations imposed by our
current memorandum and articles of association on the rights of non-resident or foreign shareholders to hold or exercise voting
rights on our shares. In addition, there are no provisions in our current memorandum and articles of association governing the
ownership threshold above which shareholder ownership must be disclosed.
DESCRIPTION OF
AMERICAN DEPOSITARY SHARES
American Depositary Receipts
JPMorgan Chase Bank, N.A., as depositary,
will issue ADSs in connection with an offering of ADSs. Each ADS will represent an ownership interest in four ordinary shares
which we will deposit with the custodian, as agent of the depositary, under the deposit agreement among ourselves, the depositary
and you as an ADR holder. In the future, each ADS will also represent any securities, cash or other property deposited with the
depositary but which it has not distributed directly to you. Unless specifically requested by you, all ADSs will be issued on
the books of our depositary in book-entry form and periodic statements will be mailed to you which reflect your ownership interest
in such ADSs. In our description, references to ADRs shall include the statements you will receive which reflects your ownership
of ADSs.
The depositary’s office is located
at 1 Chase Manhattan Plaza, Floor 58, New York, NY 10005-1401.
You may hold ADSs either directly or indirectly
through your broker or other financial institution. If you hold ADSs directly, by having an ADS registered in your name on the
books of the depositary, you are an ADR holder. This description assumes you hold your ADSs directly. If you hold the ADSs through
your broker or financial institution nominee, you must rely on the procedures of such broker or financial institution to assert
the rights of an ADR holder described in this section. You should consult with your broker or financial institution to find out
what those procedures are.
As an ADR holder, we will not treat you
as a shareholder of ours and you will not have any shareholder rights. Cayman Islands law governs shareholder rights. Because
the depositary or its nominee will be the shareholder of record for the shares represented by all outstanding ADSs, shareholder
rights rest with such record holder. Your rights are those of an ADR holder. Such rights derive from the terms of the deposit
agreement to be entered into among us, the depositary and all registered holders from time to time of ADSs issued under the deposit
agreement. The obligations of the depositary and its agents are also set out in the deposit agreement. Because the depositary
or its nominee will actually be the registered owner of the shares, you must rely on it to exercise the rights of a shareholder
on your behalf. The deposit agreement and the ADSs are governed by New York law.
The following is a summary of the material
terms of the deposit agreement. Because it is a summary, it does not contain all the information that may be important to you.
For more complete information, you should read the entire deposit agreement and the form of ADR which contains the terms of your
ADSs. You can read a copy of the deposit agreement which is filed as an exhibit to the registration statement of which this prospectus
forms a part. You may also obtain a copy of the deposit agreement at the SEC’s public reference room which is located at
100 F Street, NE, Washington, DC 20549. You may obtain information on the operation of the public reference room by calling the
SEC at 1-800-732-0330. You may also find the registration statement and the attached deposit agreement on the SEC’s website
at
http://www.sec.gov
.
Share Dividends and Other Distributions
How will you receive dividends and other distributions
on the shares underlying your ADSs?
We may make various types of distributions
with respect to our securities. The depositary has agreed that, to the extent practicable, it will pay to you the cash dividends
or other distributions it or the custodian receives on shares or other deposited securities, after converting any cash received
into U.S. dollars and, in all cases, making any necessary deductions provided for in the deposit agreement. You will receive these
distributions in proportion to the number of underlying securities that your ADSs represent.
Except as stated below, the depositary
will deliver such distributions to ADR holders in proportion to their interests in the following manner:
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Cash
.
The depositary will distribute any U.S. dollars available to it resulting from a cash
dividend or other cash distribution or the net proceeds of sales of any other distribution
or portion thereof (to the extent applicable), on an averaged or other practicable basis,
subject to (i) appropriate adjustments for taxes withheld, (ii) such distribution being
impermissible or impracticable with respect to certain registered ADR holders, and (iii)
deduction of the depositary’s expenses in (1) converting any foreign currency
to U.S. dollars to the extent that it determines that such conversion may be made on
a reasonable basis, (2) transferring foreign currency or U.S. dollars to the United States
by such means as the depositary may determine to the extent that it determines that such
transfer may be made on a reasonable basis, (3) obtaining any approval or license of
any governmental authority required for such conversion or transfer, which is obtainable
at a reasonable cost and within a reasonable time and (4) making any sale by public or
private means in any commercially reasonable manner.
If exchange rates fluctuate during
a time when the depositary cannot convert a foreign currency, you may lose some or all
of the value of the distribution.
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Shares.
In
the case of a distribution in shares, the depositary will issue additional ADRs to evidence
the
number
of ADSs representing such shares. Only whole ADSs will be issued. Any
shares which would result in fractional ADSs will be sold and the net proceeds will be
distributed in the same manner as cash to the ADR holders entitled thereto.
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Rights to
receive additional shares.
In the case of a distribution of rights to subscribe for
additional shares or other rights, if we provide evidence satisfactory to the depositary
that it may lawfully distribute such rights, the depositary will distribute warrants
or other instruments representing such rights in its discretion. However, if we do not
furnish such evidence, the depositary may (i) sell such rights if practicable and distribute
the net proceeds in the same manner, as cash to the ADR holders entitled thereto; or
(ii) if it is not practicable to sell such rights, do nothing and allow such rights to
lapse, in which case ADR holders will receive nothing. We have no obligation to file
a registration statement under the Securities Act in order to make any rights available
to ADR holders.
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Other Distributions.
In the case of a distribution of securities or property other than those described
above, the depositary may either (i) distribute such securities or property in any manner
it
deems
equitable and practicable or (ii) to the extent the depositary deems
distribution of such securities or property not to be equitable and practicable, sell
such securities or property and distribute any net proceeds in the same way it distributes
cash.
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If the depositary determines that any distribution
described above is not practicable with respect to any specific registered ADR holder, the depositary may choose any method of
distribution that it deems practicable for such ADR holder, including the distribution of foreign currency, securities or property,
or it may retain such items, without paying interest on or investing them, on behalf of the ADR holder as deposited securities,
in which case the ADSs will also represent the retained items.
Any U.S. dollars will be distributed by
checks drawn on a bank in the United States for whole dollars and cents. Fractional cents will be withheld without liability and
dealt with by the depositary in accordance with its then current practices.
The depositary is not responsible if it
decides that it is unlawful or impractical to make a distribution available to any ADR holders.
There can be no assurance that the
depositary will be able to convert any currency at a specified exchange rate or sell any property, rights, shares or other securities
at a specified price, nor that any of such transactions can be completed within a specified time period.
Deposit, Withdrawal and Cancellation
How does the depositary issue ADSs?
The depositary will issue ADSs if you or
your broker deposit shares or evidence of rights to receive shares with the custodian and pay the fees and expenses owing to the
depositary in connection with such issuance. In the case of the ADSs to be issued under this prospectus, we will arrange with
the underwriters named herein to deposit such shares.
Shares deposited in the future with the
custodian must be accompanied by certain delivery documentation, including instruments showing that such shares have been properly
transferred or endorsed to the person on whose behalf the deposit is being made.
The custodian will hold all deposited shares
(including those being deposited by or on our behalf in connection with offerings to which this prospectus relates) for the account
of the depositary. ADR holders thus have no direct ownership interest in the shares and only have such rights as are contained
in the deposit agreement. The custodian will also hold any additional securities, property and cash received on or in substitution
for the deposited shares. The deposited shares and any such additional items are referred to as “deposited securities.”
Upon each deposit of shares, receipt of
related delivery documentation and compliance with the other provisions of the deposit agreement, including the payment of the
fees and charges of the depositary and any taxes or other fees or charges owing, the depositary will issue an ADR or ADRs in the
name or upon the order of the person entitled thereto evidencing the number of ADSs to which such person is entitled. All of the
ADSs issued will, unless specifically requested to the contrary, be part of the depositary’s direct registration system,
and a registered holder will receive periodic statements from the depositary which will show the number of ADSs registered in
such holder’s name. An ADR holder can request that the ADSs not be held through the depositary’s direct registration
system and that a certificated ADR be issued.
How do ADR holders cancel an ADS and obtain deposited
securities?
When you turn in your ADR certificate at
the depositary’s office, or when you provide proper instructions and documentation in the case of direct registration ADSs,
the depositary will, upon payment of certain applicable fees, charges and taxes, deliver the underlying shares to you or upon
your written order. In the case of certificated ADSs, delivery will be made at the custodian’s office. At your risk, expense
and request, the depositary may deliver deposited securities at such other place as you may request.
The depositary may only restrict the withdrawal
of deposited securities in connection with:
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temporary delays
caused by closing our transfer books or those of the depositary or the deposit of shares
in connection with voting at a shareholders’ meeting, or the payment of dividends;
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the payment of
fees, taxes and similar charges; or
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compliance with
any U.S. or foreign laws or government regulations relating to the ADRs or to the withdrawal
of deposited securities. This right of withdrawal may not be limited by any other provision
of the deposit agreement.
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Record Dates
The depositary may, after consultation
with us if practicable, fix record dates for the determination of the registered ADR holders who will be entitled (or obligated,
as the case may be):
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to receive any
distribution on or in respect of shares,
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to give instructions
for the exercise of voting rights at a meeting of holders of ordinary shares or other
deposited securities,
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to pay the fee
assessed by the depositary for administration of the ADR program and for any expenses
as provided for in the ADR, or
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to receive any
notice or to act in respect of other matters, all subject to the provisions of the deposit
agreement.
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Voting Rights
How do you vote?
If you are an ADR holder and the depositary
asks you to provide it with voting instructions, you may instruct the depositary how to exercise the voting rights for the shares
which underlie your ADSs. As soon as practicable after receiving notice of any meeting or solicitation of consents or proxies
from us, the depositary will distribute to the registered ADR holders a notice stating such information as is contained in the
voting materials received by the depositary and describing how you may instruct the depositary to exercise the voting rights for
the shares which underlie your ADSs, including instructions for giving a discretionary proxy to a person designated by us. For
instructions to be valid, the depositary must receive them in the manner and on or before the date specified. The depositary will
try, as far as is practical, subject to the provisions of and governing the underlying shares or other deposited securities, to
vote or to have its agents vote the shares or other deposited securities as you instruct. The depositary will only vote or attempt
to vote as you instruct. The depositary will not itself exercise any voting discretion. Furthermore, neither the depositary nor
its agents are responsible for any failure to carry out any voting instructions, for the manner in which any vote is cast or for
the effect of any vote.
There is no guarantee that you will receive
voting materials in time to instruct the depositary to vote and it is possible that you, or persons who hold their ADSs through
brokers, dealers or other third parties, will not have the opportunity to exercise a right to vote.
Reports and Other Communications
Will you be able to view our reports?
The depositary will make available for
inspection by ADR holders at the offices of the depositary and the custodian the deposit agreement, the provisions of or governing
deposited securities, and any written communications from us which are both received by the custodian or its nominee as a holder
of deposited securities and made generally available to the holders of deposited securities.
Additionally, if we make any written communications
generally available to holders of our shares, and we furnish copies thereof (or English translations or summaries), to the depositary.
It will distribute the same to the registered ADR holders.
Fees and Expenses
What fees and expenses will you be responsi
b
le
for paying?
The depositary may charge each person to
whom ADSs are issued, including, without limitation, issuances against deposits of shares, issuances in respect of share distributions,
rights and other distributions, issuances pursuant to a stock dividend or stock split declared by us or issuances pursuant to
a merger, exchange of securities or any other transaction or event affecting the ADSs or deposited securities, and each person
surrendering ADSs for withdrawal of deposited securities or whose ADRs are cancelled or reduced for any other reasons, US$5.00
for each 100 ADSs (or any portion thereof) issued, delivered, reduced, cancelled or surrendered, as the case may be. The depositary
may sell (by public or private sale) sufficient securities and property received in respect of a share distribution, rights and/or
other distribution prior to such deposit to pay such charge.
The following additional charges shall
be incurred by the ADR holders, by any party depositing or withdrawing shares or by any party surrendering ADSs or to whom ADSs
are issued (including, without limitation, issuance pursuant to a stock dividend or stock split declared by us or an exchange
of stock regarding the ADRs or the deposited securities or a distribution of ADSs), whichever is applicable:
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a fee of US$1.50
per ADR or ADRs for transfers of certificated or direct registration ADRs;
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a fee of up to
US$0.05 per ADS for any cash distribution made pursuant to the deposit agreement;
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a fee of up to
US$0.05 per ADS per calendar year (or portion thereof) for services performed by the
depositary in administering the ADRs (which fee may be charged on a periodic basis during
each calendar year and shall be assessed against holders of ADRs as of the record date
or record dates set by the depositary during each calendar year and shall be payable
in the manner described in the next succeeding provision);
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reimbursement
of such fees, charges and expenses as are incurred by the depositary and/or any of the
depositary’s agents (including, without limitation, the custodian and expenses
incurred on behalf of holders in connection with compliance with foreign exchange control
regulations or any law or regulation relating to foreign investment) in connection with
the servicing of the shares or other deposited securities, the delivery of deposited
securities or otherwise in connection with the depositary’s or its custodian’s
compliance with applicable law, rule or regulation (which charge shall be assessed on
a proportionate basis against ADS holders as of the record date or dates set by the depositary
and shall be payable at the sole discretion of the depositary by billing such holders
or by deducting such charge from one or more cash dividends or other cash distributions);
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a fee for the
distribution of securities (or the sale of securities in connection with a distribution),
such fee being in an amount equal to the fee for the execution and delivery of ADSs which
would have been charged as a result of the deposit of such securities (treating all such
securities as if they were shares) but which securities or the net cash proceeds from
the sale thereof are instead distributed by the depositary to those holders entitled
thereto;
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stock transfer
or other taxes and other governmental charges;
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cable, telex
and facsimile transmission and delivery charges incurred at your request in connection
with the deposit or delivery of shares;
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transfer or registration
fees for the registration of transfer of deposited securities on any applicable register
in connection with the deposit or withdrawal of deposited securities; and
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expenses of the
depositary in connection with the conversion of foreign currency into U.S. dollars.
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We will pay all other charges and expenses
of the depositary and any agent of the depositary (except the custodian) pursuant to agreements from time to time between us and
the depositary. The charges described above may be amended from time to time by agreement between the depositary and us.
Our depositary has agreed to reimburse
us for certain expenses we incur that are related to establishment and maintenance of the ADR program, including investor relations
expenses and exchange application and listing fees. Neither the depositary nor we can determine the exact amount to be made available
to us because (i) the number of ADSs that will be issued and outstanding, (ii) the level of fees to be charged to holders of ADSs
and (iii) our reimbursable expenses related to the ADR program are not known at this time. The depositary collects its fees
for issuance and cancellation of ADSs directly from investors depositing shares or surrendering ADSs for the purpose of withdrawal
or from intermediaries acting for them. The depositary collects fees for making distributions to investors by deducting those
fees from the amounts distributed or by selling a portion of distributable property to pay the fees. The depositary may collect
its annual fee for depositary services by deduction from cash distributions, or by directly billing investors, or by charging
the book-entry system accounts of participants acting for them. The depositary may generally refuse to provide services to any
holder until the fees and expenses owing by such holder for those services or otherwise are paid.
Payment of Taxes
ADR holders must pay any tax or other governmental
charge payable by the custodian or the depositary on any ADS or ADR, deposited security or distribution. If an ADR holder owes
any tax or other governmental charge, the depositary may (i) deduct the amount thereof from any cash distributions, or (ii) sell
deposited securities (by public or private sale) and deduct the amount owing from the net proceeds of such sale. In either case
the ADR holder remains liable for any shortfall. Additionally, if any tax or governmental charge is unpaid, the depositary may
also refuse to effect any registration, registration of transfer, split-up or combination of deposited securities or withdrawal
of deposited securities until such payment is made. If any tax or governmental charge is required to be withheld on any cash distribution,
the depositary may deduct the amount required to be withheld from any cash distribution, or in the case of a non-cash distribution,
sell the distributed property or securities (by public or private sale) to pay such taxes and distribute any remaining net proceeds
to the ADR holders entitled thereto.
By holding an ADR or an interest therein,
you will be agreeing to indemnify us, the depositary, its custodian and any of our or their respective directors, employees, agents
and affiliates against, and hold each of them harmless from, any claims by any governmental authority with respect to taxes, additions
to tax, penalties or interest arising out of any refund of taxes, reduced rate of withholding at source or other tax benefit obtained.
Reclassifications, Recapitalizations and Mergers
If we take certain actions that affect
the deposited securities, including (i) any change in par value, split-up, consolidation, cancellation or other reclassification
of deposited securities or (ii) any distributions not made to holders of ADRs or (iii) any recapitalization, reorganization, merger,
consolidation, liquidation, receivership, bankruptcy or sale of all or substantially all of our assets, then the depositary may
choose to:
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distribute additional
or amended ADRs;
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distribute cash,
securities or other property it has received in connection with such actions;
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sell any securities
or property received and distribute the proceeds as cash; or
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If the depositary does not choose any of
the above options, any of the cash, securities or other property it receives will constitute part of the deposited securities
and each ADS will then represent a proportionate interest in such property.
Amendment and Termination
How may the deposit agreement be amended?
We may agree with the depositary to amend
the deposit agreement and the ADSs without your consent for any reason. ADR holders must be given at least 30 days’ notice
of any amendment that imposes or increases any fees or charges (other than stock transfer or other taxes and other governmental
charges, transfer or registration fees, cable, telex or facsimile transmission costs, delivery costs or other such expenses),
or otherwise prejudices any substantial existing right of ADR holders. Such notice need not describe in detail the specific amendments
effectuated thereby, but must give ADR holders a means to access the text of such amendment. If an ADR holder continues to hold
an ADR or ADRs after being so notified, such ADR holder is deemed to agree to such amendment and to be bound by the deposit agreement
as so amended. Notwithstanding the foregoing, if any governmental body or regulatory body should adopt new laws, rules or regulations
which would require amendment or supplement of the deposit agreement or the form of ADR to ensure compliance therewith, we and
the depositary may amend or supplement the deposit agreement and the ADR at any time in accordance with such changed laws, rules
or regulations, which amendment or supplement may take effect before a notice is given or within any other period of time as required
for compliance. No amendment, however, will impair your right to surrender your ADSs and receive the underlying securities, except
in order to comply with mandatory provisions of applicable law.
How may the deposit agreement be terminated?
The depositary may, and shall at our written
direction, terminate the deposit agreement and the ADRs by mailing notice of such termination to the registered holders of ADRs
at least 30 days prior to the date fixed in such notice for such termination; provided, however, if the depositary shall have
(i) resigned as depositary under the deposit agreement, notice of such termination by the depositary shall not be provided to
registered holders unless a successor depositary shall not be operating under the deposit agreement within 45 days of the date
of such resignation, or (ii) been removed as depositary under the deposit agreement, notice of such termination by the depositary
shall not be provided to registered holders of ADRs unless a successor depositary shall not be operating under the deposit agreement
on the 90th day after our notice of removal was first provided to the depositary. After termination, the depositary’s only
responsibility will be (i) to deliver deposited securities to ADR holders who surrender their ADRs, and (ii) to receive and hold
or sell distributions on deposited securities. As soon as practicable after the expiration of six months from the termination
date, the depositary will sell the deposited securities which remain and hold the net proceeds of such sales (as long as it may
lawfully do so), without liability for interest, in trust for the ADR holders who have not yet surrendered their ADRs. After making
such sale, the depositary shall have no obligations except to account for such net proceeds and other cash.
Limitations on Obligations and Liability to ADR Holders
Limits on our obligations and the obligations
o
f
the depositary; limits on liability to ADR holders and holders of ADSs
Prior to the issue, registration, registration
of transfer, split-up or, combination of any ADR, the delivery of any distribution in respect thereof, the withdrawal of any deposited
securities, and from time to time, we or the depositary or its custodian may require:
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payment with
respect thereto of (i) any stock transfer or other tax or other governmental charge,
(ii) any stock transfer or registration fees in effect for the registration of transfers
of shares or other deposited securities upon any applicable register and (iii) any applicable
charges as described in the deposit agreement;
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the production
of proof satisfactory to it of (i) the identity of any signatory and genuineness of any
signature and (ii) such other information, including without limitation, information
as to citizenship, residence, exchange control approval, beneficial ownership of any
securities, compliance with applicable laws, regulations, provisions of or governing
deposited securities and terms of the deposit agreement and the ADRs, as it may deem
necessary or proper; and
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compliance with
such regulations as the depositary may establish consistent with the deposit agreement.
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The issuance of ADRs, the acceptance of
deposits of shares, the registration, registration of transfer, split-up or combination of ADRs or the withdrawal of shares, may
be suspended generally or in particular instances, when the ADR register or any register for deposited securities is closed or
when any such action is deemed advisable by the depositary; provided that the ability to withdrawal shares may only be limited
under the following circumstances: (i) temporary delays caused by closing transfer books of the depositary or our transfer books
or the deposit of shares in connection with voting at a shareholders’ meeting, or the payment of dividends, (ii) the payment
of fees, taxes, and similar charges, and (iii) compliance with any laws or governmental regulations relating to ADRs or to the
withdrawal of deposited securities.
The deposit agreement expressly limits
the obligations and liability of the depositary, ourselves and our respective agents. Neither we nor the depositary nor any such
agent will be liable if:
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any present or
future law, rule, regulation, fiat, order or decree of the United States, the Cayman
Islands, the People’s Republic of China (including the Hong Kong Special Administrative
Region, the People’s Republic of China) or any other country, or of any governmental
or regulatory authority or securities exchange or market or automated quotation system,
the provisions of or governing any deposited securities, any present or future provision
of our charter, any act of God, war, terrorism or other circumstance beyond our, the
depositary’s or our respective agents’ control shall prevent, delay or subject
to any civil or criminal penalty any act which the deposit agreement or the ADRs provides
shall be done or performed by us, the depositary or our respective agents (including,
without limitation, voting);
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it exercises
or fails to exercise discretion under the deposit agreement or the ADR;
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it performs its
obligations under the deposit agreement and ADRs without gross negligence or bad faith;
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it takes any
action or refrains from taking any action in reliance upon the advice of or information
from legal counsel, accountants, any person presenting shares for deposit, any registered
holder of ADRs, or any other person believed by it to be competent to give such advice
or information; or
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it relies upon
any written notice, request, direction or other document believed by it to be genuine
and to have been signed or presented by the proper party or parties.
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Neither the depositary nor its agents have
any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of any deposited securities or
the ADRs. We and our agents shall only be obligated to appear in, prosecute or defend any action, suit or other proceeding in
respect of any deposited securities or the ADRs, which in our opinion may involve us in expense or liability, if indemnity satisfactory
to us against all expense (including fees and disbursements of counsel) and liability is furnished as often as may be required.
The depositary and its agents may fully respond to any and all demands or requests for information maintained by or on its behalf
in connection with the deposit agreement, any registered holder or holders of ADRs, any ADR or ADRs or otherwise related to the
deposit agreement or ADRs to the extent such information is requested or required by or pursuant to any lawful authority, including
without limitation laws, rules, regulations, administrative or judicial process, banking, securities or other regulators. The
depositary shall not be liable for the acts or omissions made by any securities depositary, clearing agency or settlement system
in connection with or arising out of book-entry settlement of deposited securities or otherwise. Furthermore, the depositary shall
not be responsible for, and shall incur no liability in connection with or arising from, the insolvency of any custodian that
is not a branch or affiliate of JPMorgan Chase Bank, N.A.
Additionally, none of us, the depositary
or the custodian shall be liable for the failure by any registered holder of ADRs or beneficial owner therein to obtain the benefits
of credits on the basis of non-U.S. tax paid against such holder’s or beneficial owner’s income tax liability. Neither
we nor the depositary shall incur any liability for any tax consequences that may be incurred by holders or beneficial owners
on account of their ownership of ADRs or ADSs.
Neither the depositary nor its agents will
be responsible for any failure to carry out any instructions to vote any of the deposited securities, for the manner in which
any such vote is cast or for the effect of any such vote. Neither the depositary nor any of its agents shall be liable to the
registered holders of ADRs or beneficial owners of interests in ADSs for any indirect, special, punitive or consequential damages
(including, without limitation, lost profits) of any form incurred by any person or entity, whether or not foreseeable and regardless
of the type of action in which such a claim may be brought.
The depositary and its agents may own and
deal in any class of our securities and in ADSs.
Disclosure of Interest in ADSs
To the extent that the provisions of or
governing any deposited securities may require disclosure of or impose limits on be
neficial
or other ownership of deposited securities, other shares and other securities and may provide for blocking
transfer, voting
or other rights to enforce such disclosure or limits, you agree to comply with all such disclosure requirements and ownership
limitations and to comply with any reasonable instructions we may provide in respect thereof. We reserve the right to instruct
you to deliver your ADSs for cancellation and withdrawal of the deposited securities so as to permit us to deal with you directly
as a holder of shares and you agree to comply with such instructions.
Books of Depositary
The depositary or its agent will maintain
a register for the registration, registration of transfer, combination and split-up of ADRs, which register shall include the
depositary’s direct registration system. Registered holders of ADRs may inspect such records at the depositary’s office
at all reasonable times, but solely for the purpose of communicating with other holders in the interest of the business of our
company or a matter relating to the deposit agreement. Such register may be closed from time to time, when deemed expedient by
the depositary.
The depositary will maintain facilities
for the delivery and receipt of ADRs.
Pre-release of AD
S
s
In its capacity as depositary, the depositary
shall not lend shares or ADSs; provided, however, that the depositary may (i) issue ADSs prior to the receipt of shares and (ii)
deliver shares prior to the receipt of ADSs for withdrawal of deposited securities, including ADSs which were issued under (i)
above but for which shares may not have been received (each such transaction a “pre-release”). The depositary may
receive ADSs in lieu of shares under (i) above (which ADSs will promptly be canceled by the depositary upon receipt by the depositary)
and receive shares in lieu of ADSs under (ii) above. Each such pre-release will be subject to a written agreement whereby the
person or entity (the “applicant”) to whom ADSs or shares are to be delivered (a) represents that at the time of the
pre-release the applicant or its customer owns the shares or ADSs that are to be delivered by the applicant under such pre-release,
(b) agrees to indicate the depositary as owner of such shares or ADSs in its records and to hold such shares or ADSs in trust
for the depositary until such shares or ADSs are delivered to the depositary or the custodian, (c) unconditionally guarantees
to deliver to the depositary or the custodian, as applicable, such shares or ADSs, and (d) agrees to any additional restrictions
or requirements that the depositary deems appropriate. Each such pre-release will be at all times fully collateralized with cash,
U.S. government securities or such other collateral as the depositary deems appropriate, terminable by the depositary on not morse
than five (5) business days’ notice and subject to such further indemnities and credit regulations as the depositary deems
appropriate. The depositary will normally limit the number of ADSs and shares involved in such pre-release at any one time to
thirty percent (30%) of the ADSs outstanding (without giving effect to ADSs outstanding under (i) above), provided, however, that
the depositary reserves the right to change or disregard such limit from time to time as it deems appropriate. The depositary
may also set limits with respect to the number of ADSs and shares involved in pre-release with any one person on a case-by-case
basis as it deems appropriate. The depositary may retain for its own account any compensation received by it in conjunction with
the foregoing. Collateral provided pursuant to (b) above, but not the earnings thereon, shall be held for the benefit of
the registered holders of ADRs (other than the applicant).
Appointment
In the deposit agreement, each registered
holder of ADRs and each person holding an interest in ADSs, upon acceptanc
e
of any ADSs (or any interest therein) issued in accordance with the terms and conditions of the deposit agreement will
be deemed for all purposes to:
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be a party to
and bound by the terms of the deposit agreement and the applicable ADR or ADRs, and
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appoint the depositary
its attorney-in-fact, with full power to delegate, to act on its behalf and to take any
and all actions contemplated in the deposit agreement and the applicable ADR or ADRs,
to adopt any and all procedures necessary to comply with applicable laws and to take
such action as the depositary in its sole discretion may deem necessary or appropriate
to carry out the purposes of the deposit agreement and the applicable ADR and ADRs, the
taking of such actions to be the conclusive determinant of the necessity and appropriateness
thereof.
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Governin
g
Law
The deposit agreement and the ADRs shall
be governed by and construed in accordance with the laws of the State of New York. In the deposit agreement, we have submitted
to the jurisdiction of the courts of the State of New York and appointed an agent for service of process on our behalf.
PLAN OF DISTRIBUTION
We or any selling security holder may sell
or distribute the securities offered by this prospectus, from time to time, in one or more offerings, as follows:
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to dealers or
underwriters for resale;
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directly to purchasers;
or
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through a combination
of any of these methods of sale.
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In addition, we may issue the securities
as a dividend or distribution or in a subscription rights offering to our existing security holders. In some cases, we or any
selling security holder or any dealers acting for us or on our behalf or a selling security holder may also repurchase the securities
and reoffer them to the public by one or more of the methods described above. This prospectus may be used in connection with any
offering of our securities through any of these methods or other methods described in the applicable prospectus supplement.
Our securities distributed by any of these
methods may be sold to the public, in one or more transactions, either:
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at a fixed price
or prices, which may be changed;
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at market prices
prevailing at the time of sale;
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at prices related
to prevailing market prices; or
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The prospectus supplement relating to any
offering will identify or describe:
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any underwriter,
dealers or agents;
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the net proceeds
to us;
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the purchase
price of the securities;
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the initial public
offering price of the securities; and
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any exchange
on which the securities will be listed.
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Sale through Underwriters or Dealers
If underwriters are used in the sale, the
underwriters will acquire the securities for their own account, including through underwriting, purchase, security lending or
repurchase agreements with us. The underwriters may resell the securities from time to time in one or more transactions, including
negotiated transactions. Underwriters may sell the securities in order to facilitate transactions in any of our other securities
(described in this prospectus or otherwise), including other public or private transactions and short sales. Underwriters may
offer the securities to the public either through underwriting syndicates represented by one or more managing underwriters or
directly by one or more firms acting as underwriters. Unless otherwise indicated in the applicable prospectus supplement, the
obligations of the underwriters to purchase the securities will be subject to certain conditions, and the underwriters will be
obligated to purchase all the offered securities if they purchase any of them. The underwriters may change from time to time any
public offering price and any discounts or concessions allowed or reallowed or paid to dealers.
If dealers are used in the sale of the
securities offered through this prospectus, we or any selling security holder will sell the securities to them as principals,
unless we otherwise indicate in the prospectus supplement. The dealers may then resell those securities to the public at varying
prices determined by the dealers at the time of resale. The applicable prospectus supplement will include the names of the dealers
and the terms of the transaction.
Direct Sales and Sales through Agents
We or any selling security holder may sell
the securities offered through this prospectus directly. In this case, no underwriters or agents would be involved. Such securities
may also be sold through agents designated from time to time. The applicable prospectus supplement will name any agent involved
in the offer or sale of the offered securities and will describe any commissions payable to the agent. Unless otherwise indicated
in the applicable prospectus supplement, any agent is acting on a best efforts basis for the period of its appointment.
We or any selling security holder may sell
the securities directly to institutional investors or others who may be deemed to be underwriters within the meaning of the Securities
Act with respect to any sale of those securities. The terms of any such sales will be described in the applicable prospectus supplement.
Institutional Investors
If we indicate in the prospectus supplement,
we will authorize underwriters, dealers or agents to solicit offers from various institutional investors to purchase securities.
In this case, payment and delivery will be made on a future date that the prospectus supplement specifies. The underwriters, dealers
or agents may impose limitations on the minimum amount that the institutional investor can purchase. They may also impose limitations
on the portion of the aggregate amount of the securities that they may sell. These institutional investors include:
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commercial and
savings banks;
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investment companies;
educational and charitable institutions; and
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other similar
institutions as we may approve.
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The obligations of any of these purchasers
pursuant to delayed delivery and payment arrangements will not be subject to any conditions. However, one exception applies. An
institution’s purchase of the particular securities cannot at the time of delivery be prohibited under the laws of any jurisdiction
that governs:
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the validity
of the arrangements; or
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the performance
by us or the institutional investor.
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Market Making, Stabilization and Other Transactions
Unless the applicable prospectus supplement
states otherwise, each series of offered securities will be a new issue and will have no established trading market. We may elect
to list any series of offered securities on an exchange. Any underwriters that we use in the sale of offered securities may make
a market in such securities, but may discontinue such market making at any time without notice. Therefore, we cannot assure you
that the securities will have a liquid trading market.
Any underwriter may also engage in stabilizing
transactions, syndicate covering transactions and penalty bids in accordance with Rule 104 under the Exchange Act. Stabilizing
transactions involve bids to purchase the underlying security in the open market for the purpose of pegging, fixing or maintaining
the price of the securities. Syndicate covering transactions involve purchases of the securities in the open market after the
distribution has been completed in order to cover syndicate short positions.
Penalty bids permit the underwriters to
reclaim a selling concession from a syndicate member when the securities originally sold by the syndicate member are purchased
in a syndicate covering transaction to cover syndicate short positions. Stabilizing transactions, syndicate covering transactions
and penalty bids may cause the price of the securities to be higher than it would be in the absence of the transactions. The underwriters
may, if they commence these transactions, discontinue them at any time.
Derivative Transactions and Hedging
We, any selling security holder and the
underwriters may engage in derivative transactions involving the securities. These derivatives may consist of short sale transactions
and other hedging activities. The underwriters may acquire a long or short position in the securities, hold or resell securities
acquired and purchase options or futures on the securities and other derivative instruments with returns linked to or related
to changes in the price of the securities. In order to facilitate these derivative transactions, we or any selling security holder
may enter into security lending or repurchase agreements with the underwriters. The underwriters may effect the derivative transactions
through sales of the securities to the public, including short sales, or by lending the securities in order to facilitate short
sale transactions by others. The underwriters may also use the securities purchased or borrowed from us or others (or, in the
case of derivatives, securities received from us in settlement of those derivatives) to directly or indirectly settle sales of
the securities or close out any related open borrowings of the securities.
Loans of Securities
We or any selling security holder may loan
or pledge securities to a financial institution or other third party that in turn may sell the securities using this prospectus
and an applicable prospectus supplement.
General Information
Agents, underwriters, and dealers may be
entitled, under agreements entered into with us or any selling security holder, to indemnification by us, against certain liabilities,
including liabilities under the Securities Act. Our agents, underwriters, and dealers, or their affiliates, may be customers of,
engage in transactions with or perform services for us or our affiliates, in the ordinary course of business for which they may
receive customary compensation.
TAXATION
Material income tax consequences relating
to the purchase, ownership and disposition of any of the securities offered by this prospectus will be set forth in the applicable
prospectus supplement relating to the offering of those securities.
ENFORCEABILITY
OF CIVIL LIABILITIES
We are incorporated and existing under
the laws of the Cayman Islands to take advantage of certain benefits associated with being a Cayman Islands exempted company,
such as:
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political and
economic stability;
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an effective
judicial system;
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a favorable tax
system;
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the absence of
exchange control or currency restrictions; and
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the availability
of professional and support services.
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However, certain disadvantages accompany
incorporation in the Cayman Islands. These disadvantages include:
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the Cayman Islands
has a less developed body of securities laws as compared to the United States and provides
significantly less protection to investors; and
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Cayman Islands
companies do not have standing to sue before the federal courts of the United States.
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Our constituent documents do not contain
provisions requiring that disputes, including those arising under the securities laws of the United States, between us, our officers,
directors and shareholders, be arbitrated.
Substantially all of our current operations
are conducted in the PRC, and substantially all of our assets are located in the PRC. A majority of our directors and officers
are nationals or residents of jurisdictions other than the United States and a substantial portion of their assets are located
outside the United States. As a result, it may be difficult for a shareholder to effect service of process within the United States
upon us or such persons, or to bring an action against us or against such persons in the United States, in the event that a shareholder
believe that its rights have been infringed under of the securities laws of the United States or any state in the United States.
We have appointed JinkoSolar (U.S.) Inc.
as our agent to receive service of process with respect to any action brought against us in the United States District Court for
the Southern District of New York under the federal securities laws of the United States or any action brought against us in the
Supreme Court of the State of New York in the County of New York under the securities laws of the State of New York.
Maples and Calder (Hong Kong) LLP, our
counsel as to Cayman Islands law, and DaHui Lawyers, our counsel as to PRC law, have advised us, respectively, that there is uncertainty
as to whether the courts of the Cayman Islands and the PRC, respectively, would:
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recognize or
enforce judgments of United States courts obtained against us or our directors or officers
predicated upon the civil liability provisions of the federal securities laws of the
United States or any state or territory in the United States; or
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entertain original
actions brought in the courts of the Cayman Islands or the PRC against us or our directors
or officers predicated solely upon the federal securities laws of the United States or
any state or territory within the United States.
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Maples and Calder (Hong Kong) LLP has further
advised us that a final and conclusive judgment in the federal or state courts of the United States under which a sum of money
is payable, other than a sum payable in respect of taxes, fines, penalties or similar fiscal or revenue obligations and which
was neither obtained in a manner nor is of a kind enforcement of which is contrary to natural justice or the public policy of
the Cayman Islands, may be subject to enforcement proceedings as a debt in the courts of the Cayman Islands under the common law
doctrine of obligation. However, the Cayman Islands courts are unlikely to enforce a punitive judgment of a United States court
predicated upon the liabilities provision of the federal securities laws in the United States without retrial on the merits if
such judgment gives rise to obligations to make payments that may be regarded as fines, penalties or similar charges.
DaHui Lawyers has further advised us that
the recognition and enforcement of foreign judgments are primarily provided for under the PRC Civil Procedures Law. PRC courts
may recognize and enforce foreign judgments in accordance with the requirements of the PRC Civil Procedures Law based either on
treaties between the PRC and the country where the judgment is made or on reciprocity between jurisdictions. The PRC currently
does not have any treaties or other agreements that provide for the reciprocal recognition and enforcement of foreign judgments
with the United States. In addition, according to the PRC Civil Procedures Law, courts in the PRC will not enforce a foreign judgment
against us or our directors and officers if they decide that the judgment violates the basic principles of PRC law or national
sovereignty, security or public interest. Therefore, it is uncertain whether a PRC court would enforce a judgment rendered by
a court in the United States.
LEGAL MATTERS
Except as otherwise set forth in the applicable
prospectus supplement, certain legal matters in connection with the securities offered pursuant to this prospectus will be passed
upon for us by Cleary Gottlieb Steen & Hamilton LLP, our special United States counsel, to the extent governed by the laws
of the State of New York, and by Maples and Calder (Hong Kong) LLP, our special legal counsel as to Cayman Islands law, to the
extent governed by the laws of the Cayman Islands. Legal matters as to PRC law will be passed upon for us by DaHui Lawyers, our
counsel as to PRC law. If legal matters in connection with offerings made pursuant to this prospectus are passed upon by counsel
to underwriters, dealers or agents, such counsel will be named in the applicable prospectus supplement relating to any such offering.
EXPERTS
The consolidated financial statements and
management’s assessment of the effectiveness of internal control over financial reporting (which is included in Management’s
Report on Internal Control over Financial Reporting) incorporated in this prospectus by reference to JinkoSolar Holding Co., Ltd.’s
annual report on Form 20-F for the year ended December 31, 2016 have been so incorporated in reliance on the report of PricewaterhouseCoopers
Zhong Tian LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and
accounting.
The office of PricewaterhouseCoopers Zhong
Tian LLP is located at 11th Floor, PricewaterhouseCoopers Center, 2 Corporate Avenue, 202 Hu Bin Road, Shanghai 200021, People’s
Republic of China.
WHERE YOU CAN
FIND MORE INFORMATION ABOUT US
We are currently subject to periodic reporting
and other informational requirements of the Exchange Act as applicable to foreign private issuers. Accordingly, we are required
to file with or furnish to the SEC reports, including annual reports on Form 20-F and other information. All information filed
with or furnished to the SEC can be inspected and copied at the public reference facilities maintained by the SEC at 100 F Street,
N.E., Washington, D.C. 20549. You can request copies of these documents upon payment of a duplicating fee, by writing to the SEC.
Please call the SEC at 1-800-SEC-0330 for further information on the operation of the public reference rooms. Additional information
may also be obtained over the Internet at the SEC’s website at
www.sec.gov
. We also maintain a website at
www.jinkosolar.com
,
but information contained on our website is not incorporated by reference in this prospectus or any prospectus supplement. You
should not regard any information on our website as a part of this prospectus or any prospectus supplement.
As a foreign private issuer, we are exempt
under the Exchange Act from, among other things, the rules prescribing the furnishing and content of proxy statements, and our
executive officers, directors and principal shareholders are exempt from the reporting and short-swing profit recovery provisions
contained in Section 16 of the Exchange Act. In addition, we will not be required under the Exchange Act to file periodic reports
and financial statements with the SEC as frequently or as promptly as U.S. companies whose securities are registered under the
Exchange Act. However, we intend to furnish the depositary with our annual reports, which will include a review of operations
and annual audited consolidated financial statements prepared in conformity with U.S. GAAP, and all notices of shareholders’
meetings, and other reports and communications that are made generally available to our shareholders. The depositary will make
such notices, reports and communications available to holders of our ADSs and, upon our request, will mail to all record holders
of our ADSs the information contained in any notice of a shareholders’ meeting received by the depositary from us.
We have filed with the SEC a registration
statement on Form F-3 relating to the securities covered by this prospectus. This prospectus and any accompanying prospectus supplement
are part of the registration statement and do not contain all the information in the registration statement. You will find additional
information about us in the registration statement. Any statement made in this prospectus concerning a contract or other document
of ours is not necessarily complete, and you should read the documents that are filed as exhibits to the registration statement
or otherwise filed with the SEC for a more complete understanding of the document or matter. Each such statement is qualified
in all respects by reference to the document to which it refers. You may inspect a copy of the registration statement at the SEC’s
Public Reference Room in Washington, D.C., as well as through the SEC’s website.
PART II
Information Not Required in Prospectus
Item 8. Indemnification of Directors and Officers
Cayman Islands law does not limit the extent
to which a company’s articles of association may provide for indemnification of officers and directors, except to the extent
that any such provision may be held by the Cayman Islands courts to be contrary to public policy, such as to provide indemnification
against civil fraud or the consequences of committing a crime. The registrant’s articles of association provide for indemnification
of officers and directors for losses, damages, costs and expenses incurred in their capacities as such, except through dishonesty,
fraud or their own willful neglect or default.
The registrant has agreed to indemnify
its directors and officers against certain liabilities and expenses incurred by such persons in connection with claims made by
reason of their being such a director or officer.
The form of Underwriting Agreement to be
filed as Exhibit 1.1 to this Registration Statement will also provide for indemnification of the registrant and its officers and
directors.
Item 9. Exhibits
See Exhibit Index beginning on page II-7
of this registration statement.
Item 10. Undertakings.
The undersigned registrant hereby undertakes:
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(1)
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To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
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(i)
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To include any prospectus required by Section 10(a)(3) of the
Securities Act;
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(ii)
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To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change in the
information set forth in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of prospectus
filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20% change in the maximum aggregate offering price set
forth in the “Calculation of Registration Fee” table in the effective registration
statement; and
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(iii)
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To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement or any material
change to such information in the registration statement;
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provided
,
however
, that paragraphs (i), (ii)
and (iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained
in reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that
are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b)
that is part of the registration statement.
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(2)
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That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
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(3)
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To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of the
offering.
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(4)
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To file a post-effective amendment to the registration statement
to include any financial statements required by Item 8.A. of Form 20-F at the start of
any delayed offering or throughout a continuous offering. Financial statements and information
otherwise required by Section 10(a)(3) of the Securities Act need not be furnished,
provided
,
that the registrant includes in the prospectus, by means of a post-effective amendment,
financial statements required pursuant to this paragraph (4) and other information necessary
to ensure that all other information in the prospectus is at least as current as the
date of those financial statements. Notwithstanding the foregoing, a post-effective amendment
need not be filed to include financial statements and information required by Section
10(a)(3) of the Securities Act or Rule 3-19 of Regulation S-K if such financial
statements and information are contained in periodic reports filed with or furnished
to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Exchange
Act that are incorporated by reference in this registration statement.
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(5)
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That, for the purpose of determining liability under the Securities
Act to any purchaser:
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(i)
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Each prospectus filed by the registrant pursuant to Rule 424(b)(3)
shall be deemed to be part of the registration statement as of the date the filed prospectus
was deemed part of and included in the registration statement; and
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(ii)
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Each prospectus required to be filed pursuant to Rule 424(b)(2),
(b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating
to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing
the information required by Section 10(a) of the Securities Act shall be deemed to be
part of and included in the registration statement as of the earlier of the date such
form of prospectus is first used after effectiveness or the date of the first contract
of sale of securities in the offering described in the prospectus. As provided in Rule
430B, for liability purposes of the issuer and any person that is at that date an underwriter,
such date shall be deemed to be a new effective date of the registration statement relating
to the securities in the registration statement to which that prospectus relates, and
the offering of such securities at that time shall be deemed to be the initial bona fide
offering thereof; provided, however, that no statement made in a registration statement
or prospectus that is part of the registration statement or made in a document incorporated
or deemed incorporated by reference into the registration statement or prospectus that
is part of the registration statement will, as to a purchaser with a time of contract
of sale prior to such effective date, supersede or modify any statement that was made
in the registration statement or prospectus that was part of the registration statement
or made in any such document immediately prior to such effective date.
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(6)
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That, for the purpose of determining liability of the registrant
under the Securities Act to any purchaser in the initial distribution of the securities:
the undersigned registrant undertakes that in a primary offering of securities of the
undersigned registrant pursuant to this registration statement, regardless of the underwriting
method used to sell the securities to the purchaser, if the securities are offered or
sold to such purchaser by means of any of the following communications, the undersigned
registrant will be a seller to the purchaser and will be considered to offer or sell
such securities to such purchaser:
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(i)
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Any preliminary prospectus or prospectus of the undersigned registrant
relating to the offering required to be filed pursuant to Rule 424;
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(ii)
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Any free writing prospectus relating to the offering prepared
by or on behalf of the undersigned registrant or used or referred to by the undersigned
registrant;
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(iii)
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The portion of any other free writing prospectus relating to
the offering containing material information about the undersigned registrant or its
securities provided by or on behalf of the undersigned registrant; and
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(iv)
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Any other communication that is an offer in the offering made
by the undersigned registrant to the purchaser.
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(7)
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The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the registrant’s
annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan’s annual report pursuant to Section 15(d)
of the Exchange Act) that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
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(8)
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Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the SEC such indemnification is against public policy
as expressed in the Securities Act and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than the payment by the registrant
of expenses incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Securities Act
and will be governed by the final adjudication of such issue.
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(9)
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The undersigned registrant hereby undertakes to file an application
for the purpose of determining the eligibility of the trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act of 1939, as amended, or the Trust Indenture
Act, in accordance with the rules and regulations prescribed by the SEC under Section
305(b)(2) of the Trust Indenture Act.
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SIGNATURES
Pursuant to the requirements of the Securities
Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form
F-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized,
in the City of Shangrao, Jiangxi Province, People’s Republic of China, on August 11, 2017.
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By:
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/s/ Kangping Chen
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Name: Kangping Chen
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Title: Director and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that
each person whose signature appears below constitutes and appoints Mr. Kangping Chen, Mr. Xianhua Li and Mr. Haiyun
(Charlie) Cao, and each of them, as his true and lawful attorneys-in-fact and agents, each with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) and supplements to this registration statement on Form F-3 and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the United States Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite
and necessary to be done in connection therewith and about the premises, as fully to all intents and purposes as each such person
might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their
or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the
Securities Act of 1933, as amended, this registration statement has been signed below by the following persons in the
capacities indicated on the eleventh day of
August
,
2017.
Signatures
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Title
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/s/ Xiande Li
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Chairman of the board of directors
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Xiande Li
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/s/
Kangping Chen
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Director and chief executive officer (principal executive officer)
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Kangping Chen
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/s/ Xianhua Li
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Director and vice president
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Xianhua Li
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/s/ Longgen Zhang
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Director and financial adviser
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Longgen Zhang
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/s/ Wing Keong Siew
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Independent director
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Wing Keong Siew
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/s/ Steven Markscheid
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Independent director
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Steven Markscheid
|
|
|
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|
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/s/ Yingqiu Liu
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Independent director
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Yingqiu Liu
|
|
|
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/s/ Haiyun (Charlie) Cao
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|
Chief financial officer (principal financial and accounting officer)
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Haiyun (Charlie) Cao
|
|
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SIGNATURE OF AUTHORIZED REPRESENTATIVE
OF THE REGISTRANT
Pursuant to the requirements of the Securities
Act of 1933, as amended, the undersigned, the duly authorized representative in the United States of JinkoSolar (U.S.) Inc., has
signed this registration statement or amendment thereto in Shangrao, Jiangxi Province, People’s Republic of China, on August
11, 2017.
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JinkoSolar (U.S.) Inc.
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By:
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/s/ Xiande Li
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|
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Name: Xiande Li
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|
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Title: Authorized Signatory
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JinkoSolar (U.S.) Inc.
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Exhibit Index
Exhibit
Number
|
|
Description
|
1.1
*
|
|
Form of Underwriting Agreement
|
|
|
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4.1
|
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Registrant’s Specimen Certificate for Shares, incorporated herein by reference to Exhibit 4.2 to our registration
statement on Form F-1, as amended, filed with the SEC (File No. 333-164432) on January 20, 2010
|
|
|
|
4.2
|
|
Form of Deposit Agreement, incorporated herein by reference to Exhibit (a) to our registration statement on Form F-6 filed
with the SEC (File No. 333-164523) on January 26, 2010
|
|
|
|
4.3
|
|
Form of Amendment to Deposit Agreement, incorporated herein by reference to Exhibit (a)(2) to our registration statement
on Form F-6 filed with the SEC (File No. 333-164523) on April 29, 2010
|
|
|
|
4.4
|
|
Registrant’s Specimen American Depositary Receipt (included in Exhibits 4.2 and 4.3)
|
|
|
|
4.5
|
|
Form of Indenture
|
|
|
|
4.6
*
|
|
Form of Debt Security
|
|
|
|
4.7
*
|
|
Form of Warrant
|
|
|
|
4.8
*
|
|
Form of Warrant Agreement
|
|
|
|
5.1
|
|
Opinion of Maples and Calder (Hong Kong) LLP
|
|
|
|
5.2
|
|
Opinion of Cleary Gottlieb Steen & Hamilton LLP regarding the validity of the securities
|
|
|
|
12.1
|
|
Statement regarding the computation of ratio of earnings to fixed charges
|
|
|
|
23.1
|
|
Consent of PricewaterhouseCoopers Zhong Tian LLP, independent registered public accounting firm
|
|
|
|
23.2
|
|
Consent of Maples and Calder (Hong Kong) LLP (included in Exhibit 5.1)
|
|
|
|
23.3
|
|
Consent of Cleary Gottlieb Steen & Hamilton LLP (included in Exhibit 5.2)
|
|
|
|
23.4
|
|
Consent of DaHui Lawyers
|
|
|
|
24.1
|
|
Power of Attorney (included on signature page hereof)
|
|
|
|
25.1
*
|
|
Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939, as amended, of the Trustee
under the Indenture
|
|
*
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To be filed as an exhibit to a post-effective amendment
to this registration statement or as an exhibit to a report filed under the Exchange Act and incorporated herein by reference.
|
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