UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
REPORT OF
FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16
UNDER THE SECURITIES EXCHANGE ACT OF 1934
For the month of March 2018
Commission File Number: 001-36907
Hailiang Education Group Inc.
1508 Binsheng
RD,
Binjiang District, Hangzhou City,
Zhejiang, China 310052
(Address of principal executive offices)
Indicate by check mark whether
the registrant files or will file annual reports
under cover of Form 20-F or Form 40-F:
Form 20-F ☒
Form 40-F ☐
Indicate by check mark if the registrant is submitting the Form
6-K
in paper as permitted by Regulation
S-T
Rule 101(b)(1): ☐
Indicate by check mark if the registrant is submitting the Form
6-K
in paper as permitted by Regulation
S-T
Rule 101(b)(7): ☐
As previously disclosed in the current report on Form
6-K
filed with the Securities Exchange Commission, (the “SEC”) on June 30, 2017 by Hailiang Education Group Inc., a Cayman Islands company, (the “Company”), on June 30, 2017, Zhejiang Hailiang Education Consulting and
Services Co., Ltd., a wholly owned subsidiary of the Company (“Hailiang Consulting” or “WFOE”) , entered into a series of amended and restated contractual arrangements with Zhejiang Hailiang Education Investment Group Co., Ltd.,
(“Hailiang Investment”), and Mr. Hailiang Feng (“Mr. Feng”), the controlling shareholder of the Company and the then sole shareholder of Hailiang Investment (collectively, the “First Amended and Restated VIE
Agreements”). Desspite the changes, Hailiang Investment continued to function as our variable interest entity, or VIE, in the PRC.
Second
Amendment and Restatement of the VIE Agreements
On February 8, 2018, Zhejiang Zhongyida Investment Co., Ltd, a PRC company 100%
owned by Mr. Feng and his wife (“Zhongyida”), became a 0.1% record shareholder of Hailiang Investment by contributing additional capital to Hailiang Investment. As of the date of this Report, Mr. Feng and Zhongyida hold 99.9% and
0.1% equity interest in in Hailiang Investment, respectively. In order to include Zhongyida as an additional shareholder of record of Hailiang Investment in the existing VIE contractual arrangements, on February 23, 2018, each of the First Amended
and Restated VIE
Agreements were further amended and restated, whereby Hailiang Investment, Hailiang Consulting, Mr. Feng and Zhongyida entered into a series of contractual arrangement (the “Second Amended and Restated VIE
Agreements”), including the Second Amended and Restated Call Option Agreement, Second Amended and Restated Powers of Attorney, Second Amended and Restated Consulting Services Agreement and Second Amended and Restated Equity Pledge Agreement.
The recording process for the Second Amended and Restated VIE Agreements with the local government was completed on March 15, 2018. As a result, Hailiang Investment continues to function as our VIE in the PRC.
The following chart illustrated the corporate structure of the Company as of the date of this Report.
Notwithstanding the aforementioned changes, the Second Amended and Restated VIE Agreements
continue to enable the Company to:
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exercise the power over Hailiang Investment, our VIE in the PRC;
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have the exposure or rights to variable returns from its involvement with Hailiang Investment; and
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exercise the ability to affect those returns through use of its power over Hailiang Investment.
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The following is a summary of the material provisions of the Second Amended and Restated VIE Agreements.
Second Amended and Restated Call Option Agreement.
Pursuant to the Second Amended and Restated Call Option Agreement among Hailiang Consulting, Hailiang Investment, Mr. Feng and Zhongyida
entered into on February 23, 2018, Mr. Feng and Zhongyida unconditionally and irrevocably granted Hailiang Consulting or its designee an exclusive option to purchase, to the extent permitted under PRC laws and regulations, in certain cases,
including but not limited to the cancellation of any of the Second Amendment and Restatement of the VIE Agreements or liquidation or dissolution of Hailiang Investment, all or part of the equity interest in Hailiang Investment at the lowest
consideration permitted by PRC laws and regulations. Hailiang Consulting has the sole discretion to decide when to exercise the option, and whether to exercise the option in part or in full. In the event that the exercise price is higher than the
registered capital of Hailiang Investment, Mr. Feng and Zhongyida agreed to return any consideration paid in excess of such registered capital to Hailiang Consulting or any third party it designates. Without Hailiang Consulting’s written
consent, Hailiang Investment, Zhongyida or Mr. Feng may not sell, transfer, pledge or otherwise dispose of or create any encumbrance on any of Hailiang Investment’s assets, businesses or equity interests or merge with or acquire other
businesses. Without Hailiang Consulting’s written consent, Hailiang Investment may not enter into any material contracts, incur any indebtedness or provide any loan or guarantee to a third party, or alter the nature or scope of its business.
The Second Amended and Restated Call Option Agreement may not be terminated by Hailiang Investment, Zhongyida or Mr. Feng, nor can it be terminated by Hailiang Consulting without cause. Unless terminated, the Second Amended and Restated Call
Option Agreement shall remain in full force and effect until Hailiang Investment’s term of operations expires in April 2042.
Second Amended and Restated Power of Attorney.
On February 23, 2018, Feng and Zhongyida executed an irrevocable Second Amended and Restated Power of Attorney appointing Hailiang Consulting,
or any person designated by Hailiang Consulting, as their
attorney-in-fact
to (i) exercise on their behalf all their rights as shareholders of Hailiang Investment,
including those rights under PRC laws and regulations and the articles of association of Hailiang Investment, such as appointing, replacing or removing directors, declaring dividends and making decisions on operational and financial matters, (ii)act
as the representative of Hailiang Investment in its business operations, and (iii) unconditionally assign the shareholding rights of each of Mr. Feng and Zhongyida to Hailiang Consulting, including dividends or other benefits associated
with shareholding that Mr. Feng and Zhongyida each receives from Hailiang Investment.
Second Amended and Restated Consulting Services Agreement.
Pursuant to the Second Amended and Restated Consulting Services Agreement among Hailiang Consulting, Hailiang Investment, Zhongyida and
Mr. Feng, entered into on February 23, 2018, Hailiang Consulting (or its controlled affiliate) has the exclusive right to provide comprehensive technical and business support services to Hailiang Investment’s affiliated entities. In
particular, such services include developing curriculum, conducting market research and offering strategic business advice, providing information technology services, providing public relations services, providing support for teacher hiring and
training and providing other services that the affiliated entities may need from time to time. Without the prior written consent of Hailiang Consulting, none of Hailiang Investment’s affiliated entities may receive such services from any third
party. Hailiang Consulting owns the exclusive intellectual property rights created despite the changes of the performance of services under this Second Amended and Restated Consulting Services Agreement. Hailiang Investment’s affiliated
entities agree to pay annual service fees, calculated as a percentage of their total revenue, to Hailiang Consulting (or its controlled affiliate). At the sole discretion of Hailiang Consulting, the service fees may be adjusted from time to time
based on the complexity of the services provided, the time and resources committed by Hailiang Consulting (or its controlled affiliate) and the commercial value of the services. The Second Amended and Restated Consulting Agreement enables Hailiang
Consulting (or its controlled affiliate) to charge an annual service fee, the maximum of which equals the net income of Hailiang Investment’s affiliated entities after deducting the mandatory development reserve fund and other necessary costs
prior to the payment of such service fees. As part of the Second Amended and Restated Consulting Agreement, Hailiang Investment, Zhongyida and Mr. Feng agree that each of them will not take any actions, such as incurring indebtedness, disposing
of material assets, materially changing the scope or nature of the business of Hailiang Investment’s affiliated entities, disposing of their equity interests in Hailiang Investment’s affiliated entities, or paying dividends to
Mr. Feng or Zhongyida without the written consent of Hailiang Consulting. The Second Amended and Restated Consulting Agreement may not be terminated by Hailiang Investment, Zhongyida, or Mr. Feng, nor can it be terminated by Hailiang
Consulting without cause. Unless terminated, the Second Amended and Restated Consulting Agreement shall remain in full force and effect during the term of operations of Hailiang Investment’s affiliated entities.
Second Amended and Restated Equity Pledge Agreement.
Pursuant to the Second Amended and Restated Equity Pledge Agreement among Hailiang Consulting, Zhongyida, Mr. Feng and Hailiang Investment
entered into on February 23, 2018, each of Mr. Feng and Zhongyida unconditionally and irrevocably pledged all of their respective equity interests in Hailiang Investment to Hailiang Consulting to guarantee performance of the obligations of
Hailiang Investment’s affiliated entities under the Second Amended and Restated Call Option Agreement, the Second Amended and Restated Power of Attorney, and the Second Amended and Restated Consulting Agreement, each as described above.
Zhongyida and Mr. Feng each agreed that without prior written consent of Hailiang Consulting, they shall not transfer or dispose of the pledged equity interests, commence any bankruptcy or liquidation process of Hailiang Investment or create or
allow any encumbrance on the pledged equity interests. The Second Amended and Restated Equity Pledge Agreement may not be terminated by Hailiang Investment, Zhongyida or Mr. Feng, nor can it be terminated by Hailiang Consulting without cause.
Unless terminated, the Second Amended and Restated Equity Pledge Agreement remains in full force and effect until all of the obligations of Hailiang Investment’s affiliated entities under the consulting services agreement have been duly
performed and related payments are duly paid. The pledge of equity interests in Hailiang Investment by Mr. Feng and Zhongyida has been duly registered with the local branch of SAIC and becomes effective upon such registration.
The above referenced agreements are qualified in their entireties by reference to the complete
text of the Second Amended and Restated Call Option Agreement, the Power of Attorney, the Second Amended and Restated Consulting Agreement, and the Second Amended and Restated Equity Pledge Agreement, which are filed hereto as Exhibits 10.1 to 10.4.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned, thereunto duly authorized.
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Hailiang Education Group Inc.
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Date: March 30, 2018
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By:
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/s/ Ming Wang
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Name:
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Ming Wang
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Title:
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Chief Executive Officer
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EXHIBIT INDEX
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Exhibit
No.
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Description
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Exhibit 10.1
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English translation of Second Amended and Restated Call Option Agreement among Hailiang Consulting, Zhongyida, Mr. Feng and Hailiang Investment, dated February 23, 2018
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Exhibit 10.2
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English translation of Second Amended and Restated Power of Attorney from Zhongyida and Mr. Feng, dated February 23, 2018
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Exhibit 10.3
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English translation of Second Amended and Restated Consulting Services Agreement among Hailiang Consulting, Zhongyida, Mr. Feng and Hailiang Investment, dated February 23, 2018
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Exhibit 10.4
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English translation of Second Amended and Restated Equity Pledge Agreement among Hailiang Consulting, Zhongyida, Mr. Feng and Hailiang Investment, dated February 23, 2018
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Exhibit 10.1
SECOND AMENDED AND RESTATED EXCLUSIVE OPTION AGREEMENT
THIS SECOND AMENDED AND RESTATED
EXCLUSIVE OPTION AGREEMENT (“this Agreement”) is entered into on the February 23, 2018, by and between
the following parties:
Party A: Zhejiang Hailiang Education Consulting and Service Co., Ltd (hereinafter referred to as Party A)
Residential Address: Xilin Road, Diankou Town, Zhuji City, Zhejiang
Legal representative: Wang Ming
Party B: Zhejiang Hailiang
Education Investment Group Co.,Ltd (hereinafter referred to as Party B)
Residential Address: Hailiang business hotel Room 505, Diankou Town, Zhuji
City, Zhejiang;
Legal representative: Wang Ming
Party C
(a shareholder of Party B): Feng Hailiang (hereinafter referred to as Party C)
Identity Card No.: 3306251960102860116
Residential Address: No.382, Jiefang Road, Diankou Town, Zhuji City, Zhejiang.
Party D (a shareholder of Party B): Zhejiang Zhongyida Investment Co., Ltd (hereinafter referred to as Party D)
Residential Address: The 2nd floor, Building 67, East China Auto Parts and Plumbing City, Diankou Town, Zhuji City, Zhejiang;
Legal representative: Zhu Aihua
Party A, Party B, Party C and
Party D are referred to together, “all Parties”.
WHEREAS,
1. Party A, Party B and Party C have signed the AMENDED AND RESTATED OPTION AGREEMENT on June 30, 2017 (the “2017 Option Agreement”). Party A,
Party B, Party C and Party D intend to amend and restate the 2017 Option Agreement and enter into this Agreement.
2. Party A is a wholly foreign owned
enterprise duly organized and existing under the laws of the People’s Republic of China, mainly engaged in consulting and service of education management, development of educational software and electronic products, business consulting;
Laboratory lease, and education Logistics management; Party B is mainly engaged in educational investment and other relevant business via its affiliated entities; the Second Amended and Restated Consulting Service Agreement concerning related
business is entered into on February 23, 2018 between Party A and Party B.
3. Party C and Party D are the shareholders of Party B, who together,
hold the 100% equity interest of Party B (hereinafter referred to as “equity interest”).
All Parties hereto must abide by the terms and conditions hereof:
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1. PURCHASE
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AND SELL EQUITY
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Party C and Party D hereby grant Party A or the designated person of Party A
(hereinafter referred to as “designee”) an irrevocable exclusive purchase option including but not limited to Party A, Party B, Party C or Party D dissolving the Second Amended and Restated Consulting Service Agreement, the Second Amended
and Restated Exclusive Option Agreement, the Second Amended and Restated Pledge of Equity Agreement and the Second Amended and Restated Power of Attorney, or exercise the option under the circumstances such as bankruptcy, liquidation, or dissolution
of Party B. Within the law of PRC, the person exercising the option has right to purchase all or part of the equity interests in Party B (“option”) in accordance with steps made by Party A and price stipulated in Article 1.3 hereof. The
option is irrevocable and shall be exercised only by Party A or the designee, any third party shall not be granted. The term “designee” used herein shall include any natural person, corporation, partnership, enterprise, trust fund or
unincorporated organization.
Party A or the designee may notify Party C and Party D in writing and
exercise its option at any time via indicating the share amounts and the way of purchase from Party C and Party D in accordance with applicable PRC laws, regulations and rules.
When Party A or the designee exercises the option, the total transfer
price at each exercise payable by Party A or its designee to Party C and Party D shall be an amount equivalent to the lower of (i) the amount of contribution in Party B’s registered capital which the transferred shares represent, or
(ii) the lowest price permitted by the PRC laws then in effect. In case the minimum price is higher than the capital contribution of Party B, Party C and Party D shall return the price difference to Party A and the designee in the way specified
by Party A. Besides all of the above, all parties hereto agree that Party C and Party D shall not get any interests or profits of selling shares because Party A or the designee exercises the option.
When exercising the option within the scope of this Agreement:
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1.4.1
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Party C and Party D shall approve corresponding equity (hereinafter referred to as “equity purchased”) transfer resolution to Party A or the designee.
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1.4.2
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All the parties related shall execute the Equity Transfer Agreement in the reasonable form acceptable to Party A, stipulating all the terms and conditions of equity purchased
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1.4.3
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All the parties related shall perform all the rest necessary contracts, agreements and other documents, together with all governmental approvals, take the necessary action and transfer the valid purchased equity to
Party A or the designee, to enable Party A and the designee to be the registered owner of equity purchased. In those terms, “encumbered equity” is referred to mortgage, pledge, or rights and interests for any third party, any rights to
purchase equity, right of acquisition, right of first refusal, right of set off, retention of title or other security arrangement, while excluding the pledge under the Second Amended and Restated Pledge of Equity Agreement made and entered into as
of February 23, 2018.
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Payment of equity purchase must be decided after negotiation between Party A, Party C
and Party D, when exercising the option in accordance with the applicable laws.
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2.
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EQUITY RELATED STATEMENT
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Party B hereby makes the following statement and warranty:
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2.1.1
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Without prior written consent of Party A, the article of association of Party B shall not be added in any form, modified or renewed, the capital contribution of Party B shall not be increased or decreased and the equity
structure of Party B shall not be changed in any form.
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2.1.2
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Without prior written consent of Party A, after signing of this Agreement, neither party may sell, transfer, mortgage or any other dispose of any assets, legal or beneficial business interest or income, or encumber the
assets of Party B, approval of encumber or establish any encumbered Equity.
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2.1.3
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Without prior written consent of Party A, any debt or guarantee shall be incurred, excluding (1) debt caused in the daily business of Party B excluding those caused by loan; and (2) debt having been informed Party
A
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2.1.4
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To operate all the business normally, and not cause any damage to the business of Party B and its asset value.
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2.1.5
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Without prior written consent of Party A, any material agreement shall not be signed, excluding for the sake of daily business (in this term, if the amount is over RMB 100,000, this agreement will be deemed as a
material agreement).
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2.1.6
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Without prior written consent of Party A, any loan to a third party or credit agreement will not be Allowed.
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2.1.7
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According to the demand of Party A, all the data relating to business and financial shall be provided to Party A.
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2.1.8
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Purchasing and maintaining the insurance provided by the insurance company accepted by Party A, premium and insurance policy shall be same as that of the company with assets of the same level and in the same line with
Party B.
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2.1.9
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Without prior written consent of Party A, any merger, cooperation, acquisition or investment shall be forbidden.
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2.1.10
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Notify Party A any litigation, arbitration and administrative proceedings relating to the assets, business and revenue of Party B.
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2.1.11
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To sign all the proper and necessary documents, take all the measures necessary and relevant, file all the reasonable claim to guarantee the title of the assets of Party B.
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2.1.12
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Without prior written consent of Party A, any distribution of rights and interests in any form shall not be allowed, excluding distributing the dividends to the shareholders according to the demand of Party A.
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2.1.13
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Appointing the person indicated by the Party A in accordance with its demand.
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2.2
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PARTY C and PARTY D’S STATEMENT
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Party C and Party D hereby individually and jointly and
severally make the statements and warranty as below:
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2.2.1
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Without prior written consent of Party A, after signing of this Agreement, neither party may sell, transfer, mortgage or any other dispose of any assets, legal or beneficial business interest or income, or establish any
encumbered equity, excluding those established by the Second Amended and Restated Pledge of Equity Agreement.
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2.2.2
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Without prior written consent of Party A, any resolutions of Party C and Party D’s meeting to approve the sell, assign, mortgage or dispose of any legal or beneficiary equity interests, or approve additional
encumbered equity shall not be passed, supported or signed, excluding those established by the Second Amended and Restated Pledge of Equity Agreement. And the capital contribution shall not be altered or transferred.
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2.2.3
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Without prior written consent of Party A, any resolution put forward in Party C and Party D’s meeting attempting to approve the merger, cooperation, acquisition or investment shall not be agreed, supported or
signed.
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2.2.4
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Notify Party A any litigation, arbitration or administrative proceedings having occurred or about to occur.
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2.2.5
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Urge the director board of Party B approve the transfer of the equity purchased according to this Agreement.
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2.2.6
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To sign all the documents, take all the measures, file all the claim necessary or relevant or put forward the defense necessary or relevant to other’s claim, to guarantee ones own equity.
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2.2.7
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To appoint the person indicated by the Party A in accordance with its demand; and
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2.2.8
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To abide by this Agreement and other relating agreements reached between Party A and Party B, perform all the obligations stipulated hereof, and don’t slack off the execution or any other performance probably
influence the validity or enforceability of this Agreement.
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3.
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STATEMENTS AND WARRANTIES
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As of the date of signing hereto, as to assign the purchased
equity in accordance with the option exercise every time, Party B, Party C and Party D make the statements and warranties hereunder:
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3.1
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Our party is entitled to and capable of signing and delivering this Agreement, fulfilling all the obligations hereof and obligations stipulated in the Equity Transfer Agreement every time transferring the equity. Once
signed, this Agreement and each Equity Transfer Agreement will constitute legal, valid, binding and enforceable obligations according to the relevant terms and Conditions.
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3.2
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To sign and perform this Agreement and the Equity Transfer Agreement will not: (1) violate any PRC laws and regulations; (2) be conflicted with the Article of Party A and documents of other entities;
(3) incur any violation to the related agreements or documents or binding obligations; (4)violate any authorization of consent or approval or jeopardize the continuously effective conditions; (5) incur the suspension and abolishment of any
consent and approval, and other additional conditions.
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3.3
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Without the prior consent of Party A, Party B shall not assign part or its all equity, and Party B, Party C or Party D shall not setting any encumbrances on the equity, unless otherwise stipulated in the Second Amended
and Restated Pledge of Equity Agreement.
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3.4
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Party A shall not have any unsettled debt, excluding (1) debt from normal operations; and (2) debt informed to Party A or incurred with the written consent of Party A.
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3.5
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Party B abides by all the applicable PRC laws and regulations relevant to this Agreement..
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3.6
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There exists no pending or ongoing litigations, arbitrations, or administrative proceedings relating to Party B or its assets or equity. After the thorough investigation of Party B, Party C or Party D, there exists no
pending or ongoing claims; and
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3.7
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There exist no encumbrances on the equity holding by Party C and Party D, excluding the encumbered equity under the Second Amended and Restated Pledge of Equity Agreement.
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4.
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ASSIGNMENT of AGREEMENT
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4.1
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Party B, Party C and Party D shall not transfer their rights and obligations under this Agreement to any third party without the prior written consent of Party A.
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4.2
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Each of Party B, Party C and Party D hereby agrees that Party A shall have the right to transfer all of its rights and obligations under this Agreement to any third party whenever it desires. Any such transfer shall
only be subject to a written notice sent to Party B, Party C and Party D by Party A, and no any further consent from Party B, Party C and Party D will be required.
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5.
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EXERCUTION and DURATION
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5.1
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This Agreement shall be effective upon the date written on the first page.
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5.2
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During the term of this Agreement, this Agreement may not be terminated prior by Party B, Party C or Party D, or terminated prior by Party A for no reason.
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6.
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APPLICABLE LAW and DISPUTE RESOLUTION
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The execution, validity, interpretation and performance of this Agreement and
the disputes resolution under this Agreement shall be governed by the laws of PRC.
Any dispute arising out of interpretation and performance hereof shall be
settled through friendly negotiation by parties hereto. If parties hereto fail to settle the said dispute in 30 days, any party may file the said dispute with China International Economic and Trade Arbitration Commission for arbitration according to
valid arbitration rules. Place of arbitration is Shanghai and arbitration language is Chinese. The arbitration award is final and binding on all parties hereto.
All parties shall undertake all the registration tax, cost and
expenditure arising from the preparation, execution and completion of this Agreement and all the Equity Transfer Agreement in according with PRC laws.
All notice or information relating to this Agreement sent by either party shall
be written in Chinese and English and be sent out in the way hereunder: personal delivery, registered letter,
pre-paid
post, approved express service or image fax to the address of relevant party or parties,
the address hereunder, other address or other specified address of party or parties. The principles hereunder shall be followed as to the date to inform the arrival of the mail: (1) the date to inform shall be prior to the arrival if via
personal delivery; (2) the date to inform shall be the 10th day after the day of sending via
pre-paid
air registered letter, or the 4th day after sending out by international recognized express mail
service; (3) If via fax, the date to inform shall be complied with the receipt time of the Transmission Confirmation.
Party
A: Zhejiang Hailiang Education Consulting and Service Co.,Ltd
Address: Hailiang Mansion, No. 1508, Binsheng Road, Binjiang
District, Hangzhou City, Zhejiang
Fax: 0571-58120100
Tel: 0571-58121720
Recipient: Huang Shiqi
Party B: Zhejiang Hailiang Education Investment Group Co.,Ltd
Address: Hailiang Mansion, No. 1508, Binsheng Road, Binjiang District, Hangzhou City;
Fax: 0571-58122010
Tel:
0571-58122010
Recipient: Zhang Simeng
Party C: Feng Hailiang
Address: Hailiang Mansion, No. 1508, Binsheng Road, Binjiang District, Hangzhou City, Zhejiang
Fax: 0571-58120100
Contact:
0571-58121278
Party D: Zhejiang Zhongyida Investment Co., Ltd
Address:
Fax:
Contact:
All parties hereto undertake and acknowledge that all the oral or
written information is secret and all parties shall ensure the confidentiality of this kind of information. One party shall not provide the confidential information to any third party (i without prior written consent of other parties. The said
restriction is not applicable to:
a. Materials having been available to the public prior to the disclosure.
b. Materials shall be disclosed according to the laws, legal system and rules of stock exchanging market.
c. Information supposed to be disclosed to legal consultants and financial consultants retained by all parties. such legal or financial
consultant shall comply with the confidentiality set forth in this Section. The disclosure of confidential materials by an employee of any Party shall be deemed disclosure of such materials by such Party, and such Party shall be liable for breaching
the contract. This Article shall survive even if any terms of this Agreement are modified, abolished, terminated, or deemed as void and unenforceable by any reason.
All parties agree to take reasonable actions to perform the terms and
conditions hereof and execute necessary documents.
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11.1
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Amendment, Modification and Supplement of Agreement
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Any amendment and supplement to this
Agreement shall be made by the Parties in writing. The amendment and supplement duly executed by each Party shall be deemed an integral part of this Agreement and shall have the same legal effect as this Agreement.
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11.2
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Completeness of Agreement
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Despite the stipulations of Article 5 hereof, the Parties
acknowledge that this Agreement constitutes the entire agreement of the Parties with respect to the subject matters therein, and supersedes and replaces all prior or contemporaneous agreements and understandings in oral or written form.
If any provision of this Agreement is invalid or unenforceable according to
relevant PRC laws, such a provision shall be deemed invalid only within the scope of applicable PRC Laws and regulations in China, while the validity, legality and enforceability of the other provisions hereof shall not be affected or impaired in
any way. The Parties shall through negotiation based on the principal of fairness, replace such invalid, illegal or
non-enforceable
provision with valid provision so that any substituted provision may bring
the similar economic effects as those intended by the invalid, illegal or
non-enforceable
provision.
The headings contained in this Agreement are for the convenience of reference only
and shall not in any other way affect the interpretation and explanation of the provisions of this Agreement.
This Agreement shall be signed in Chinese in triplicates with each party
hereto holding one copy of same legal effect.
This Agreement shall bind the successor or the transferee of each Party.
Regardless of the expiration of this Agreement or any items resulting in
termination, all Parties shall continue to perform its obligation. When this Agreement is terminated, Article 6, Article 8, Article 9 and Article 11.7 remains effective.
With written consent of all Parties, one party may waiver provisions stipulated hereof.
One party abandoning its right arising out of another party’s default in some case, shall not be deemed as the waiver of the other party’s right to the default party in the similar circumstances.
The parties hereby confirm that, this Agreement includes total and only agreements
between Party A, Party B, Party C and Party D and replaces all negotiations, agreements, commitments and written agreements, relating to matters stipulated in this Agreement. Since the date of signing this Agreement, the amendment and restatement of
the option agreement which signed on Jane 30, 2017 between the parties shall be terminated.
(THIS PAGE IS THE SIGNATURE PAGE FOR STRUCTURE CONTRACT)
(SIGNATURE PAGE)
I
N WITNESS
THEREFORE
, the Parties hereof is executed and sealed by the Parties or its legal representatives.
Party A: Zhejiang Hailiang Education Consulting and
Service Co., Ltd.(Seal)
Legal representative: /s/ Ming Wang
Date: February 23, 2018
Party B: Zhejiang Hailiang
Education Investment Group Co., Ltd (Seal)
Legal representative/ authorized person: /s/ Ming Wang
Date: February 23, 2018
Party C (a shareholder of Party
B): /s/ Hailiang Feng
Date: February 23, 2018
Party D
(a shareholder of Party B): Zhejiang Zhongyida Investment Co., Ltd (Seal)
Legal representative/ authorized person: /s/ Aihua Zhu
Date: February 23, 2018
Exhibit 10.2
Second Amended and Restated Power of Attorney
Authorizers: Feng Hailiang, Zhejiang Zhongyida Investment Co., Ltd (each a “shareholder”/ “pledgor,” together, the
“shareholders”/ “pledgors”)
Authorized Person: Zhejiang Hailiang Education Consulting and Service Co., Ltd.
(“pledgee”)
According to the Second Amended and Restated
Consulting Service Agreement and the Second Amended and Restated
Equity Pledge Agreement entered into on February 23, 2018, Mr. Feng Hailiang and Zhejiang Zhongyida Investment Co., Ltd (hereinafter referred to as “Zhongyida Investment”) own 100% of Zhejiang Hailiang Education Investment
Group Co., Ltd (hereinafter referred to as “Hailiang Investment”). The Second Amended and Restated
Power of Attorney shall become effective simultaneously with the Second Amended and Restated
Consulting Service Agreement and
the Second Amended and Restated
Equity Pledge Agreement on an irrevocable basis to confirm the controlling right of Zhejiang Hailiang Education Consulting and Service Co., Ltd (hereinafter referred to as “Hailiang Consulting”).
Mr. Feng Hailiang and Zhongyida Investment agree to grant representative appointed by Hailiang Consulting
(hereinafter referred to as “investor representative”) an irrevocable right to exercise the following rights:
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1.
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Excise the voting rights of the council and board of directors on behalf of Mr. Feng Hailiang and Zhongyida Investment, acknowledge or confirm with the voting result or resolution of the council or the board of
directors;
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2.
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All rights of the shareholders regulated in the articles of associations of Hailiang Investment shall be excised by the investor representative and the results shall be confirmed and admitted thereby;
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3.
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Hailiang Consulting shall enjoy all shareholder rights of Hailiang Investment. Mr. Feng Hailiang and Zhongyida Investment agree to grant all dividends or other equity related income obtained from Hailiang
Investment to Hailiang Consulting, unconditionally and without any charge.
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4.
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The investor representative is entitled to act as a director of Hailiang Investment and constitute the board of directors to excise the rights of director according to the articles of associations of Hailiang
Investment;
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5.
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The representative is authorized to run the business permitted within the scope of the business;
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6.
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The change or replacement of the member of the Board of Directors or Council shall be decided by the direction or the suggestion of Hailiang Consulting;
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7.
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Excise other rights authorized to the shareholders by the articles of associations of Hailiang Investment;
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8.
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Mr. Feng Hailiang and Zhongyida Investment hereby confirm that all negotiations, agreements, commitments and written agreements, relating to matters stipulated in this Power of Attorney, are replaced with this
Second Amended and Restated
Power of Attorney. Upon the date of signing this Second Amended and Restated
Power of Attorney, the previous Amendment
and Restatement of the Power of Attorney signed on June 30, 2017 shall be
terminated.
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Authorizer:
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/s/ Feng Hailiang
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Feng Hailiang
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Date:
Authorizer: Zhejiang
Zhongyida Investment Co., Ltd (Seal)
Legal representative/ authorized person:
/s/ Aihua
Zhu
Date:
Exhibit 10.3
SECOND AMENDED AND RESTATED CONSULTING SERVICE AGREEMENT
THIS SECOND AMENDED AND RESTATED CONSULTING SERVICE AGREEMENT (“this Agreement”) is entered into on the February 23, 2018, by and between the
following parties:
Party A: Zhejiang Hailiang Education Consulting and Service Co., Ltd
(hereinafter referred to as Party A)
Residential Address : Xilin Road, Diankou Town, Zhuji City, Zhejiang
Legal representative: Wang Ming
Party B: Zhejiang Hailiang
Education Investment Group Co.,Ltd
(hereinafter referred to as Party B)
Residential Address: Hailiang business hotel Room 505, Diankou Town, Zhuji
City, Zhejiang;
Legal representative: Wang Ming
Party C
(a shareholder of Party B): Feng Hailiang
(hereinafter referred to as Party C)
Identity Card No.: 3306251960102860116
Residential Address: No.382, Jiefang Road, Diankou Town, Zhuji City, Zhejiang.
Party D (a shareholder of Party B): Zhejiang Zhongyida Investment Co., Ltd (hereinafter referred to as Party D)
Residential Address: The 2nd floor, Building 67, East China Auto Parts and Plumbing City, Diankou Town, Zhuji City, Zhejiang;
Legal representative: Zhu Aihua
WHEREAS:
1. Party A, Party B, Party C, and other subject of the contract have signed the AMENDMENT AND RESTATEMENT OF THE CONSULTING SERVICE AGREEMENT on June 30,
2017 (the “2017 Agreement”).
2. Party A is
a wholly foreign owned enterprise duly organized and existing under the laws of the
People’s Republic of China, mainly engaged in consulting and service of education management, development of educational software and electronic products, business consulting; Laboratory lease, and education Logistics management;
3. Party B is a Limited Liability Company duly organized and existing under the laws of the People’s Republic of China, mainly engaged in educational
investment and other relevant business via its affiliated entities;
4. Party C and Party D are the shareholders of Party B, who together, hold 100%
equity interest of Party B.
5. Party A, Party B, Party C and Party D intend to amend and restate the 2017 Agreement and enter into this Agreement.
And
whereas
Party A shall provide Party B and Party B’s affiliates (entities invested or controlled
by Party B, including but not limited to the companies, schools or other entities of which Party B directly or indirectly holds more than 50% equities.) educational consulting, technical and logistics support, this contract is hereby made and
entered into as follows by parties hereto after negotiation:
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1.1
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Parties hereto agree to cooperate with each other in terms of business operation and management in accordance with terms and conditions agreed herein. The cooperation mode is that Party B, Party C and Party D
irrevocably retain the services of Party A or Party A’s affiliates (the institutions invented or controlled by Party A, including but not limited to the companies or other institutions, of which Party A holds above 50% equity interest directly
or indirectly.) to Party B and its affiliates, including exclusive education consulting, technical and logistics support, etc (Please refer to Annex I for detailed contents). The contents of Annex I are the service scope determined in accordance
with the actual requirement of Party B and its affiliates after negotiation by Party B, Party A and its affiliates.
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1.2
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Party A and Party A’s affiliates agree to provide the service items mentioned in Annex I, and provide the services of education consulting, technical and logistics support, etc. in accordance with this Agreement.
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1.3
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Party B agrees to urge Party B’s affiliates to sign a specific school trust management services agreement or other similar agreements with Party A or Party A’s affiliates.
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1.4
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During the term of this Agreement, Party A shall be the exclusive provider of the Services. Party B, party C and party D agree not to directly or indirectly accept any same or similar services from other providers, or
establish any similar business cooperation with other providers, without the prior written approval of Party A.
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1.5
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Party C and Party D agree to urge Party B and its affiliates to perform the obligations, guarantees and undertakings hereunder within the term hereof.
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1.6
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Party A undertakes that the service items, provided by Party A or Party A’s affiliates, are in accordance with Education Law of the People’s Republic of China and other relevant laws and regulations.
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2.1
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In consideration, all the services in Annex I provided by Party A or Party A’s affiliates to Party B and its affiliate pursuant to the terms and conditions hereof, Party B, Party C and Party D agree that, Party B
and its affiliates pay Party A or its affiliates the service fee at a fair price. When calculating the service fee, the following factors shall be considered: (1) the difficulty and the complexity of the service; (2) all human resources,
materials, financial resources and time contributed by Party A to the service; (3) the varieties, the contents and the business value of the service; (4) the market value of other similar service.
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2.2
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Specific mode of fees calculation: Party B agrees that, Party B and its affiliates pay Party A or Party A’s affiliates annually. The specific amount of service fees are calculated based on the gross annual income
of Party B and its affiliates shall be withdrawn by certain proportion (“accruing proportion”). The calculation of accruing proportion shall be decided by Party A independently, while integrating with the factors of 2.1. And Party A may
adjust the accruing proportion according to the actual consulting service provided, thus Party B and its affiliates shall pay the service fees complying with the accruing proportion adjusted or indicated. The ceiling of the service fees is the net
income of Party B and its affiliates after the deduction of the reserved fund for development and other necessary fees.
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2.3
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Payment: Party A or its affiliates shall provide Party B and its affiliates respectively with the bill of due accrued expenses, invoice and other detailed information of the service provided. Within 10 workdays after
receiving the bill, Party B and its affiliates shall respectively pay the services fees to the bank account specified by Party A or its affiliates, and fax the transfer voucher or mail the scanning copy to Party A.
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2.4
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Party A is entitled with discretionary power to adjust the service fees; this power is only enjoyed by Party A.
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2.5
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All parties hereto shall perform the obligations of paying taxes according to current existing and applicable Chinese taxation laws, regulations and normative documents.
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3.
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WARRANTIES AND UNDERTAKINGS MADE BY PARTY B, PARTY C
AND PARTY D
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3.1
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Party B undertakes to Party A that it is an enterprise legal person duly incorporated and validly existing in good standing under PRC laws, has all necessary certificates and approvals for the sake of operation.
Party B’s affiliates are
non-enterprise
Unit duly incorporated and validly existing in good standing under PRC laws, have all necessary certificates and approvals for the sake of operation, such as
Certificate for Private
Non-enterprise
Unit,
Permit for Running a PRC Private School, Tax Registration Certificate and has not violated any PRC laws and regulations since its establishment.
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3.2
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Party C and Party D agree to urge Party B to perform the undertakings and guarantees hereunder.
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4.
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NON-PERFORMACE
OBLIGATIONS OF PARTY B, PARTY C AND PARTY D
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Party B, Party C and Party D hereby confirm and agree that, unless otherwise permitted in written form by Party A in advance, Party B shall not
conduct any transactions which may substantially alter its assets, businesses, employees, rights and obligations and operation mode, including but not limited to the following contents:
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4.1
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conducting any businesses beyond the qualifications or business stipulated hereof;
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4.2
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borrowing from any third party or assuming any debts;
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4.3
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selling, replacing or disposing any assets or rights in other ways to any third party, including but not limited to any intellectual property right;
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4.4
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providing guarantee with its assets or intellectual property right or providing guarantee in other ways to any third party, or setting any encumbrances on Party B’s assets;
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4.5
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modifying Party B’s articles of associations or changing Party B’s business scope or principal businesses;
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4.6
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assigning rights and obligations hereunder to any third party;
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4.7
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transferring equity rights to any third party or changing Party B’s equity structure;
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4.8
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liquidating or dissolving Party B;
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4.9
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making great adjustments to Party B’s business operation mode, marketing strategy, operation guidelines or orientation of students;
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4.10
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distributing dividends to Party C and Party D
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During the term of this Agreement, Party C and
Party D abandon the right to obtain dividends from Party B.
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5.
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INTERESTS AND RIGHTS HEREOF AND OWNERSHIP OF INTELLECTUAL PROPERTY RIGHT
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As for all the
rights, ownership, interests and intellectual property rights arising out of the performance hereof or entrusted management, including but not limited to copyrights, patents, technical secrets, business secrets, websites, brands (for example
“Hailiang”), brand reputation and other intellectual property rights, whether independently developed by Party A or its affiliates; or developed by Party B and its affiliates on the basis of Party A’s or its affiliates’
intellectual property rights or developed by Party A on the basis of Party B’s intellectual property rights, Party A has an exclusive right of ownership and intellectual property rights and other rights. Party A shall permit licensing right to
Party B and its affiliates to use the afore-said intellectual property rights (including but not limited to software products independently developed by Party A or Party A’s affiliates).
If the development is made by Party A or its affiliates on the basis of Party B’s or its affiliates’ intellectual property rights,
Party B shall ensure that the said intellectual property rights have no defects. Any losses caused to Party A or its affiliates shall be undertaken by Party B. If Party A or its affiliates undertakes compensation liabilities to any third party
arising therefrom, Party A is entitled to claim compensations against Party B for all its losses after making the said compensations to the third party. Nevertheless, related compensation liabilities shall not influence the payment of service fee
made by Party A stipulated in Article 2.1 hereof.
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6.
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MODIFICATION AND ALTERATION
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6.1
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Any modification or change hereto shall be effective upon the execution of written agreements by all parties hereto. Any modification agreement or supplementary agreement hereto duly signed by all parties shall
be an integral part hereto and have the same legal binding force as this contract.
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6.2
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Party B, Party C and Party D may increase the number of the affiliates and guarantee and urge the stipulations hereof or the school trust management services agreement, signed by Party A or Party A’s affiliates and
Party B’s affiliates .
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6.3
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Party B shall not modify, change or terminate this contract unless duly approved by Party A’s final shareholders in legal form.
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Either party’s violation of stipulations hereof,
nonperformance of the obligations hereof, or make any incorrect or false instructions or warranties shall be deemed as breach hereto. The default party shall bear the losses therefrom of other parties and undertake the liquidated money if otherwise
agreed to.
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8.1
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Any dispute arising out of interpretation and performance hereof shall be settled through friendly negotiation by parties hereto. If parties hereto fail to settle the said dispute through friendly negotiation, any party
may file the said dispute with China International Economic and Trade Arbitration Commission for arbitration according to valid arbitration rules. Place of arbitration is Shanghai and arbitration language is Chinese. The arbitration award is final
and binding on all Parties hereto.
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8.2
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Apart from issues of disputes arising, all parties shall perform their respective obligations according to stipulations hereof on the basis of good faith.
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Execution, validity, performance, interpretation and dispute settlement
of this contract, its attached agreements and relevant annexes shall be subject to laws of the People’s Republic of China.
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10.1
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All parties hereto agree to take every effort and reasonable measures to keep the confidential data and information (hereinafter referred to as “confidential information”, a written notice shall be expressly
made to state the materials and documents as “confidential information”) known by and available to them secret. One party shall not disclose, send or transfer the confidential information to any third party without prior written consent of
the confidential information provider. All parties hereto shall, upon the termination hereof, return any and all the documents, materials or software with confidential information to the original owner or the provider, or destroy them after being
approved by the original owner or the provider, including delete any confidential information from any memorable equipments and the confidential information shall not be used any more. Necessary measures shall be taken by all parties to disclose the
confidential information to the necessary people including the company staff, agency or the professional consultant, who shall be subject to the confidentiality obligations hereunder. All parties and the staff, agency or the professional consultant
thereof shall sign a confidentiality agreement for earnest enforcement.
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10.2
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The said restriction is not applicable to:
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10.2.1
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Materials having been available to the public prior to the disclosure.
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10.2.2
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It is proved by the contract that information which has been obtained prior to the disclosure and not directly obtained from a third party.
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10.2.3
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According to the related laws and regulations, a disclosure shall be made to any concerned government authorities, stock administration and exchange institutes, or legal consultants and financial consultants retained by
all parties due to normal business needs.
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10.3
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All parties hereto agree that this clause shall remain in force and effect despite the modification, termination or revocation of this contract (if any).
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All notice sent for the purpose of performance of each party’s obligations
under this contract shall be made in writing and be sent out by personal delivery, registered letter,
pre-paid
post, approved express service or image fax to the address of relevant party or parties.
Party A: Zhejiang Hailiang Education Consulting and Service Co.,Ltd
Address: Hailiang Mansion, No. 1508, Binsheng Road, Binjiang District, Hangzhou City, Zhejiang
Fax: 0571-58120100
Tel:
0571-58121720
Recipient: Huang Shiqi
Party B: Zhejiang Hailiang Education Investment Group Co.,Ltd
Address: Hailiang Mansion, No. 1508, Binsheng Road, Binjiang District, Hangzhou City;
Fax: 0571-58122010
Tel:
0571-58122010
Recipient: Zhang Simeng
Party C: Feng Hailiang
Address: Hailiang Mansion, No. 1508, Binsheng Road, Binjiang District, Hangzhou City, Zhejiang
Fax: 0571-58120100
Contact:
0571-58121278
Party D: Zhejiang Zhongyida Investment Co., Ltd
Address:
Fax:
Contact:
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12.
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EFFECTIVENESS AND DURATION
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12.1
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This Agreement shall become effective on the aforesaid date it is signed.
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12.2
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During the term of this Agreement, this Agreement may not be terminated by Party B, Party C or Party D, or terminated by Party A without any cause.
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12.3
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Each party herein confirms that this contract is a fair and reasonable contract mutually and equally made among all the parties. Should any article or stipulation hereof be deemed to be illegal or impossible to be
performed according to any applicable law, such article or stipulation shall be deemed canceled from this contract and ineffective. Nevertheless, the rest of this contract shall remain effective and this contract are deemed not include the foresaid
article from the beginning. Each party shall replace the deemed-being-canceled article with a mutually acceptable, legal and effective article through mutual negotiation.
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13.1
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Any failure to perform any right or power hereunder shall not be deemed as a waiver of the said right or power. Any individually or partly exercising of any right or power shall not exclude the exercising of any other
right or power.
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13.2
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Party C and Party D undertake that, not matter what change is made to the equity percentage of Party B held by Party C and Party D, the stipulations hereunder shall have legal binding force on Party C and Party D. And
the stipulations hereunder shall apply to all the equity interests of Party B held by Party C and Party D.
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13.3
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The annexes hereto shall be an integral part of this contract and are of the same legal binding force as this contract.
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13.4
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The parties hereby confirm that, this Agreement includes total and only agreements between Party A, Party B, Party C and Party D, and replaces all negotiations, agreements, commitments and written agreements, relating
to matters stipulated in this Agreement. Since the date of signing this Agreement, the amendment and restatement of consulting service agreement which signed on June 30, 2017 between the parties shall be terminated
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13.5
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This Agreement shall be made in six counterparts with each of Party A, Party B, Party C and Party D holding one copy.
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Annexes:
Annex I: CONTENTS OF MANAGEMENT
CONTENTS OF MANAGEMENT
1. Providing the curriculum design and courseware development;
2. Maintain and improve the systems of enrollments of students’
3. Providing the teachers training, consultation and teaching staff management consultation;
4. Providing the staff training, consultation and company management consultation;
5. Providing the lease and maintain service of computers, teaching equipment and servers.
6. Providing the office and teaching net maintaining and safe-keeping service
7. Providing the market investigations and service of research;
8. Providing the
middle-and-long-term
developing
service of market developing;
9. Providing the business developing and market developing consultation service;
10. Providing the internet service for source of the students;
11. Providing the developing and researching service of business management knacks;
12. Providing service of enterprise management and planning;
13. Providing service of technical consulting and technology transfer;
14. Providing service of public relationship;
15. The arrangement and employment of the person in charge, the capital distribution, the finance management, and property finance
service;
16. Other issues concerned with the business management of Party B and its affiliates.
(THIS PAGE IS THE SIGNATURE PAGE FOR STRUCTURE CONTRACT)
Party A: Zhejiang Hailiang Education Consulting and Service Co., Ltd.(Seal)
Legal representative: /s/ Ming Wang
Date: February 23,
2018
Party B: Zhejiang Hailiang Education Investment Group Co., Ltd (Seal)
Legal representative/ authorized person: /s/ Ming Wang
Date:
February 23, 2018
Party C (a shareholder of Party B): /s/ Hailiang Feng
Date: February 23, 2018
Party D (a shareholder of Party
B): Zhejiang Zhongyida Investment Co., Ltd (Seal)
Legal representative/ authorized person: /s/ Aihua Zhu
Date: February 23, 2018
Exhibit 10.4
SECOND AMENDED AND RESTATED PLEDGE OF EQUITY AGREEMENT
THIS SECOND AMENDED AND RESTATED PLEDGE OF EQUITY AGREEMENT (“this Agreement”) is entered into on the February 23, 2018, by and between the
following parties:
Party A (pledgee): Zhejiang Hailiang Education Consulting and Service Co., Ltd (hereinafter referred to as Party A)
Residential Address: Xilin Road, Diankou Town, Zhuji City, Zhejiang
Party B: Feng Hailiang (hereinafter referred to as Party B)
Identity Card No.: 3306251960102860116
Residential Address:
No.382, Jiefang Road, Diankou Town, Zhuji City, Zhejiang
Party C: Zhejiang Zhongyida Investment Co., Ltd (hereinafter referred to as Party C)
Residential Address: The 2
nd
floor, Building 67, East China Auto Parts and Plumbing City, Diankou Town,
Zhuji City, Zhejiang;
Party D: Zhejiang Hailiang Education Investment Group Co.,Ltd (hereinafter referred to as Party D)
Residential Address: Hailiang business hotel Room 505, Diankou Town, Zhuji City, Zhejiang;
.
Whereas,
1. Party A, Party B and Party D have signed the AMENDMENT AND RESTATEMENT OF the PLEDGE of EQUITY AGREEMENT on
June 30, 2017 (the “2017 Agreement”). Party A, Party B, Party C and Party D intend to amend and restate the 2017 Agreement and enter into this Agreement.
2. Party A, in accordance with the laws of the PRC, is an established and validly existing whole foreign-owned enterprises, which principally engaged in the
education and management consulting services, educational software and electronic product development, enterprise management consulting; laboratory leasing, logistics management services;
3. Party B and Party C (each a “pledgor,” together “pledgors”) are the investors of Party D. Party B and Party C together, hold in the
aggregate, 100% equity interest of Party D.
4. Party D is registered in accordance with the laws of the PRC and is a validly existing Limited Liability
Company.
5. Party A, Party B, Party C and Party D have entered into the Second Amended and Restated Consulting Service Contract and the Second Amended
and Restated Option Agreement on February 23, 2018; Party A and Party B, Party C have entered into the Second Amended and Restated Power of Attorney on February 23, 2018; to ensure the performance of the contracts and legitimate rights and
interests of Party A, the Party B, Party C would take all the equity interests or similar rights it hold of Party D as pledge for the Second Amended and Restated Consulting Service Contract, Second Amended and Restated Option Agreement, Second
Amended and Restated Power of Attorney, the Party A, as pledgee, and the Party A has priority claim toward pledge of stock rights or similar rights.
Therefore, the parties hereto reach this pledge of equity through negotiation,
The following words of the contract refers only to the following meanings,
unless the context otherwise requires,
Pledge,
refers to all the contents listed in the article 2 of this
contract.
Options or similar equity
,
refers to Party A’s entire equity interest owned in Party D or similar
interests, and all present and future rights, interests and revenue based on those options or similar interests, as well as all of its current or future receivable payment or compensation of Party D’s equity interest or similar rights, pledge
profits, dividends and other payments and so on that is allocated to pledgors by the Party D.
Principal contract,
refers the
Second Amended and Restated
Consulting
Service Contract,
the
Second Amended and Restated
Option Agreement,
the
Second Amended and Restated Power of Attorney
etc. and their annex reached by party A, Party B, Party C and Party D on February 23, 2018.
Events of Default,
refers to any case of this contract listed in Article 7.
Notice of Default
, refers to an event of default notice issued under this contract declared by Party A.
Force Majeure,
means any of the events beyond the reasonable control of one party, and even under the attention of the affected
party, any of the events is still unavoidable, including but not limited to, acts of government, the forces of nature, fire, explosion, geographic variation, storms, floods, earthquakes, tidal, lightning or war.
2.1 The Pledgors would pledge the entire equity interest in Party D or similar
interests thereof to party A, as the guarantee of party A’s rights and interests in principal contract, Party A enjoy the priority claim toward equity pledge or similar interests.
2.2 The scope of the equity interest or similar equity pledge in this contract is Party D and its affiliate institutions and/or all the expense
(including legal expense), expenditure, cost to undertake, interests, damages, compensation, cost to realize creditor, all the expenses pledgee forced pledgor to perform its obligations under this contract that Party B and Party C should pay Party
A, and in case of any reason that may cause invalidity of the whole contract or part of it, Party D and pledgor shall bear the responsibility.
2.3 Pledge under this contract refers to all the remedies for breach of contracts and rights
owned by the Party A, and Party A has the right to sell in discount, launch an auction and sell off the equity interests or similar rights pledged to Party A by pledger to have priority claim, or in compliance with Chinese laws and regulations, to
have priority claim in a manner which is both agreed in disposing pledge of stock or similar rights and interests.
2.4 Unless otherwise
expressly agreed in writing, the pledge under this contract shall be released only when Party D and pledgor have fully and completely fulfilled all of its obligations and responsibilities under the principal contract, and with written approval by
the Party A; a reasonable fee for the cancellation of the pledge shall be borne by the pledgor. If Party D or pledgor have not completely fulfill all of its obligations or liabilities under such contract or any part of the obligations or liabilities
upon expiration, Party A still enjoys pledge under the contract until such obligation and the duty are made in a reasonable manner satisfactory to the Party A and completely fulfilled.
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3.
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Execution and duration
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3.1 This equity pledge contract shall be executed and come into
effect from the date of signature and common seal of the parties.
3.2 During the effective period of this contract, if Party D fails to
pay money provided in the Second Amended and Restated Consulting Service Agreement, the Second Amended and Restated Exclusive Option Agreement, the Second Amended and Restated Power of Attorney, and other payment, or fails to perform the other
provisions of the contract, upon reasonable notice and in accordance with the laws and regulations of the premise, Party A has the rights to exercise the right of pledge according to the provisions of this contract.
3.3 The duration of this pledge of stock rights is the day when the contract obligation is fulfilled or the debt secured by article 2.2 of this
contract is paid off.
3.4 During the term of validity, Party B, Party C and Party D shall not unilaterally terminate this Agreement. Party
A Shall not terminate this Agreement without any cause.
4.1 Party B, Party C and Party D should register the pledge of
equity interests under this Agreement with administrative bureau for industry and commerce in charge of Party D within one month from the date the contract is signed and provide to Party A the pledge registration documents.
4.2 In case the pledge recorded items change and shall change records according the law, Party A and Party D shall make a corresponding change
records in five working days after original record changed, and submit related registration documents.
4.3 During the pledge, pledgor
shall indicate the Party D not to allocate any dividends, bonuses, or to take any profit distribution plan; if the pledgor shall obtain any other economic benefits from dividends, bonuses or other profit distribution plan of the pledge, shall remit
money directly into the bank account designated by Party A as Party A has demanded; without the prior written consent of Party A, shall not be used and first be used as equity pledge for payment of guaranteed debt.
4.4 During the equity pledge, if pledgor subscribe new registered capital (“new equity”), the part of the new equity automatically
becomes equity pledge under the contract, pledgor shall complete the procedures needed to pledge in this part of the new equity in 10 working days after obtaining new equity. If the pledgor fails to complete the relevant formalities in accordance
with the proceeding provisions, Party A has the right to realize pledge immediately in accordance with the provisions of article 8 of this contract.
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5.
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Declaration and Commitments of the Pledgor
|
The Pledgor makes the following
representations and warranties to the party A at the time of signing this contract, and confirms that party A execute and perform this contract depending on the statement and guarantee.
5.1 The pledgor is a China citizen with full capacity for civil conduct, has legitimate right and
ability to enter into this Agreement and to bear the corresponding legal responsibility. Pledgor lawfully possesses and has the right to dispose shares under this contract, and has the right to provide party A with pledge on the equity.
5.2 From the date of execution of this contract to the time Party A have the pledge according to the provisions of this contract, if Party A
would use his pledge or his rights according to the contract, there should be no legal claim from any other party or proper intervention.
5.3 Party A shall have the right to exercise the right of pledge in the manners prescribed in the laws and regulations and the provisions of
this contract.
5.4 Except for Pledge established by this contract on equity, equity held by pledgor does not exist any other encumbrance
or any form of security interests of third people (including but not limited to pledge).
5.5 The time this contract comes into effect, the
pledgor is the only legal owner of equity pledge, and there does not exist any ongoing civil, administrative or criminal, administrative punishment or arbitration that may have a material adverse effect on the economic situation or the performance
of its obligations under this Agreement and the guarantee liability.
5.6 There does not exist taxes or fees payable but unpaid or legal
procedures that shall be complete but incomplete that are related to equity interests.
5.7 The provisions of this contract are the true
meaning of all parties, legally binding on all parties.
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6.
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Commitment of the Pledgor
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6.1 In the duration of the agreement, Pledgors promise to
Party A that pledgors will:
6.1.1Besides transferring the shares upon the requirements of Party A to Party A or to a person designated by
Party A , without the prior written consent of Party A, any other party shall not transfer equity, or establish or permit the existence of any burden of rights or any form of third party security interest that may affect the rights and interests of
Party A; any deed to transfer ownership of equity, to pledge all or part of the equity or any other security interest without Party A’s consent is void.
6.1.2 Comply with all applicable provisions of laws, regulations, in the receipt of notices, instructions or recommendations of the relevant
competent authorities, in five working days, other parties shall present Party A to the above notice, instruction or advice, and to act in accordance with the reasonable instructions of Party A;
6.2 The Pledgor agrees, Party A exercise its rights according to the contract, and there shall not exist any interruption or nuisance from the
pledgor, the successor, the assignee or any other person.
6.3 Pledgor hereby undertakes to Party A, to protect or improve the protection
on the performance of obligations of pledgor and (or) Party D, the pledgor will make all necessary modifications (if applicable) to the article of association (if it is a legal person) of it and Party D, sign honestly, and urge other interested
party to sign all the legal titles and contract, and(or ) to perform as demanded by Party A, to facilitate the exercise Party A’s pledge right, to sign the modification documents relating to share certificate with Party A, or any third party
designated, and provide Party A all the relating pledge documents deemed necessary within a reasonable period.
6.4 The Pledgor guarantees
to Party A that, for Party A’s interest, pledgor will abide by and fulfill all the guarantees, commitments, contracts and statement. If the pledgor fails to completely fulfill its guarantee, commitment, contract and the statement, pledgor shall
losses shall compensate all the loss of Party A resulting from this failure to fulfill.
6.5 Pledge guarantees Party A, without the prior written consent of Party A, the pledgor would
not start liquidation or dissolution of Party D on its own.
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7.
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Representations and Warranties of Party D
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Party D guarantees and ensures Party A as
follows,
7.1 Party D is a registered legal person duly organized and existing under the laws of the People’s Republic of China, and
has the qualification as independent legal person; has the complete and independent legal status and legal capacity to sign, deliver and perform this contract, and is a independent subject of litigation.
7.2 All the reports documents and information of items relevant to equity pledge or required hereof, provided by Party D prior to the
commencement of this Agreement, in all material respects as of the date of this Agreement, are true and accurate.
7.3 All the reports
documents and information of items relevant to equity pledge or required hereof, provided by Party D after the commencement of this Agreement, in all material respects as of the date of providing, are true and effective.
7.4 This Agreement properly signed by Party D, to Party D will constitute legal, valid and binding obligations.
7.5 It has full power and authority of Party D to sign and deliver this Agreement and any hereof transaction relating documents to sign, and it
has the full power and authorization to complete the transaction hereof.
7.6 There exists no pending or threatening litigation, legal proceedings or claim to Party D or
its assets (including but not limited to equity pledged) in any court or tribunal as well in any government institutions and administration, which will cause significant or harmful effect on the financial condition of Party D or the ability of
performing the obligations and the guarantee liabilities hereunder.
7.7 Party D hereby undertakes to Party A that the representations and
warranties above in any situation prior to the full performance of the obligations hereof or the clearance of the secured debt, are all true and correct, and will be fully complied with.
8.1 The following shall be deemed as events of default:
8.1.1 The Pledgor, Party D, or its successors or assigns fails to fulfill the obligations under the main contract;
8.1.2 Any representations, warranties or commitments made in Article 5 and Article 6 hereof by the Pledgor exist material misguides or
mistakes, and (or) representations, warranties or commitments violating the Article 5 and Article 6.
8.1.3 The Pledgor seriously breaches
any provision hereof.
8.1.4 The pledge shall not abandon the equity pledged or assign the equity pledged without written consent of Party
A, or
re-pledge
or do any disposal that may damage Party A’s pledge right hereof, unless otherwise stipulated hereof.
8.1.5 Any external loan, guarantee, compensation, warranty or other obligations of the Pledgor itself are required to be paid off or performed
in advance, but failed to, and Party A has reasons to believe that the ability of the Pledgor to fulfill the obligations hereof has been influenced, and then so is the interests of Party A.
8.1.6 The Pledgor cannot repay the general debt or other debt, and then the interests of Party A
are affected.
8.1.7 The relevant laws promulgated make the main contracts (including but not limited to the Second Amended and Restated
Consulting Service Agreement, Second Amended and Restated Exclusive Option Agreement, the Second Amended and Restated Power of Attorney,) illegal or the pledgor cannot continue to perform the obligations under the main contracts.
8.1.8 Any consensus, license, approval or authorization which enables this Agreement to be implemented, to be legal or to be effectiveness, is
withdrawn, suspended, annulled or made material modification.
8.1.9 Due to adverse changes to the property owned by Party A, Party A
believes the ability of the Pledgor to fulfill the obligations hereof has been affected.
8.1.10 According to the relevant laws, other
events prevent the disposal of the pledge right of Party A.
8.2 If any events of Article 8.1 above or any events that may incur that
arise, once knowing or being informed, the Pledgor shall immediately notify Party A in written form.
8.3 Unless the default events of
Article 8.1 have been solved perfectly to Party A’s satisfaction, Party A may at any time that the default events of the Pledgor happens or after that, sent a Notice of Default in written form to the Pledgor, asking the immediately payment of
debt under the main contract or other dues.
If the Pledgor or Party D fails to timely correct the default performance or take necessary
remedies within 10 days after sending out the written notice, Party A is entitled to perform the pledge right in accordance with the stipulations hereof.
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9.
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The exercise of the pledge right
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9.1 Before the costs and obligations under the
contract having been completely performed, without the written consent of Party A, Pledgor shall not transfer the equity.
9.2 Party A
shall send out a notice of default to pledgor in accordance with the provisions hereof, when exercising the pledge right.
9.3 In
accordance with the relevant laws and regulations, Party A shall have the right to be paid in priority by discount all or part of the equities hereunder in accordance with legal procedures, or auctioning or selling the equities.
In accordance with legal procedures in all or part of the equity discount under this contract, or by auction, the sale of the equity price
first refusal.
9.4 Party A shall exercise the pledge right according to the Agreement, and the Pledgor shall not set up barriers, and
shall provide necessary assistance to Party A.
10.1 Without prior written consent of Party A, the pledgor has no right
to transfer any of his rights or obligations to third party according to the contract.
10.2 The contract is binding to the pledgor and its
successors, and shall be effective to Party A and its successors.
10.3 At any time, Party A may transfer all or any of its
rights and obligations in the principal contract to any designated third party. The assignee shall enjoy rights and undertake obligations under this circumstance. When Party A transfer its rights and obligations under the
principal contract, under Party A’s request, the pledgor shall sign relevant contracts and files of the transferring.
10.4 For the change of the pledgor after the transferring, the two new parties shall sign a new
pledge contract and the pledgor shall be responsible for all the relevant registration formalities.
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11.
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Fees and Other Charges
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All costs associated with the contract and the actual expenses,
including but not limited to legal fees, book fees, stamp duty, any other taxes and cost, would be borne by Party D.
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12.
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Law Application and Dispute Resolution
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12.1 Applicable law and dispute resolution
The validity, interpretation, performance and settlement of disputes shall be governed by the laws of People’s Republic of China and be
explained in accordance with the laws of people’s Republic of China.
12.2 If there exists any dispute out of all parties of the
contract over the interpret and performance of terms in this contract, the parties shall resolve the dispute through negotiation in good faith. If consultation fails, either party may submit the dispute to China international economic and Trade
Arbitration Commission in accordance with the solution valid at the time of the arbitration rules of the committee. The place of arbitration shall be Shanghai, arbitration language shall be Chinese, the arbitration award shall be final and binding
to all the parties.
12.3 In addition to events of the parties arising to the dispute, all parties shall continue to perform their
respective obligations in accordance with the provisions of this contract in good will.
13. All notice or information relating to this Agreement sent by either party shall be written in
Chinese and English and be sent out in the way hereunder:
Party A: Zhejiang Hailiang Education Consulting and Service Co.,Ltd
Address: Hailiang Mansion, No. 1508, Binsheng Road, Binjiang District, Hangzhou City, Zhejiang
Fax: 0571-58120100
Tel:
0571-58121720
Recipient: Huang Shiqi
Party B: Feng Hailiang
Address: Hailiang Mansion, No. 1508, Binsheng Road, Binjiang District, Hangzhou City, Zhejiang
Fax: 0571-58120100
Contact:
0571-58121278
Party C: Zhejiang Zhongyida Investment Co., Ltd (hereinafter referred to as Party C)
Address:
Fax:
Contact:
Party D:Zhejiang
Hailiang Education Investment Group Co.,Ltd
Address: Hailiang Mansion, No. 1508, Binsheng Road, Binjiang District, Hangzhou City;
Fax: 0571-58122010
Tel:
0571-58122010
Recipient: Zhang Simeng
The annex to this contract is an indivisible part of this contract.
It shall not be considered as a waiver of rights, remedies, powers or privileges
when Party A do not exercise or delay in exercising any rights, remedies, or privileges under this contract. The excise of other rights, remedies, powers or privileges of Party A shall not exclude the exercise of any other rights, remedies, powers
or privileges of Party A. The rights, remedies, powers, privileges stipulated in this contract shall be applied.
16.1 Any modification, addtion or change of the contract shall be made in
written form and be valid after all parties’ sign and seal of the contract.
16.2 All parties hereby confirm that the contracting
parties shall reach the agreement on the basis of equality and mutual benefit of the fair and reasonable. If any provision of the contract under the contract is inconsistent with the relevant laws or therefore cannot be performed specifically, then
the provision shall be invalid or deprived of specific performance in relevant jurisdiction and the other provisions of this contract shall not be affected concerning the validity.
16.3 The pledgor commitments that regardless of the change of proportion of equity, the provisions in this contract shall still be bonding to
the pledgor and apply to all the equity of Party D held by pledgor at that time.
16.4 The parties hereby confirm that, this Agreement
includes total and only agreements between Party A, Party B, Party C and Party D and replaces all negotiations, agreements, commitments and written agreements, relating to matters stipulated in this Agreement. Since the date of signing this
contract, the Second Amended and Restated Pledge of Equity Agreement which was signed on February 23, 2018 between the parties shall be terminated.
16.5 This contract shall be made in five copies. Party A, Party B, Party C and Party D each hold
one copy and the registration authority for Industry and Commerce shall hold one copy.
(THIS PAGE IS THE SIGNATURE PAGE FOR STRUCTURE
CONTRACT)
(SIGNATURE PAGE)
Party
A: Zhejiang Hailiang Education Consulting and Service Co., Ltd (Seal)
Legal representative/ authorized person:
Date: /s/ Ming Wang
Party B: Feng
Hailiang (signature) /s/ Feng Hailiang
Date:
Party C:
Zhejiang Zhongyida Investment Co., Ltd (hereinafter referred to as Party C) (Seal)
Legal representative/ authorized person (signature): /s/ Aihua Zhu
Date:
Party D: Zhejiang Hailiang Education Investment
Group Co.,Ltd (Seal)
Legal representative/ authorized person (signature): /s/ Ming Wang
Date: