UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Schedule 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)*
Information to be Included in Statements Filed Pursuant to Rule 13d-1(a) and
Amendments Thereto Filed Pursuant to Rule 13d-2(a)
Noah Education Holdings Ltd. |
(Name of Issuer) |
Ordinary Shares, with par value US$0.00005 per share1 |
American Depositary Shares, each representing one ordinary share |
(Title of Class of Securities) |
G65415 104 (Ordinary Shares) |
65487R303 (American Depositary Shares) |
(CUSIP Number) |
Marco Chung
Morgan Stanley
Level 46, International Commerce Centre
1 Austin Road West, Kowloon
Hong Kong
+(852) 2848-5200
With a copy to:
Peter X. Huang
Skadden, Arps, Slate, Meagher & Flom LLP
30th Floor, China World Office 2
No. 1, Jianguomenwai Avenue
Beijing 100004, People’s Republic of China
+(86) 10 6535-5599
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) |
April 2, 2014 |
(Date of Event Which Requires Filing of this Statement) |
1 Not for trading, but only in connection with the listing on The New York Stock Exchange of American depositary shares, each representing one ordinary share.
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box.¨
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.
* | The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. |
The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
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CUSIP No. | G65415 104/ 5487R303 |
1. | NAME OF REPORTING PERSON: Morgan Stanley | ||
2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) ¨ (b) x | ||
3. | SEC USE ONLY
| ||
4. | SOURCE OF FUNDS WC, OO | ||
5. | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):x | ||
6. | CITIZENSHIP OR PLACE OF ORGANIZATION Delaware | ||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | 7. | SOLE VOTING POWER 0 | |
8. | SHARED VOTING POWER 70 | ||
9. | SOLE DISPOSITIVE POWER 0 | ||
10. | SHARED DISPOSITIVE POWER 70 | ||
11. | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 70 | ||
12. | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES x(1) | ||
13. | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0%(2) | ||
14. | TYPE OF REPORTING PERSON HC, CO | ||
(1) Morgan Stanley may be deemed to be a member of a “group” (as discussed in Item 5 of this Schedule 13D) with Jointly Gold Technologies Limited, Mr. Dong Xu, First Win Technologies Limited, Mr. Benguo Tang, Global Wise Technologies Limited, Mr. Xiaotong Wang, Sunshine Nation Limited, Ms. Siyuan Du, Mr. Qicai Du, Baring Asia II Holdings (22) Limited and The Baring Asia Private Equity Fund II, who collectively beneficially own 25,049,944 ordinary shares (including ordinary shares represented by American Depositary Shares). As discussed in Item 5 of this Schedule 13D, Morgan Stanley expressly disclaims beneficial ownership of any ordinary shares (including ordinary shares represented by American Depositary Shares) beneficially owned by the other members of the group.
(2) Percentage calculated based on 36,763,991 Ordinary Shares outstanding on a fully diluted basis, as of March 25, 2014, as provided by the Company.
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CUSIP No. | G65415 104/ 5487R303 |
1. | NAME OF REPORTING PERSON: Sunshine Nation Limited | ||
2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) ¨ (b) x | ||
3. | SEC USE ONLY
| ||
4. | SOURCE OF FUNDS WC, OO | ||
5. | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):¨ | ||
6. | CITIZENSHIP OR PLACE OF ORGANIZATION British Virgin Islands | ||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | 7. | SOLE VOTING POWER 2,647,743 | |
8. | SHARED VOTING POWER 0 | ||
9. | SOLE DISPOSITIVE POWER 2,647,743 | ||
10. | SHARED DISPOSITIVE POWER 0 | ||
11. | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,647,743 | ||
12. | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES x(1) | ||
13. | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 7.2%(2) | ||
14. | TYPE OF REPORTING PERSON CO | ||
(1) Excludes shares beneficially owned by Morgan Stanley, Jointly Gold Technologies Limited, Mr. Dong Xu, First Win Technologies Limited, Mr. Benguo Tang, Global Wise Technologies Limited, Mr. Xiaotong Wang, Mr. Qicai Du, Baring Asia II Holdings (22) Limited and The Baring Asia Private Equity Fund II.
(2) Percentage calculated based on 36,763,991 Ordinary Shares outstanding on a fully diluted basis, as of March 25, 2014, as provided by the Company.
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CUSIP No. | G65415 104/ 5487R303 |
1. | NAME OF REPORTING PERSON: Siyuan Du | ||
2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) ¨ (b) x | ||
3. | SEC USE ONLY
| ||
4. | SOURCE OF FUNDS PF, OO | ||
5. | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):¨ | ||
6. | CITIZENSHIP OR PLACE OF ORGANIZATION Canada | ||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | 7. | SOLE VOTING POWER 2,647,743 | |
8. | SHARED VOTING POWER 0 | ||
9. | SOLE DISPOSITIVE POWER 2,647,743 | ||
10. | SHARED DISPOSITIVE POWER 0 | ||
11. | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,647,743 | ||
12. | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES x(1) | ||
13. | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 7.2%(2) | ||
14. | TYPE OF REPORTING PERSON IN | ||
(1) Excludes shares beneficially owned by Morgan Stanley, Jointly Gold Technologies Limited, Mr. Dong Xu, First Win Technologies Limited, Mr. Benguo Tang, Global Wise Technologies Limited, Mr. Xiaotong Wang, Mr. Qicai Du, Baring Asia II Holdings (22) Limited and The Baring Asia Private Equity Fund II.
(2) Percentage calculated based on 36,763,991 Ordinary Shares outstanding on a fully diluted basis, as of March 25, 2014, as provided by the Company.
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CUSIP No. | G65415 104/ 5487R303 |
1. | NAME OF REPORTING PERSON: Qicai Du | ||
2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) ¨ (b) x | ||
3. | SEC USE ONLY
| ||
4. | SOURCE OF FUNDS PF, OO | ||
5. | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):¨ | ||
6. | CITIZENSHIP OR PLACE OF ORGANIZATION People’s Republic of China | ||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | 7. | SOLE VOTING POWER 1,398,804 | |
8. | SHARED VOTING POWER
| ||
9. | SOLE DISPOSITIVE POWER 1,398,804 | ||
10. | SHARED DISPOSITIVE POWER
| ||
11. | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,398,804 | ||
12. | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES x(1) | ||
13. | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 3.8%(2) | ||
14. | TYPE OF REPORTING PERSON IN | ||
(1) Excludes shares beneficially owned by Morgan Stanley, Jointly Gold Technologies Limited, Mr. Dong Xu, First Win Technologies Limited, Mr. Benguo Tang, Global Wise Technologies Limited, Mr. Xiaotong Wang, Sunshine Nation Limited, Ms. Siyuan Du, Baring Asia II Holdings (22) Limited and The Baring Asia Private Equity Fund II.
(2) Percentage calculated based on 36,763,991 Ordinary Shares outstanding on a fully diluted basis, as of March 25, 2014, as provided by the Company.
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INTRODUCTORY NOTE
This Amendment No. 1 to Schedule 13D (this “Amendment No. 1”) is filed jointly by Morgan Stanley (“MS”), Sunshine Nation Limited, Ms. Siyuan Du and Mr. Qicai Du (collectively referred to herein as the “Reporting Persons”), with respect to Noah Education Holdings Ltd. (the “Company” or “Issuer”).
This Amendment No. 1 amends and supplements the statement on the Schedule 13D filed on December 31, 2013 (the “Schedule 13D”) on behalf of the Reporting Persons with the United States Securities and Exchange Commission (the “SEC”). Except as provided herein, this Amendment No. 1 does not modify any of the information previously reported on the Schedule 13D.
Item 2. Identity and Background
Item 2 of the Schedule 13D is hereby amended and supplemented by adding the following at the end thereof:
(d) – (e) During the last five years, none of the Reporting Persons, nor, to the knowledge of the Reporting Persons, any of the persons listed on Schedule A attached hereto, has been (1) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (2) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws, other than, in the case of clause (2), as described in Schedule B attached hereto and incorporated herein by reference.
(f) The name, business address, present principal occupation or employment and citizenship of each director and executive officer of MS are set forth in Schedule A attached hereto and incorporated herein by reference.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
Item 3 of the Schedule 13D is hereby amended and supplemented by adding the following at the end thereof:
Pursuant to an agreement and plan of merger, dated as of April 2, 2014 (the “Merger Agreement”), by and among Rainbow Education Holding Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands (“Parent”), Rainbow Education Merger Sub Holding Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands and a wholly-owned subsidiary of Parent (“Merger Sub”) and the Company, Merger Sub will be merged with and into the Company, with the Company continuing as the surviving corporation and a wholly-owned subsidiary of Parent (the “Merger”). The descriptions of the Merger and of the Merger Agreement set forth in Item 4 below are incorporated by reference in their entirety into this Item 3. The information disclosed in this paragraph is qualified in its entirety by reference to the Merger Agreement, a copy of which is filed as Exhibit 7.04 (previously filed with the SEC by the Company on a Form 6-K on April 3, 2014), and is incorporated herein by reference in its entirety.
The Reporting Persons anticipate that approximately $34 million will be expended in acquiring 11,929,825 outstanding Ordinary Shares and ADSs owned by public shareholders of the Company other than the Rollover Shareholders (as defined in Item 4 below) (the “Publicly Held Shares”). This amount includes the estimated funds required to (i) purchase the Publicly Held Shares and (ii) pay for the outstanding options, restricted shares and restricted share units to purchase the Ordinary Shares.
The financing for the Merger and other transactions contemplated by the Merger Agreement will be obtained pursuant to an equity commitment letter, dated as of April 2, 2014 (the “Equity Commitment Letter”), by and between Morgan Stanley Private Equity Asia IV Holdings Limited (“MSPEA Fund IV”) and Parent. Under the terms and subject to the conditions set forth in the Equity Commitment Letter, MSPEA Fund IV committed to subscribe, or cause to be subscribed, directly or indirectly through one or more of its affiliates, for newly issued preferred shares of Parent and to pay, or cause to be paid, to Parent in immediately available funds at or prior to the effective time of the Merger (the “Effective Time”) an aggregate cash purchase price equal to $34 million. The information disclosed in this paragraph is qualified in its entirety by reference to the Equity Commitment Letter, a copy of which is filed as Exhibit 7.05, and is incorporated herein by reference in its entirety.
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Concurrently with the execution of the Merger Agreement, Jointly Gold Technologies Limited, First Win Technologies Limited, Global Wise Technologies Limited, Sunshine Nation Limited, Mr. Qicai Du and Baring Asia II Holdings (22) Limited (each, a “Rollover Shareholder” and collectively, the “Rollover Shareholders”) entered into a support agreement (the “Support Agreement”) with Parent, pursuant to which an aggregate of 25,049,944 Ordinary Shares owned by the Rollover Shareholders will be canceled at the closing of the Merger, in exchange for 25,049,944 newly issued ordinary shares of Parent. The Rollover Shareholders, who collectively own approximately 68.1% of the outstanding Ordinary Shares, also agreed that, at the shareholders’ meeting of the Company convened for purposes of voting upon and approving the Merger Agreement and the transactions contemplated thereby, to, among other things, (i) appear at such meeting or otherwise cause their Ordinary Shares to be counted as present thereat for purposes of determining whether a quorum is present, (ii) vote or cause to be voted at such meeting all their Ordinary Shares in favor of approval of the Merger Agreement and the transactions contemplated thereby, and (iii) vote or cause to be voted at such meeting all their Ordinary Shares against the approval of any competing acquisition proposal (a “Competing Transaction”). In addition, the Rollover Shareholders agreed, and agreed to cause their representatives (i) not to initiate, solicit, propose, encourage or knowingly facilitate any inquiries, proposals or offers with respect to a Competing Transaction, (ii) not to engage, continue or participate in any discussions or negotiation with any parties with respect to a Competing Transaction, (iii) to promptly advise Parent in writing of any Competing Transaction, and (iv) keep Parent reasonably informed on a reasonably current basis of the status and terms of any Competing Transaction to the extent known by such Rollover Shareholder. The information disclosed in this paragraph is qualified in its entirety by reference to the Support Agreement, a copy of which is filed as Exhibit 7.06, and is incorporated herein by reference in its entirety.
ITEM 4. PURPOSE OF TRANSACTION
Item 4 of the Schedule 13D is hereby amended and supplemented by adding the following at the end thereof:
On April 2, 2014, the Company announced in a press release that it had entered into the Merger Agreement. Pursuant to the Merger Agreement, Merger Sub will be merged with and into the Company, with the Company continuing as the surviving corporation and a wholly-owned subsidiary of Parent (the “Merger”). At the effective time of the Merger (the “Effective Time”), each Ordinary Share or ADS issued and outstanding immediately prior to the Effective Time (other than the Excluded Shares and the Dissenting Shares, each as defined below) will be cancelled and cease to exist in exchange for the right to receive US$2.85 in cash without interest and net of any applicable withholding taxes. Excluded Shares means, collectively, Ordinary Shares beneficially owned (as determined pursuant to Rule 13d-3 under the Exchange Act) by the Rollover Shareholders and Ordinary Shares held by the depositary that are not represented by ADSs. Each of the Excluded Shares and ADSs representing the Excluded Shares will be cancelled and cease to exist at the Effective Time without payment of any consideration or distribution therefor. Dissenting Shares means Ordinary Shares that are outstanding immediately prior to the Effective Time and that are held by shareholders who have validly exercised and not effectively withdrawn or lost their rights to dissent from the Merger in accordance with the Cayman Islands Companies Law (the “CICL”). Each Dissenting Share will be cancelled at the Effective Time for the right to receive from the surviving company the appraised value of such Ordinary Shares as determined in accordance with the CICL.
The consummation of the Merger is subject to the satisfaction or waiver of a number of conditions set forth in the Merger Agreement, including the approval of the Merger Agreement and the transactions contemplated thereby by holders of Ordinary Shares representing two-thirds or more of the Ordinary Shares present and voting at a shareholders’ meeting of the Company convened for purposes of voting upon and approving the Merger Agreement and the transactions contemplated thereby. The Merger Agreement may be terminated by the Company or Parent under certain circumstances.
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The purpose of the transactions contemplated under the Merger Agreement, including the Merger, is to acquire all of the Publicly Held Shares. If the Merger is consummated, the Ordinary Shares and ADSs will no longer be traded on the New York Exchange and will cease to be registered under Section 12 of the Exchange Act, and the Company will be privately held by Parent. The information disclosed in this paragraph and the preceding two paragraphs is qualified in its entirety by reference to the Merger Agreement, which is incorporated herein by reference in its entirety.
Concurrently with the execution of the Merger Agreement, each of MSPEA Fund IV, Mr. Dong Xu, Mr. Benguo Tang, Mr. Xiaotong Wang, Mr. Qicai Du, Ms. Siyuan Du, The Baring Asia Private Equity Fund II, L.P. 1 and The Baring Asia Private Equity Fund II, L.P. 2 (together with The Baring Asia Private Equity Fund II, L.P. 1, “Baring Fund II”) (each, a “Guarantor” and collectively, the “Guarantors”) entered into a limited guarantee with the Company (each, a “Limited Guarantee” and collectively, the “Limited Guarantees”), pursuant to which each Guarantor irrevocably and unconditionally guaranteed, subject to certain conditions, Parent’s termination fee and certain payment obligations relating to the reimbursement and indemnification obligations of Parent under the Merger Agreement; provided that each Guarantor’s payment obligation under its respective Limited Guarantee will not exceed the percentage of Parent’s termination fee and reimbursement obligations each as set forth therein. The information disclosed in this paragraph is qualified in its entirety by reference to the Limited Guarantees, copies of which are filed as Exhibit 7.07 through Exhibit 7.13, and are incorporated herein by reference in their entirety.
Concurrently with the execution of the Merger Agreement, Mr. Dong Xu, Mr. Benguo Tang, Mr. Xiaotong Wang, Ms. Siyuan Du, Mr. Qicai Du (collectively, the “Management Members”), Baring Asia II Holdings (22) Limited (“Baring”) and MSPEA Education Holding Limited (“MSPEA”) entered into an interim investors agreement (the “Interim Investors Agreement”), pursuant to which, among other things, absent the written consent of MSPEA, each of the Management Members shall not, and shall cause his or her affiliates not to, and shall not direct or request in writing that the Company or any other group company take any action or omit to take any action which action or omission (a “Prohibited Action or Omission”) would or would reasonably be expected to (x) cause the Company to be in breach of any representation, warranty, covenant or agreement under the Merger Agreement or (y) constitute, either alone or in combination with any other event, circumstance, change or effect, a Company Material Adverse Effect (as defined in the Merger Agreement). The Interim Investors Agreement also provided for the sharing of the Parent’ termination fee if the Merger is not consummated, and for the sharing of certain fees and expenses incurred in connection with the transactions contemplated in the Merger Agreement. The information disclosed in this paragraph is qualified in its entirety by reference to the Interim Investors Agreement, a copy of which is filed as Exhibit 7.14, and is incorporated herein by reference in its entirety.
Concurrently with the execution of the Merger Agreement, MSPEA Fund IV entered into a guarantee (the “MSPEA Fund IV Guarantee”) with the Management Members and Baring, pursuant to which MSPEA Fund IV agreed to unconditionally and irrevocably guarantee the due and punctual performance, satisfaction and observance by MSPEA of MSPEA’s obligations, commitments, undertakings and warranties under or pursuant to the Interim Investors Agreement, and guaranteed MSPEA’s payment obligations under or pursuant to the Interim Investors Agreement. The information disclosed in this paragraph is qualified in its entirety by reference to the MSPEA Fund IV Guarantee, a copy of which is filed as Exhibit 7.15, and is incorporated herein by reference in its entirety.
Concurrently with the execution of the Merger Agreement, Baring Fund II entered into a guarantee (the “Baring Fund II Guarantee”) with the Management Members and MSPEA, pursuant to which Baring Fund II agreed to unconditionally and irrevocably guarantee the due and punctual performance, satisfaction and observance by Baring of Baring’s obligations, commitments, undertakings and warranties under or pursuant to the Interim Investors Agreement, and guaranteed Baring’s payment obligations under or pursuant to the Interim Investors Agreement. The information disclosed in this paragraph is qualified in its entirety by reference to the Baring Fund II Guarantee, a copy of which is filed as Exhibit 7.16, and is incorporated herein by reference in its entirety.
Except as indicated above, the Reporting Persons have no plans or proposals which relate to or would result in any of the actions specified in paragraphs (a) through (j) of Item 4 of Schedule 13D. The Reporting Persons may, at any time and from time to time, formulate other purposes, plans or proposals regarding the Company, or any other actions that could involve one or more of the types of transactions or have one or more of the results described in paragraphs (a) through (j) of Item 4 of Schedule 13D.
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Item 5. Interest in Securities of the Issuer
Item 5 of the Schedule 13D is hereby amended and replaced by the following:
(a) – (b) The following disclosure assumes that there are 36,763,991 Ordinary Shares outstanding on a fully diluted basis, as of March 25, 2014, as provided by the Company.
The responses of the Reporting Persons to Rows (7) through (11) of the cover page of this statement are incorporated herein by reference.
MS may be deemed to beneficially own an additional 70 Ordinary Shares (including Ordinary Shares represented by ADSs) (the “Additional Shares”) held by the MS Reporting Units, which, based on calculations in accordance with Rule 13d-3 promulgated under the Exchange Act, constitute approximately an additional 0% of the outstanding Ordinary Shares (including Ordinary Shares represented by ADSs).2Neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by MS that it is the beneficial owner of any of such Additional Shares for purposes of Section 13(d) of the Exchange Act, or for any other purpose, and such beneficial ownership is expressly disclaimed.
Sunshine Nation Limited directly holds 2,647,743 Ordinary Shares (including Ordinary Shares represented by ADSs), representing approximately 7.2% of the outstanding Ordinary Shares of the Company. Sunshine Nation Limited has sole power to vote and to dispose of the 2,647,743 Ordinary Shares.
As the sole owner of Sunshine Nation Limited, Ms. Siyuan Du has sole power to vote and to dispose of the 2,647,743 Ordinary Shares held by Sunshine Nation Limited.
Mr. Qicai Du directly holds 1,398,804 Ordinary Shares (including Ordinary Shares represented by ADSs), representing approximately 3.8% of the outstanding Ordinary Shares of the Company. Mr. Qicai Du has sole power to vote and to dispose of the 1,398,804 Ordinary Shares.
In addition, pursuant to Section 13(d)(3) of the Exchange Act, the Reporting Persons may, by virtue of their actions in respect of the Merger as described herein, be deemed to be members of a “group,” with other members of the Consortium. Neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by any of the Reporting Persons that he/she/it is the beneficial owner of any of the Ordinary Shares (including Ordinary Shares represented by ADSs) beneficially owned by other members of the group for purposes of Section 13(d) of the Exchange Act, or for any other purpose, and such beneficial ownership is expressly disclaimed.
(c) On March 25, 2014, Mr. Qicai Du sold 10,500 shares of ADS in open market transactions at an average price of US$2.68 per share.
Except as set forth in this Item 5(c) and Item 3 above (incorporated herein by reference), none of the Reporting Persons, nor, to their knowledge, any of the directors and officers listed on Schedule A hereto has effected any transactions in the Ordinary Shares or ADSs during the 60 days preceding the filing of this Schedule 13D.
(d) With respect to MS:
Except for MS, the MS Reporting Units and clients of the MS Reporting Units who may have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the Ordinary Shares, no other person is known by MS to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, any Ordinary Shares or ADSs beneficially owned by MS.
2 | In accordance with Securities and Exchange Commission Release No. 34-39538 (January 12, 1998) (the “Release”), this filing reflects the securities beneficially owned by certain operating units (collectively, the “MS Reporting Units”) of MS and its subsidiaries and affiliates (collectively, “MS Group”). This filing does not reflect securities, if any, beneficially owned by any affiliates or operating units of MS Group whose ownership of securities is disaggregated from that of the MS Reporting Units in accordance with the Release. |
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With respect to Sunshine Nation Limited, Ms. Siyuan Du and Mr. Qicai Du:
Not applicable.
(e) Not applicable.
ITEM 6. | CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. |
The descriptions of the principal terms of the Merger Agreement, the Equity Commitment Letter, the Support Agreement, the Limited Guarantees, the Interim Investors Agreement, the MSPEA Fund IV Guarantee and the Baring Fund II Guarantee under Item 3 and Item 4 are incorporated herein by reference in their entirety.
To the best knowledge of the Reporting Persons, except as provided herein, there are no other contracts, arrangements, understandings or relationships (legal or otherwise) among the Reporting Persons and between any of the Reporting Persons and any other person with respect to any securities of the Company, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, divisions of profits or loss, or the giving or withholding of proxies, or a pledge or contingency, the occurrence of which would give another person voting power over the securities of the Company.
ITEM 7. | MATERIAL TO BE FILED AS EXHIBITS. |
Exhibit 7.01: | Joint Filing Agreement, by and among the Reporting Persons, dated as of December 24, 2013 (incorporated by reference to Exhibit 7.01 to the Schedule 13D filed by the Reporting Persons with the SEC on December 31, 2013). |
Exhibit 7.04 | Agreement and Plan of Merger, by and among Rainbow Education Holding Limited, Rainbow Education Merger Sub Holding Limited and the Company, dated as of April 2, 2014(incorporated herein by reference to Exhibit 99.2 to the Company’s Form 6-K filed on April 3, 2014). |
Exhibit 7.05 | Equity Commitment Letter, by Morgan Stanley Private Equity Asia IV Holdings Limited in favor of Rainbow Education Holding Limited, dated as of April 2, 2014. |
Exhibit 7.06 | Support Agreement, by and among Jointly Gold Technologies Limited, First Win Technologies Limited, Global Wise Technologies Limited, Sunshine Nation Limited, Mr. Qicai Du, Baring Asia II Holdings (22) Limited and Rainbow Education Holding Limited, dated as of April 2, 2014. |
Exhibit 7.07 | Limited Guarantee, by Morgan Stanley Private Equity Asia IV Holdings Limited in favor of the Company, dated as of April 2, 2014. |
Exhibit 7.08 | Limited Guarantee, by Mr. Dong Xu in favor of the Company, dated as of April 2, 2014. |
Exhibit 7.09 | Limited Guarantee, by Mr. Benguo Tang in favor of the Company, dated as of April 2, 2014. |
Exhibit 7.10 | Limited Guarantee, by Mr. Xiaotong Wang in favor of the Company, dated as of April 2, 2014. |
Exhibit 7.11 | Limited Guarantee, by Ms. Siyuan Du in favor of the Company, dated as of April 2, 2014. |
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Exhibit 7.12 | Limited Guarantee, by Mr. Qicai Du in favor of the Company, dated as of April 2, 2014. |
Exhibit 7.13 | Limited Guarantee, by Baring Fund II in favor of the Company, dated as of April 2, 2014. |
Exhibit 7.14 | Interim Investors Agreement, by and among Mr. Dong Xu, Mr. Benguo Tang, Mr. Xiaotong Wang, Ms. Siyuan Du, Mr. Qicai Du, Baring Asia II Holdings (22) Limited and MSPEA Education Holding Limited, dated as of April 2, 2014. |
Exhibit 7.15 | Guarantee, by Morgan Stanley Private Equity Asia IV Holdings Limited in favor of Mr. Dong Xu, Mr. Benguo Tang, Mr. Xiaotong Wang, Ms. Siyuan Du, Mr. Qicai Du and Baring Asia II Holdings (22) Limited, dated as of April 2, 2014. |
Exhibit 7.16 | Guarantee, by Baring Fund II in favor of Mr. Dong Xu, Mr. Benguo Tang, Mr. Xiaotong Wang, Ms. Siyuan Du, Mr. Qicai Du and MSPEA Education Holding Limited, dated as of April 2, 2014. |
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SIGNATURE
After reasonable inquiry and to the best of its knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
Dated: April 3, 2014
Morgan Stanley | |||
By: | /s/ Christina Huttman | ||
Name: Christina Huttman | |||
Title: Authorized Signatory | |||
[Signature Page to Amendment No. 1 to Schedule 13D]
Sunshine Nation Limited | ||
By: | /s/ Siyuan Du | |
Name: | Siyuan Du | |
Title: | Sole Director |
Siyuan Du | |
By: | /s/ Siyuan Du |
Qicai Du | |
By: | /s/ Qicai Du |
[Signature Page to Amendment No. 1 to Schedule 13D]
SCHEDULE A
EXECUTIVE OFFICERS AND DIRECTORS OF MORGAN STANLEY
The names of the directors and the names and titles of the executive officers of Morgan Stanley and their principal occupations are set forth below. The business address of each of the directors or executive officers is that of Morgan Stanley at 1585 Broadway, New York, New York 10036. Unless otherwise indicated, each occupation set forth opposite an individual’s name refers to Morgan Stanley.
Name | Title | Citizenship | ||
*James P. Gorman | Chairman of the Board and Chief Executive Officer | Australia and United States | ||
*Erskine B. Bowles | Director | United States | ||
*Howard J. Davies | Professor, SciencesPo | England | ||
*Thomas H. Glocer | Director | United States | ||
*Robert H. Herz | President, Robert H. Herz LLC | United States | ||
*C. Robert Kidder | Director | United States | ||
*Klaus Kleinfeld | Chairman and Chief Executive Officer of Alcoa Inc. | Germany | ||
*Donald T. Nicolaisen | Director | United States | ||
*Hutham S. Olayan | President, Chief Executive Officer of The Olayan Group’s U.S. operations | United States | ||
*James W. Owens | Director | United States | ||
*O. Griffith Sexton | Adjunct professor of finance at Columbia Business School | United States | ||
*Ryosuke Tamakoshi | Senior Advisor to The Bank of Tokyo-Mitsubishi UFJ, Ltd. | Japan | ||
*Masaaki Tanaka | Representative Director and Deputy President of Mitsubishi UFJ Financial Group, Inc. | Japan | ||
*Laura D’Andrea Tyson | S. K. and Angela Chan Professor of Global Management at the Walter A. Haas School of Business at the University of California, Berkeley | United States | ||
*Rayford Wilkins, Jr. | Director | United States | ||
Gregory J. Fleming | Executive Vice President, President of Morgan Stanley Wealth Management and President of Investment Management | United States | ||
Eric F. Grossman | Executive Vice President and Chief Legal Officer | United States | ||
Keishi Hotsuki | Chief Risk Officer | Japan | ||
Colm Kelleher | Executive Vice President and President of Institutional Securities | England and Ireland | ||
Ruth Porat | Executive Vice President and Chief Financial Officer | United States | ||
James A. Rosenthal | Executive Vice President and Chief Operating Officer | United States |
* Director
SCHEDULE B
LEGAL PROCEEDINGS
Unless the context otherwise requires, the term “Morgan Stanley” means Morgan Stanley and its consolidated subsidiaries. Morgan Stanley & Co. LLC (“MS&Co.”) and Morgan Stanley Smith Barney LLC (“MSSB LLC”), referenced below, are Morgan Stanley’s primary U.S. broker-dealers.
(a) On September 30, 2009, Morgan Stanley entered into an administrative settlement agreement with the U.S. Environmental Protection Agency (“EPA”) to resolve certain violations of the U.S. environmental laws allegedly committed by Morgan Stanley during 2005. These alleged violations included: distribution of approximately 2.7 million gallons of reformulated gasoline that failed to comply with maximum benzene content limitations; failure to report volume and property information for each batch of gasoline blendstock imported and reformulated gasoline produced; failure to conduct an annual attest engagement; and failure to provide product transfer documents for each transfer of reformulated gasoline and each batch of previously certified gasoline. Without admitting or denying the EPA’s allegations, Morgan Stanley agreed to resolve these matters for a civil penalty of $405,000.
(b) On June 24, 2010, Morgan Stanley and the Office of the Attorney General for the Commonwealth of Massachusetts (“Massachusetts OAG”) entered into an Assurance of Discontinuance (“AOD”) to resolve the Massachusetts OAG’s investigation of the Issuer’s financing, purchase and securitization of certain subprime residential mortgages. The AOD provides for Morgan Stanley to make payments totaling approximately $102.7 million, and for Morgan Stanley to use its best efforts to implement certain business practices related to such activities on a prospective basis.
In addition, MS&Co. has been involved in a number of civil proceedings and regulatory actions which concern matters arising in connection with the conduct of its business. Certain of such proceedings have resulted in findings of violation of federal or state securities laws. Such proceedings are reported and summarized in the MS&Co. Form BD filed with the SEC, which descriptions are hereby incorporated by reference. The MSSB LLC Form BD filed with the SEC is also hereby incorporated by reference.