Exhibit 4.30
Deed of Undertaking
THIS DEED OF UNDERTAKING (the “Deed”) is dated September 26, 2013 and issued by:
Zhengdong Zhu, with PRC ID card number 320102196806142439.
Baohong Yin, with PRC ID card number 320102196710242849.
To
China Distance Education Holdings Limited, at 18F, NO. 1 Zhichun road, Haidian district, Beijing, China (the “Company”).
THIS DEED WITNESSES THAT:
1. | By signing this Deed, Zhengdong Zhu and Baohong Yin hereby irrevocably covenant with and undertake to the Company that: |
a. | As long as the shares in the Company Zhengdong Zhu and Baohong Yin together own, whether legally or beneficially, and directly or indirectly (including shares held through their personal holding companies Champion Education Holdings Limited, Champion Shine Trading Limited, or any other company, trust, nominee, immediate family member or agent, if any), represent more than 50% of the aggregate voting power of the then total issued and outstanding shares of the Company, |
i. | Zhengdong Zhu and Baohong Yin shall not and will not, directly or indirectly, (i) requisition or call any meeting of the Company’s shareholders for the purpose of removing or replacing any of the directors of the Company or appointing any new director of the Company, or (ii) propose any resolution at any meeting of the Company’s shareholders to remove or replace any of the directors of the Company or appoint any new director of the Company; and |
ii. | Should any meeting of the Company’s shareholders be called by the board of directors for the purpose of appointing any new director to fill in the vacancy of the board, or if any resolution is proposed at any meeting of the Company’s shareholders to appoint any new director to fill in the vacancy of the board, Zhengdong Zhu and Baohong Yin shall not and will not, in their capacity as shareholders of the Company, exercise their voting rights attaching to their shares collectively in excess of (i) the total aggregate voting power of the then total issued and outstanding shares of the Company held by all members of the Company, other than shares which are owned, whether legally or beneficially, and directly or indirectly by Zhengdong Zhu and Baohong Yin (including shares held through their personal holding companies Champion Education Holdings Limited, Champion Shine Trading Limited, or any other company, trust, nominee, immediate family member or agent, if any), less (ii) one vote. |
iii. | Should any meeting of the Company’s shareholders be called by the board of directors for the purpose of removing any of the directors, appointing any person to be a director as an addition to the existing board of directors, or change the size of the board of directors, or if any resolution is proposed at any meeting of the Company’s shareholders to remove any of the directors, appoint any person to be a director as an addition to the existing board of directors, or change the size of the board of directors, Zhengdong Zhu and Baohong Yin shall not and will not, in their capacity as shareholders of the Company, exercise their voting rights attaching to their shares collectively in excess of half of the total aggregate voting power of the then total issued and outstanding shares of the Company held by all members of the Company other than shares which are owned, whether legally or beneficially, and directly or indirectly by Zhengdong Zhu and Baohong Yin (including shares held through their personal holding companies Champion Education Holdings Limited, Champion Shine Trading Limited, or any other company, trust, nominee, immediate family member or agent, if any). |
b. | Neither Zhengdong Zhu nor Baohong Yin shall and will cast any votes he/she has as a director or shareholder (if applicable) on any resolutions or matters concerning enforcing, amending or otherwise relating this Deed being considered or voted upon by the board of directors or the shareholders, as the case may be. |
2. | This Deed shall apply to any and all periods during which Zhengdong Zhu and Baohong Yin together beneficially own, whether directly or indirectly (including shares held through their personal holding companies Champion Education Holdings Limited, Champion Shine Trading Limited, or any other company, trust, nominee, immediate family member or agent, if any), shares representing more than 50% of the aggregate voting power of the then total issued and outstanding shares of the Company. |
3. | This Deed shall be irrevocable, whether in whole or in part. Notwithstanding anything to the contrary herein, this Deed shall automatically terminate and be of no effect when the shares in the Company Zhengdong Zhu and Baohong Yin together own, whether legally or beneficially, and directly or indirectly (including shares held through their personal holding companies Champion Education Holdings Limited, Champion Shine Trading Limited, or any other company, trust, nominee, immediate family member or agent, if any), represent less than 50% of the aggregate voting power of the then total issued and outstanding shares of the Company. |
4. | Zhengdong Zhu and Baohong Yin acknowledge and agree that the Company will be irreparably damaged in the event any of the provisions of this Deed are not performed by Zhengdong Zhu and Baohong Yin in accordance with their specific terms or are otherwise breached. Accordingly, Zhengdong Zhu and Baohong Yin acknowledge and agree that the Company shall be entitled to an injunction to prevent breaches of this Deed, and to specific enforcement of this Deed and its terms and provisions in accordance with Sections 6 and 7 hereof, in addition to any other remedy to which the Company may be entitled at law or in equity. |
5. | The parties acknowledge and agree that this Deed shall become effective immediately upon execution by the parties hereto, and no notifications, registration or filing to or with any person (including any government authority or regulatory body in the Cayman Islands, the PRC, the US, or elsewhere, or any shareholder or other person connected with the Company) is required. |
6. | This Deed shall be governed by and construed in accordance with the laws of Cayman Islands. |
7. | Any dispute, controversy or claim arising out of, in connection with or relating to this Deed, including the interpretation, validity, invalidity, breach or termination thereof (the “Dispute”), shall be settled by arbitration. The following shall apply in connection the dispute resolution: |
a. | The arbitration shall be submitted to the International Chamber of Commerce (the “ICC”) and conducted in Hong Kong Special Administrative Region of the PRC under the ICC Arbitration Rules in force when the Notice of Arbitration is submitted in accordance with the said Rules. The number of arbitrators shall be three. The arbitration shall be conducted in the English language. The costs of arbitration shall be borne by the losing party, unless otherwise determined by the arbitration tribunal. |
b. | When any dispute occurs and when any dispute is under arbitration, except for the matters in dispute, the parties hereto shall continue to fulfill their respective obligations and shall be entitled to exercise their rights under this Deed. |
c. | The award of the arbitration tribunal shall be final and binding upon the parties, and the prevailing party may apply to any court of competent jurisdictions for enforcement of such award. |
d. | Regardless of the foregoing, each party hereto agrees that the other party hereto shall have the right, in addition to any other rights it may have, to seek specific performance and/or injunctive relief from any court of competent jurisdiction pending the foregoing. |
8. | This Deed is written in English and Chinese. Should there be any discrepancies between the English version and the Chinese version, the English version shall prevail. |
9. | IN WITNESS WHEREOFthis Deed has been duly executed as a deed by Zhengdong Zhu, Baohong Yin and the Company and is intended to be and is hereby delivered on the day and year first above written. |
SIGNED, SEALED AND DELIVERED | ) | |||||||||
as a deed by | ) | |||||||||
ZHENGDONG ZHU | ) | |||||||||
Signature: /s/ ZHENGDONG ZHU | ) | |||||||||
) | ||||||||||
) | ||||||||||
) | ||||||||||
in the presence of: | ||||||||||
Signature:/s/ Wang Zhi | ||||||||||
Name: Wang Zhi | ||||||||||
Title: Board Secretary | ||||||||||
SIGNED, SEALED AND DELIVERED | ) | |||||||||
as a deed by | ) | |||||||||
BAOHONG YIN | ) | |||||||||
Signature:/s/ BAOHONG YIN | ) | |||||||||
) | ||||||||||
) | ||||||||||
) | ||||||||||
in the presence of: | ||||||||||
Signature:/s/ Wang Zhi | ||||||||||
Name: Wang Zhi | ||||||||||
Title: Board Secretary |
EXECUTED AND DELIVERED | ) | |
as a deed by | ) | |
China Distance Education Holdings Limited (seal) | ) | |
) | ||
) | ||
) | ||
) | ||
in the presence of: | ||
Signature:/s/ Wang Zhi | ||
Name: Wang Zhi | ||
Title: Board Secretary |