Exhibit 10.4
EXCLUSIVE PURCHASE OPTION AGREEMENT
This Exclusive Purchase Option Agreement (hereinafter referred to as "this
Agreement") has been signed by the following parties in Beijing, the People's
Republic of China (hereinafter referred to as "China") on November 28, 2009.
Party A: Xiangtan Nicestar Business Administration Co., Ltd.
Address: Huayuan Village, Shaoshan Town, Shaoshan City
Party B: Guangwen He
ID Number: 430124196807081491
Party C: Hunan Oya Education Technology Co., Ltd.
Address: No. 119, Block 1, Middle Furong Rd., Kaifu District, Changsha City
(Room 1708, Changtai Building)
In this Agreement, Party A, Party B and Party C shall hereinafter be referred to
respectively as a "Party" and collectively as the "Parties".
Whereas: Party B holds 90% of the equity interests of Party C.
The parties have entered into the following agreements upon reaching a consensus
through consultation now:
1. TRANSACTIONS OF EQUITIES
1.1 Grant of rights
Whereas, Party A pays RMB 10 Yuan to Party B as a consideration and
Party B acknowledges receipt of the said consideration and deems it
enough, Party B hereby irrevocably agrees that, under the premise as
permitted by laws in China, following the exercise of discretionary
steps and in accordance with the price described in Article 1.3 of
this Agreement, Party A can require Party B to perform and fulfill all
the approval and registration procedures required by Chinese laws so
that Party A may at any time or from time to time, or designate a
person or persons ("appointees") to purchase all or part of Party C's
equities ("option of equities") from Party B. Where Party A's option
of the said equities is exclusive, in addition to Party A and the
appointees, any third persons shall not enjoy the rights to purchase
shares or other rights related to Party B's equities. Party C shall
hereby agree that Party B can grant the option of equities to Party A.
The "persons" stipulated in the provisions of this Paragraph and this
Agreement shall refer to individuals, companies, joint ventures,
partnerships, corporations, trust companies or unincorporated
organizations.
1.2 Exercising steps
Party A shall exercise the option of equities thereof under the
prediction of complying with Chinese laws and regulations. As
exercising the option of equities, Party A shall issue such a written
notice ("share purchase notice") to Party B which shall contain the
following matters: (a) Party A's decision on the exercise of the
option of equities; (b) the stock-ownership shares ("equities
purchased") which Party A intends to purchase from Party B; and (c)
the date of purchase/date of transfer of equities purchased.
1.3 Price of equities
The price of equities purchased ("the base price") shall be RMB 10
Yuan. If an assessment of equity is carried out in accordance with the
requirements of Chinese laws as Party A exercises the rights thereof,
the parties shall make an agreement otherwise as per the principle of
good faith, and it is necessary for them to adjust the said price of
equities based on an evaluation, so as to comply with any requirements
of applicable Chinese laws at the time (collectively referred to as
"price of equities").
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1.4 Transfer of equities purchased
As Party A exercises the option of equities every time:
1.4.1 Party B shall oblige Party C to promptly hold the meeting of
shareholders, on which such resolutions as Party B transfers the
equities purchased to Party A and / or designees shall be passed
and approved;
1.4.2 Party B shall issue a written statement in which Party B
transfers the equities purchased to Party A and / or appointees
and obtains the agreements of Party C and the other shareholders
to transfer and abandon the pre-emptive rights.
1.4.3 Party B shall sign the equity transfer agreement for each
transfer with Party A and / or (where applicable) appointees in
accordance with this Agreement and the share purchase notice;
1.4.4.The related parties shall sign all other required agreements,
agreements or documents, obtain all the necessary government
approvals and consents, take all the necessary actions under the
circumstances without any security interests to transfer the
effective ownership of equities purchased to Party A and / or
appointees and make Party A and / or designees become the owners
of equities purchased and registered in the books. For the
purposes of this Paragraph and this Agreement, the "security
interests" shall include guarantees, mortgages, third-party
rights or interests, any options, purchase rights, rights of
pre-emption, rights of set-off, ownership of detention or other
security arrangements, etc., for the sake of clarity, not
including any security interests arising from this Agreement and
the Paragraph of the Equity Pledge Agreement of Party B. The
"Equity Pledge Agreement of Party B" stipulated in the
provisions of this Paragraph and this Agreement shall refer to
the Equity Pledge Agreement (hereinafter referred to as "Equity
Pledge Agreement") signed by Party A, Party B and Party C on the
date of signing of this Agreement. In accordance with the Equity
Pledge Agreement, in order to guarantee that Party C can fulfill
the obligation under the exclusive business cooperation
agreement signed by Party C and Party A, Party B shall pledge
all the equities thereof in Party C to Party A.
2. Commitments
2.1 Commitments related to Party C
Party B (as the shareholder of Party C) and Party C hereby make
commitments :
2.1.1 Without the prior written consent of Party A it will not
supplement, alter or modify the Company's constitutive
documents of Party C in any ways, increase or decrease the
registered capital thereof, or otherwise change the registered
capital structure thereof;
2.1.2 It will maintain the viability of the companies thereof, as well
as carefully and effectively operate the business thereof and
process services in accordance with the sound financial and
business standards and practices;
2.1.3 It will not sell, transfer, mortgage or otherwise dispose of any
assets, legal incomes or beneficial interests of Party C or to
allow to set any other security interests thereon at any time
from the date of signature of this Agreement without the prior
written consent of Party A;
2.1.4 It will not incur, inherit, guarantee or allow any debts without
the prior written consent of Party A, but except for (i) the
debts arising from the process of normal or daily business rater
than through the borrowing instrument and (ii) the debts
disclosed to Party A and getting the written consent of Party A;
2.1.5 All businesses will be run in the course of the normal business
to maintain the asset values of Party C, it will not carry out
any acts/omissions as are sufficient to affect the conditions of
business and asset values thereof;
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2.1.6 Party C shall not be allowed to sign any major agreements
without the prior written consent of Party A, but except for the
agreements signed in the course of normal business (for the
purposes of this paragraph, if a agreement total amount is more
than RMB [500,000] Yuan, it is deemed as a major agreement);
2.1.7 Party C shall not be allowed to provide any loans or credit to
any persons without the prior written consent of Party A;
2.1.8 It will provide Party A with all information of operating and
financial conditions related with Party C in accordance with the
requirements of Party A;
2.1.9 If Party A raises the requirements, Party C shall purchase and
hold the insurance related to the assets and businesses thereof
from the insurance companies accepted by Party A, the insurance
shall have as the same amount and insurance kind as the one of
the companies operating the similar businesses;
2.1.10Party C shall not merge with or unite any person, or carry out
the acquisition or investment for any person without the prior
written consent of Party A;
2.1.11It will immediately notify such litigations, arbitrations or
administrative proceedings in connection with the assets,
businesses or incomes of Party C as are taking place or may
arise possibly to Party A;
2.1.12It will sign all the necessary or appropriate documents, take
all the necessary or appropriate actions and prefer all the
necessary or appropriate charges or carry out all necessary and
appropriate defenses for all the claims for reimbursement in
order to maintain the ownership of all the assets of Party C
thereof;
2.1.13It will not pay dividends to all shareholders in any form
without the prior written consent of Party A; however, whenever
Party A raises any requirements, Party C shall immediately
distribute all the distributable profits thereof to all
shareholders; and
2.1.14In accordance with the requirements of Party A, any person
designated by Party A shall be appointed as a director of Party
C.
2.2 Commitments of Party B
Commitments of Party B:
2.2.1 It will not sell, transfer, mortgage or otherwise dispose of
such legal or beneficial interests of Party C's equities as are
owned by Party A or to allow to set any other security interests
thereon without the prior written consent of Party A; however,
except for the pledge set on the said equity in accordance with
the Equity Pledge Agreement of Party B;
2.2.2 It will cause the board of shareholders and / or the board of
directors of Party C not to approve to sell, transfer, mortgage
or otherwise dispose of such any legal or beneficial interests
of Party C's equities as are owned by Party B or to allow to set
any other security interests thereon without the prior written
consent of Party A; except for the approval of pledge set on the
equity of Party B in accordance with the Equity Pledge Agreement
of Party B;
2.2.3 Without the prior written consent of Party A, Party B shall
cause the board of shareholders or the board of directors of
Party C not to grant Party C's merger or union with any person
or acquisition or investment for any person;
2.2.4 It will immediately notify such any litigations, arbitrations or
administrative proceedings in connection with the equities owned
thereof as are taking place or may arise possibly to Party A;
2.2.5 It will promote the board of shareholders or the board of
directors of Party C to vote in favor of the transfer of
equities purchased stipulated in this Agreement and to take any
other actions in accordance with the requirements of Party A;
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2.2.6 It will sign all the necessary or appropriate documents, take
all the necessary or appropriate actions and prefer all the
necessary or appropriate charges or carry out all necessary and
appropriate defenses for all the claims for reimbursement in
order to maintain the ownership of all the equities thereof;
2.2.7 In accordance with the requirements of Party A, any person
designated by Party A shall be appointed as a director of Party
C.
2.2.8 In accordance with the requirements of Party A at any time,
Party B shall immediately transfer the equities thereof to its
designated representative at any time and without conditions and
in accordance with the option of equities of this Agreement, and
give up the pre-emptive rights (if any) enjoyed thereof while
carrying out the corresponding transfer of the equities thereof
to another existing shareholder; and
2.2.9 It will carry out the strict compliance with the provisions of
this Agreement and other agreements jointly or separately signed
by Party B, Party C and Party A, as well as the effective
implementation of the obligations under the said agreements, and
not carry out such acts/omissions as may be sufficient to affect
the validity and enforceability of the said agreements.
3. REPRESENTATIONS AND WARRANTIES
Party B and Party C shall hereby make the representations and warranties jointly
and separately to Party A at the date of signing of this Agreement and each date
of transfer as follows:
3.1 Party B and Party C shall have the powers and capabilities of signing
and delivering this Agreement and as one party and any equity transfer
agreements (each referred to as "Transfer Agreements") signed for each
transfer of equities purchased as per this Agreement, as well as
fulfilling the obligations under this Agreement and any Transfer
Agreements thereof. Party B and Party C have agreed that they shall
sign the Transfer Agreements as the same terms as this Agreement while
Party A is exercising the options. Once this Agreement and each
Transfer Agreement as one party are signed, the legal, valid and
binding obligations have been constituted or shall be constituted and
can be enforced in accordance with the terms to Party B and Party C
thereof;
3.2 Whether the assignment and delivery of this Agreement or any Transfer
Agreements or the performance of obligations under this Agreement or
any Transfer Agreements thereof shall not: (i) result in a breach of
any relevant laws of China; (ii) conflict with the constitutional
documents of Party C and documents of other organizations; (iii)
result in a breach of any binding agreements or documents to Party B
and Party C or as one party, or the constitution of any breach of
agreements under any binding agreements or documents to Party B and
Party C or as one party; (iv) result in a breach of the relevant grant
of any license or approval issued to any party and (or) any conditions
remaining in force; or (v) result in the suspension or revocation or
additional conditions of any license or approval issued to any party;
3.3 Party B shall have the good and marketable ownership for the equities
owned thereof in Party C, apart from the Equity Pledge Agreement of
Party B, it have not set any security interests on the above-mentioned
equities;
3.4 Party C shall have the good and marketable ownership for all the
assets and have not set any security interests on the above-mentioned
assets;
3.5 Party C has no any outstanding debts, except for (i) the debts arising
from the course of the normal business as well as(ii) the debts
disclosed to Party A and passing the written consent of Party A;
3.6 Party C shall comply with all the laws and regulations applicable to
the equity and the acquisition of assets; and
3.7 At present, there are not any pending or threatening litigations,
arbitrations or administrative procedures related to the equities,
assets of Party C or Party C.
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4. EFFECTIVE DATE
This Agreement shall enter into force from the date of signing this Agreement by
the parties, valid for 10 years, and can be further extended by the choice of
Party A.
5. APPLICABLE LAWS AND DISPUTE SETTLEMENT
5.1 Applicable laws
The Agreement shall be made, validated, interpreted, performed,
revised and terminated and the disputes shall be resolved in
conformance with related Chinese officially announced and publicly
available laws, for which there fail to be the regulated matters, the
international legal principles and practices shall be applicable.
5.2 Means of dispute settlement
The parties shall resolve any dispute arising from interpreting and
fulfilling the Agreement based on friendly negotiations at first
within 30 days upon sending a written notice by one Party to another,
which, if a failure, shall be hereafter presented by any of the
parties to China International Economic and Trade Arbitration
Commission for arbitration in accordance with currently valid
arbitration rules in Beijing. The arbitration shall be in Chinese and
the arbitration award shall be final and binding on both parties.
6. TAXES AND FEES
Each party shall bear any and all taxes, expenses and fees arising from the
transactions drawn up due to the preparation and signature of this Agreement and
the Transfer Agreements and the completion of this Agreement and the Transfer
Agreements under Chinese laws or arising from the said party or the collection
of transfer and registration thereof.
7. NOTICE
7.1 All notices or other correspondences requested or sent upon the
Agreement shall be sent to the following address of the Party through
personal delivery, registered post, postage prepaid, business express
service or fax and all notices shall be sent through email once more.
The service date of such notices shall be confirmed as per the
following methods:
7.1.1If the notice is sent through personal delivery, express service,
registered post or postage prepaid, the service date shall be the
day when the notice is sent or rejected upon the notice address.
7.1.2If the notice is sent through fax, the service date shall be the
day when the notice is successfully sent out (subject to the
auto-generated sending acknowledgement).
7.2 For the purpose of notice, both Parties' addresses are as following:
PARTY A: Xiangtan Nicestar Business Administration Co., Ltd.
Address: Huayuan Village, Shaoshan Town, Shaoshan City
Attn: Guangwen He
Tel.: 0731-55687248
Fax: 0731-55687248
PARTY B: Guangwen He
Address: No.27 Jinsha Road, Lijingpu Village, Ningxiang County,
Hunan Province
Attn: Guangwen He
Tel.: 0731-87828601
Fax: 0731-87828601
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PARTY C: Hunan Oya Education Technology Co., Ltd.
Address: No. 119, Block. I. Middle Furong Rd., Kaifu District,
Changsha City (Room 1708, Changtai Building)
Attn: Guangwen He
Tel.: 0731-88873289
Fax: 0731-88873727
7.3 Either Party can notice the other Party the change of the notice
address at any time upon this clause.
8. DUTIES OF CONFIDENTIALITY
The parties acknowledge and confirm that the Agreement and the content
thereof, as well as any exchanged oral or written documents for preparing
or fulfilling the Agreement are confidential information which may not be
disclosed to any other parties without the prior written authorization of
another Party except the followings: (a) any information known or to be
known by publics (only those information not disclosed to publics by the
party accepting the confidential information without permission); (b) any
information needed by any party with respect to the Agreement to be
disclosed at the request of applicable laws, stock exchange regulations or
orders from government or court; or (c) any information needed to be
disclosed to the stockholders, investors, or law or financial consultant
who have to observe the confidential obligations similar to the Agreement
as well . Any such disclosure from personnel or employed institutes of one
party shall be considered as the disclosure of that party and shall be
liable for breach of agreement. This clause shall be valid no matter the
Agreement is terminated for any reason.
9. FURTHER GUARANTEES
The parties agree to sign in time the documents and take further actions
reasonably needed in implementation of the provisions and purposes of this
Agreement or benefit the Party.
10. MISCELLANEOUS
10.1 Amendment, modification and supplement
The amendment, modification and supplement of this Agreement must be
approved by a written agreement signed by each party.
10.2 Complete agreements
In addition to the written amendment, modification and supplement
after this Agreement has been signed, the complete agreements reached
by the parties of this Agreement for the subject matter of this
Agreement shall replace all the oral or written consultations,
statements and agreements reached for the subject matter of this
Agreement erenow.
10.3 Titles
The title of this Agreement shall be set only for convenience to read
as such, and shall not be used to explain, descript or otherwise
affect the meanings of the provisions of this Agreement.
10.4 Languages
This Agreement shall be in triplicate. Party A, Party B and Party C
have one with each equally valid.
10.5 Divisibility
If one or more clauses of the Agreement are adjudged to be invalid,
illegal or unenforceable in any aspect subject to any law or
regulation, the validity, legality or enforceability of the other part
of the Agreement shall not be impacted or damaged for such reason. The
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Parties shall, through sincere negotiations, replace the invalid,
illegal or unenforceable regulations with effective regulations within
the law and to the maximum the Parties expected, economic effects of
such effective regulations shall be as similar as possible with those
of the invalid, illegal or unenforceable regulations.
10.6 Successors
This Agreement shall be binding on the respective successors and the
permitted transferees of the parties thereof and shall be favorable to
them therefore.
10.7 Remaining in force
10.7.1 Any obligations arising from this Agreement or expiring prior
to the expiration or early termination of this Agreement shall
remain in force after the expiration or early termination of
this Agreement.
10.7.2 The provisions stipulated in Clauses 5, 7, 8 and 10.8 of this
Agreement shall remain in force after the termination of this
Agreement.
10.8 Waive
Any party can waive the terms and conditions of this Agreement, but
the said waive must be made in writing and signed by the parties. One
party's abstention arising from the breach of agreement of other
parties in some cases shall not be deemed as the said party's
abstention arising from the similar breach of agreement of other
parties in other cases.
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IN WITNESS WHEREOF, the representatives authorized by both Parties have signed
this Exclusive Option Agreement and validated it as of day showed at the
beginning of the Agreement.
Party A: Xiangtan Nicestar Business Administration Co., Ltd.
Signature: /s/ Guangwen He
Name: Guangwen He
Position: Legal Representative
Party B: Guangwen He
Signature: /s/ Guangwen He
Party C: Hunan Oya Education Technology Co., Ltd.
Signature: /s/ Guangwen He
Name: Guangwen He
Post: Legal Representative
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EXCLUSIVE PURCHASE OPTION AGREEMENT
This Exclusive Purchase Option Agreement (hereinafter referred to as "this
Agreement") has been signed by the following parties in Beijing, the People's
Republic of China (hereinafter referred to as "China") on November 28, 2009.
Party A: Xiangtan Nicestar Business Administration Co., Ltd.
Address: Huayuan Village, Shaoshan Town, Shaoshan City
Party B: Yabin Zhong
ID Number: 430124196807081491
Party C: Hunan Oya Education Technology Co., Ltd.
Address: No. 119, Block 1, Middle Furong Rd., Kaifu District, Changsha City
(Room 1708, Changtai Building)
In this Agreement, Party A, Party B and Party C shall hereinafter be referred to
respectively as a "Party" and collectively as the "Parties".
Whereas: Party B holds 10% of the equity interests of Party C.
The parties have entered into the following agreements upon reaching a consensus
through consultation now:
1. TRANSACTIONS OF EQUITIES
1.1 Grant of rights
Whereas, Party A pays RMB 10 Yuan to Party B as a consideration and
Party B acknowledges receipt of the said consideration and deems it
enough, Party B hereby irrevocably agrees that, under the premise as
permitted by laws in China, following the exercise of discretionary
steps and in accordance with the price described in Article 1.3 of
this Agreement, Party A can require Party B to perform and fulfill all
the approval and registration procedures required by Chinese laws so
that Party A may at any time or from time to time,or designate a
person or persons ("appointees") to purchase all or part of Party C's
equities ("option of equities") from Party B. Where Party A's option
of the said equities is exclusive, in addition to Party A and the
appointees, any third persons shall not enjoy the rights to purchase
shares or other rights related to Party B's equities. Party C shall
hereby agree that Party B can grant the option of equities to Party A.
The "persons" stipulated in the provisions of this Paragraph and this
Agreement shall refer to individuals, companies, joint ventures,
partnerships, corporations, trust companies or unincorporated
organizations.
1.2 Exercising steps
Party A shall exercise the option of equities thereof under the
prediction of complying with Chinese laws and regulations. As
exercising the option of equities, Party A shall issue such a written
notice ("share purchase notice") to Party B which shall contain the
following matters: (a) Party A's decision on the exercise of the
option of equities; (b) the stock-ownership shares ("equities
purchased") which Party A intends to purchase from Party B; and (c)
the date of purchase/date of transfer of equities purchased.
1.3 Price of equities
The price of equities purchased ("the base price") shall be RMB 10
Yuan. If an assessment of equity is carried out in accordance with the
requirements of Chinese laws as Party A exercises the rights thereof,
the parties shall make an agreement otherwise as per the principle of
good faith, and it is necessary for them to adjust the said price of
equities based on an evaluation, so as to comply with any requirements
of applicable Chinese laws at the time (collectively referred to as
"price of equities").
1.4 Transfer of equities purchased
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As Party A exercises the option of equities every time:
1.4.1 Party B shall oblige Party C to promptly hold the meeting of
shareholders, on which such resolutions as Party B transfers
the equities purchased to Party A and / or designees shall be
passed and approved;
1.4.2 Party B shall issue a written statement in which Party B
transfers the equities purchased to Party A and / or
appointees and obtains the agreements of Party C and the other
shareholders to transfer and abandon the pre-emptive rights.
1.4.3 Party B shall sign the equity transfer agreement for each
transfer with Party A and / or (where applicable) appointees
in accordance with this Agreement and the share purchase
notice;
1.4.4. The related parties shall sign all other required agreements,
agreements or documents, obtain all the necessary government
approvals and consents, take all the necessary actions under
the circumstances without any security interests to transfer
the effective ownership of equities purchased to Party A and /
or appointees and make Party A and / or designees become the
owners of equities purchased and registered in the books. For
the purposes of this Paragraph and this Agreement, the
"security interests" shall include guarantees, mortgages,
third-party rights or interests, any options, purchase rights,
rights of pre-emption, rights of set-off, ownership of
detention or other security arrangements, etc., for the sake
of clarity, not including any security interests arising from
this Agreement and the Paragraph of the Equity Pledge
Agreement of Party B. The "Equity Pledge Agreement of Party B"
stipulated in the provisions of this Paragraph and this
Agreement shall refer to the Equity Pledge Agreement
(hereinafter referred to as "Equity Pledge Agreement") signed
by Party A, Party B and Party C on the date of signing of this
Agreement. In accordance with the Equity Pledge Agreement, in
order to guarantee that Party C can fulfill the obligation
under the exclusive business cooperation agreement signed by
Party C and Party A, Party B shall pledge all the equities
thereof in Party C to Party A.
2. Commitments
2.1 Commitments related to Party C
Party B (as the shareholder of Party C) and Party C hereby make
commitments:
2.1.1 Without the prior written consent of Party A it will not
supplement, alter or modify the Company's constitutive
documents of Party C in any ways, increase or decrease the
registered capital thereof, or otherwise change the registered
capital structure thereof;
2.1.2 It will maintain the viability of the companies thereof, as
well as carefully and effectively operate the business thereof
and process services in accordance with the sound financial
and business standards and practices;
2.1.3 It will not sell, transfer, mortgage or otherwise dispose of
any assets, legal incomes or beneficial interests of Party C
or to allow to set any other security interests thereon at any
time from the date of signature of this Agreement without the
prior written consent of Party A;
2.1.4 It will not incur, inherit, guarantee or allow any debts
without the prior written consent of Party A, but except for
(i) the debts arising from the process of normal or daily
business rater than through the borrowing instrument and (ii)
the debts disclosed to Party A and getting the written consent
of Party A;
2.1.5 All businesses will be run in the course of the normal
business to maintain the asset values of Party C, it will not
carry out any acts/omissions as are sufficient to affect the
conditions of business and asset values thereof;
2.1.6 Party C shall not be allowed to sign any major agreements
without the prior written consent of Party A, but except for
the agreements signed in the course of normal business (for
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the purposes of this paragraph, if a agreement total amount is
more than RMB [500,000] Yuan, it is deemed as a major
agreement);
2.1.7 Party C shall not be allowed to provide any loans or credit to
any persons without the prior written consent of Party A;
2.1.8 It will provide Party A with all information of operating and
financial conditions related with Party C in accordance with
the requirements of Party A;
2.1.9 If Party A raises the requirements, Party C shall purchase and
hold the insurance related to the assets and businesses
thereof from the insurance companies accepted by Party A, the
insurance shall have as the same amount and insurance kind as
the one of the companies operating the similar businesses;
2.1.10 Party C shall not merge with or unite any person, or carry out
the acquisition or investment for any person without the prior
written consent of Party A;
2.1.11 It will immediately notify such litigations, arbitrations or
administrative proceedings in connection with the assets,
businesses or incomes of Party C as are taking place or may
arise possibly to Party A;
2.1.12 It will sign all the necessary or appropriate documents, take
all the necessary or appropriate actions and prefer all the
necessary or appropriate charges or carry out all necessary
and appropriate defenses for all the claims for reimbursement
in order to maintain the ownership of all the assets of Party
C thereof;
2.1.13 It will not pay dividends to all shareholders in any form
without the prior written consent of Party A; however,
whenever Party A raises any requirements, Party C shall
immediately distribute all the distributable profits thereof
to all shareholders; and
2.1.14 In accordance with the requirements of Party A, any person
designated by Party A shall be appointed as a director of Party
C.
2.2 Commitments of Party B
Commitments of Party B:
2.2.1 It will not sell, transfer, mortgage or otherwise dispose of
such legal or beneficial interests of Party C's equities as
are owned by Party A or to allow to set any other security
interests thereon without the prior written consent of Party
A; however, except for the pledge set on the said equity in
accordance with the Equity Pledge Agreement of Party B;
2.2.2 It will cause the board of shareholders and / or the board of
directors of Party C not to approve to sell, transfer,
mortgage or otherwise dispose of such any legal or beneficial
interests of Party C's equities as are owned by Party B or to
allow to set any other security interests thereon without the
prior written consent of Party A; however, except for the
approval of pledge set on the equity of Party B in accordance
with the Equity Pledge Agreement of Party B;
2.2.3 Without the prior written consent of Party A, Party B shall
cause the board of shareholders or the board of directors of
Party C not to grant Party C's merger or union with any person
or acquisition or investment for any person;
2.2.4 It will immediately notify such any litigations, arbitrations
or administrative proceedings in connection with the equities
owned thereof as are taking place or may arise possibly to
Party A;
2.2.5 It will promote the board of shareholders or the board of
directors of Party C to vote in favor of the transfer of
equities purchased stipulated in this Agreement and to take
any other actions in accordance with the requirements of Party
A;
2.2.6 It will sign all the necessary or appropriate documents, take
all the necessary or appropriate actions and prefer all the
necessary or appropriate charges or carry out all necessary
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and appropriate defenses for all the claims for reimbursement
in order to maintain the ownership of all the equities
thereof;
2.2.7 In accordance with the requirements of Party A, any person
designated by Party A shall be appointed as a director of
Party C.
2.2.8 In accordance with the requirements of Party A at any time,
Party B shall immediately transfer the equities thereof to its
designated representative at any time and without conditions
and in accordance with the option of equities of this
Agreement, and give up the pre-emptive rights (if any) enjoyed
thereof while carrying out the corresponding transfer of the
equities thereof to another existing shareholder; and
2.2.9 It will carry out the strict compliance with the provisions of
this Agreement and other agreements jointly or separately
signed by Party B, Party C and Party A, as well as the
effective implementation of the obligations under the said
agreements, and not carry out such acts/omissions as may be
sufficient to affect the validity and enforceability of the
said agreements.
3. REPRESENTATIONS AND WARRANTIES
Party B and Party C shall hereby make the representations and warranties jointly
and separately to Party A at the date of signing of this Agreement and each date
of transfer as follows:
3.1 Party B and Party C shall have the powers and capabilities of signing
and delivering this Agreement and as one party and any equity transfer
agreements (each referred to as "Transfer Agreements") signed for each
transfer of equities purchased as per this Agreement, as well as
fulfilling the obligations under this Agreement and any Transfer
Agreements thereof. Party B and Party C have agreed that they shall
sign the Transfer Agreements as the same terms as this Agreement while
Party A is exercising the options. Once this Agreement and each
Transfer Agreement as one party are signed, the legal, valid and
binding obligations have been constituted or shall be constituted and
can be enforced in accordance with the terms to Party B and Party C
thereof;
3.2 Whether the assignment and delivery of this Agreement or any Transfer
Agreements or the performance of obligations under this Agreement or
any Transfer Agreements thereof shall not: (i) result in a breach of
any relevant laws of China; (ii) conflict with the constitutional
documents of Party C and documents of other organizations; (iii)
result in a breach of any binding agreements or documents to Party B
and Party C or as one party, or the constitution of any breach of
agreements under any binding agreements or documents to Party B and
Party C or as one party; (iv) result in a breach of the relevant grant
of any license or approval issued to any party and (or) any conditions
remaining in force; or (v) result in the suspension or revocation or
additional conditions of any license or approval issued to any party;
3.3 Party B shall have the good and marketable ownership for the equities
owned thereof in Party C, apart from the Equity Pledge Agreement of
Party B, it have not set any security interests on the above-mentioned
equities;
3.4 Party C shall have the good and marketable ownership for all the
assets and have not set any security interests on the above-mentioned
assets;
3.5 Party C has no any outstanding debts, except for (i) the debts arising
from the course of the normal business as well as(ii) the debts
disclosed to Party A and passing the written consent of Party A;
3.6 Party C shall comply with all the laws and regulations applicable to
the equity and the acquisition of assets; and
3.7 At present, there are not any pending or threatening litigations,
arbitrations or administrative procedures related to the equities,
assets of Party C or Party C.
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4. EFFECTIVE DATE
This Agreement shall enter into force from the date of signing this Agreement by
the parties, valid for 10 years, and can be further extended by the choice of
Party A.
5. APPLICABLE LAWS AND DISPUTE SETTLEMENT
5.1 Applicable laws
The Agreement shall be made, validated, interpreted, performed,
revised and terminated and the disputes shall be resolved in
conformance with related Chinese officially announced and publicly
available laws, for which there fail to be the regulated matters, the
international legal principles and practices shall be applicable.
5.2 Means of dispute settlement
The parties shall resolve any dispute arising from interpreting and
fulfilling the Agreement based on friendly negotiations at first
within 30 days upon sending a written notice by one Party to another,
which, if a failure, shall be hereafter presented by any of the
parties to China International Economic and Trade Arbitration
Commission for arbitration in accordance with currently valid
arbitration rules in Beijing. The arbitration shall be in Chinese and
the arbitration award shall be final and binding on both parties.
6. TAXES AND FEES
Each party shall bear any and all taxes, expenses and fees arising from the
transactions drawn up due to the preparation and signature of this Agreement and
the Transfer Agreements and the completion of this Agreement and the Transfer
Agreements under Chinese laws or arising from the said party or the collection
of transfer and registration thereof.
7. NOTICE
7.1 All notices or other correspondences requested or sent upon the
Agreement shall be sent to the following address of the Party through
personal delivery, registered post, postage prepaid, business express
service or fax and all notices shall be sent through email once more.
The service date of such notices shall be confirmed as per the
following methods:
7.1.1 If the notice is sent through personal delivery, express
service, registered post or postage prepaid, the service date
shall be the day when the notice is sent or rejected upon the
notice address.
7.1.2 If the notice is sent through fax, the service date shall be
the day when the notice is successfully sent out (subject to
the auto-generated sending acknowledgement).
7.2 For the purpose of notice, both Parties' addresses are as following:
Party A: Xiangtan Nicestar Business Administration Co., Ltd.
Address: Huayuan Village, Shaoshan Town, Shaoshan City
Attn: Guangwen He
Tel.: 0731-55687248
Fax: 0731-55687248
Party B: Yabin Zhong
Address: No.27 Jinsha Road, Lijingpu Village, Ningxiang County,
Hunan Province
Attn: Yabin Zhong
Tel.: 0731-87828601
Fax: 0731-87828601
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Party C: Hunan Oya Education Technology Co., Ltd.
Address: No. 119, Block. I. Middle Furong Rd., Kaifu District,
Changsha City (Room 1708, Changtai Building)
Attn: Guangwen He
Tel.: 0731-88873289
Fax: 0731-88873727
7.3 Either Party can notice the other Party the change of the notice
address at any time upon this clause.
8. DUTIES OF CONFIDENTIALITY
The parties acknowledge and confirm that the Agreement and the content
thereof, as well as any exchanged oral or written documents for preparing
or fulfilling the Agreement are confidential information which may not be
disclosed to any other parties without the prior written authorisation of
another Party except the followings: (a) any information known or to be
known by publics (only those information not disclosed to publics by the
party accepting the confidential information without permission); (b) any
information needed by any party with respect to the Agreement to be
disclosed at the request of applicable laws, stock exchange regulations or
orders from government or court; or (c) any information needed to be
disclosed to the stockholders, investors, or law or financial consultant
who have to observe the confidential obligations similar to the Agreement
as well . Any such disclosure from personnel or employed institutes of one
party shall be considered as the disclosure of that party and shall be
liable for breach of agreement. This clause shall be valid no matter the
Agreement is terminated for any reason.
9. FURTHER GUARANTEES
The parties agree to sign in time the documents and take further actions
reasonably needed in implementation of the provisions and purposes of this
Agreement or benefit the Party.
10. MISCELLANEOUS
10.1 Amendment, modification and supplement
The amendment, modification and supplement of this Agreement must be
approved by a written agreement signed by each party.
10.2 Complete agreements
In addition to the written amendment, modification and supplement
after this Agreement has been signed, the complete agreements reached
by the parties of this Agreement for the subject matter of this
Agreement shall replace all the oral or written consultations,
statements and agreements reached for the subject matter of this
Agreement erenow.
10.3 Titles
The title of this Agreement shall be set only for convenience to read
as such, and shall not be used to explain, descript or otherwise
affect the meanings of the provisions of this Agreement.
10.4 Languages
This Agreement shall be in triplicate. Party A, Party B and Party C
have one with each equally valid.
10.5 Divisibility
10.5 If one or more clauses of the Agreement are adjudged to be invalid,
illegal or unenforceable in any aspect subject to any law or
regulation, the validity, legality or enforceability of the other part
of the Agreement shall not be impacted or damaged for such reason. The
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Parties shall, through sincere negotiations, replace the invalid,
illegal or unenforceable regulations with effective regulations within
the law and to the maximum the Parties expected, economic effects of
such effective regulations shall be as similar as possible with those
of the invalid, illegal or unenforceable regulations.
10.6 Successors
This Agreement shall be binding on the respective successors and the
permitted transferees of the parties thereof and shall be favorable to
them therefore.
10.7 Remaining in force
10.7.1 Any obligations arising from this Agreement or expiring prior
to the expiration or early termination of this Agreement shall
remain in force after the expiration or early termination of
this Agreement.
10.7.2 The provisions stipulated in Clauses 5, 7, 8 and 10.8 of this
Agreement shall remain in force after the termination of this
Agreement.
10.8 Waive
Any party can waive the terms and conditions of this Agreement, but
the said waive must be made in writing and signed by the parties. One
party's abstention arising from the breach of agreement of other
parties in some cases shall not be deemed as the said party's
abstention arising from the similar breach of agreement of other
parties in other cases.
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IN WITNESS WHEREOF, the representatives authorized by both Parties have signed
this Exclusive Option Agreement and validated it as of day showed at the
beginning of the Agreement.
Party A: Xiangtan Nicestar Business Administration Co., Ltd.
Signature: /s/ Guangwen He
Name: Guangwen He
Post: Legal Representative
Party B: Yabin Zhong
Signature: /s/ Yabin Zhong
Party C: Hunan Oya Education Technology Co., Ltd.
Signature: /s/ Guangwen He
Name: Guangwen He
Post: Legal Representative
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