Tarena International, Inc.
|
(Name of Issuer)
|
Class A Ordinary Shares, par value $0.001 per share
|
(Title of Class of Securities)
|
G8675B 105
|
(CUSIP Number)
|
David J. Sorkin, Esq.
Kohlberg Kravis Roberts & Co. L.P 9 West 57th Street, Suite 4200 New York, New York 10019 Telephone: (212) 750-8300 with a copy to:
John E. Lange, Esq.
Paul, Weiss, Rifkind, Wharton & Garrison LLP
Hong Kong Club Building, 12th Floor
3A Chater Road, Central
Hong Kong Telephone: +852-2846-0300
|
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
|
July 14, 2015
|
(Date of Event which Requires Filing of this Statement)
|
CUSIP No. G8675B 105
|
SCHEDULE 13D |
Page 2 of 24
|
1
|
NAME OF REPORTING PERSON OR
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Talent Fortune Investment Limited
|
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) ☒
(b) ☐
|
3
|
SEC USE ONLY
|
|
4
|
SOURCE OF FUNDS
OO
|
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
o |
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING PERSON
WITH
|
7
|
SOLE VOTING POWER
6,826,263 Shares
|
8
|
SHARED VOTING POWER
16,044,116 Shares1
|
|
9
|
SOLE DISPOSITIVE POWER
6,826,263 Shares
|
|
10
|
SHARED DISPOSITIVE POWER
16,044,116 Shares1
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
22,870,379 Shares
|
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
o |
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
43.7% of Class A Ordinary Shares2
|
|
14
|
TYPE OF REPORTING PERSON
CO
|
CUSIP No. G8675B 105
|
SCHEDULE 13D |
Page 3 of 24
|
1
|
NAME OF REPORTING PERSON OR
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Talent Wise Investment Limited
|
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) ☒
(b) ☐
|
3
|
SEC USE ONLY
|
|
4
|
SOURCE OF FUNDS
OO
|
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
o |
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING PERSON
WITH
|
7
|
SOLE VOTING POWER
6,826,263 Shares
|
8
|
SHARED VOTING POWER
16,044,116 Shares1
|
|
9
|
SOLE DISPOSITIVE POWER
6,826,263 Shares
|
|
10
|
SHARED DISPOSITIVE POWER
16,044,116 Shares1
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
22,870,379 Shares
|
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
o |
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
43.7% of Class A Ordinary Shares2
|
|
14
|
TYPE OF REPORTING PERSON
CO
|
CUSIP No. G8675B 105
|
SCHEDULE 13D |
Page 4 of 24
|
1
|
NAME OF REPORTING PERSON OR
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Talent Fortune Holdings Limited
|
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) ☒
(b) ☐
|
3
|
SEC USE ONLY
|
|
4
|
SOURCE OF FUNDS
AF
|
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
o |
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING PERSON
WITH
|
7
|
SOLE VOTING POWER
6,826,263 Shares
|
8
|
SHARED VOTING POWER
16,044,116 Shares1
|
|
9
|
SOLE DISPOSITIVE POWER
6,826,263 Shares
|
|
10
|
SHARED DISPOSITIVE POWER
16,044,116 Shares1
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
22,870,379 Shares
|
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
o |
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
43.7% of Class A Ordinary Shares2
|
|
14
|
TYPE OF REPORTING PERSON
CO
|
CUSIP No. G8675B 105
|
SCHEDULE 13D |
Page 5 of 24
|
1
|
NAME OF REPORTING PERSON OR
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
KKR China Growth Fund L.P.
|
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) ☒
(b) ☐
|
3
|
SEC USE ONLY
|
|
4
|
SOURCE OF FUNDS
AF
|
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
o |
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING PERSON
WITH
|
7
|
SOLE VOTING POWER
6,826,263 Shares
|
8
|
SHARED VOTING POWER
16,044,116 Shares1
|
|
9
|
SOLE DISPOSITIVE POWER
6,826,263 Shares
|
|
10
|
SHARED DISPOSITIVE POWER
16,044,116 Shares1
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
22,870,379 Shares
|
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
o |
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
43.7% of Class A Ordinary Shares2
|
|
14
|
TYPE OF REPORTING PERSON
PN
|
CUSIP No. G8675B 105
|
SCHEDULE 13D |
Page 6 of 24
|
1
|
NAME OF REPORTING PERSON OR
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
KKR Associates China Growth L.P.
|
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) ☒
(b) ☐
|
3
|
SEC USE ONLY
|
|
4
|
SOURCE OF FUNDS
AF
|
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
o |
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING PERSON
WITH
|
7
|
SOLE VOTING POWER
6,826,263 Shares
|
8
|
SHARED VOTING POWER
16,044,116 Shares1
|
|
9
|
SOLE DISPOSITIVE POWER
6,826,263 Shares
|
|
10
|
SHARED DISPOSITIVE POWER
16,044,116 Shares1
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
22,870,379 Shares
|
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
o |
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
43.7% of Class A Ordinary Shares2
|
|
14
|
TYPE OF REPORTING PERSON
PN
|
CUSIP No. G8675B 105
|
SCHEDULE 13D |
Page 7 of 24
|
1
|
NAME OF REPORTING PERSON OR
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
KKR China Growth Limited
|
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) ☒
(b) ☐
|
3
|
SEC USE ONLY
|
|
4
|
SOURCE OF FUNDS
AF
|
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
o |
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING PERSON
WITH
|
7
|
SOLE VOTING POWER
6,826,263 Shares
|
8
|
SHARED VOTING POWER
16,044,116 Shares1
|
|
9
|
SOLE DISPOSITIVE POWER
6,826,263 Shares
|
|
10
|
SHARED DISPOSITIVE POWER
16,044,116 Shares1
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
22,870,379 Shares
|
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
o |
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
43.7% of Class A Ordinary Shares2
|
|
14
|
TYPE OF REPORTING PERSON
CO
|
CUSIP No. G8675B 105
|
SCHEDULE 13D |
Page 8 of 24
|
1
|
NAME OF REPORTING PERSON OR
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
KKR Fund Holdings L.P.
|
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) ☒
(b) ☐
|
3
|
SEC USE ONLY
|
|
4
|
SOURCE OF FUNDS
AF
|
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
o |
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING PERSON
WITH
|
7
|
SOLE VOTING POWER
6,826,263 Shares
|
8
|
SHARED VOTING POWER
16,044,116 Shares1
|
|
9
|
SOLE DISPOSITIVE POWER
6,826,263 Shares
|
|
10
|
SHARED DISPOSITIVE POWER
16,044,116 Shares1
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
22,870,379 Shares
|
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
o |
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
43.7% of Class A Ordinary Shares2
|
|
14
|
TYPE OF REPORTING PERSON
PN
|
CUSIP No. G8675B 105
|
SCHEDULE 13D |
Page 9 of 24
|
1
|
NAME OF REPORTING PERSON OR
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
KKR Fund Holdings GP Limited
|
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) ☒
(b) ☐
|
3
|
SEC USE ONLY
|
|
4
|
SOURCE OF FUNDS
AF
|
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
o |
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING PERSON
WITH
|
7
|
SOLE VOTING POWER
6,826,263 Shares
|
8
|
SHARED VOTING POWER
16,044,116 Shares1
|
|
9
|
SOLE DISPOSITIVE POWER
6,826,263 Shares
|
|
10
|
SHARED DISPOSITIVE POWER
16,044,116 Shares1
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
22,870,379 Shares
|
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
o |
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
43.7% of Class A Ordinary Shares2
|
|
14
|
TYPE OF REPORTING PERSON
CO
|
CUSIP No. G8675B 105
|
SCHEDULE 13D |
Page 10 of 24
|
1
|
NAME OF REPORTING PERSON OR
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
KKR Group Holdings L.P.
|
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) ☒
(b) ☐
|
3
|
SEC USE ONLY
|
|
4
|
SOURCE OF FUNDS
AF
|
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
o |
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING PERSON
WITH
|
7
|
SOLE VOTING POWER
6,826,263 Shares
|
8
|
SHARED VOTING POWER
16,044,116 Shares1
|
|
9
|
SOLE DISPOSITIVE POWER
6,826,263 Shares
|
|
10
|
SHARED DISPOSITIVE POWER
16,044,116 Shares1
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
22,870,379 Shares
|
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
o |
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
43.7% of Class A Ordinary Shares2
|
|
14
|
TYPE OF REPORTING PERSON
PN
|
CUSIP No. G8675B 105
|
SCHEDULE 13D |
Page 11 of 24
|
1
|
NAME OF REPORTING PERSON OR
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
KKR Group Limited
|
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) ☒
(b) ☐
|
3
|
SEC USE ONLY
|
|
4
|
SOURCE OF FUNDS
AF
|
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
o |
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING PERSON
WITH
|
7
|
SOLE VOTING POWER
6,826,263 Shares
|
8
|
SHARED VOTING POWER
16,044,116 Shares1
|
|
9
|
SOLE DISPOSITIVE POWER
6,826,263 Shares
|
|
10
|
SHARED DISPOSITIVE POWER
16,044,116 Shares1
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
22,870,379 Shares
|
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
o |
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
43.7% of Class A Ordinary Shares2
|
|
14
|
TYPE OF REPORTING PERSON
CO
|
CUSIP No. G8675B 105
|
SCHEDULE 13D |
Page 12 of 24
|
1
|
NAME OF REPORTING PERSON OR
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
KKR & Co. L.P.
|
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) ☒
(b) ☐
|
3
|
SEC USE ONLY
|
|
4
|
SOURCE OF FUNDS
AF
|
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
o |
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING PERSON
WITH
|
7
|
SOLE VOTING POWER
6,826,263 Shares
|
8
|
SHARED VOTING POWER
16,044,116 Shares1
|
|
9
|
SOLE DISPOSITIVE POWER
6,826,263 Shares
|
|
10
|
SHARED DISPOSITIVE POWER
16,044,116 Shares1
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
22,870,379 Shares
|
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
o |
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
43.7% of Class A Ordinary Shares2
|
|
14
|
TYPE OF REPORTING PERSON
PN
|
CUSIP No. G8675B 105
|
SCHEDULE 13D |
Page 13 of 24
|
1
|
NAME OF REPORTING PERSON OR
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
KKR Management LLC
|
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) ☒
(b) ☐
|
3
|
SEC USE ONLY
|
|
4
|
SOURCE OF FUNDS
AF
|
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
o |
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING PERSON
WITH
|
7
|
SOLE VOTING POWER
6,826,263 Shares
|
8
|
SHARED VOTING POWER
16,044,116 Shares1
|
|
9
|
SOLE DISPOSITIVE POWER
6,826,263 Shares
|
|
10
|
SHARED DISPOSITIVE POWER
16,044,116 Shares1
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
22,870,379 Shares
|
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
o |
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
43.7% of Class A Ordinary Shares2
|
|
14
|
TYPE OF REPORTING PERSON
OO
|
CUSIP No. G8675B 105
|
SCHEDULE 13D |
Page 14 of 24
|
1
|
NAME OF REPORTING PERSON OR
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Henry R. Kravis
|
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) ☒
(b) ☐
|
3
|
SEC USE ONLY
|
|
4
|
SOURCE OF FUNDS
AF
|
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
o |
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
United States
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING PERSON
WITH
|
7
|
SOLE VOTING POWER
6,826,263 Shares
|
8
|
SHARED VOTING POWER
16,044,116 Shares1
|
|
9
|
SOLE DISPOSITIVE POWER
6,826,263 Shares
|
|
10
|
SHARED DISPOSITIVE POWER
16,044,116 Shares1
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
22,870,379 Shares
|
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
o |
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
43.7% of Class A Ordinary Shares2
|
|
14
|
TYPE OF REPORTING PERSON
IN
|
CUSIP No. G8675B 105
|
SCHEDULE 13D |
Page 15 of 24
|
1
|
NAME OF REPORTING PERSON OR
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
George R. Roberts
|
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a) ☒
(b) ☐
|
3
|
SEC USE ONLY
|
|
4
|
SOURCE OF FUNDS
AF
|
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
o |
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
United States
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING PERSON
WITH
|
7
|
SOLE VOTING POWER
6,826,263 Shares
|
8
|
SHARED VOTING POWER
16,044,116 Shares1
|
|
9
|
SOLE DISPOSITIVE POWER
6,826,263 Shares
|
|
10
|
SHARED DISPOSITIVE POWER
16,044,116 Shares1
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
22,870,379 Shares
|
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
o |
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
43.7% of Class A Ordinary Shares2
|
|
14
|
TYPE OF REPORTING PERSON
IN
|
CUSIP No. G8675B 105
|
SCHEDULE 13D |
Page 16 of 24
|
CUSIP No. G8675B 105
|
SCHEDULE 13D |
Page 17 of 24
|
Item 5. | Interest in Securities of the Issuer |
Item 6. | Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer |
CUSIP No. G8675B 105
|
SCHEDULE 13D |
Page 18 of 24
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(a) | issue any securities of any type or class, carry out any equity financing or undertake any obligation in relation to any of the above, with some exceptions; |
CUSIP No. G8675B 105
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SCHEDULE 13D |
Page 19 of 24
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(b) | merge, amalgamate or reorganization, or acquisition exceeding $10 million, or take any action which would result in a change of control or a transfer of an asset valued at $10 million or more; |
(c) | carry out business other than education; or |
(d) | delist or change its listing place, or take any other actions which may affect the liquidity of the Reporting Persons’ investment. |
CUSIP No. G8675B 105
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SCHEDULE 13D |
Page 20 of 24
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CUSIP No. G8675B 105
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SCHEDULE 13D |
Page 21 of 24
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CUSIP No. G8675B 105
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SCHEDULE 13D |
Page 22 of 24
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Talent Fortune Investment Limited
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|||
By:
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/s/ Terence P. Gallagher
|
||
Name:
|
Terence P. Gallagher
|
||
Title:
|
Attorney-in-fact for William J. Janetschek, Director
|
||
Talent Wise Investment Limited
|
|||
By:
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/s/ Terence P. Gallagher
|
||
Name:
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Terence P. Gallagher
|
||
Title:
|
Attorney-in-fact for William J. Janetschek, Director
|
||
Talent Fortune Holdings Limited
|
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By:
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/s/ Terence P. Gallagher
|
||
Name:
|
Terence P. Gallagher
|
||
Title:
|
Attorney-in-fact for William J. Janetschek, Director
|
||
KKR China Growth Fund L.P.
|
|||
By: KKR Associates China Growth L.P., its General Partner
|
|||
By: KKR China Growth Limited, its General Partner
|
|||
By:
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/s/ Terence P. Gallagher
|
||
Name:
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Terence P. Gallagher
|
||
Title:
|
Attorney-in-fact for William J. Janetschek, Director
|
||
KKR Associates China Growth L.P.
|
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By: KKR China Growth Limited, its General Partner
|
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By:
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/s/ Terence P. Gallagher
|
||
Name:
|
Terence P. Gallagher
|
||
Title:
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Attorney-in-fact for William J. Janetschek, Director
|
||
KKR China Growth Limited
|
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By:
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/s/ Terence P. Gallagher
|
||
Name:
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Terence P. Gallagher
|
||
Title:
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Attorney-in-fact for William J. Janetschek, Director
|
||
CUSIP No. G8675B 105
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SCHEDULE 13D |
Page 23 of 24
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KKR Fund Holdings L.P.
|
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By: KKR Fund Holdings GP Limited, its General Partner
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By:
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/s/ Terence P. Gallagher
|
||
Name:
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Terence P. Gallagher
|
||
Title:
|
Attorney-in-fact for William J. Janetschek, Director
|
||
KKR Fund Holdings GP Limited
|
|||
By:
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/s/ Terence P. Gallagher
|
||
Name:
|
Terence P. Gallagher
|
||
Title:
|
Attorney-in-fact for William J. Janetschek, Director
|
||
KKR Group Holdings L.P.
|
|||
By: KKR Group Limited, its General Partner
|
|||
By:
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/s/ Terence P. Gallagher
|
||
Name:
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Terence P. Gallagher
|
||
Title:
|
Attorney-in-fact for William J. Janetschek, Director
|
||
KKR Group Limited
|
|||
By:
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/s/ Terence P. Gallagher
|
||
Name:
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Terence P. Gallagher
|
||
Title:
|
Attorney-in-fact for William J. Janetschek, Director
|
||
KKR & Co. L.P.
|
|||
By: KKR Management LLC, its General Partner
|
|||
By:
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/s/ Terence P. Gallagher
|
||
Name:
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Terence P. Gallagher
|
||
Title:
|
Attorney-in-fact for William J. Janetschek,
Chief Financial Officer |
||
KKR Management LLC
|
|||
By:
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/s/ Terence P. Gallagher
|
||
Name:
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Terence P. Gallagher
|
||
Title:
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Attorney-in-fact for William J. Janetschek,
Chief Financial Officer |
||
Henry R. Kravis
|
|||
By:
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/s/ Terence P. Gallagher
|
||
Name:
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Terence P. Gallagher
|
||
Title:
|
Attorney-in-fact for Henry R. Kravis
|
||
CUSIP No. G8675B 105
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SCHEDULE 13D |
Page 24 of 24
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George R. Roberts
|
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By:
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/s/ Terence P. Gallagher
|
||
Name:
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Terence P. Gallagher
|
||
Title:
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Attorney-in-fact for George R. Roberts
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Page | |
SECTION 1 INTERPRETATION
|
1
|
SECTION 2 SALE AND PURCHASE OF THE BONDS
|
7
|
SECTION 3 CONDITIONS PRECEDENT TO COMPLETION
|
8
|
SECTION 4 COMPLETION ACTIONS
|
10
|
SECTION 5 REPRESENTATIONS, WARRANTIES AND INDEMNITY
|
11
|
SECTION 6 CONFIDENTIALITY
|
12
|
SECTION 7 COVENANTS AND UNDERTAKINGS
|
13
|
SECTION 8 SECURITIES
|
20
|
SECTION 9 FEES AND EXPENSES
|
21
|
SECTION 10 TERMINATION
|
21
|
SECTION 11 NOTICES
|
22
|
SECTION 12 MISCELLANEOUS
|
23
|
SECTION 13 GOVERNING LAW AND JURISDICTION
|
25
|
SCHEDULES | |
SCHEDULE 1
|
PARTICULARS OF THE ISSUER
|
SCHEDULE 2
|
ISSUER GROUP WARRANTIES
|
SCHEDULE 3 | INVESTOR WARRANTIES |
SCHEDULE 4
|
LIST OF COMPETITORS
|
SCHEDULE 5
|
BANK ACCOUNTS
|
EXHIBITS
|
|
EXHIBIT A
|
FORM OF THE BONDS
|
EXHIBIT A-1
|
FORM OF CONVERSION NOTICE
|
EXHIBIT B
|
FORM OF REGISTRATION RIGHTS AGREEMENT
|
EXHIBIT C
|
FORM OF SHARE CHARGE AGREEMENTS(LISTCO)
|
(1) | Moocon Education Limited, a company with limited liability incorporated in the British Virgin Islands with its registered office at the offices of Trident Trust Company (B.V.I.) Limited, Trident Chambers, PO Box 146, Road Town, Tortola, the British Virgin Islands, whose sole shareholder is the Founder (the "Issuer"); |
(2) | HAN Shaoyun, a PRC passport holder (passport number: G28028622) (the "Founder"); |
(3) | Talent Wise Investment Limited, an exempted company with limited liability incorporated in Cayman Islands with its registered office at PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands (the "Investor"); and |
(4) | Talent Fortune Investment Limited, an exempted company with limited liability incorporated in Cayman Islands with its registered office at PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands (the "Investor Affiliate"). |
(A) | The Founder is a founder of Tarena International, Inc. ("Listco"), a limited liability company organized and existing under the laws of Cayman Islands, whose shares are listed on The NASDAQ Global Select Market ("NASDAQ"). |
(B) | The Investor Affiliate and Connion (as defined below), an Affiliate of the Founder, entered to the Share Purchase Agreements (as defined below) in respect of the purchase of certain shares of Listco. The Issuer Group (as defined below) wishes to seek funding from the Investor for purchasing the shares of Listco in accordance with the Share Purchase Agreements. |
(C) | The Issuer wishes to (a) issue and sell to the Investor a convertible bond in the aggregate principal amount of US$20,500,000 in the form attached hereto as Exhibit A (the “Bond”), which will be convertible into ordinary shares of US$0.000001 par value per share in the capital of the Issuer (“Shares”) and (b) use all of the proceeds of from the issuance of the Bond to pay the purchase prices under the Share Purchase Agreements. |
1.1 | Definitions. In this Agreement, unless the context otherwise requires, the following words and expressions have the following meanings: |
(a) | the aggregate of the outstanding principal amount of the Bond and interest accrued thereon; to |
(b) | the product of the Closing Price and the aggregate number of the Initial Charged Shares of Listco (under the Share Charge Agreements(Listco) and if any, the Additional Charged Shares of Listco (to the extent that the charge over the Additional Charged Shares of Listco has not been released in accordance with the terms of this Agreement and the Share Charged Agreements). |
(a) | the share purchase agreement dated June 13, 2015 among the Investor Affiliate, Connion, Goldman Sachs; and |
(b) | the share purchase agreement dated June 13, 2015 among the Investor Affiliate, Connion and IDG. |
1.2 | Terms Defined Elsewhere in this Agreement. The following terms are defined in this Agreement as follows: |
"Additional Charged Shares of Listco"
|
Section 8.2(a)
|
"Additional Share Charge Agreement(Listco)"
|
Section 8.2
|
"Agreement"
|
Preamble
|
"Bond"
|
Recital
|
"Claims"
|
Section 5.6
|
"Closing Price"
|
Section 8.2
|
"Confidential Information"
|
Section 6.1
|
"Consideration"
|
Section 2.1
|
"Event of Default"
|
Section 4 of Exhibit A
|
"Founder"
|
Preamble
|
"Indemnified Party"
|
Section 5.6
|
"Initial Charged Shares of Listco"
|
Section 8.1
|
"Investor"
|
Preamble
|
"Investor Affiliate"
|
Preamble
|
"Investor Observer"
|
Section 7.9
|
"Investor Warranties"
|
Section 5.2
|
"Issuer"
|
Preamble
|
"Issuer Group Warranties"
|
Section 5.1
|
"Listco"
|
Recital
|
"Losses"
|
Section 5.6
|
"NASDAQ"
|
Recital
|
"Offeree"
|
Section 7.6(b)
|
"Proceeds"
|
Section 2.3
|
"Proposed Issuance"
|
Section 7.7(b)
|
"Proposed Recipient"
|
Section 7.7(a)
|
"Representatives"
|
Section 6.1
|
"Shares"
|
Recital
|
"Significant Transfer"
|
Section 7.6(a)
|
"Tag-Along Right"
|
Section 7.6(b)
|
"Top-Up Event"
|
Section 8.2
|
"Transfer"
|
Section 7.3(a)
|
"Transferee"
|
Section 7.6(a)
|
"Transferring Party"
|
Section 7.6(a)
|
"Transfer Notice"
|
Section 7.6(a)
|
1.3 | Interpretation. |
(a) | Directly or Indirectly. The phrase "directly or indirectly" means directly, or indirectly through one or more intermediate Persons or through contractual or other arrangements, and "direct or indirect" has the correlative meaning. |
(b) | Gender and Number. Unless the context otherwise requires, all words (whether gender-specific or gender neutral) shall be deemed to include each of the masculine, feminine and neuter genders, and words importing the singular include the plural and vice versa. |
(c) | Headings. Headings are included for convenience only and shall not affect the construction of any provision of this Agreement. |
(d) | Include not Limiting. "Include," "including," "are inclusive of" and similar expressions are not expressions of limitation and shall be construed as if followed by the words "without limitation." |
(e) | Law. References to "law" shall include all applicable laws, regulations, rules and orders of any Governmental Authority, any common or customary law, constitution, code, ordinance, statute or other legislative measure and any regulation, rule, treaty, order, decree or judgment; and "lawful" shall be construed accordingly. |
(f) | References to Documents. References to this Agreement include the Schedules and Exhibits, which form an integral part hereof. A reference to any Section, Schedule or Exhibit is, unless otherwise specified, to such Section of, or Schedule or Exhibit to this Agreement. The words "hereof," "hereunder" and "hereto," and words of like import, unless the context requires otherwise, refer to this Agreement as a whole and not to any particular Section hereof or Schedule or Exhibit hereto. A reference to any document (including this |
Agreement) is, unless otherwise specified, to that document as amended, restated, consolidated, supplemented, novated or replaced from time to time. |
(g) | Knowledge. Where any statement is qualified by the expression "to the knowledge of a Person" or any similar expression, that statement shall, unless otherwise stated, be deemed to refer to the knowledge of a prudent Person in the position of such Person who shall be deemed to have knowledge of such matters as he would have discovered, had he made such enquiries and investigations as a prudent Person would have made to confirm the subject matter of the statement. |
(h) | Share Calculations. In calculations of share numbers, (i) references to "fully diluted basis" mean that the calculation is to be made assuming that all outstanding options, warrants and other Equity Securities convertible into or exercisable or exchangeable for shares (whether or not by their terms then currently convertible, exercisable or exchangeable), have been so converted, exercised or exchanged and (ii) references to an "as converted basis" mean that the calculation should be made assuming that the Bond has been so converted. Any share calculation that makes reference to a specific date shall be appropriately adjusted to take into account any share split, share consolidation or similar event after such date. |
(i) | Founder’s Obligations. Where the Founder is required to perform his obligations hereunder, unless the context otherwise requires, he shall act in every capacity that he has, including as a director of Listco, a chief executive officer of Listco and a holder directly or indirectly holding shares or other Equity Securities in Listco or the Issuer, subject to applicable law, the rules of NASDAQ or any other stock exchange on which any share of the Listco is listed, including the fiduciary duties of the Founder under applicable law where he acts in his capacity as a director of Listco. |
(j) | Writing. References to writing and written include any mode of reproducing words in a legible and non-transitory form including emails and faxes. |
(k) | Language. This Agreement is drawn up in the English language. |
2.1 | Bond. Upon the terms and subject to the conditions of this Agreement, the Investor agrees to purchase, and the Issuer agrees to issue and sell to the Investor at Completion, the Bond for a total purchase price of US$20,500,000 (the "Consideration"). |
2.2 | Consideration. Upon the terms and subject to the conditions of this Agreement, the Investor shall pay the Consideration at Completion in the manner as set forth in Section 4.2(b). |
2.3 | Use of Proceeds. The Issuer shall use all of the proceeds from the issuance of the Bond (the "Proceeds") to pay the purchase prices for the Founder Target Shares (as defined in the Share Purchase Agreements) under the Share Purchase Agreements. |
3.1 | Conditions Precedent to Obligations of the Investor at Completion. The obligation of the Investor to complete the purchase of the Bond at Completion is subject to the fulfillment, prior to or simultaneously with Completion, of the following conditions, any one or more of which may be waived in writing by the Investor: |
(a) | the Issuer Group Warranties remaining true and correct on the Completion Date as provided in Section 5.5; |
(b) | the Issuer and the other Obligors having performed and complied with all of its agreements and obligations contained in the Transaction Documents to which it is a party that are required to be performed or complied with by it on or before Completion; |
(c) | the Issuer and the other Obligors having duly attended to and carried out all corporate procedures that are required under the laws of its place of incorporation or establishment to effect its execution, delivery and performance of each Transaction Document to which it is a party and the transactions contemplated thereby; |
(d) | all consents and approvals of, notices to and filings or registrations with any Governmental Authority or any other Person required pursuant to any applicable law of any Governmental Authority, or pursuant to any contract binding on the Obligors or whereby their respective assets are subject or bound, to consummate the transactions contemplated under this Agreement and the other Transaction Documents (to the extent that such transactions are to be completed on or prior to the Completion Date) having been obtained or made, and copies thereof having been provided to the Investor (each certified by a duly authorized director to be true, complete and correct copies thereof as of the Completion Date); |
(e) | there being no Governmental Authority or other Person that has instituted or threatened any legal, arbitral or administrative proceedings or inquiry against the Issuer or any other Obligor to restrain or prohibit the transaction contemplated hereby or under any Transaction Document; |
(f) | each of the Transaction Documents having been executed by each party thereto other than the Investor Group and delivered to the Investor Group; |
(g) | except for the condition set forth in clause 6.3 (Condition to Obligations of the Founder Purchaser; Funding) of each Share Purchase Agreement, all conditions precedent to the Founder Closing (as defined in each Share Purchase Agreement) having been satisfied or waived in accordance with the terms thereof; |
(h) | Connion having assigned each Share Purchase Agreement to the Issuer; |
(i) | there having been since the date of this Agreement, no material adverse change in, and no change in circumstances that has or would result in a material adverse |
impact on the business, operations, properties or financial condition or prospects of any Obligor; |
(j) | no SEC Report filed or furnished, at the time they were filed or furnished (and if amended or superseded by a filing prior to the date of this Agreement or the Completion Date, then on the date of such filing and as amended or superseded), containing any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and |
(k) | the Issuer having delivered to the Investor a certificate, dated the Completion Date and signed by an authorized signatory of the Issuer, certifying that the conditions set forth in this Section 3.1 have been satisfied. |
3.2 | Conditions Precedent to Obligations of Issuer at Completion. The Issuer's obligation to complete the issuance of the Bond at Completion is subject to the fulfillment, prior to or simultaneously with Completion, of the following conditions, any one or more of which may be waived by the Issuer: |
(a) | the Investor Warranties remaining true and correct on the Completion Date as provided in Section 5.5; |
(b) | each Investor Group Member having performed and complied with all of its agreements and obligations contained in the Transaction Documents to which it is a party that are required to be performed or complied with by it on or before Completion; |
(c) | each Investor Group Member having duly attended to and carried out all corporate procedures that are required under the laws of its place of incorporation or establishment to effect its execution, delivery and performance of each Transaction Document to which it is as a party and the transactions contemplated thereby; |
(d) | there being no Governmental Authority or other Person that has instituted or threatened any legal, arbitral or administrative proceedings or inquiry against any Investor Group Member to restrain or prohibit the transaction contemplated hereby; |
(e) | this Agreement having been executed by each party thereto other than the Obligors and delivered to the Issuer Group; |
(f) | except (i) for the condition set forth in clause 6.3 (Condition to Obligations of the Founder Purchaser; Funding) of each Share Purchase Agreement and (ii) where a condition is not satisfied solely due to the failure of Connion (or its permitted assignee) to use its reasonable commercial efforts to consummate the transactions contemplated by each Share Purchase Agreement, all conditions precedent to the Founder Closing (as defined in each Share Purchase Agreement) having been satisfied or waived in accordance with the terms thereof; and |
(g) | the Investor having delivered to the Issuer a certificate, dated the Completion Date and signed by an authorized signatory of the Investor, certifying that the conditions set forth in this Section 3.2 have been satisfied. |
3.3 | Notices of Breaches. Each of the Issuer Group and the Investor Group shall give the other group prompt notice of any event, condition or circumstance occurring prior to the Completion Date that would constitute a breach by any member of such group of any terms and conditions contained in this Agreement. |
4.1 | Time and Place of Completion. Completion shall take place remotely by electronic transmission on the Founder Closing Date (as defined in the Share Purchase Agreements) (or at such other time and place as the Parties may agree or as may be determined pursuant to Section 4.3), provided that all the conditions precedent set forth in Sections 3.1 and 3.2 (other than those conditions precedent that by their terms cannot be fulfilled until Completion) have been satisfied or waived in writing on or prior to such date. |
4.2 | Actions at Completion. At Completion, |
(a) | the Issuer shall issue the Bond to the Investor free and clear of all Encumbrances; and |
(b) | the Investor shall pay the Consideration to the Issuer, and the Issuer hereby irrevocably instructs the Investor to pay the Consideration in the following manner: |
(i) | the Investor shall pay US$12,675,488.25 to the accounts designated by Goldman Sachs, the details of which are set forth in Schedule 5; and |
(ii) | the Investor shall pay US$7,824,511.75 to the account designated by IDG, the details of which are set forth in Schedule 5, |
4.3 | Actions if Conditions not Fulfilled. If any condition set forth in Section 3 shall not have been fulfilled or waived in writing by the Founder Closing Date, |
(a) | the Investor, in the case of a failure of any of the conditions set forth in Section 3.1 by the Issuer Group, may, at its option, without prejudice to its rights hereunder and in accordance with applicable law: |
(i) | defer Completion to a later date; |
(ii) | so far as practicable, proceed to Completion; or |
(iii) | terminate this Agreement, in accordance with Section 10.2; and |
(b) | the Issuer, in the case of a failure of any of the conditions set forth in Section 3.2 by the Investor Group, may, at its option, without prejudice to its rights hereunder and in accordance with applicable law: |
(i) | defer Completion to a later date; |
(ii) | so far as practicable, proceed to Completion; or |
(iii) | terminate this Agreement in accordance with Section 10.2. |
5.1 | Issuer Group Warranties. Each of the Issuer Group Member represents and warrants to the Investor in the terms of the warranties set forth in Schedule 2 (such warranties, the "Issuer Group Warranties") and acknowledges that the Investor in entering into this Agreement is relying on the Issuer Group Warranties. |
5.2 | Investor Warranties. The Investor represents and warrants to each of the Issuer Group Member in the terms of the warranties set forth in Schedule 3 (such warranties, the "Investor Warranties") and acknowledges that the Issuer in entering into this Agreement is relying on the Investor Warranties. |
5.3 | No Prejudice to Claims. No investigation by or on behalf of any Investor Group Member shall prejudice any claim made by it, under the indemnity contained in Section 5.6 or operate to reduce any amount recoverable thereunder. It shall not be a defense to any claim against an Obligor that an Investor Group Member knew or ought to have known or had constructive knowledge of any information relating to the circumstances giving rise to such claim. |
5.4 | Separate and Independent. The Issuer Group Warranties shall be separate and independent and save as expressly provided shall not be limited by reference to any other paragraph or anything in this Agreement or the Schedules. |
5.5 | Bring-Down to Completion. The Issuer Group Warranties shall be deemed to be repeated as at the Completion Date as if they were made on and as of the Completion Date and all references therein to the date of this Agreement were references to the Completion Date. The Investor Warranties shall be deemed to be repeated as at the Completion Date as if they were made on and as of the Completion Date and all references therein to the date of this Agreement were references to the Completion Date. |
5.6 | Indemnity. Each Issuer Group Member shall indemnify the Investor and its Affiliates (collectively, the "Indemnified Parties"), against, and hold such Indemnified Party harmless from, all losses, claims, damages, liabilities and related expenses (including the expenses of preparation and reasonable attorneys' fees and disbursements) (collectively, the "Losses") incurred by an Indemnified Party in connection with all claims, actions, proceedings, investigations, demands, judgments and awards (together "Claims") against or otherwise involve the Indemnified Party, in connection with or arising out of (i) any breach by any Obligor of the representations, warranties |
or covenants or agreements given by it under this Agreement or any other Transaction Document (excluding the Share Purchase Agreements) to the Investor Group, (ii) any failure by any Issuer Group Member to comply with any statute or regulation (including any requirement of statute or regulation in relation to Tax) in relation to the issue and sale of the Bond, redemption or conversion of the Bond or other transactions under any other Transaction Document (excluding the Share Purchase Agreements), or (iii) any investigation, preparation, dispute or defense of, or provision of evidence in connection with, any Claim arising out of clauses (i) or (ii) above (whether or not the Indemnified Party is an actual or potential party to such Claim) or establishment of any Claim arising out of clauses (i) or (ii) above or mitigation of any Loss on its part or otherwise enforcement of its rights under this Section 5.6, which shall be additional and without prejudice to any rights which the Indemnified Party may have at common law or otherwise, provided that (i) no Issuer Group Member shall be liable under this Section 5.6 unless the aggregate amount of Losses exceeds US$500,000 in which case the Issuer Group Members shall be liable for all such Losses, and (ii) the maximum aggregate liability of the Issuer Group shall not exceed US$22,800,000. |
5.7 | Limited Recourse to Founder. Notwithstanding anything in this Agreement to the contrary, no Party shall seek any claim against the Founder’s personal assets other than his direct or indirect right or interest related to the Charged Assets (as defined in each Share Charge Agreement), unless the Founder breaches its obligations under Section 8.2 (Top-Up) of this Agreement or any restriction on Transfer of shares in the Issuer or Listco under this Agreement or any other Transaction Document. |
5.8 | Survival. The representations and warranties made by an Issuer Group Member under this Agreement shall continue in full force and effect until the end of the twenty-seventh (27th) month following the Completion Date. The agreements and undertakings made by an Issuer Group Member under this Agreement shall continue in full force and effect notwithstanding completion of the arrangements for the issue and sale of the Bond. |
6.1 | General Obligation. Each of the Issuer Group Members and the Investor Group Members undertakes to each member of the other group that it shall not reveal, and that it shall use its commercially reasonable efforts to procure that its respective directors, equity interest holders, officers, employees, agents, counsel and advisors who are in receipt of any Confidential Information (collectively, "Representatives") do not reveal, to any third party any Confidential Information without the prior written consent of the concerned Party or use any Confidential Information in such manner that is detrimental to the concerned Party. The term "Confidential Information" as used in this Section 6 means: (a) any non-public information concerning the organization, structure, business or financial results or condition of any Party; (b) the terms of this Agreement and any other Transaction Document, and the identities of the Parties and their respective Affiliates; and (c) any other information or material prepared by a Party or its Representatives that contains or otherwise reflects, or is generated from, Confidential Information. |
6.2 | Exceptions. The provisions of Section 6.1 shall not apply to: |
(a) | disclosure of Confidential Information that is or becomes generally available to the public other than as a result of disclosure by or at the direction of a Party or any of its Representatives in violation of this Agreement; |
(b) | disclosure by a Party to a Representative or an Affiliate if such Representative or Affiliate (i) is under a similar obligation of confidentiality or (ii) is otherwise under a binding professional obligation of confidentiality; |
(c) | disclosure, after giving prior notice to the other Parties to the extent practicable under the circumstances and subject to any practicable arrangements to protect confidentiality, to the extent required under the rules of any stock exchange on which the shares of a Party or its parent company are listed or by applicable laws or governmental regulations or judicial or regulatory process or in connection with any judicial process regarding any legal action, suit or proceeding arising out of or relating to this Agreement; provided that no prior notice to any Party shall be required to be given under this Section 6.2(c) with respect to any dispute arising out of or relating to this Agreement; |
(d) | disclosure by a Party to its permitted transferees or assignees; or |
(e) | disclosure by an Investor Group Member or its Affiliates of Confidential Information that is reasonably necessary in connection with its reporting requirements to its limited partners in the ordinary course of business. |
6.3 | Publicity. Except as required by law, by any Governmental Authority or otherwise agreed by all the Parties, no publicity release or public announcement concerning the relationship or involvement of the Parties shall be made by any Party; provided that any such publicity release or public announcement shall be reviewed and agreed by the Parties prior to its release. |
7.1 | Benefit of Covenants. |
(a) | The covenants of the Issuer Group under this Section 7 shall be for the sole benefit of the Investor Group, its successors and its permitted transferees or assigns. For the avoidance of doubt, the covenants of the Issuer Group under this Section 7 shall not arise unless and until Completion and the issuance of the Bond, if at all. |
(b) | The covenants of the Investor Group under this Section 7 shall be for the sole benefit of each Issuer Group Member, its successors and its permitted transferees or assigns. For the avoidance of doubt, the covenants of the Investor Group under this Section 7 shall not arise unless and until Completion and the issuance of the Bond, if at all. |
7.2 | Compliance with Law; Disclosure of Criminal or Regulatory Investigation. The Issuer shall comply in all material respects with all applicable laws. The Issuer shall keep the Investor promptly informed of any events, discussions, notices or changes with respect to any criminal or regulatory investigation or material action involving the Issuer or any director, officer or, to the extent feasible, any other Person acting for |
or on behalf of the Issuer, so that the counterparty shall have the opportunity to take appropriate steps to avoid or mitigate any regulatory consequences to the counterparty that might arise from such criminal or regulatory investigation or action. The Issuer and any director or officer shall, and the Issuer shall use commercially reasonable efforts to cause any other Person acting for or on behalf of the Issuer to, reasonably cooperate with the Investor in an effort to avoid or mitigate any cost or regulatory consequences that might arise from such investigation or action (including, its legally permissible, by providing an opportunity review written submissions in advance, attend meetings with authorities, coordinate and provide assistance in meeting with regulators and, by making a public announcement of such matters). The provisions in this Section 7.2 shall be in full force and effect only for as long as the Investor owns any Bond, provided, however, that if there is any criminal or regulatory investigation or material action that has occurred prior to conversion of the Bond, the Issuer shall continue to perform its obligations under this Section 7.2 in respect of such criminal or regulatory investigation or material action. |
7.3 | Restrictions on Actions. Conditional upon Completion and the issuance of the Bond, other than the transactions contemplated under the Transaction Documents: |
(a) | only for as long as the Investor Group owns any Bond or Conversion Share, without prejudice to other restrictions set forth in this Section 7 including Section 7.5 (Transfer Limitation), the Founder shall not directly or indirectly, sell, give, assign, hypothecate, pledge, encumber, grant a security interest in or otherwise dispose of, or grant any right, title or interest (including any contractual or other legal arranging having the effect of transferring any or all of the benefits of ownership) in, or suffer to exist any Encumbrance (each, a "Transfer") any shares in the Issuer, except (i) and to the extent necessary to give effect to the provisions contained in this Agreement or any other Transaction Document, (ii) in compliance with the provision of this Section 7 or (iii) with the Investor’s prior written consent; |
(b) | only for as long as the Investor Group owns any Bond, without prejudice to other restrictions set forth in this Section 7, the Issuer shall not Transfer any share in Listco, except (i) and to the extent necessary to give effect to the provisions contained in this Agreement or any other Transaction Document, (ii) in compliance with the provision of this Section 7 or (iii) with the Investor’s prior written consent; |
(c) | only for as long as the Investor owns any Bond, without the prior written consent of the Investor, the Issuer shall not, and the Founder shall procure the Issuer not to: |
(i) | amend, modify or waive any provisions of its charter documents; |
(ii) | change its name; |
(iii) | engage in any business other than implementation of the Transaction Documents; |
(iv) | merge, amalgamate or consolidate with any other entity; |
(v) | issue, redeem, repurchase any securities (including any Equity Securities or any debt or other securities of any kind) of any type or class; |
(vi) | undertake any recapitalization or similar transaction, or consolidate, sub-divide, convert, reclassify or redesignate its share capital; |
(vii) | change its auditors or change the accounting policies (including financial year end); |
(viii) | change its jurisdiction of incorporation; |
(ix) | establish any joint venture, partnership, branch or subsidiary; |
(x) | pass any resolution which would result in its winding up, liquidation or entering into administration or receivership; |
(xi) | make any investment or incur any commitment; |
(xii) | borrow any sum or obtain any financial facilities; |
(xiii) | declare any dividend, make any payment or other distribution to any shareholder (whether in cash, securities, property or other assets), or set any policy regarding the same; |
(xiv) | change the size or composition of its board of directors or any committee thereof; |
(xv) | sell, dispose of or transfer any of its assets, business or shares; or |
(xvi) | incur any Indebtedness (other than any reasonable and customary corporate agent fee and government charge that (x) are incurred solely for the purpose of maintaining the corporate existence and good standing of the Issuer and (y), if the Bond is converted, shall be reimbursed by the Founder on or prior to conversion of the Bond) or create any Encumbrance over the whole or any part of its undertaking, property or assets; or |
(xvii) | enter into or permit any transaction, directly or indirectly, with any Person (other than any reasonable and customary corporate agent engagement solely for the purpose of maintaining the corporate existence and good standing of the Issuer); and |
(d) | only for so long as the Investor Group holds not less than 4,195,662 shares in Listco and the Issuer has not redeemed the Bond in full, without the approval of the Investor, neither the Founder nor its Subsidiaries including the Issuer shall agree to have any member of the Listco Group to take any of the following actions: |
(i) | issue any securities (including any Equity Securities or any debt or other securities of any kind) of any type or class, carry out any equity financing or undertake any obligation in relation to any of the above, provided that this Section 7.3(d)(i) shall not apply to (x) any grant of |
share-based awards pursuant to share incentive plans of Listco or any exercise of share-based awards granted pursuant to any existing share incentive plan of Listco (which plan is adopted on or prior to the date hereof), (y) any issuance of Class A ordinary shares of Listco upon the conversion of Class B ordinary shares of Listco pursuant to Listco’s memorandum and articles of association or (z) any issuance of Equity Security in connection with any share dividend, subdivision, combination or reclassification of capital stock in which all shareholders of Listco are entitled to participate on a pro rata basis; |
(ii) | merge, amalgamate or reorganization, or acquisition, in each case exceeding US$10 million, or take any action which would result in a change of control or a transfer of its asset the value of which is US$10 million or more; |
(iii) | carry out business other than education business in its nature; or |
(iv) | delist or change its listing place, or take any other actions which may affect the liquidity of the Investor Group’s investment contemplated under the Transaction Documents, provided that the Investor Group shall provide support if Listco intends to list its shares or its subsidiary’s shares in a stock exchange located in the People’s Republic of China. |
7.4 | Lockup Period. |
(a) | For the period commencing from the issuance date of the Bond and ending on the last day of the sixth (6) month after the issuance date of the Bond, the Founder shall not, and shall procure its Subsidiaries not to, directly or indirectly sell, give, assign, dispose of or transfer any shares in Listco. |
(b) | For the period commencing from the issuance date of the Bond and ending on the last day of the sixth (6) month after the issuance date of the Bond, each Investor Group Member shall not, and each Investor Group Member shall procure its Affiliates not to, directly or indirectly sell, give, assign, dispose of or transfer any shares in Listco, except where there is an Event of Default. |
7.5 | Transfer Limitation. |
(a) | Notwithstanding any other provision of this Agreement, and conditional upon Completion and beginning from the Completion Date, only for as long as the Investor Group owns any Bond, Conversion Shares or shares of Listco acquired pursuant to the Share Purchase Agreements, the Founder shall not, and shall procure its Subsidiaries not to, sell, give, assign, dispose of or transfer, directly or indirectly, an aggregate of 5,687,905 or more shares in Listco through one or more transactions, without the prior written consent of the Investor. |
(b) | Without the Founder’s prior written consent, no Investor Group Member shall (i) assign this Agreement or any of its rights or obligations hereunder to a Competitor or (ii) sell, give, assign, dispose of or transfer any Bond, Conversion Share or share in Listco acquired pursuant to the Share Purchase Agreements to a Competitor; provided, however, that this Section 7.5(b) shall not apply where (i) there is an Event of Default or (ii) an Investor Group Member transfer shares |
in Listco through a public sale (including a block trade through a broker or underwriter). |
7.6 | Investor Group’s Tag-Along Rights. |
(a) | Transfer Notice. Subject to any other restrictions under this Agreement or any other Transaction Document, if the Founder or any of his Subsidiaries (the "Transferring Party") proposes to make a sale, disposition or transfer of shares in Listco and the number of the shares being sold, disposed of or transferred equals or exceeds 50% of the shares in Listco held by the Founder directly or indirectly through his Subsidiaries (a "Significant Transfer"), the Transferring Party shall deliver a transfer notice (the "Transfer Notice") which shall include, in addition to those items specified in Section 7.6(b), (i) the name of the proposed transferee (the "Transferee"), (ii) the number and class of shares in Listco that the Founder then directly owns or indirectly owns through his Subsidiaries, (iii) the expected date of consummation of the Significant Transfer, (iv) a representation that the Transferee has been informed of the Tag-Along Rights provided for in Section 7.6 and has agreed to purchase the shares required to be purchased in accordance with the terms of this Section 7.6 and (v) a representation that no consideration, tangible or intangible, is being provided to the Transferring Party that is not reflected in the price to be paid to the Offeree exercising its Tag-Along Rights hereunder. Such Transfer Notice shall be accompanied by true and complete copies of all agreements between the Transferring Party and the Transferee regarding the Significant Transfer. |
(b) | Tag-Along Rights. Any Investor Group Member (the "Offeree") shall have the right (the "Tag-Along Right") but not the obligation to require the Transferee in a Significant Transfer to purchase from such Offeree, for the same consideration per share of Listco and upon the same terms and conditions as to be paid and given to the Transferring Party, up to a maximum of the number of shares of Listco held by such Offeree multiplied by a fraction, the numerator of which is the number of the shares of Listco proposed to be Transferred by the Transferring Party and the denominator of which is the total number of the shares of Listco held by the Founder directly or indirectly through his Subsidiaries; provided, however, that the Offeree shall not be required, in connection with the Significant Transfer, to make any representation or warranty solely concerning any member of the Listco Group. |
(c) | Tag-Along Notice. Within 30 days after receiving the Transfer Notice with respect to a Significant Transfer, each Offeree who elects to exercise its Tag-Along Right shall deliver a written notice of such election to the Transferring Party, specifying the number of shares with respect to which it has elected to exercise its Tag-Along Right. |
(d) | Consummation. Where an Offeree has properly elected to exercise its Tag-Along Right and the Transferee fails to purchase the shares of Listco from such Offeree, the Transferring Party shall not make the Significant Transfer, and if purported to be made, such Significant Transfer shall be void. |
(e) | The provisions in this Section 7.6 shall not become effective or enforceable unless and until Completion and the issuance of the Bond, if at all, and shall |
remain in full force and effect only for as long as the Investor Group owns not less than 3,413,132 shares in Listco. |
7.7 | Investor Group’s Preemptive Rights |
(a) | Restrictions. The Founder shall not agree to have Listco to issue any share or any other Equity Security of any type or class to any Person (the "Proposed Recipient") unless Listco has offered the Investor Group in accordance with the provisions of this Section 7.7 the right to purchase the Investor Group Pro Rata Share of such issuance for a per unit consideration, payable solely in cash, equal to the per unit consideration to be paid by the Proposed Recipient and otherwise on the same terms and conditions as are offered to the Proposed Recipient; provided that the foregoing restriction shall not apply to (i) any grant of share-based awards pursuant to any share incentive plan of Listco (which plan is adopted on or prior to the date hereof), (ii) any exercise of share-based awards granted pursuant to such share incentive plan of Listco, (iii) any issuance of Class A ordinary shares of Listco upon the conversion of Class B ordinary shares of Listco, (iv) financing activities for the purpose of purchasing equipment for Listco Group, (v) Equity Security issued in connection with any share dividend, subdivision, combination or reclassification of capital stock in which all shareholders of Listco are entitled to participate on a pro rata basis or (vi) any issuance of Equity Security in consideration of an acquisition or merger (provided that if the Investor’s approval is required for such acquisition or merger pursuant to Section 7.3(d), such approval has been obtained). |
(b) | Notice. Not less than 30 days before a proposed issuance of securities other than in connection with an issuance permitted under Section 7.7 (a "Proposed Issuance"), the Founder shall use his commercially reasonable efforts to deliver or use his commercially reasonable efforts to cause to be delivered to the Investor written notice of the Proposed Issuance setting forth (i) the number, type and terms of the securities to be issued, (ii) the consideration to be received by Listco in connection with the Proposed Issuance and (iii) the identity of the Proposed Recipients. |
(c) | Exercise of Rights. Within 30 days following delivery of the notice referred to in Section 7.7(b), subject to the consent of Listco which consent the Founder shall use his commercially reasonable efforts to cause Listco to give, any Investor Group Member may exercise its rights under this Section 7.7 by giving written notice to Listco specifying the number of securities to be purchased by it. If the Investor Group fails to give the notice required under this Section 7.7(c) because of the failure or inability of the Founder to deliver, or cause Listco to deliver, the notice contemplated under this Section 7.7, the Founder shall not agree to have Listco to issue any share or any other Equity Security to the Proposed Recipient in the contemplated transaction. The Founder shall not agree to have Listco to complete any Proposed Issuance under this Section 7.7 not purchased by the Investor Group to the Proposed Recipient, unless the Proposed Issuance is completed, on terms and conditions not more favorable than those offered to the Investor Group. If such issuance is not consummated within a 60-day period from the expiration of the 30-day period described above, the Founder shall not agree to have Listco to pursue any Proposed |
Issuance without again going through the procedures contemplated by this Section 7.7. |
(d) | The provisions in this Section 7.7 shall not become effective or enforceable unless and until Completion and the issuance of the Bond, if at all, and shall remain in full force and effect only for a period of two (2) years from the date of this Agreement, provided that the provisions in this Section 7.7 shall immediately terminate and be of no further effect in the event that the Investor Group holds less than 3,413,132 shares in Listco. |
7.8 | No Avoidance of Restrictions. The provisions set forth in Section 7 cannot be avoided by Transfer of any direct or indirect interest, legal or beneficial, in the Equity Securities in any Person. For purposes of this Section 7, any direct or indirect Transfer of any portion of any Equity Securities in the Issuer or any other Subsidiary of the Founder which directly or indirectly holds shares in Listco shall be deemed to be a Transfer of a corresponding portion of the shares in Listco by the Founder. Any Transfer of shares or any attempt to Transfer any shares in violation of this Section 7 shall be null and void ab initio. |
7.9 | Investor Observer. |
(a) | Conditional upon Completion and beginning from the Completion Date, the Investor Group shall have the right to appoint one (1) observer (the "Investor Observer") in: |
(i) | the Issuer, only for as long as the Issuer has not redeemed the Bond in full; and |
(ii) | Listco, only for so long as the Investor Group holds not less than 3,413,132 shares in Listco. |
(b) | Conditional upon Completion and beginning from the Completion Date, and subject to Section 7.9(a)(ii), the Founder shall use his commercially reasonable efforts to cause: |
(i) | the Investor Observer to have the right to attend all meetings of the board of Listco or the Issuer (as the case may be); and |
(ii) | the board of Listco or the Issuer (as the case may be) to provide the Investor Observer with copies of all notices, minutes, consents and other materials and information that it provides to its directors at the same time and in the same manner as provided to its directors, to the extent not in violation of any applicable law or any rule of NASDAQ or any other stock exchange on which any share of the Listco is listed. |
7.10 | Dividends of Listco. Conditional upon Completion and beginning from the Completion Date, and only for so long as (i) the Investor Group holds not less than 3,413,132 shares in Listco and (ii) the Issuer has not redeemed the Bond in full, the Founder shall use his commercially reasonable efforts to cause Listco to distribute not less than 25-35% of its annual net income to its shareholders in each year. |
7.11 | Registration Rights. Conditional upon Completion and beginning from the Completion Date, the Founder shall use his commercially reasonable efforts to cause Listco to enter into a registration rights agreement in the form attached hereto as Exhibit B with the Investor Affiliate within 30 days after the date hereof, provided that Listco has obtained prior written consent from Goldman Sachs and IDG for Listco to enter into such registration rights agreement. |
7.12 | Founder Devotement. Conditional upon Completion and beginning from the Completion Date, and only for so long as the Investor Group holds not less than 1,365,252 shares in Listco, the Founder shall (a) not resign from his current positions as chairman of the board of directors and chief executive officer of Listco and (b) devote most of his time, attention and skill to the performance of his duties in Listco. |
7.13 | Investor Group’s Right Not to Take Action. Notwithstanding any other provision of this Agreement, no Investor Group Member shall be obligated to take any action or omit to take any action under this Agreement that it believes, in good faith based on the written advice of its counsel, would cause it to be in violation of any applicable law or any rule of NASDAQ or any other stock exchange on which any share of the Listco is listed. |
8.1 | Securities. Conditional upon Completion and the issuance of the Bond, each Issuer Group Member shall procure that each Chargor shall (a) enter into the corresponding Share Charge Agreement with the Investor simultaneously with Completion, (b) charge in total 4,000,000 shares of Listco (the “Initial Charged Shares of Listco”) to the Investor pursuant to the terms of the Share Charge Agreements simultaneously with Completion and (c) perform other obligations thereunder upon entry into the Share Charge Agreements. |
8.2 | Top-Up. Conditional upon the signing of the Share Charge Agreements, if on any Calculation Date after the Completion Date, the closing price of Listco’s shares on The NASDAQ Global Select Market (the “Closing Price”) is less than US$6 per share, as adjusted for any share split, share consolidation or similar event after the date of this Agreement (a “Top-Up Event”), the Issuer Group shall immediately notify the Investor and take the following actions within 10 Business Days after such Calculation Date: |
(a) | charge, or caused to be charged, additional shares of Listco (the “Additional Charged Shares of Listco”) to the Investor which shall become part of the Charged Assets (as defined in the Share Charge Agreements(Listco) or Additional Share Charged Agreement(Listco), as applicable); and / or |
(b) | redeem in part or in full the Bond and pay interest accrued thereon in accordance with the terms of the Bond, |
8.3 | Release. If on any Calculation Date after the date of occurrence of the first Top-Up Event, (x) the Closing Price, as adjusted for any share split, share consolidation or similar event after the date of this Agreement, is more than US$10.25 and (y) the LTV is not more than 50%, the Issuer Group may deliver a written notice to the Investor and require the Investor to release the charge over all or part of the Additional Charged Shares of Listco within 10 Business Days after such notice, provided that: |
(a) | as of the date of the proposed release, there is no Event of Default; and |
(b) | if the LTV as of the date of the proposed release were recalculated on a pro forma basis taking into account the proposed release (as if such release had been made), no Top-Up Event would occur as a result of such release, |
9.1 | Fees and Expense. Each Party shall bear the fees and expenses incurred by it in connection with the transaction contemplated, except otherwise provided in this Agreement or any other Transaction Document. |
10.1 | Effective Date; Termination. This Agreement shall become effective upon execution by all of the Parties and shall continue in force until terminated in accordance with Section 10.2. |
10.2 | Events of Termination. This Agreement may be terminated prior to Completion as follows: |
(a) | if any one or more of the conditions set forth in Section 3.1 to the obligation of the Investor to complete has not been fulfilled on or prior to the Founder Closing Date, the Investor shall have the right to terminate this Agreement with respect to its purchase of the Bond; |
(b) | if any one or more of the conditions set forth in Section 3.2 to the obligation of the Issuer to complete has not been fulfilled on or prior to the Founder Closing Date, the Issuer shall have the right to terminate this Agreement with respect to its issuance of the Bond; |
(c) | if any Issuer Group Member has breached any of the Issuer Group Warranties or any covenant or agreement contained in this Agreement, which breach cannot be cured or, if it is capable of being cured, is not cured within ten (10) days after the breach, any Investor Member shall have the right to terminate this Agreement; |
(d) | if the Investor has breached any of the Investor Warranties, or any Investor Group Member has breached any covenant or agreement contained in this Agreement, which breach cannot be cured or, if capable of being cured, is not cured within ten (10) days after the breach, any Issuer Group Member shall have the right to terminate this Agreement; or |
(e) | if Completion does not occur within ninety (90) Business Days after the date of this Agreement, any Party may, at its sole discretion, give written notice to the other Parties to terminate this Agreement; |
10.3 | Survival. If this Agreement is terminated in accordance with Section 10.2, it shall become void and of no further force and effect, except for the provisions of Section 6 (Confidentiality), Section 9 (Fees and Expenses), Section 5.6 (Indemnity), this Section 10.3 (Survival), Section 11 (Notices) and Section 13 (Governing Law and Jurisdiction); provided that such termination shall, unless otherwise agreed to by the Parties, be without prejudice to the rights or obligations of any Party in respect of a breach of this Agreement prior to such termination. |
11.1 | Notices. Each notice, demand or other communication given or made under this Agreement shall be in writing in English and delivered or sent to the relevant Party at its address or fax number as set out below (or such other address or fax number as the addressee has by five (5) Business Days' prior written notice specified to the other Parties). Any notice, demand or other communication given or made by letter between countries shall be delivered by international commercial overnight delivery service or courier (such as Federal Express or DHL). Any notice, demand or other communication so addressed to the relevant Party shall be deemed to have been delivered, (a) if delivered in person or by messenger, when proof of delivery is obtained by the delivering Party; (b) if sent by post within the same country, on the third (3rd) Business Day following posting, and if sent by post to another country, on the seventh (7th) Business Day following posting; and (c) if given or made by fax, upon dispatch and the receipt of a transmission report confirming dispatch. |
11.2 | Addresses and Fax Numbers. The initial address and facsimile for each Party for the purposes of this Agreement are: |
if to an Investor Group Member:
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with a copy to:
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c/o KKR Asia Limited
Level 56, Cheung Kong Center
2 Queen's Road Central, Hong Kong
Facsimile: (852) 2219-3000
Attention: Julian J. Wolhardt and Lane Zhao |
Paul, Weiss, Rifkind, Wharton & Garrison
12th Floor, Hong Kong Club Building 3A Chater Road, Central Hong Kong Facsimile: (852) 2840-4300 Attention: John E. Lange |
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if to an Issuer Group Member:
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with a copy to:
|
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c/o Tarena International, Inc.
Address: Suite 10017, Building E, Zhongkun Plaza, A18 Bei San Huan West Road, Haidian District
Beijing 100098, People’s Republic of China
Facsimile: +8610-6211-0873
Attention: Mr. Shaoyun Han |
Skadden, Arps, Slate, Meagher & Flom
42/F, Edinburgh Tower, The Landmark, 15 Queen’s Road Central, Hong Kong
Fax Number: (852) 3910-4863 / (852) 3910-4891 Email: Julie.Gao@skadden.com / Will.Cai@skadden.com Attention: Julie Z. Gao / Will H. Cai |
12.1 | No Partnership. The Parties expressly do not intend to form a partnership, either general or limited, under any jurisdiction's partnership law. The Parties do not intend to be partners to each other, partners as to any third party, or create any fiduciary relationship among themselves, solely by virtue of transactions contemplated hereby or the Investor Group's status as holder of the Bond or Conversion Share. Each Issuer Group Member further acknowledges that each Investor Group Member is not acting as a financial advisor or fiduciary of any Issuer Group Member or any other Obligor (or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated hereby and thereby, and no Issuer Group Member has received any advice given by any Investor Group Member or any of its representatives or agents in connection with the Transaction Documents and the transactions contemplated hereby except for the Investor Warranties set forth in Schedule 3 hereto. |
12.2 | Amendment. This Agreement may not be amended, modified or supplemented except by a written instrument executed by each Party. Notwithstanding the forgoing, the Investor Group may terminate or waive any of its rights (or part of it) under this Agreement by delivering written notice to the Issuer Group with immediate effect, and the Issuer Group may terminate or waive any of its rights (or part of it) under this Agreement by delivering written notice to the Investor Group with immediate effect. |
12.3 | Waiver. No waiver of any provision of this Agreement shall be effective unless set forth in a written instrument signed by the Party waiving such provision. No failure or delay by a Party in exercising any right, power or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of the same preclude any further exercise thereof or the exercise of any other right, power or remedy. Without limiting the foregoing, no waiver by a Party of any breach by any other Party of any provision hereof shall be deemed to be a waiver of any subsequent breach of that or any other provision hereof. |
12.4 | Entire Agreement. This Agreement (together with the other Transaction Documents and any other documents referred to herein or therein) constitutes the whole agreement among the Parties relating to the subject matter hereof and supersedes any prior agreements or understandings relating to such subject matter. |
12.5 | Severability. Each and every obligation under this Agreement shall be treated as a separate obligation and shall be severally enforceable as such and in the event of any obligation or obligations being or becoming unenforceable in whole or in part. To the extent that any provision or provisions of this Agreement are unenforceable they shall be deemed to be deleted from this Agreement, and any such deletion shall not affect the enforceability of such provisions of this Agreement as remain not so deleted. |
12.6 | Counterparts. This Agreement may be executed in one or more counterparts including counterparts transmitted by telecopier or facsimile, each of which shall be deemed an original, but all of which signed and taken together, shall constitute one document. |
12.7 | Transfer; Assignment. |
(a) | No Issuer Group Member shall assign this Agreement or any of its rights or duties hereunder to any Person without the prior written consent of the Investor. |
(b) | Subject to Section 7.5(b), each Investor Group Member may assign this Agreement or any of its rights or obligations hereunder to any Person, provided that such Investor Group Member undertakes to promptly notify the Issuer Group in writing of any such assignment. |
12.8 | Further Assurances. Each Party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as the other Parties may reasonably request in order to carry out the intent and accomplish the purposes of this Agreement and other Transaction Documents and the consummation of the transactions contemplated hereby and thereby. |
12.9 | Remedies. In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each Party shall be entitled to specific performance under the Transaction Documents. The Parties agree that monetary damages may not be adequate compensation for any loss incurred by a Party by reason of any breach of obligations hereunder by any other Party, and each Party hereby agrees to waive and not to assert in any action for specific performance of any such obligation the defense that a remedy at law would be adequate. |
13.1 | Governing Law. This Agreement shall be governed by and construed in accordance with the laws of Hong Kong, without giving effect to its conflicts of law principles. |
13.2 | Dispute Resolution. Each Party submits to the non-exclusive jurisdiction of the courts of Hong Kong in any suit or proceeding arising out of or relating to this Agreement |
Moocon Education Limited | |||
|
By:
|
/s/ Shaoyun Han | |
Name: Shaoyun Han | |||
Title: Director | |||
HAN Shaoyun | ||
|
/s/ Shaoyun Han | |
Talent Wise Investment Limited | |||
|
By:
|
/s/ William J. Janetschek | |
Name: William J. Janetschek | |||
Title: Director | |||
Talent Fortune Investment Limited | |||
|
By:
|
/s/ William J. Janetschek | |
Name: William J. Janetschek | |||
Title: Director | |||
Registered Company Name :
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Moocon Education Limited
|
Registered Address :
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the offices of Trident Trust Company (B.V.I.) Limited, Trident Chambers,
PO Box 146, Road Town, Tortola, the British Virgin Islands
|
Registration Number:
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1879483
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Place of Incorporation :
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British Virgin Islands
|
Director(s) :
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HAN Shaoyun
|
Authorized Share Capital :
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1,000,000,000
|
Issued Share Capital :
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1
|
Financial Year End :
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31 December
|
Shareholder (and percentage of shareholding) :
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HAN Shaoyun (100%)
|
Subsidiary:
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None
|
1.
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CORPORATE MATTERS
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(a) | Organization, Good Standing and Qualification. The Issuer has been duly incorporated and organized and is validly existing (i) in good standing and (ii) in compliance with all registration and approval requirements in all material respects. Each Issuer Group Member has the power and authority to own and operate its Assets and properties and to carry on its business as currently conducted. |
(b) | Charter Documents. The copies of the memorandum and articles of association of the Issuer are effective, have not been superseded and are true, correct and complete. All legal and procedural requirements concerning the adoption of such charter documents have been duly and properly complied with in all respects. |
(c) | Capitalization and Other Particulars. The particulars of the Issuer's share capital set forth in Schedule 1 are a true, complete and correct description of the share capital of the Issuer on the date hereof and on the Completion Date. The Issuer is not in violation of any term of or in default under its certificate or articles of incorporation, memorandum and articles of association, by-laws, or their organizational charter or other constitutional documents, respectively. |
(d) | Options, Warrants. Except for the Bond and Conversion Shares, there are no outstanding options, warrants, rights (including conversion or preemptive rights) or agreements for the subscription or purchase of any Equity Securities of the Issuer. No shares of the Issuer, or shares issuable upon exercise of the Bond, are subject to Encumbrances, |
preemptive rights, rights of first refusal or other rights to subscribe for or purchase such shares, pursuant to any agreement or commitment (except for this Agreement). The issuance and sale of the Bond and Conversion Shares shall not result in a right of any Person to exercise any preemptive rights, rights of first refusals or other rights, or to adjust the exercise, conversion, exchange or reset price under any of such securities, except as contemplated by this Agreement. The issuance and sale of the Bond or Conversion Shares shall not obligate the Issuer to issue Shares or equivalents thereof or other securities to any Person (other than the Investor). All issued shares of the Issuer are fully paid and have been issued in compliance with applicable law. Except for the Transaction Documents, there are no shareholders' agreements, voting agreements or other similar agreements with respect to the Issuer's shares to which the Issuer is a party or, to the knowledge of the Issuer, between or among any of the Issuer's shareholders and other Person. |
(e) | Subsidiaries. The Issuer does not hold any Equity Securities of, or any direct or indirect interest of any kind in, any other Person (except for Listco). |
(f) | Corporate Records. The registers of shareholders, resolutions and all other documents of the Issuer required to be kept or filed with any relevant Governmental Authority under all applicable law have been properly maintained, filed or submitted for filing in accordance with applicable law. |
(g) | No Immunity. No property of an Obligor enjoys any right of immunity from set off, suit or execution with respect to such Obligor's obligations under any Transaction Document. |
2.
|
AUTHORIZATION AND VALIDITY OF TRANSACTIONS
|
(a) | Authorization. Each Obligor has the power and authority to execute, deliver and perform the Transaction Documents which it has signed as a party and, if such party is not a natural Person, such party is duly incorporated or organized and existing under the laws of the jurisdiction of its incorporation or organization. All actions on the part of the Issuer necessary for the authorization, allotment, issuance and delivery of the Bond and Conversion Shares have been taken or shall be taken prior to the Completion (in case of the Bond) or shall be taken on or prior to conversion (in case of the Conversion Shares). |
(b) | Valid Issuance of Bond and Conversion Shares. The Bond, at the time of issuance, will be duly authorized and validly issued and free of restrictions on transfer other than restrictions on transfer described in Exhibit A and any applicable securities or corporate laws. The Conversion Shares when issued and paid for as provided upon conversion of the Bond shall be duly authorized and validly issued, fully paid and are and shall be free of restrictions on transfer other than restrictions on transfer described in Exhibit A and any applicable |
securities or corporate laws. Upon conversion of the Bond, the Conversion Shares shall be equal to not less than 99.9999% of entire issued share capital of the Issuer. As of Completion, a number of Shares shall have been duly authorized and reserved for issuance exceeds one hundred fifty percent (150%) of the number of Shares issuable upon conversion of the Bond (assuming for purposes hereof, that the Bond is convertible at the price set forth in the Exhibit A and without taking into account any limitations on the conversion of the Bond set forth in Exhibit A). |
(c) | Enforceability. The Transaction Documents to which an Obligor is a party, when executed by such Obligor (and assuming the due authorization, execution and delivery by all other parties to such Transaction Documents), shall be valid and binding obligations of such Obligor, enforceable against such Obligor in accordance with their respective terms, except where such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally or general principles of equity. |
(d) | Valid Security. Each Share Charge Agreement, once entered into by all parties thereto and duly registered and filed, will create the security interest which it purports to create with the ranking and priority it is expressed to have, and such security interests are valid and effective. All necessary registration or filings in respect of the Share Charge Agreements will be obtained in accordance with their terms. |
(e) | Consents and Approvals. All consents, approvals, orders or authorizations of, or registrations, qualifications, designations, declarations or filings with, any Governmental Authority or any other competent corporate authority required in connection with the execution, delivery and performance by an Obligor of this Agreement or any other Transaction Document or the consummation of the transactions contemplated hereby or thereby have been obtained or will be obtained prior to or promptly after Completion. |
(f) | No Breach. The execution and delivery by each Obligor of each of the Transaction Documents to which it is a party and the implementation and performance by the foregoing entities of all the transactions contemplated under such Transaction Documents do not and shall not: |
(i) | breach or constitute a default under any charter document of such entity or of the memorandum of association, articles of association, by-laws or other constitutional document of such Obligor, as applicable; |
(ii) | result in a material breach of, or constitute a default under, or give rise to any right to any Person to declare a default under, any contract to which such entity or individual is a party or by which such entity or individual or its/his property or Assets is |
bound or result in the acceleration of any obligation of such entity or individual (whether to make payment or otherwise) to any Person; or |
(iii) | result in a violation or breach of or default under any law. |
(g) | Private Offering. No registration of the Bond, pursuant to the provisions of the United States Securities Act of 1933, as amended (the "Securities Act") or any state securities or “blue sky” laws, will be required by the issuance of the Bond in accordance with this Agreement. The Issuer agrees that neither it, nor anyone acting on its behalf, shall offer to sell the Bond or any other securities of the Issuer so as to require the registration of the Bond pursuant to the provisions of the Securities Act or any state securities or “blue sky” laws. |
3.
|
LEGAL COMPLIANCE
|
(a) | No Violation of Law. The Issuer has at all times carried on its business in compliance with all applicable laws, regulations and governmental guidance in all material respects. The Issuer has not committed any criminal offence or any breach of the requirements or conditions of any statute, treaty, regulation, by-law or other obligation relating to it or the carrying on of its business. |
(b) | Permits and Registrations. The Issuer has all permits and has completed all material government registrations, licenses and consents necessary for the conduct of its business as currently conducted and to own or use its assets. The Issuer is not in breach of or default under any such Permit, and there is no reason to believe such Permit shall be suspended, cancelled or revoked. |
(c) | SEC Reports. No SEC Report filed or furnished, at the time they were filed or furnished (and if amended or superseded by a filing, then on the date of such filing and as amended or superseded), containing any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. |
(d) | Interference with Transaction. There is no Governmental Authority and to the knowledge of the Issuer Group, no other Person that has requested any information in connection with or instituted or threatened in writing any legal proceedings, arbitration or administrative proceedings or inquiry, regulatory inquiry against any Obligor to restrain, prohibit or otherwise challenge the issuance of the Bond or the Conversion Shares or any of the transactions contemplated under the Transaction Documents. |
(e) | Ownership. The Issuer does not hold any equity interests in any Person, except for the shares in Listco to be purchased in accordance with the Share Purchase Agreements. |
(f) | Ethic. None of the Issuer Group and any of its representatives has violated the U.S. Foreign Corrupt Practices Act (“FCPA”), the UK Bribery Act 2010 (and, in relation to conduct prior to 1 July 2011, the Public Bodies Corrupt Practices Act 1889 and the Prevention of Corruption Act 1906 (together with the Bribery Act 2010, the "UK Corruption Laws")) or any other anti-bribery or anti-corruption laws applicable to the Company or any Company Affiliate (collectively, “Anti-Corruption Laws”). For these purposes, the offences created by the FCPA and the UK Corruption Laws shall be deemed to apply to the Issuer Group and its representatives in respect of acts or omissions by them which may directly or indirectly affect the Issuer, irrespective of the jurisdictional scope of those offences. |
4.
|
ASSETS
|
5.
|
CONTRACTS AND TRANSACTIONS
|
6.
|
FINANCIAL MATTERS
|
(a) | No Financial Obligations. Except for the transactions contemplated under the Transaction Documents, there are at the date hereof:- |
(i) | no loans, guarantees, material undertakings, material commitments on capital account or unusual liabilities, actual or contingent, made, given, entered into or incurred by or on behalf of the Issuer; |
(ii) | no mortgages, charges, liens or other Encumbrances on the assets of the Issuer or any part thereof; |
(iii) | no outstanding loan capital or other loans to the Issuer; and |
(iv) | no Indebtedness incurred by the Issuer (other than any reasonable and customary corporate agent fee and government charge that (x) are incurred solely for the purpose of maintaining |
the corporate existence and good standing of the Issuer and (y) if the Bond is converted, will be reimbursed by the Founder on or prior to conversion of the Bond). |
(b) | Books and Financial Records. All the accounts, books, registers, ledgers and financial and other material records of whatsoever kind of the Issuer have been fully properly and accurately kept and completed in all material respects; there are no inaccuracies or discrepancies of any kind contained or reflected therein. |
7.
|
TAX, RECORDS AND RETURNS
|
(a) | Compliance with Laws. The Issuer is not or has not at any time been in violation of any applicable law or regulation regarding Tax which may result in any liability or criminal or administrative sanction or otherwise have a material adverse effect on it. |
(b) | Tax Returns and Payments. The Issuer has duly and timely filed all Tax Returns as required by law, and such Tax Returns are true and correct as of the time of filing. The Issuer has paid all Taxes when due and is not liable to pay any fine, penalty, surcharge or interest in relation to Tax. |
8.
|
BUSINESS
|
(a) | No Other Business. Except for the transactions contemplated under the Transaction Documents, the Issuer does not have any other business. |
(b) | No Material Adverse Effect. To the best knowledge of the Issuer, there is no existing fact or circumstance that may have a material adverse effect on the ability of the Issuer to conduct its business. |
9.
|
EMPLOYEES
|
10.
|
CLAIMS AND PROCEEDINGS
|
(a) | No Litigation. The Issuer is not engaged in or has not been notified in writing that it is the subject of any litigation, arbitration or administrative or criminal proceedings (collectively, "Litigation"), whether as plaintiff, defendant or otherwise, which may give rise to any claim against it. None of the shareholders or equity interest holders of the Issuer or its directors or officers is engaged in or has been notified that it is the subject of any Litigation, whether as plaintiff, defendant or otherwise, which has had or may have an adverse effect on the Issuer. There is no judgment, decree, or order of any court in effect against the Issuer, and the Issuer is not in default with respect to any order of any Governmental Authority to which it is a party or by which it is bound. |
(b) | No Pending Proceedings. No Litigation is pending or, to the best knowledge of the Issuer, threatened, against the Issuer. To the best knowledge of the Issuer, there are no facts or circumstances likely to give rise to any Litigation against the Issuer or any of its shareholders, directors or officers. |
(c) | No Insolvency. No order has been made and no resolution has been passed for the winding up or liquidation or dissolution of the Issuer. No distress, execution or other process has been levied on the whole or a substantial part of the assets of the Issuer. The Issuer is solvent and able to pay its debts as they fall due. |
(d) | No Investigation or Inquiry. The Issuer is not the subject of any investigation or inquiry by any Governmental Authority, and to the best knowledge of the Issuer, there are no facts which are likely to give rise to any such investigation or inquiry. |
1. | Each Investor Group Member is an exempted company duly incorporated and organized and validly existing under the laws of the Cayman Islands (i) in good standing and (ii) in compliance with all registration and approval requirements in all material respects. Each investor Group Member has the power and authority to own and operate its Assets and properties and to carry on its business as currently conducted. |
2. | Each Investor Group Member has the full power and authority to enter into, execute and deliver the Transaction Documents and to perform the transactions contemplated hereby. The execution and delivery by each Investor Group Member of each of the Transaction Documents to which it is a party and the implementation and performance by such Investor Group Member of the transactions contemplated under such Transaction Documents have been duly authorized by all necessary corporate or other action of such Investor Group Member. Assuming the due authorization, execution and delivery hereof by each Issuer Group Member, the Transaction Documents constitute legal, valid and binding obligation of the Investor Group Members, enforceable against the each Investor Group Member in accordance with the terms of the Transaction Documents, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally. |
3. | The execution, delivery and performance of the Transaction Documents by each Investor Group Member to which it is a party and the implementation and performance by the foregoing entities of all the transactions contemplated under such Transaction Documents do not and shall not: |
(a) | breach or constitute a default under any charter document of such entity or of the memorandum of association, articles of association, by-laws or other constitutional document of such Investor Group Member, as applicable; |
(b) | conflict with or result in any material breach or violation of any of the terms and conditions of, or constitute (or with notice or lapse of time or both constitute) a material default under, any agreement to which such Investor Group Member is a party or by which such Investor Group Member is bound; |
(c) | violate any court order, judgment, injunction, award, decree or writ against, or binding upon, such Investor Group Member or upon its securities, properties or business; or |
(d) | result in violation or breach of or default under any law. |
4. | All consents, approvals, orders or authorizations of, or registrations, qualifications, designations, declarations or filings with, any Governmental Authority or any other competent corporate authority required in connection with the execution, delivery and performance by an Investor Group Member of this Agreement or any other Transaction Document or the consummation of the transactions contemplated hereby or thereby have been obtained or will be obtained prior to or promptly after Completion. |
5. | The Investor is acquiring the Bond that it is purchasing pursuant to this Agreement for investment for its own account for investment purposes only and not with the view to, or with any intention of, resale, distribution or other disposition thereof. The Investor does not have any direct or indirect arrangement, or understanding with any other persons to distribute, or regarding the distribution of the Bond in violation of the Securities Act or any other applicable state securities law. |
6. | The Investor did not contact the Issuer as a result of any general solicitation. |
7. | The Investor acknowledges that the Bond is “restricted securities” that have not been registered under the Securities Act or any applicable state securities law. The Investor further acknowledges that, absent an effective registration under the Securities Act, the Bond may only be offered, sold or otherwise transferred pursuant to an exemption from registration under the Securities Act. |
8. | The Investor has been advised and acknowledges that in issuing the Bond to the Investor pursuant hereto, the Issuer is relying upon the exemption from registration provided by Regulation S under the Securities Act ("Regulation S"). The Investor is acquiring the Bond in an offshore transaction in reliance upon the exemption from registration provided by Regulation S. |
9. | The Investor understands that the certificate representing its Bond will bear a legend to the following effect: |
MOOCON EDUCATION LIMITED | |||
|
By:
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||
Name: | |||
Title: | |||
AGREED AND ACCEPTED BY | ||
TALENT WISE INVESTMENT LIMITED | ||
Name: | ||
Title: Director | ||
Dated as of , 2015
|
Page | ||
Article I Definitions
|
1 | |
1.1
|
Defined Terms.
|
1
|
1.2
|
Other Definitional Provisions; Interpretation
|
4
|
Article II Registration Rights
|
5 | |
2.1
|
Securities Act Registration on Request.
|
5
|
2.2
|
Piggyback Registration.
|
7
|
2.3
|
Expenses.
|
8
|
2.4
|
Registration Procedures.
|
9
|
2.5
|
Underwritten Offerings.
|
12
|
2.6
|
Preparation: Reasonable Investigation.
|
14
|
2.7
|
Postponements.
|
14
|
2.8
|
Indemnification by the Company.
|
15
|
2.9
|
Registration Rights to Others.
|
17
|
2.10
|
Adjustments Affecting Registrable Shares.
|
17
|
2.11
|
ADS.
|
18
|
2.12
|
Termination of Registration Rights.
|
18
|
Article III Miscellaneous
|
18 | |
3.1
|
Amendments; Entire Agreement.
|
18
|
3.2
|
Severability.
|
18
|
3.3
|
Successors and Assigns.
|
18
|
3.4
|
Notices.
|
18
|
3.5
|
Counterparts.
|
19
|
3.6
|
Injunctive Relief.
|
19
|
3.7
|
Governing Law; Consent to Jurisdiction.
|
19
|
3.8
|
Waiver of Jury Trial.
|
20
|
(a) | the share charge agreement [dated [●], 2015] between Moocon Education Limited and Talent Wise Investment Limited; and |
(b) | the share charge agreement [dated [●], 2015] between Techedu Limited and Talent Wise Investment Limited. |
(c) | the share purchase agreement dated June 13, 2015 among KKR, Connion and Goldman Sachs; and |
(d) | the share purchase agreement dated June 13, 2015 among KKR, Connion and IDG. |
TARENA INTERNATIONAL, INC. | |||
|
By:
|
||
Name: | |||
Title: | |||
TALENT FORTUNE INVESTMENT LIMITED | |||
|
By:
|
||
Name: | |||
Title: | |||
with a copy to (which shall not constitute notice):
|
|
Suite 10017, Building E, Zhongkun Plaza, A18 Bei
San Huan West Road, Haidian District,
Beijing 100098, People’s Republic of China
Facsimile: (8610) 6211-0873
Attention: Shaoyun Han |
Skadden, Arps, Slate, Meagher & Flom
42/F, Edinburgh Tower, The Landmark, 15 Queen’s Road Central
Hong Kong Facsimile: (852) 3910-4863 / (852) 3910-4891 Attention: Julie. Z. Gao / Will H. Cai |
with a copy to (which shall not constitute notice):
|
|
c/o KKR Asia Limited
Level 56, Cheung Kong Center
2 Queen's Road Central, Hong Kong
Facsimile: (852) 2219-3000
Attention: Julian J. Wolhardt and Lane Zhao |
Paul, Weiss, Rifkind, Wharton & Garrison
12th Floor, Hong Kong Club Building 3A Chater Road, Central Hong Kong Facsimile: (852) 2840-4300 Attention: John E. Lange |
Dated [●], 2015
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Page
|
|
SECTION 1 INTERPRETATION
|
1
|
SECTION 2 COVENANT TO PAY
|
4
|
SECTION 3 CHARGE AND DEPOSIT DOCUMENTS
|
4
|
SECTION 4 POWER OF ATTORNEY
|
5
|
SECTION 5 VOTING RIGHTS AND DISTRIBUTIONS
|
5
|
SECTION 6 CONTINUING SECURITY
|
7
|
SECTION 7 REPRESENTATIONS AND WARRANTIES
|
7
|
SECTION 8 COVENANTS
|
8
|
SECTION 9 ENFORCEMENT OF CHARGE AND POWERS OF THE SECURITY AGENT
|
10
|
SECTION 10 APPOINTMENT AND RIGHTS OF RECEIVER
|
11
|
SECTION 11 FURTHER ASSURANCE
|
12
|
SECTION 12 ADDITIONAL OR FUTURE SECURITY
|
12
|
SECTION 13 EXCULSION OF SECURITY AGENT’S LIABILITY, RECEIVER AND DELEGATE
|
13
|
SECTION 14 WAIVER FORBEARANCE CUMULATIVE REMEDIES AND PARTIAL INVALIDITY
|
13
|
SECTION 15 VARIATION OF TERMS
|
15
|
SECTION 16 EXPENSES AND INDEMNITY
|
15
|
SECTION 17 CURRENCY INDEMNITY
|
15
|
SECTION 18 STAMP DUTY AND TAX
|
16
|
SECTION 19 DISCHARGE, RELEASE AND AVOIDANCE
|
16
|
SECTION 20 TRANSFER, DELEGATION, DETERMINATION AND DISCLOSURE
|
16
|
SECTION 21 NOTICES
|
17
|
SECTION 22 COUNTERPARTS
|
18
|
SECTION 23 GOVERNING LAW AND JURISDICTION
|
18
|
SCHEDULES | |
SCHEDULE 1
|
PARTICULARS OF THE INITIAL CHARGED SHARES
|
SCHEDULE 2
|
RIGHTS OF RECEIVER
|
SCHEDULE 3 | FORM OF INSTRUMENT OF TRANSFER |
SCHEDULE 4
|
FORM OF INSTRUMENT OF PROXY
|
(1) | [●] (the “Chargor”), a company with limited liability incorporated in the British Virgin Islands with its registered office at the offices of Trident Trust Company (B.V.I.) Limited, Trident Chambers, PO Box 146, Road Town, Tortola, the British Virgin Islands, the British Virgin Islands with registration number [●]; and |
(2) | TALENT WISE INVESTMENT LIMITED, an exempted company incorporated under the laws of Cayman Islands with its registered office at PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands (the “Security Agent”), acting in its capacity as security trustee for itself and Talent Fortune Investment Limited (collectively, the “Secured Parties”, and each a “Secured Party”). |
(A) | Pursuant to a convertible bond purchase agreement between the Secured Parties, Han Shaoyun, the Chargor and other parties thereto dated on or about the date of this Charge (the “Purchase Agreement” which expression shall include any amendments, supplements and variations thereto), the Security Agent has agreed to purchase a bond convertible into ordinary shares of the Chargor on the terms and conditions set out therein. |
(B) | The Security Agent is willing to purchase the convertible bond as contemplated by the Purchase Agreement on the condition that the Chargor execute and deliver this Charge in favour of the Security Agent, charging its rights in respect of the Charged Assets (as defined below) to secure the obligations of the Obligors (as defined in the Purchase Agreement) under the Transaction Documents (as defined in the Purchase Agreement). |
(C) | The Security Agent and the Chargor intend this Charge to take effect as a deed (even though the Security Agent only executes it under hand). |
(a) | any allotment, right, money or property arising from the Charged Shares by way of conversion, exchange, redemption, bonus, preference, option or otherwise; |
(b) | any Distribution, interest or any other income arising from the Charged Shares; and |
(c) | any stock, share and security offered in substitution of the Charged Shares. |
Term
|
Section
|
“BVI Act”
|
Section 8(k)
|
“Charge”
|
Preamble
|
“Chargor”
|
Preamble
|
“Contractual Currency”
|
Section 17
|
“Payment Currency”
|
Section 17
|
“Proceeding”
|
Section 23.2
|
“Purchase Agreement”
|
Recitals
|
“Registrar of Corporate Affairs”
|
Section 8(m)
|
“Secured Party”
|
Preamble
|
“Security Agent”
|
Preamble
|
“Third Party Rights Law”
|
Section 10.6(b)
|
1.3 | (a) | Unless the context otherwise requires, all words (whether gender-specific or gender neutral) shall be deemed to include each of the masculine, feminine and neuter genders, and words importing the singular include the plural and vice versa. |
(b) | Headings are included for convenience only and shall not affect the construction of any provision of this Charge. |
(c) | “Include,” “including,” “are inclusive of” and similar expressions are not expressions of limitation and shall be construed as if followed by the words “without limitation.” |
(d) | References to “law” shall include all applicable laws, regulations, rules and orders of any governmental authority, securities exchange or other self-regulating body, including any common or customary law, constitution, code, ordinance, statute or other legislative measure and any regulation, rule, treaty, order, decree or judgment; and “lawful” shall be construed accordingly. |
(e) | References to this Charge include the Schedule, which forms an integral part hereof. A reference to any Section or Schedule is, unless otherwise specified, to such Section of, or Schedule to, this Charge. The words “hereof,” “hereunder” and “hereto,” and words of like import, refer to this Charge as a whole and not to any particular Section hereof or Schedule hereto. A reference to any document (including this Charge) is to that document as amended, consolidated, supplemented, renovated or replaced from time to time. |
(f) | If a period of time is specified and dates from a given day or the day of a given act or event, such period shall be calculated exclusive of that day. |
(g) | This Charge is drawn up in the English language. If this Charge is translated into any language other than English, the English language text shall prevail. |
2.1 | Covenant to Pay |
2.2 | Demands |
3.1 | Charge |
3.2 | Documents of Title |
(a) | valid and duly issued share certificates (if any) or any other documents of title in respect of the Initial Charged Shares; |
(b) | a duly executed instrument of transfer from the Chargor in the form set out in Schedule 3 (Form of Instrument of Transfer) in respect of the Initial Charged Shares but with the date and names of the transferees left blank; and |
(c) | a duly executed instrument of proxy in the form set out in Schedule 4 (Form of Instrument of Proxy) from the Chargor with the date and names of appointees left blank. |
3.3 | Subsequent Charged Assets |
(a) | at any time to: |
(i) | execute, deliver and perfect any necessary Document (which shall include, without limitation, from time to time completing and dating any instrument of transfer referred to in Section 3.2(b) and any instrument of proxy referred to in Section 3.2(c)); or |
(ii) | perform any act or otherwise, |
(b) | at any time after this Charge becomes enforceable, to transfer legal ownership of any Charged Asset, and the Chargor shall ratify and confirm all acts and things done by the Security Agent or any Receiver, any substitute or delegate in the exercise of this power of attorney, |
5.1 | Prior to Charge becoming enforceable |
(a) | all voting rights and (if applicable) any right to nominate or remove a director attaching to the Charged Assets shall continue to be exercised by the Chargor, and the Chargor shall not permit any person other than the Chargor or the Security Agent to be registered as holder of the Charged Assets or any part thereof; and |
(a) | all cash Distributions and other monies payable in respect of the Charged Assets shall be retained by the Chargor, |
5.2 | After Charge becoming enforceable |
(a) | the Security Agent shall have the right to (at its sole discretion, in the name of the Chargor or otherwise and without notice to, or any further consent or authority from, the Chargor): |
(i) | date and complete the transfer forms or transfer documents referred to in Section 3.2 (Documents of Title) and cause the Charged Assets to be registered in its name, the name of its nominee or any other party as permitted pursuant to this Charge, and receive and retain any Distributions; |
(ii) | exercise (or refrain from exercising) voting and all other Rights attaching to the Charged Assets; |
(iii) | exercise (or refrain from exercising) any Right of a legal owner of the Charged Assets, including the right to participate in: |
(1) | any reconstruction, amalgamation, sale or other disposal of the Company or any of its assets or undertakings (including any exchange, conversion or reissue of any shares or securities as a consequence thereof), |
(2) | any realisation, modification or variation of any Right or Secured Obligation attaching to any shares or securities of the Company, and |
(3) | any exercise, renunciation or assignment of any Right to subscribe for any shares or securities of the Company, |
(b) | the Chargor shall pay (i) all Distributions and all other Derivative Assets to the Security Agent and (ii) segregate any Distribution or any other Derivative Asset to be received by the Chargor from any other property of the Chargor and hold such Distribution and any other Derivative Asset on trust for the Security Agent; |
(c) | the Chargor shall procure that all voting and other Rights relating to the Charged Assets are exercised in accordance with such instruction as may from time to time be given to the Chargor by the Security Agent, and the Chargor shall deliver to the Security Agent such form of proxy or other appropriate form of authorization as may from time to time be required by the Security Agent to enable the Security Agent to exercise such voting and other Rights; and |
(d) | the Chargor shall accept short notice for and attend any meeting of the holders of any Charged Assets, appoint proxies and exercise voting and other rights and powers exercisable by the holders of the Charged Assets as the Security Agent may direct from time to time. |
5.3 | Information |
6.1 | This Charge shall be a continuing security notwithstanding any intermediate payment or settlement of accounts or other matters whatsoever and shall remain in force unless and until discharged in writing by the Security Agent following the full and valid payment or discharge of the Secured Obligations. |
6.2 | Any discharge referred to in Section 6.1 and any composition or arrangement which the Chargor may effect with the Security Agent shall be deemed to be made subject to the express condition that it shall be void if any payment or security which the Security Agent may have received or may receive from any person in respect of the Secured Obligations is avoided, invalidated or set aside or if any order is made in respect thereof under any enactment relating to insolvency. |
7.1 | Representations and Warranties |
(a) | the Chargor has been duly incorporated and organized and is validly existing and in good standing in its jurisdiction of incorporation; |
(b) | this Charge has been duly authorised and properly executed by the Chargor and the Chargor has taken all necessary action to authorise, execute and deliver this Charge which is valid and binding upon it and enforceable in accordance with its terms; |
(c) | the Chargor is the sole legal and beneficial owner of the Charged Assets, subject only to the terms of this Charge; |
(d) | no Security (except for the security constituted by this Charge or any other security created with prior consent in writing of the Security Agent) exists on, over or with respect to any of the Charged Assets; |
(e) | the Initial Shares represent all the shares issued by the Company registered in the name of the Chargor; |