CHINACAST EDUCATION CORP - FORM 8-K - EX-10.1

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8-K - CHINACAST EDUCATION CORP	v195474_8k.htm
EX-99.1 - CHINACAST EDUCATION CORP	v195474_ex99-1.htm

Execution Copy

CHINACAST EDUCATION HOLDINGS LIMITED

WU SHI XING

(吴始幸)

WINTOWN ENTERPRISES LIMITED

SHANGHAI RUBAO INFORMATION TECHNOLOGY CO., LTD.

(上海如宝信息技术有限公司)

WUHAN JIYANG EDUCATION INVESTMENT CO., LTD.

(武汉市激扬教育投资有限公司)

AND

HUBEI INDUSTRIAL UNIVERSITY BUSINESS COLLEGE

(湖北工业大学商贸学院)

SHARE TRANSFER AGREEMENT

Dated: August 19, 2010

Execution Copy

SHARE TRANSFER AGREEMENT

THIS SHARE TRANSFER AGREEMENT (this “Agreement”) is made on August 19, 2010 (the “Effective Date”) in Hong Kong Special Administrative Region of the People’s Republic of China (“Hong Kong”) by and among:

(1)	ChinaCast Education Holdings Limited, a limited liability company incorporated under the laws of the British Virgin Islands, with its registered address at P.O. Box 957, Offshore Incorporations Centre, Road Town, Tortola, British Virgin Islands (the “Purchaser”);

(2)	Wu Shi Xing (吴始幸)，a PRC citizen with PRC ID number of 330124195507252115 (the “Existing Shareholder”);

(3)	Wintown Enterprises Limited, a limited liability company incorporated under the laws of the British Virgin Islands, with its registered address at P.O. Box 957, Offshore Incorporations Centre, Road Town, Tortola, British Virgin Islands (the “Company”);

(4)	Shanghai Rubao Information Technology Co., Ltd. (上海如宝信息技术有限公司), a limited liability company incorporated under the laws of the PRC, with its registered address at Suite 716-N, 710 Siping Road, Hongkou District, Shanghai (“Rubao”)

(5)	Wuhan Jiyang Education Investment Co., Ltd. (武汉市激扬教育投资有限公司), a limited liability company incorporated under the laws of the PRC, with its registered address at 634 Xiong Chu Street, Hongshan District, Wuhan (“Jiyang”);

(6)	Hubei Industrial University Business College (湖北工业大学商贸学院), an institutional legal person incorporated under the laws of the PRC, with its registered address at 634 Xiong Chu Street, Wuhan (the “College”).

The Purchaser, the Existing Shareholder, the Company, Rubao, Jiyang and the College are hereinafter collectively referred to as the “Parties” and individually as a “Party”.

RECITALS

A. The Company has a total of 50,000 authorized shares with par value US$1 per share, of which two (2) shares are issued and outstanding. The Existing Shareholder is the legal and beneficial owner of all issued and outstanding shares of the Company, representing one hundred percent (100%) of all issued and outstanding shares of the Company prior to the Closing (as defined below) (the “Purchased Shares”);

B. The Existing Shareholder desires to sell, and the Purchaser desires to purchase, all the Purchased Shares under the terms and conditions hereof;

C. The Company owns hundred percent (100%) equity interest in Robao, free and clear of any Encumbrance (as defined below); Robao owns hundred percent (100%) equity interest in Jiyang, free and clear of any Encumbrance (as defined below);

D. The College is jointly sponsored by Jiyang and Hubei Industrial University. Jiyang contributed RMB30,000,000, representing 100% of the operation capital of the College; and

E. The College shall be engaged in the business of full-time regular higher education, and such other business activities as set out in its Civil Non-Enterprise Legal Person Certificate (the “College Principal Business”).

AGREEMENT

NOW, THEREFORE, in consideration of the foregoing recitals, the mutual promises hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

1.	DEFINITIONS

1.1 Definitions. Unless otherwise defined in this Agreement, capitalized terms used in the English version of this Agreement and terms in bold font used in the Chinese version of this Agreement shall have the following meanings:

“Action”		has the meaning set out in Section 10 of EXHIBIT D.

“Affiliate”		with respect to a specified Person means (a) in the case of an individual, such Person’s spouse and lineal descendants (whether natural or adopted) or any trust formed and maintained solely for the benefit of such Person, such Person’s spouse and/or such lineal descendants, and (b) in the case of any Person, a Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by, or is under common Control with, the Person specified.

“Agreement”		has the meaning set out in the Preamble.

“Applicable Laws” or “Applicable Law”		means, with respect to any Person, relevant provisions of any constitution, treaty, statute, law, regulation, ordinance, code, rule, judgment, rule of common law, order, decree, award, injunction, government approval, concession, grant, franchise, license, agreement, directive, requirement, or other governmental restriction or any similar form of decision of, or determination by, or interpretation and administration of any of the foregoing by, any Governmental Authority, whether in effect as at the date hereof or thereafter and in each case as amended or re-enacted, applicable to such Person or any of its assets or undertakings.

“Arbitration Notice”		has the meaning set out in Section 11.4(b).

“Associate”		means with respect to any Person, (a) a corporation or organization (other than the Group Companies) of which such Person is an officer or partner or is, directly or indirectly, the beneficial owner of ten percent (10%) or more of any class of equity securities, (b) any trust or other estate in which such Person has a substantial beneficial interest or as to which such Person serves as trustee or in a similar capacity, and (c) any relative or spouse of such Person, or any relative of such spouse, who has the same home as such Person.

“Business Day”		any day (excluding Saturdays, Sundays and public holidays in Hong Kong, New York or the PRC) on which banks generally are open for business in Hong Kong, New York and the PRC.

“Centre”		has the meaning set out in Section 11.4(c).

“Closing”		has the meaning set out in Section 4.1.

“Closing Date”		has the meaning set out in Section 4.1.

“College”		has the meaning set out in the Preamble.

“College Principal Business”		has the meaning set out in the Preamble.

“Company”		has the meaning set out in the Preamble.

“Confidential Information”		has the meaning set out in Section 9.

“Constitutional Documents”		means, with respect to any Person, the certificate of incorporation, memorandum of association, articles of association, joint venture agreement, shareholders agreement, or similar constitutive documents for such Person.

“Contract”		means any agreement, arrangement, bond, commitment, franchise, indemnity, indenture, instrument, lease, license, permit, or binding understanding, whether or not in writing.

“Control”		(including the correlative meanings of the terms “Controlling,” “Controlled by” and “under common Control with”) means, with respect to any Person, direct or indirect possession of the power to direct or cause the direction of the management or policies (with respect to operational or financial control or otherwise) of such Person, whether through the ownership of securities, by contract or otherwise.

“Covenantor” and “Covenantors”		have the respective meaning set out in Section 5.1.

“Disclosure Schedule”		has the meaning set out in Section 5.1.

“Dispute”		has the meaning set out in Section 11.4(a).

“Effective Date”		has the meaning set out in the Preamble.

“Encumbrance”		means (a) any mortgage, charge, pledge, lien, hypothecation, deed of trust, title retention, security interest, or other third-party rights of any kind securing or conferring any priority of payment in respect of any obligation of any Person; (b) any easement or covenant granting a right of use or occupancy to any Person; (c) any proxy, power of attorney, voting trust agreement, interest, option, right of first offer, right of pre-emptive negotiation, or refusal or transfer restriction in favor of any Person; (d) any adverse claim as to title, possession, or use, and includes any agreement or arrange for any of the same.

“Existing Shareholder”		has the meaning set out in the Preamble.

“Financial Statements”		has the meaning set out in Section 6(a) of EXHIBIT D.

“Governmental Official”		has the meaning set out in Section 11(d) of EXHIBIT D.

“Governmental Authority”		means any government or political subdivision thereof, whether on a federal, central, state, provincial, municipal or local level and whether executive, legislative or judicial in nature, including any agency, authority, board, bureau, commission, court, department or other instrumentality thereof.

“Group Company Contracts”		has the meaning set out in Section 12 of EXHIBIT D.

“Group Companies”		means the Company, Rubao, Jiyang, the College and all other direct or indirect, current or future Subsidiaries of the foregoing, and the “Group Company” means any of the Group Companies.

“Hong Kong”		has the meaning set out in the Preamble.

“HK Dollar” or “HK$”		means the lawful currency of Hong Kong.

“Jiyang”		has the meaning set out in the Preamble.

“knowledge”		means, with respect to a Person’s “knowledge,” the actual knowledge of such Person and that knowledge which should have been acquired by such Person after making such due inquiry and exercising such due diligence as a prudent business Person would have made or exercised in the management of his or her business affairs, including due inquiry of those officers, directors, key employees and professional advisers (including attorneys, accountants and consultants) of the Person and its Affiliates.

“Losses”		means all direct or indirect losses, liabilities, damages, deficiencies, diminution in value, suits, debts, obligations, interest, penalties, expenses, judgments or settlements of any nature or kind, including all costs and expenses related thereto, including without limitation reasonable attorneys’ fees and disbursements, court costs, amounts paid in settlement and expenses of investigation, whether at law or in equity, whether known or unknown, foreseen or unforeseen, of any kind or nature.

“Material Adverse Effect”		means a material adverse effect on the condition (financial or otherwise), assets relating to, or results or prospects of operation of or business (as presently conducted and proposed to be conducted) of the Person(s) specified.

“Party” and “Parties”		have the respective meanings set out in the Preamble.

“Person”		shall be construed as broadly as possible and shall include an individual, a partnership (including a limited liability partnership), a company, an association, a joint stock company, a limited liability company, a trust, a joint venture (including a sino-foreign equity joint venture or sino-foreign cooperative join venture), an unincorporated organization and a Governmental Authority.

“PRC”		means the People’s Republic of China, solely for purposes of this Agreement, excluding Hong Kong, the Macau Special Administrative Region and Taiwan.

“PRC GAAP”		means the generally accepted accounting principles of the PRC.

“Preamble”		means the preamble of this Agreement.

“Proprietary Assets”		means all patents, patent applications, trademarks, service marks, trade names, domain names, copyrights, copyright registrations and applications and all other rights corresponding thereto, inventions, databases and all rights therein, all computer software including all source code, object code, firmware, development tools, files, records and data, including all media on which any of the foregoing is stored, formulas, designs, trade secrets, confidential and proprietary information, proprietary rights, know-how and processes of a company, and all documentation related to any of the foregoing.

“Purchaser”		has the meaning set out in the Preamble.

“Purchased Price”		has the meaning set out in Section 2.1.

“Purchased Shares”		has the meaning set out in the Recitals.

“Recitals”		means the recitals of this Agreement.

“Registered Intellectual Property”		means all Proprietary Assets of any Group Company, wherever located, that is the subject of an application, certificate, filing, registration or other document issued by, filed with or recorded by any Governmental Authority.

“Restated Articles”		means the Amended and Restated Memorandum and Articles of Association of the Company adopted on or prior to the Closing, attached hereto as EXHIBIT A.

“RMB”		means the lawful currency of the PRC.

“Rubao”		means the preamble of this Agreement.

“SAFE”		has the meaning set out in Section 3.1.

“SAFE Circular”		has the meaning set out in Section 11(c) of EXHIBIT D.

“Securities Act”		has the meaning set out in Section 5(b) of EXHIBIT D.

“Subsidiary”		means, with respect to any given Person, any other Person that is not a natural person and that is Controlled by such given Person.

“US GAAP”		means the generally accepted accounting principles of the United States of America.

“US Dollar” or “US$”		means the lawful currency of the United States of America.

1.2 Interpretation. For all purposes of this Agreement, except as otherwise expressly provided, (a) the terms defined in this Section 1 shall have the meanings assigned to them in this Section 1 and include the plural as well as the singular, (b) all accounting terms not otherwise defined herein have the meanings assigned under US GAAP, (c) all references in this Agreement to designated “Sections” and other subdivisions are to the designated Sections and other subdivisions of the body of this Agreement, (d) pronouns of either gender or neuter shall include, as appropriate, the other pronoun forms, (e) the words “herein”, “hereof”, and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section or other subdivision, (f) all references in this Agreement to designated exhibits are to the exhibits attached to this Agreement unless explicitly stated otherwise, (g) “include”, “includes”, “including”, and other words of similar import are deemed to be followed by “without limitation” whether or not they are in fact followed by such words or words of like import, (h) the titles of the sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement, (i) any reference in this Agreement to any “Party” or any other Person shall be construed so as to include its successors in title, permitted assigns and permitted transferees, and (j) any reference in this Agreement to any agreement or instrument is a reference to that agreement or instrument as amended or novated. This Agreement shall be construed according to its fair language. The rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in interpreting this Agreement.

2.	AGREEMENT TO PURCHASE AND SELL SHARES

2.1 Agreement to Purchase and Sell. Subject to the terms and conditions hereof, the Existing Shareholder, as the sole registered holder and beneficial owner of all the Purchased Shares, hereby agrees to sell to the Purchaser, and the Purchaser hereby agree to purchase from the Existing Shareholder, on the Closing Date, all the Purchased Shares, free from any Encumbrance and together with all rights and advantages attached or accruing to them on and after the Effective Date. Immediately after the Closing contemplated under this Agreement, the Purchaser shall own all issued shares of the Company.

3.	CONSIDERATION AND PAYMENT SCHEDULE

3.1 Consideration. The total purchase price paid by Purchaser for the purchase of all the Purchased Shares is RMB450,000,000 or the equivalent US Dollars or HK Dollars (the “Purchase Price”), which shall be the net value to be paid by the Purchaser to the Existing Shareholder. For the purpose of this Agreement, the foreign exchange rate for RMB against US Dollar or HK Dollar shall be the central parity of foreign exchange rate for RMB against US Dollar or HK Dollar published by the State Administration of Foreign Exchange of the PRC (the “SAFE”) at its official website www.safe.gov.cn at the respective date of payment.

3.2 Payment Schedule.

(1)

The First Payment: Within five (5) Business Days after the Effective Date, the Purchaser shall pay RMB50,000,000 or equivalent US Dollars or HK Dollars to the Existing Shareholder;

(2)

The Second Payment: Subject to the satisfaction or waiver of all conditions specified in Section 7 hereof, the Purchaser shall pay RMB310,000,000 or equivalent US Dollars or HK Dollars to the Existing Shareholder within ten (10) Business Days after the Closing;

(3)

The Third Payment: Within thirty (30) days commencing on August 31, 2010 and subject to the satisfaction of the conditions specified in Section 7 of EXHIBIT F before August 31, 2010 , the Purchaser shall pay RMB90,000,000 or equivalent US Dollars or HK Dollars to the Existing Shareholder.

3.3 Adjustment to the Consideration. The Existing Shareholder shall guarantee that the PRC GAAP tax-based net profit of the College for the 2009 academic year (i.e. from September 1, 2009 to August 31, 2010) (the “2009 Net Profit”) shall not be less than RMB50,000,000. In case of any short fall, the Purchaser is entitled to deduct the amount calculated based on the following formula from the Third Payment.

“Deduction Amount=(RMB50,000,000-2009 Net Profit) ×9”

(Currency Unit: RMB)

4.	CLOSINGS; DELIVERIES

4.1 Closing. The purchase and sale of the Purchased Shares shall take place remotely via the exchange of documents and signatures (the “Closing”) on the date of the satisfaction or waiver of all the conditions set forth in Section 7 hereto, or at such other time and date as may be mutually agreed upon by the Existing Shareholder and the Purchaser (the “Closing Date”).

4.2 Closing Deliveries. At the Closing:

(a) The Parties to the Agreement shall exchange duly executed signature pages to the Agreement remotely via facsimile, or by such other methods as mutually agreed by the Parties thereto;

(b) The Company and the Existing Shareholder shall (i) deliver to the Purchaser duly executed transfer instruments (including instruments of transfer) by the Existing Shareholder in respect of the Purchased Shares purchased by such Purchaser in favor of the Purchaser or its nominees together with the original relevant share certificate(s), (ii) deliver to the Purchaser, free and clear of any Encumbrance, a new share certificate registered in its name or the name(s) of its nominee(s) as directed by the Purchaser, evidencing the number of Purchased Shares purchased by the Purchaser; (iii) enter the Purchaser in the register of members of the Company as a holder of the Purchased Shares purchased by the Purchaser, free and clear of any Encumbrance, evidencing the Purchaser’s Purchased Shares as having been duly transferred, (iv) deliver to the Purchaser a certified true copy of the register of members of the Company reflecting the transfer of the Purchased Shares purchased by the Purchaser, and (v) deliver to the Purchaser all other items required at the Closing under Section 7.1.

4.3 Ownership. Upon the Closing, the Purchaser shall become exclusively entitled to the sole beneficial ownership of the Purchased Shares purchased by it.

5.	REPRESENTATIONS AND WARRANTIES

5.1 Representations and Warranties of Group Companies and Existing Shareholder. The Group Companies and the Existing Shareholder (each, the “Covenantor” and collectively, the “Covenantors”), jointly and severally, hereby represent and warrant to the Purchaser, except as set forth in the Disclosure Schedule (the “Disclosure Schedule”) attached to this Agreement as EXHIBIT C (which Disclosure Schedule shall be deemed to modify the representations and warranties set forth in this Agreement) and as limited in EXHIBIT D, that the representations and warranties set forth in EXHIBIT D are true as of the Effective Date and will be true as of the Closing Date (except for such representations and warranties that speak as of a particular date, in which case, such representations and warranties shall be true as of such date).

5.2 Representations and Warranties of Purchaser. The Purchaser hereby, represents and warrants to the Company that the representations and warranties set forth in EXHIBIT E are true as of the Effective Date and will be true as of the Closing Date.

6.	COVENANTS OF COVENANTORS

The Covenantors jointly and severally covenant to the Purchaser as set forth in EXHIBIT F.

7.	CLOSING CONDITIONS

7.1 Conditions to Purchaser’ Obligations at Closing. The obligation of the Purchaser to purchase the Purchased Shares at the Closing is subject to the fulfillment on or prior to the Closing, to the satisfaction of the Purchaser, or waiver by the Purchaser, of the conditions as set forth in EXHIBIT G.

7.2 Conditions to Existing Shareholder’s Obligations at Closing. The obligation of the Existing Shareholder to sell the Purchased Shares at the Closing is subject to the fulfillment or waiver by the Existing Shareholder of the conditions as set forth in EXHIBIT H.

8.	INDEMNIFICATION

The Covenantors shall, jointly and severally, indemnify, defend and hold harmless the Purchaser and their respective Affiliates, together with the employees, officers, directors, managing directors and partners of the foregoing, from and against any and all Losses, directly or indirectly, arising out of, relating to, connected with or incidental to any breach of any representation, warranty, covenant or agreement made by any of the Covenantors in this Agreement. The Covenantors shall indemnify the Purchaser to guatantee the Purchaser shall not be liable for any Losses, liabilities, obligations, responsibilities or debts, whether contractual or otherwise, or any taxes or any other undertakings of any of the Group Companies incurred from or arose out of or as a result of events which happened before the Closing. In the event that the Purchaser and their respective Affiliates, together with the employees, officers, directors, managing directors and partners of the foregoing, incur any Losses, directly or indirectly, arising out of, relating to, connected with or incidental to any breach of any representation, warranty, covenant or agreement made by any of the Covenantors in this Agreement, the Purchaser is entitle to deduct the amount equivalent to such Losses from the unpaid Purchase Price. The agreements in this Section 8 shall survive any termination of this Agreement.

9.	CONFIDENTIALITY AND NON-DISCLOSURE

9.1 Confidentiality. From the Effective Date, each Party shall, and shall cause any Person who is Controlled by such Party to, keep confidential the terms, conditions, and existence of this Agreement and any related documentation, the identities of any of the Parties, and other information of a non-public nature received from any other Party or prepared by such Party exclusively in connection herewith or therewith (collectively, the “Confidential Information”) except as the Existing Shareholder and the Purchaser shall mutually agree otherwise; provided, that any Party hereto may disclose Confidential Information or permit the disclosure of Confidential Information (a) to the extent required by Applicable Law or the rules of any stock exchange; provided that such Party shall, where practicable and to the extent permitted by Applicable Law, provide the other Parties with prompt written notice of that fact and use all reasonable efforts to seek (with the cooperation and reasonable efforts of the other Parties) a protective order, confidential treatment or other appropriate remedy; and in such event, such Party shall furnish only that portion of the information which is legally required to be disclosed and shall exercise reasonable efforts to keep such information confidential to the extent reasonably requested by any such other Parties, (b) to its officers, directors, employees, and professional advisors on a need-to-know basis for the performance of its obligations in connection herewith so long as such Party advises each Person to whom any Confidential Information is so disclosed as to the confidential nature thereof, (c) in the case of the Purchaser, its auditors, counsel, directors, officers, employees, shareholders, partners or investors for the purposes of purchase reporting or inter-purchase reporting so long as the Purchaser advises each Person to whom any Confidential Information is so disclosed as to the confidential nature thereof, and (d) to its current or bona fide prospective Purchaser, investment bankers and any Person otherwise providing substantial debt or equity financing to such Party so long as the Party advises each Person to whom any Confidential Information is so disclosed as to the confidential nature thereof. For the avoidance of doubt, Confidential Information does not include information that (i) was already in the possession of the receiving Party before such disclosure by the disclosing Party, (ii) is or becomes available to the public other than as a result of disclosure by the receiving Party in violation of this Section 9, or (iii) is or becomes available to the receiving Party from a third party who has no confidentiality obligations to the disclosing Party.

9.2 Press Releases. The Parties shall not make any announcement regarding the consummation of the transaction contemplated by this Agreement and any related documentation in a press release, conference, advertisement, announcement, professional or trade publication, marketing materials or otherwise to the general public without the Existing Shareholder’s and the Purchaser’ prior written consent.

10.	TERMINATION

10.1 Termination of Agreement. Subject to other provisions herein, this Agreement and the transactions contemplated by this Agreement shall terminate upon the mutual consent in writing of the Existing Shareholder and the Purchaser. Within five (5) days after the termination of this Agreement, the Existing Shareholder shall return the Purchase Price having been paid by the Purchaser to the Purchaser in a lump sum.

10.2 Effect of Termination. If this Agreement is terminated pursuant to the provisions of Section 10.1 above, then this Agreement shall become void and have no further effect; provided, that no Party shall be relieved of any liability of any nature for a breach of this Agreement or for any misrepresentation hereunder, nor shall such termination be deemed to constitute a waiver of any available remedy (including specific performance if available) for any such breach or misrepresentation.

10.3 Survival. Notwithstanding any provision to the contrary, the provisions of Section 8 (Indemnification), Section 9 (Confidentiality and Non-Disclosure), this Section 10 (Termination), and Section 11.4 (Dispute Resolution) shall survive any expiration or termination of this Agreement.

11.	MISCELLANEOUS

11.1 Effectiveness; Binding Effect; Assignment. This Agreement shall take effect upon execution by the Parties. This Agreement shall be binding on and shall inure to the benefit of the successors, heirs, executors and administrators and assignees of the Parties hereto but shall not be capable of being assigned by any Covenantor without the prior consent in writing of the Purchaser. This Agreement and the rights and obligations herein may be assigned and transferred by the Purchaser to any Person who has executed a deed of adherence, agreeing to be bound by this Agreement, at the Purchaser’s option.

11.2 Expenses. All expenses and taxes incurred in connection with the transactions contemplated under this Agreement will be borne by the Party incurring such expenses and taxes. All costs and expenses in connection with the negotiation, preparation, execution of this Agreement and obtaining the required approval, including the costs and expenses for its own legal counsel, accountant, translator and other professionals, shall be borne by the Party incurring the same. If the Purchaser is held to have the obligations of withholding under the PRC laws, the Purchaser is entitled to be indemnified for all the taxes and expenses having been paid by the Purchaser.

11.3 Governing Law. This Agreement shall be governed by and construed in all respects in accordance with the laws of Hong Kong.

11.4 Dispute Resolution.

(a) Any dispute, controversy or claim (each, a “Dispute”) arising out of or relating to this Agreement or the interpretation, breach, termination or validity hereof, shall be resolved at the first instance through consultation between the Parties to such Dispute. Such consultation shall begin immediately after any Party has delivered written notice to any Party to the Dispute requesting such consultation.

(b) If the Dispute is not resolved within fifteen (15) days following the date on which such notice is given, the Dispute shall be submitted to arbitration upon the request of any Party to the Dispute with notice to each other Party to the Dispute (the “Arbitration Notice”).

(c) The arbitration shall be conducted in Hong Kong under the auspices of the Hong Kong International Arbitration Centre (the “Centre”). There shall be three (3) arbitrators. The Purchaser shall choose one (1) arbitrator, the Covenantors shall collectively choose one (1) arbitrator and the two (2) arbitrators shall jointly select the third arbitrator who shall serve as the chairman of the arbitration tribunal. If any of the members of the arbitral tribunal have not been appointed within thirty (30) days after the Arbitration Notice is given, the relevant appointment shall be made by the Secretary General of the Centre.

(d) The arbitration proceedings shall be conducted in English. The arbitration tribunal shall apply the Arbitration Rules of the United Nations Commission on International Trade Law, as administered by the Centre at the time of the arbitration. However, if such rules are in conflict with the provisions of this Section 11.4, including the provisions concerning the appointment of arbitrators, the provisions of this Section 11.4 shall prevail.

(e) The arbitrators shall decide any Dispute submitted by the Parties strictly in accordance with the substantive law of Hong Kong; provided that when the published laws of Hong Kong do not cover a certain matter, international legal principles and practices shall apply.

(f) Each Party to the arbitration shall cooperate with the other Parties to the arbitration in making full disclosure of and providing complete access to all information and documents requested by such other Party in connection with such arbitration proceedings, subject only to any confidentiality obligations binding on such Party.

(g) The costs of arbitration shall be borne by the losing Party, unless otherwise determined by the arbitration tribunal.

(h) When any Dispute occurs and when any Dispute is under arbitration, except for the matters in dispute, the Parties shall continue to fulfill their respective obligations and shall be entitled to exercise their rights under this Agreement.

(i) The award of the arbitration tribunal shall be final and binding upon the Parties, and the prevailing Party may apply to a court of competent jurisdiction for enforcement of such award.

(j) Any Party shall be entitled to seek preliminary injunctive relief from any court of competent jurisdiction pending the constitution of the arbitral tribunal.

(k) During the course of the arbitration tribunal’s adjudication of the Dispute, this Agreement shall continue to be performed except with respect to the part in dispute and under adjudication.

11.5 Entire Agreement. This Agreement and any transaction agreement the execution of which is contemplated hereunder and thereunder and the schedules and exhibits hereto and thereto constitute the entire understanding and agreement between the Parties with respect to the subject matter hereof and thereof and supersede all prior written or oral understandings or agreements with respect to the subject matter hereof and thereof.

11.6 Notices. Except as may be otherwise provided herein, all notices, requests, waivers and other communications made pursuant to this Agreement shall be in writing and shall be conclusively deemed to have been duly given (a) when hand delivered to the other Party, upon delivery; (b) when sent by facsimile at the number set forth on EXHIBIT B hereto, upon receipt of confirmation of error-free transmission; (c) five (5) Business Days after deposit in the mail as air mail or certified mail, receipt requested, postage prepaid and addressed to the other Parties as set forth on EXHIBIT B hereto; or (d) three (3) Business Days after deposit with an overnight delivery service, postage prepaid, addressed to the other Parties as set forth on EXHIBIT B hereto with next Business Day delivery guaranteed, provided that the sending Party receives a confirmation of delivery from the delivery service provider.

Each Party making a communication hereunder by facsimile shall promptly confirm by telephone to the Party to whom such communication was addressed each communication made by it by facsimile pursuant hereto but the absence of such confirmation shall not affect the validity of any such communication. A Party may change or supplement the addresses given in EXHIBIT B, or designate additional addresses, for purposes of this Section 11.6 by giving, the other Parties written notice of the new address in the manner set forth above.

11.7 Amendments and Waivers. Any term of this Agreement may be amended only with the written consent of the Existing Shareholder and the Purchaser. Any amendment or waiver effected in accordance with this Section 11.7 shall be binding upon all Parties hereto, and their respective permitted assigns.

11.8 Delays or Omissions. No delay or omission in exercising any right, power or remedy accruing to any Party hereto, upon any breach or default of any other Party under this Agreement, shall impair any such right, power or remedy of such Party nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of any similar breach or default thereafter occurring; nor shall any waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any Party of any breach or default under this Agreement or any waiver of any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement, or by law or otherwise afforded to any Party shall be cumulative and not alternative.

11.9 Severability. If any provision of this Agreement is found to be invalid or unenforceable, then such provision shall be construed, to the extent feasible, so as to render the provision enforceable and to provide for the consummation of the transactions contemplated hereby on substantially the same terms as originally set forth herein, and if no feasible interpretation would save such provision, it shall be severed from the remainder of this Agreement, which shall remain in full force and effect unless the severed provision is essential to the rights or benefits intended by the Parties. In such event, the Parties shall use best efforts to negotiate, in good faith, a substitute, valid and enforceable provision or agreement which most nearly effects the Parties’ intent in entering into this Agreement.

11.10 Survival of Representations and Warranties. The representations and warranties of the Covenantors as set forth in EXHIBIT D shall be deemed being made as of the Effective Date and the Closing Date, and shall remain true, correct and effective after the Closing Date with respect to the facts and conditions existing as of the Effective Date and the Closing Date.

11.11 Language. This Agreement has been executed in English and Chinese counterparts and the two language texts shall have equal validity and legal effect; provided that the English version shall prevail whenever there is any discrepancy between the English and the Chinese versions.

11.12 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument.

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