Undertakings by the Existing Shareholders. The Existing Shareholders hereby undertake that: 6.1 During the term of this Agreement: 6.1.1 Without prior written consent of the WFOE, they shall not sell, transfer, pledge or otherwise dispose of, or permit to create any encumbrances on (including direct or indirect sale, transfer, pledge or disposal in any manner of the equity interests in the Company or relevant rights and interests thereof (and if the Existing Shareholders indirectly hold equity interests in the Company via intermediary holding companies, they shall not sell, transfer, pledge in any manner or otherwise dispose of their equity interests and rights and interests thereof in such intermediary holding company, and shall ensure such intermediary holding company will not issue equity interests to any third party)) any lawful or beneficial rights and interests of their equity interests in the Company at any time from the execution date of this Agreement, other than the pledge created on the equity interests in the Company under the Equity Pledge Agreement (including any amendment, supplement or restatement thereto from time to time) executed by and among relevant parties on the same date of this Agreement and the proxy rights created on the equity interests in the Company under the Shareholders’ Voting Rights Agreement (including any amendment, supplement or restatement thereto from time to time) executed by and among relevant parties on the same date of this Agreement; 6.1.2 Without prior written consent of the WFOE, they shall not, during the shareholders’ meeting of the Company, vote in favor of, support or execute any shareholders’ resolution to approve the sale, transfer, pledge or disposal in any manner of, or permit to create any encumbrances on, any lawful or beneficial rights and interests of any equity interests or assets, except those made to the WFOE or its designated entity or individual; 6.1.3 Without prior written consent of the WFOE, they shall not in any manner agree, support or approve merger or consolidation of the Company with any other entity, merger or acquisition of the Company by any other entity, or investment by the Company in any entity, or split-up of the Company, change in the registered capital or the form of the Company; 6.1.4 At the request of the WFOE, they shall immediately inform the WFOE of any actual or potential litigation, arbitration or administrative proceedings regarding their equity interests; 6.1.5 Prior to the transfer of all Option Equity Interests to the WFOE, they shall execute all necessary or proper documents, take all necessary or proper actions, raise all necessary or proper claims of right, or raise all necessary or proper claims against claims of compensation so as to maintain the ownership of their equity interests; 6.1.6 At the request of the WFOE, they shall appoint or engage the persons designated by the WFOE as directors and senior management of the Company; 6.1.7 Without prior written consent of the WFOE, they shall not and shall not cause the management of the Company to dispose of any material Company Assets (other than that incurred in the ordinary course of business), or create any security interest or other third party rights on the material assets; 6.1.8 Without prior written consent of the WFOE, they shall not and shall not cause the management of the Company to terminate any Material Agreements entered into by the Company or enter into any other agreements in conflict with such existing Material Agreements; 6.1.9 Without prior written consent of the WFOE, they shall not appoint or remove any directors, supervisors or other management members of the Company who shall be appointed and removed by the Existing Shareholders; 6.1.10 Without prior written consent of the WFOE, they shall not cause the Company to declare distributions or actually effect distributions of any distributable profits, bonuses or dividends; 6.1.11 They shall ensure that the Company will maintain its valid existence and will not be terminated, liquidated or dissolved without prior written consent of the WFOE; 6.1.12 Without prior written consent of the WFOE, they shall not cause or agree that the Company makes amendments to its articles of association; 6.1.13 Without prior written consent of the WFOE, they shall not cause or agree that the Company materially changes its business scope or terminates or suspends any current business; 6.1.14 Without prior written consent of the WFOE, they shall ensure that the Company will not lend or borrow money (other than that required in the ordinary course of business), provide guarantee or any other form of security, or assume any substantial obligations beyond its ordinary course of business; 6.1.15 Without prior written consent of the WFOE, they shall not cause or agree that the Company conducts any related party transaction with its direct or indirect shareholders, directors, supervisors, management or their respective related parties; 6.1.16 Without prior written consent of the WFOE, they shall not conduct any action or non-action that will cause a conflict of interest between them and the Company or the WFOE; 6.1.17 Without prior written consent of the WFOE, they shall not conduct any action or non-action which is likely to impair the assets or goodwill of the Company or affect the validity of the Operation Permits of the Company; 6.1.18 They shall timely inform the WFOE of any circumstances to their knowledge which are likely to have a material adverse effect on the existence, business operation, financial conditions, assets or goodwill of the Company and shall timely take all measures acknowledged by the WFOE to eliminate such adverse circumstances or take effective remedies for such adverse circumstances; 6.1.19 Without prior written consent of the WFOE, they shall not cause or agree that the Company makes any material amendment to its accounting policy or changes its accountants; 6.1.20 They shall strictly comply with all the provisions in this Agreement and other agreements jointly or separately executed by relevant parties, solidly perform all obligations under such agreements, and shall not conduct any action or non-action that will sufficiently affect the validity and enforceability of such agreements. For the purpose of this Section 6.1, “Company” shall refer to the Company and all its subsidiaries (unless otherwise required by the context). 6.2 Upon the issuance of an Exercise Notice (subject to the circumstances under which the WFOE exercises its Equity Transfer Option or Asset Purchase Option) by the WFOE: 6.2.1 The Existing Shareholders shall immediately take all necessary actions so as to (i) cause the Existing Shareholders to transfer all Target Equity Interests to the WFOE and/or other entity or individual designated by it at the Transfer Price and to waive any of their rights of first refusal (if any); or (ii) approve the transfer by the Company of all Transferrable Assets to the WFOE and/or other entity or individual designated by it at the Transfer Price; 6.2.2 The Existing Shareholders shall (i) immediately execute equity transfer agreements with the WFOE and/or other entity or individual designated by it whereby they shall transfer all the Target Equity Interests to the WFOE and/or other entity or individual designated by it at the Transfer Price, and shall, in accordance with the request of the WFOE and the requirements of laws and regulations, provide the WFOE with necessary support (including causing the Company to hold a shareholders’ meeting to adopt a shareholders’ meeting resolution on such equity transfer and to provide and execute all relevant legal documents, to perform all governmental approval and registration formalities and assume all relevant obligations) so that the WFOE and/or other entity or individual designated by it can acquire all Target Equity Interests free from any legal defects and any security interest, third party restrictions created by the Existing Shareholders or any other restrictions, and the Existing Shareholders shall cooperate in and cause the completion of relevant registration with the industry and commerce administration and the update of shareholders’ register within thirty (30) days after the issuance of the Exercise Notice by the WFOE; or (ii) cause the Company to execute asset transfer agreements with the WFOE and/or other entity or individual designated by it whereby the Company shall transfer all the Transferrable Assets to the WFOE and/or other entity or individual designated by it at the Transfer Price, and shall, in accordance with the request of the WFOE and the requirements of laws and regulations, cause the shareholders to provide the WFOE with necessary support (including providing and executing all relevant legal documents, performing all governmental approval and registration formalities and assuming all relevant obligations) so that the WFOE and/or other entity or individual designated by it can acquire all the Transferrable Assets free from any legal defects and any security interest, third party restrictions or any other restrictions on the Company Assets. 6.3 If the aggregate Transfer Price received by any of the Existing Shareholders in respect of his transferred equity interests exceeds his capital contributions to the Company, or if any of the Existing Shareholders receives profit distributions, dividends or bonuses in any form from the Company, such Existing Shareholder agrees to compensate the WFOE with the full amount of the Transfer Price obtained from such transferred equity interests and any received profit distributions, dividends or bonuses. Otherwise the Existing Shareholders shall compensate the WFOE and/or other entity or individual then designated by it for the losses thereby incurred.
Appears in 6 contracts
Samples: Exclusive Purchase Right Agreement (OneSmart International Education Group LTD), Exclusive Purchase Right Agreement (OneSmart International Education Group LTD), Exclusive Purchase Right Agreement (OneSmart International Education Group LTD)
Undertakings by the Existing Shareholders. The Existing Shareholders hereby undertake that:
6.1 During the term of this Agreement:
6.1.1 (a) Without prior written consent of the WFOE, they shall will not selladd, transfer, pledge revise or otherwise dispose ofamend the articles of association of the Domestic Company in any form, or permit to create any encumbrances on (including direct increase or indirect saledecrease its paid-in capital, transfer, pledge or disposal change its registered capital structure in any manner of the equity interests in the Company or relevant rights and interests thereof (and if the Existing Shareholders indirectly hold equity interests in the Company via intermediary holding companies, they shall not sell, transfer, pledge in any manner or otherwise dispose of their equity interests and rights and interests thereof in such intermediary holding company, and shall ensure such intermediary holding company will not issue equity interests to any third party)) any lawful or beneficial rights and interests of their equity interests in the Company at any time from the execution date of this Agreement, other than the pledge created on the equity interests in the Company under the Equity Pledge Agreement (including any amendment, supplement or restatement thereto from time to time) executed by and among relevant parties on the same date of this Agreement and the proxy rights created on the equity interests in the Company under the Shareholders’ Voting Rights Agreement (including any amendment, supplement or restatement thereto from time to time) executed by and among relevant parties on the same date of this Agreementway;
6.1.2 (b) Without prior written consent of the WFOE, they shall notwill not sell, during transfer, mortgage or otherwise dispose any ownership or beneficial interest in any equity, or allow the creation of any other security interests on the foregoing, at any time from the date hereof, except for pledge created on equity of the Domestic Company under the Equity Pledge Agreement;
(c) Procure the shareholders’ meeting and/or directors (or executive director) of the Companycompany not to approve, vote in favor ofwithout prior written consent of the WFOE, support or execute any shareholders’ resolution to approve the sale, transfer, pledge or otherwise disposal of the lawful or beneficiary interests in any manner ofequity, or permit to create nor allow any encumbrances on, any lawful or beneficial rights and security interests of any equity interests or assetscreated thereon, except those made to the WFOE or its any person designated entity or individualby the WFOE;
6.1.3 (d) Without prior written consent of the WFOE, they shall will not approve that the Domestic Company merge or consolidate with any person, or acquire or invest in any manner agreeperson;
(e) They will inform the WFOE immediately of any pending or threatened lawsuits, support arbitration or approve merger or consolidation administrative proceedings relating to the equity they owned;
(f) They will cause the shareholders’ meeting of the Domestic Company with any other entity, merger or acquisition to vote for and approve the transfer of the Company by any other entityTarget Equity under this Agreement;
(g) In order to maintain their ownership over the Target Equity, they will sign all necessary or appropriate documents, proactively take all necessary or appropriate actions, and/or bring forward all necessary or appropriate claims, or investment by the Company in any entity, or split-up of the Company, change in the registered capital or the form of the Companymake all necessary and appropriate defenses against all claims;
6.1.4 (h) At the request of the WFOE, they shall immediately inform the WFOE of will appoint any actual person designated or potential litigation, arbitration or administrative proceedings regarding their equity interests;
6.1.5 Prior to the transfer of all Option Equity Interests to the WFOE, they shall execute all necessary or proper documents, take all necessary or proper actions, raise all necessary or proper claims of right, or raise all necessary or proper claims against claims of compensation so as to maintain the ownership of their equity interests;
6.1.6 At the request of the WFOE, they shall appoint or engage the persons designated recognized by the WFOE as directors the director and the senior management executive of the Domestic Company;
6.1.7 (i) Without prior written consent of the WFOE, they shall it will not and shall not dispose or cause the management of the Domestic Company to dispose of any material Company Assets corporate asset (other than that incurred except in the ordinary normal course of business), ) or create any security interest or other third party rights on the right over any material assetsasset;
6.1.8 (j) Without prior written consent of the WFOE, they shall it will not and shall not terminate or cause the management of the Domestic Company to terminate any Material Agreements entered into material agreement signed by the Company Domestic Company, or enter into sign any other agreements agreement in conflict with such the existing Material Agreementsmaterial agreements;
6.1.9 (k) Without prior written consent of the WFOE, they shall not it will neither appoint or remove any directorsdirector, supervisors supervisor of the Domestic Company or other management members executives of the Company who other company that shall be appointed and or removed by the Existing Shareholders, nor hire any other employee or service provider with a compensation above RMB500,000;
6.1.10 (l) Without prior written consent of the WFOE, they shall it will not cause the Domestic Company to declare distributions distribution or actually effect distributions of distribute any distributable profitsallocable profit, bonuses dividend or dividends;
6.1.11 They bonus, and should they obtain any profit, dividend or bonus or liquidated income from the Domestic Company, they shall ensure that subject to the Company will maintain its valid existence and will not be terminated, liquidated PRC laws timely grant the same to the WFOE or dissolved without prior written consent of any person designated by the WFOE;
6.1.12 Without prior written consent (m) At the request of the WFOEWFOE from time to time, they shall not cause will transfer their equity to the WFOE or agree that the Company makes amendments to its articles Designee unconditionally and immediately, and waive the right of associationfirst refusal towards such transfer of equity by other Existing Shareholder;
6.1.13 Without prior written consent of the WFOE, they shall not cause or agree that the Company materially changes its business scope or terminates or suspends any current business;
6.1.14 Without prior written consent of the WFOE, they shall ensure that the Company (n) They will not lend or borrow money (other than that required in the ordinary course of business), provide guarantee or any other form of security, or assume any substantial obligations beyond its ordinary course of business;
6.1.15 Without prior written consent of the WFOE, they shall not cause or agree that the Company conducts any related party transaction with its direct or indirect shareholders, directors, supervisors, management or their respective related parties;
6.1.16 Without prior written consent of the WFOE, they shall not conduct any action or non-action that will cause a conflict of interest between them and the Company or the WFOE;
6.1.17 Without prior written consent of the WFOE, they shall not conduct any action or non-action which is likely to impair the assets or goodwill of the Company or affect the validity of the Operation Permits of the Company;
6.1.18 They shall timely inform the WFOE of any circumstances to their knowledge which are likely to have a material adverse effect on the existence, business operation, financial conditions, assets or goodwill of the Company and shall timely take all measures acknowledged by the WFOE to eliminate such adverse circumstances or take effective remedies for such adverse circumstances;
6.1.19 Without prior written consent of the WFOE, they shall not cause or agree that the Company makes any material amendment to its accounting policy or changes its accountants;
6.1.20 They shall strictly comply with all the provisions in of this Agreement and other agreements contracts which are jointly or separately executed individually signed by relevant partiesthe WFOE, solidly the Existing Shareholders and the Domestic Company, effectively perform all the obligations under such agreementsthereunder, and shall will not conduct commit any action act or non-action that omission which will sufficiently affect the validity and enforceability of such agreements. For the purpose of this Section 6.1contracts, “Company” shall refer to the Company and all its subsidiaries including without limitation, vote in a shareholder meeting under Article 2; and
(unless otherwise required by the context).
6.2 Upon the issuance of an Exercise Notice (subject to the circumstances under which the WFOE exercises its Equity Transfer Option or Asset Purchase Optiono) by the WFOE:
6.2.1 The Existing Shareholders shall immediately take all necessary actions so as irrevocably undertake to (i) cause the Existing Shareholders to transfer all Target Equity Interests to the WFOE and/or other entity or individual designated by it at the Transfer Price be jointly and to waive any of their rights of first refusal (if any); or (ii) approve the transfer by the Company of all Transferrable Assets to the WFOE and/or other entity or individual designated by it at the Transfer Price;
6.2.2 The Existing Shareholders shall (i) immediately execute equity transfer agreements with the WFOE and/or other entity or individual designated by it whereby they shall transfer all the Target Equity Interests to the WFOE and/or other entity or individual designated by it at the Transfer Price, and shall, in accordance with the request of the WFOE and the requirements of laws and regulations, provide the WFOE with necessary support (including causing the Company to hold a shareholders’ meeting to adopt a shareholders’ meeting resolution on such equity transfer and to provide and execute all relevant legal documents, to perform all governmental approval and registration formalities and assume all relevant obligations) so that the WFOE and/or other entity or individual designated by it can acquire all Target Equity Interests free from any legal defects and any security interest, third party restrictions created by the Existing Shareholders or any other restrictions, and the Existing Shareholders shall cooperate in and cause the completion of relevant registration with the industry and commerce administration and the update of shareholders’ register within thirty (30) days after the issuance of the Exercise Notice by the WFOE; or (ii) cause the Company to execute asset transfer agreements with the WFOE and/or other entity or individual designated by it whereby the Company shall transfer all the Transferrable Assets to the WFOE and/or other entity or individual designated by it at the Transfer Price, and shall, in accordance with the request of the WFOE and the requirements of laws and regulations, cause the shareholders to provide the WFOE with necessary support (including providing and executing all relevant legal documents, performing all governmental approval and registration formalities and assuming all relevant obligations) so that the WFOE and/or other entity or individual designated by it can acquire all the Transferrable Assets free from any legal defects and any security interest, third party restrictions or any other restrictions on the Company Assets.
6.3 If the aggregate Transfer Price received by any of the Existing Shareholders in respect of his transferred equity interests exceeds his capital contributions to the Company, or if any of the Existing Shareholders receives profit distributions, dividends or bonuses in any form from the Company, such Existing Shareholder agrees to compensate the WFOE with the full amount of the Transfer Price obtained from such transferred equity interests and any received profit distributions, dividends or bonuses. Otherwise the Existing Shareholders shall compensate the WFOE and/or other entity or individual then designated by it severally liable for the losses thereby incurredobligations hereunder.
Appears in 2 contracts
Samples: Exclusive Call Option Agreement (X Financial), Exclusive Call Option Agreement (X Financial)
Undertakings by the Existing Shareholders. The Each of the Existing Shareholders hereby undertake severally undertakes that:
6.1 During Within the valid term of this Agreement, without the WFOE’s prior written consent:
6.1.1 Without prior written consent 6.1.1. None of the WFOE, they Existing Shareholder shall not sell, transfer, pledge or otherwise dispose of, or permit to create any encumbrances on (including direct or indirect sale, transfer, pledge or disposal in any manner of the equity interests in the Company or relevant rights and interests thereof (and if the Existing Shareholders indirectly hold equity interests in the Company via intermediary holding companies, they shall not sell, transfer, pledge in any manner transfer or otherwise dispose of their equity interests and any Option Equity or create any encumbrance or other third party rights and interests thereof in such intermediary holding company, and on any Option Equity;
6.1.2. he shall ensure such intermediary holding company will not issue equity interests to any third party)) any lawful increase or beneficial rights and interests of their equity interests in decrease the Company at any time from the execution date of this Agreement, other than the pledge created on the equity interests in Registered Capital or cause or permit the Company under the Equity Pledge Agreement (including any amendment, supplement to be divided or restatement thereto from time to time) executed by and among relevant parties on the same date of this Agreement and the proxy rights created on the equity interests in the Company under the Shareholders’ Voting Rights Agreement (including any amendment, supplement or restatement thereto from time to time) executed by and among relevant parties on the same date of this Agreement;
6.1.2 Without prior written consent of the WFOE, they shall not, during the shareholders’ meeting of the Company, vote in favor of, support or execute any shareholders’ resolution to approve the sale, transfer, pledge or disposal in any manner of, or permit to create any encumbrances on, any lawful or beneficial rights and interests of any equity interests or assets, except those made to the WFOE or its designated entity or individual;
6.1.3 Without prior written consent of the WFOE, they shall not in any manner agree, support or approve merger or consolidation of the Company merged with any other entity, merger or acquisition of the Company by any other entity, or investment by the Company in any entity, or split-up of the Company, change in the registered capital or the form of the Company;
6.1.4 At the request of the WFOE, they shall immediately inform the WFOE of any actual or potential litigation, arbitration or administrative proceedings regarding their equity interests;
6.1.5 Prior to the transfer of all Option Equity Interests to the WFOE, they shall execute all necessary or proper documents, take all necessary or proper actions, raise all necessary or proper claims of right, or raise all necessary or proper claims against claims of compensation so as to maintain the ownership of their equity interests;
6.1.6 At the request of the WFOE, they shall appoint or engage the persons designated by the WFOE as directors and senior management of the Company;
6.1.7 Without prior written consent of the WFOE, they 6.1.3. he shall not and shall not dispose of or cause the management of the Company to dispose of any material Company Assets Material Asset (other than that incurred in the ordinary course of business), or create any security interest encumbrance or other third party rights on the material assetsany Material Asset;
6.1.8 Without prior written consent of the WFOE, they 6.1.4. he shall not and shall not terminate or cause the management of the Company to terminate any Material Agreements Agreement entered into by the Company Company, or enter into any other agreements agreement in conflict with such the existing Material Agreements;
6.1.9 Without prior written consent 6.1.5. he shall not appoint, dismiss or replace any director or supervisor of the WFOE, they shall not appoint Company or remove any directors, supervisors or other management members personnel of the Company who shall be appointed and removed or dismissed by the Existing Shareholders;
6.1.10 Without prior written consent of the WFOE, they 6.1.6. he shall not cause the Company to declare distributions the distribution of or actually effect distributions of in practice release any distributable profitsprofit, bonuses dividend, share profit or dividendsshare interest;
6.1.11 They 6.1.7. he shall ensure that the Company will maintain its valid existence validly exists and will is not be terminated, liquidated or dissolved without prior written consent dissolved;
6.1.8. he shall not amend the articles of association of the WFOECompany;
6.1.12 Without prior written consent of the WFOE, they shall not cause or agree that the Company makes amendments to its articles of association;
6.1.13 Without prior written consent of the WFOE, they shall not cause or agree that the Company materially changes its business scope or terminates or suspends any current business;
6.1.14 Without prior written consent of the WFOE, they 6.1.9. he shall ensure that the Company will not lend or borrow money any money, or provide any guaranty or other form of security, or bear any substantial obligations other than in the ordinary course of business; and
6.1.10. it shall not cause the Company or the management of the Company to approve any of the following acts of any of the Company’s subsidiaries or affiliates (collectively, the “Subsidiaries”):
(a) increase or decrease any Subsidiary’s registered capital or cause or permit any Subsidiary to be divided or merged with any other entity;
(b) dispose of or cause the management of the Subsidiaries to dispose of any Material Asset of any Subsidiary (other than that required in the ordinary course of business), provide guarantee or create any encumbrance or other third party rights on such assets;
(c) terminate or cause the management of the Subsidiaries to terminate any Material Agreement entered into by any Subsidiary, or enter into any other agreement in conflict with the existing Material Agreements;
(d) appoint, dismiss, or replace any director or supervisor of any Subsidiary or any other management personnel of such Subsidiary who shall be appointed or dismissed by the Company;
(e) terminate, liquidate or dissolve any Subsidiary or act in any way that damages or is likely to damage the valid existence of any Subsidiary;
(f) amend the articles of association of any Subsidiary; and
(g) lend or borrow any money, or provide any guaranty or other form of security, or assume bear any substantial obligations beyond its other than in the ordinary course of business;.
6.1.15 Without prior written consent 6.2 Within the valid term of this Agreement, he shall use his best endeavor to develop the WFOE, they shall not cause or agree that the Company conducts any related party transaction with its direct or indirect shareholders, directors, supervisors, management or their respective related parties;
6.1.16 Without prior written consent of the WFOE, they shall not conduct any action or non-action that will cause a conflict of interest between them and the Company or the WFOE;
6.1.17 Without prior written consent of the WFOE, they shall not conduct any action or non-action which is likely to impair the assets or goodwill business of the Company and ensure that the Company’s operations are legal and in compliance with the regulations, and he will not engage in any act or omission which may damage the Company’s (including the Subsidiaries’) assets and goodwill or affect the validity of the Operation Business Permits of the Company;.
6.1.18 They 6.3 Within the valid term of this Agreement, he shall timely inform notify the WFOE of any circumstances to their knowledge which are likely to that may have a material adverse effect on the existence, business operationoperations, financial conditions, assets or goodwill of the Company (including the Subsidiaries) and shall timely take all the measures acknowledged approved by the WFOE to eliminate remove such adverse circumstances or take effective remedies for such adverse circumstances;remedial measures with respect thereto.
6.1.19 Without prior written consent of 6.4 Once the WFOEWFOE gives the Exercise Notice,
6.4.1. he shall promptly convene a shareholders’ meeting, they shall not cause pass shareholders’ resolutions and take all other necessary actions to approve any Existing Shareholder or agree that the Company makes any material amendment to its accounting policy or changes its accountants;
6.1.20 They shall strictly comply with all the provisions in this Agreement and other agreements jointly or separately executed by relevant parties, solidly perform all obligations under such agreements, and shall not conduct any action or non-action that will sufficiently affect the validity and enforceability of such agreements. For the purpose of this Section 6.1, “Company” shall refer to the Company and all its subsidiaries (unless otherwise required by the context).
6.2 Upon the issuance of an Exercise Notice (subject to the circumstances under which the WFOE exercises its Equity Transfer Option or Asset Purchase Option) by the WFOE:
6.2.1 The Existing Shareholders shall immediately take all necessary actions so as to (i) cause the Existing Shareholders to transfer all Target the Transferred Equity Interests or the Transferred Assets at the Transfer Price to the WFOE and/or any other entity or individual designated by it at the Transfer Price WFOE, and to waive any of their rights of first refusal preemptive right to purchase enjoyed by him (if any); or (ii) approve the ;
6.4.2. he shall promptly enter into an equity transfer by the Company of all Transferrable Assets to agreement with the WFOE and/or any other entity or individual designated by it the WFOE to transfer all the Transferred Equity at the Transfer Price;
6.2.2 The Existing Shareholders shall (i) immediately execute equity transfer agreements with Price to the WFOE and/or any other entity or individual designated by it whereby they shall transfer all the Target Equity Interests WFOE and provide necessary support to the WFOE and/or other entity or individual designated by it at the Transfer Price, and shall, in accordance with the request of the WFOE and the requirements of laws and regulations, provide the WFOE with necessary support (including causing the Company to hold a shareholders’ meeting to adopt a shareholders’ meeting resolution on such equity transfer provision and to provide and execute all relevant legal documents, to perform all governmental approval and registration formalities and assume all relevant obligations) so that the WFOE and/or other entity or individual designated by it can acquire all Target Equity Interests free from any legal defects and any security interest, third party restrictions created by the Existing Shareholders or any other restrictions, and the Existing Shareholders shall cooperate in and cause the completion execution of relevant registration with the industry and commerce administration and the update of shareholders’ register within thirty (30) days after the issuance of the Exercise Notice by the WFOE; or (ii) cause the Company to execute asset transfer agreements with the WFOE and/or other entity or individual designated by it whereby the Company shall transfer all the Transferrable Assets to the WFOE and/or other entity or individual designated by it at the Transfer Price, and shall, in accordance with the request of the WFOE and the requirements of laws and regulations, cause the shareholders to provide the WFOE with necessary support (including providing and executing all relevant legal documents, performing all governmental government approval and registration formalities procedures and assuming all relevant obligations) in accordance with the WFOE’s requirements and the PRC Law so that the WFOE and/or any other entity or individual designated by it can the WFOE may acquire all the Transferrable Assets Transferred Equity, free from and clear of any legal defects and defect or any security interestencumbrance, third party restrictions restriction or any other restrictions on the Company AssetsTransferred Equity.
6.3 6.4.3. If the aggregate total Transfer Price received obtained by any of the Existing Shareholders in Shareholder with respect of his transferred equity interests exceeds his capital contributions to the CompanyTransferred Equity held by him is higher than the capital contribution corresponded with such Transferred Equity in the Company Registered Capital, or if any of the Existing Shareholders he receives profit distributions, dividends or bonuses in any form of profit distribution, share profit, share interest or dividend from the Company, then such Existing Shareholder agrees to, to compensate the extent not in violation of the PRC Law, waive the premium earnings and any profit distribution, share profit, share interest or dividend (after the deduction of relevant taxes) and the WFOE with the full amount of the Transfer Price obtained from is entitled thereto. Otherwise, such transferred equity interests and any received profit distributions, dividends or bonuses. Otherwise the Existing Shareholders Shareholder shall compensate the WFOE and/or any other entity or individual then designated by it the WFOE for the losses thereby incurredany loss incurred as a result thereof.
Appears in 2 contracts
Samples: Exclusive Call Option Agreement (Jupai Holdings LTD), Exclusive Call Option Agreement (Jupai Holdings LTD)
Undertakings by the Existing Shareholders. The Existing Shareholders hereby undertake that:
6.1 During the term of this Agreement:
6.1.1 (a) Without prior written consent of the WFOE, they shall will not selladd, transfer, pledge revise or otherwise dispose ofamend the articles of association of the Domestic Company in any form, or permit to create any encumbrances on (including direct increase or indirect saledecrease its paid-in capital, transfer, pledge or disposal change its registered capital structure in any manner of the equity interests in the Company or relevant rights and interests thereof (and if the Existing Shareholders indirectly hold equity interests in the Company via intermediary holding companies, they shall not sell, transfer, pledge in any manner or otherwise dispose of their equity interests and rights and interests thereof in such intermediary holding company, and shall ensure such intermediary holding company will not issue equity interests to any third party)) any lawful or beneficial rights and interests of their equity interests in the Company at any time from the execution date of this Agreement, other than the pledge created on the equity interests in the Company under the Equity Pledge Agreement (including any amendment, supplement or restatement thereto from time to time) executed by and among relevant parties on the same date of this Agreement and the proxy rights created on the equity interests in the Company under the Shareholders’ Voting Rights Agreement (including any amendment, supplement or restatement thereto from time to time) executed by and among relevant parties on the same date of this Agreementway;
6.1.2 (b) Without prior written consent of the WFOE, they shall notwill not sell, during transfer, mortgage or otherwise dispose any ownership or beneficial interest in any equity, or allow the creation of any other security interests on the foregoing, at any time from the date hereof, except for pledge created on equity of the Domestic Company under the Equity Pledge Agreement;
(c) Procure the shareholders’ meeting and/or directors (or executive director) of the Companycompany not to approve, vote in favor ofwithout prior written consent of the WFOE, support or execute any shareholders’ resolution to approve the sale, transfer, pledge or otherwise disposal of the lawful or beneficiary interests in any manner ofequity, or permit to create nor allow any encumbrances on, any lawful or beneficial rights and security interests of any equity interests or assetscreated thereon, except those made to the WFOE or its any person designated entity or individualby the WFOE;
6.1.3 (d) Without prior written consent of the WFOE, they shall will not approve that the Domestic Company merge or consolidate with any person, or acquire or invest in any manner agreeperson;
(e) They will inform the WFOE immediately of any pending or threatened lawsuits, support arbitration or approve merger or consolidation administrative proceedings relating to the equity they owned;
(f) They will cause the shareholders’ meeting of the Domestic Company with any other entity, merger or acquisition to vote for and approve the transfer of the Company by any other entityTarget Equity under this Agreement;
(g) In order to maintain their ownership over the Target Equity, they will sign all necessary or appropriate documents, proactively take all necessary or appropriate actions, and/or bring forward all necessary or appropriate claims, or investment by the Company in any entity, or split-up of the Company, change in the registered capital or the form of the Companymake all necessary and appropriate defenses against all claims;
6.1.4 (h) At the request of the WFOE, they shall immediately inform the WFOE of will appoint any actual person designated or potential litigation, arbitration or administrative proceedings regarding their equity interests;
6.1.5 Prior to the transfer of all Option Equity Interests to the WFOE, they shall execute all necessary or proper documents, take all necessary or proper actions, raise all necessary or proper claims of right, or raise all necessary or proper claims against claims of compensation so as to maintain the ownership of their equity interests;
6.1.6 At the request of the WFOE, they shall appoint or engage the persons designated recognized by the WFOE as directors and senior management the director of the Domestic Company;
6.1.7 (i) Without prior written consent of the WFOE, they shall it will not and shall not dispose or cause the management of the Domestic Company to dispose of any material Company Assets corporate asset (other than that incurred except in the ordinary normal course of business), ) or create any security interest or other third party rights on the right over any material assetsasset;
6.1.8 (j) Without prior written consent of the WFOE, they shall it will not and shall not terminate or cause the management of the Domestic Company to terminate any Material Agreements entered into material agreement signed by the Company Domestic Company, or enter into sign any other agreements agreement in conflict with such the existing Material Agreementsmaterial agreements;
6.1.9 (k) Without prior written consent of the WFOE, they shall not it will neither appoint or remove any directorsdirector, supervisors supervisor of the Domestic Company or other management members executives of the Company who other company that shall be appointed and or removed by the Existing Shareholders, nor hire any other employee or service provider with a compensation above RMB500,000;
6.1.10 (l) Without prior written consent of the WFOE, they shall it will not cause the Domestic Company to declare distributions distribution or actually effect distributions of distribute any distributable profitsallocable profit, bonuses dividend or dividends;
6.1.11 They bonus, and should they obtain any profit, dividend or bonus or liquidated income from the Domestic Company, they shall ensure that subject to the Company will maintain its valid existence and will not be terminated, liquidated PRC laws timely grant the same to the WFOE or dissolved without prior written consent of any person designated by the WFOE;
6.1.12 Without prior written consent (m) At the request of the WFOEWFOE from time to time, they shall not cause will transfer their equity to the WFOE or agree that the Company makes amendments to its articles Designee unconditionally and immediately, and waive the right of associationfirst refusal towards such transfer of equity by other Existing Shareholder;
6.1.13 Without prior written consent of the WFOE, they shall not cause or agree that the Company materially changes its business scope or terminates or suspends any current business;
6.1.14 Without prior written consent of the WFOE, they shall ensure that the Company (n) They will not lend or borrow money (other than that required in the ordinary course of business), provide guarantee or any other form of security, or assume any substantial obligations beyond its ordinary course of business;
6.1.15 Without prior written consent of the WFOE, they shall not cause or agree that the Company conducts any related party transaction with its direct or indirect shareholders, directors, supervisors, management or their respective related parties;
6.1.16 Without prior written consent of the WFOE, they shall not conduct any action or non-action that will cause a conflict of interest between them and the Company or the WFOE;
6.1.17 Without prior written consent of the WFOE, they shall not conduct any action or non-action which is likely to impair the assets or goodwill of the Company or affect the validity of the Operation Permits of the Company;
6.1.18 They shall timely inform the WFOE of any circumstances to their knowledge which are likely to have a material adverse effect on the existence, business operation, financial conditions, assets or goodwill of the Company and shall timely take all measures acknowledged by the WFOE to eliminate such adverse circumstances or take effective remedies for such adverse circumstances;
6.1.19 Without prior written consent of the WFOE, they shall not cause or agree that the Company makes any material amendment to its accounting policy or changes its accountants;
6.1.20 They shall strictly comply with all the provisions in of this Agreement and other agreements contracts which are jointly or separately executed individually signed by relevant partiesthe WFOE, solidly the Existing Shareholders and the Domestic Company, effectively perform all the obligations under such agreementsthereunder, and shall will not conduct commit any action act or non-action that omission which will sufficiently affect the validity and enforceability of such agreements. For the purpose of this Section 6.1contracts, “Company” shall refer to the Company and all its subsidiaries including without limitation, vote in a shareholder meeting under Article 2; and
(unless otherwise required by the context).
6.2 Upon the issuance of an Exercise Notice (subject to the circumstances under which the WFOE exercises its Equity Transfer Option or Asset Purchase Optiono) by the WFOE:
6.2.1 The Existing Shareholders shall immediately take all necessary actions so as irrevocably undertake to (i) cause the Existing Shareholders to transfer all Target Equity Interests to the WFOE and/or other entity or individual designated by it at the Transfer Price be jointly and to waive any of their rights of first refusal (if any); or (ii) approve the transfer by the Company of all Transferrable Assets to the WFOE and/or other entity or individual designated by it at the Transfer Price;
6.2.2 The Existing Shareholders shall (i) immediately execute equity transfer agreements with the WFOE and/or other entity or individual designated by it whereby they shall transfer all the Target Equity Interests to the WFOE and/or other entity or individual designated by it at the Transfer Price, and shall, in accordance with the request of the WFOE and the requirements of laws and regulations, provide the WFOE with necessary support (including causing the Company to hold a shareholders’ meeting to adopt a shareholders’ meeting resolution on such equity transfer and to provide and execute all relevant legal documents, to perform all governmental approval and registration formalities and assume all relevant obligations) so that the WFOE and/or other entity or individual designated by it can acquire all Target Equity Interests free from any legal defects and any security interest, third party restrictions created by the Existing Shareholders or any other restrictions, and the Existing Shareholders shall cooperate in and cause the completion of relevant registration with the industry and commerce administration and the update of shareholders’ register within thirty (30) days after the issuance of the Exercise Notice by the WFOE; or (ii) cause the Company to execute asset transfer agreements with the WFOE and/or other entity or individual designated by it whereby the Company shall transfer all the Transferrable Assets to the WFOE and/or other entity or individual designated by it at the Transfer Price, and shall, in accordance with the request of the WFOE and the requirements of laws and regulations, cause the shareholders to provide the WFOE with necessary support (including providing and executing all relevant legal documents, performing all governmental approval and registration formalities and assuming all relevant obligations) so that the WFOE and/or other entity or individual designated by it can acquire all the Transferrable Assets free from any legal defects and any security interest, third party restrictions or any other restrictions on the Company Assets.
6.3 If the aggregate Transfer Price received by any of the Existing Shareholders in respect of his transferred equity interests exceeds his capital contributions to the Company, or if any of the Existing Shareholders receives profit distributions, dividends or bonuses in any form from the Company, such Existing Shareholder agrees to compensate the WFOE with the full amount of the Transfer Price obtained from such transferred equity interests and any received profit distributions, dividends or bonuses. Otherwise the Existing Shareholders shall compensate the WFOE and/or other entity or individual then designated by it severally liable for the losses thereby incurredobligations hereunder.
Appears in 2 contracts
Samples: Exclusive Call Option Agreement (X Financial), Exclusive Call Option Agreement (X Financial)
Undertakings by the Existing Shareholders. The Existing Shareholders hereby undertake that:
6.1 During the term of this Agreement:
6.1.1 (a) Without prior written consent of the WFOE, they shall will not sellsupplement, transfer, pledge revise or otherwise dispose ofamend the articles of association of the Domestic Company in any form, or permit to create any encumbrances on (including direct increase or indirect saledecrease its registered capital, transfer, pledge or disposal change its registered capital structure in any manner of the equity interests in the Company or relevant rights and interests thereof (and if the Existing Shareholders indirectly hold equity interests in the Company via intermediary holding companies, they shall not sell, transfer, pledge in any manner or otherwise dispose of their equity interests and rights and interests thereof in such intermediary holding company, and shall ensure such intermediary holding company will not issue equity interests to any third party)) any lawful or beneficial rights and interests of their equity interests in the Company at any time from the execution date of this Agreement, other than the pledge created on the equity interests in the Company under the Equity Pledge Agreement (including any amendment, supplement or restatement thereto from time to time) executed by and among relevant parties on the same date of this Agreement and the proxy rights created on the equity interests in the Company under the Shareholders’ Voting Rights Agreement (including any amendment, supplement or restatement thereto from time to time) executed by and among relevant parties on the same date of this Agreementway;
6.1.2 (b) Without prior written consent of the WFOE, they shall not, during the shareholders’ meeting of the Company, vote in favor of, support or execute any shareholders’ resolution to approve the salewill not sell, transfer, pledge mortgage, hold in nominal form, or disposal otherwise dispose any ownership, voting right, dividend or beneficial interest in any manner ofequity, or permit to create any encumbrances on, any lawful or beneficial rights and interests allow the creation of any equity interests or assetsother Security Interests on the foregoing, at any time from the date hereof, except those made to for pledge created on equity of the WFOE or its designated entity or individualDomestic Company under the Equity Pledge Agreement;
6.1.3 (c) Without prior written consent of the WFOE, they shall will not approve that the Domestic Company merge or consolidate with any person, or acquire or invest in any manner agree, support or approve merger or consolidation of the Company with any other entity, merger or acquisition of the Company by any other entity, or investment by the Company in any entity, or split-up of the Company, change in the registered capital or the form of the Companyperson;
6.1.4 At the request of the WFOE, they shall immediately inform the WFOE of any actual or potential litigation, arbitration or administrative proceedings regarding their equity interests;
6.1.5 Prior to the transfer of all Option Equity Interests to the WFOE, they shall execute all necessary or proper documents, take all necessary or proper actions, raise all necessary or proper claims of right, or raise all necessary or proper claims against claims of compensation so as to maintain the ownership of their equity interests;
6.1.6 At the request of the WFOE, they shall appoint or engage the persons designated by the WFOE as directors and senior management of the Company;
6.1.7 (d) Without prior written consent of the WFOE, they shall will not and shall not cause liquidate or dissolve the management of the Company to dispose of any material Company Assets (other than that incurred in the ordinary course of business), or create any security interest or other third party rights on the material assetsDomestic Company;
6.1.8 (e) Without prior written consent of the WFOE, they shall will not and shall not cause procure the management shareholders’ meeting of the Domestic Company to terminate approve the resolution of equity interests and dividends distribution.
(f) They will inform the WFOE immediately of any Material Agreements entered into by pending or threatened lawsuits, arbitration or administrative proceedings relating to the equity they owned; they will procure the shareholders’ meeting of the Domestic Company or enter into any other agreements in conflict with such existing Material Agreementsto vote for and approve the transfer of the Target Equity under this Agreement;
6.1.9 Without prior written consent (g) In order to maintain their ownership over the Target Equity, they will sign all necessary or appropriate documents, proactively take all necessary or appropriate actions, and/or bring forward all necessary or appropriate claims, or make all necessary and appropriate defenses against all claims;
(h) At the request of the WFOE, they shall not will appoint any person designated or remove any directors, supervisors or other management members recognized by the WFOE as the director of the Company who shall be appointed Domestic Company;
(i) At the request of the WFOE from time to time, they will transfer their equity to the WFOE or the Designee unconditionally and removed immediately, and waive the right of first refusal towards such transfer of equity by the other Existing Shareholders;
6.1.10 Without prior written consent of the WFOE, they shall not cause the Company to declare distributions or actually effect distributions of any distributable profits, bonuses or dividends;
6.1.11 (j) They shall ensure that the Company will maintain its valid existence and will not be terminated, liquidated or dissolved without prior written consent of the WFOE;
6.1.12 Without prior written consent of the WFOE, they shall not cause or agree that the Company makes amendments to its articles of association;
6.1.13 Without prior written consent of the WFOE, they shall not cause or agree that the Company materially changes its business scope or terminates or suspends any current business;
6.1.14 Without prior written consent of the WFOE, they shall ensure that the Company will not lend or borrow money (other than that required in the ordinary course of business), provide guarantee or any other form of security, or assume any substantial obligations beyond its ordinary course of business;
6.1.15 Without prior written consent of the WFOE, they shall not cause or agree that the Company conducts any related party transaction with its direct or indirect shareholders, directors, supervisors, management or their respective related parties;
6.1.16 Without prior written consent of the WFOE, they shall not conduct any action or non-action that will cause a conflict of interest between them and the Company or the WFOE;
6.1.17 Without prior written consent of the WFOE, they shall not conduct any action or non-action which is likely to impair the assets or goodwill of the Company or affect the validity of the Operation Permits of the Company;
6.1.18 They shall timely inform the WFOE of any circumstances to their knowledge which are likely to have a material adverse effect on the existence, business operation, financial conditions, assets or goodwill of the Company and shall timely take all measures acknowledged by the WFOE to eliminate such adverse circumstances or take effective remedies for such adverse circumstances;
6.1.19 Without prior written consent of the WFOE, they shall not cause or agree that the Company makes any material amendment to its accounting policy or changes its accountants;
6.1.20 They shall strictly comply with all the provisions in of this Agreement and other agreements contracts which are jointly or separately executed individually signed by relevant partiesthe WFOE, solidly perform all the Existing Shareholders and the Domestic Company, effectively performing the obligations under such agreementsthereunder, and shall will not conduct commit any action act or non-action that omission which will sufficiently affect the validity and enforceability of such agreements. For the purpose of this Section 6.1, “Company” shall refer to the Company and all its subsidiaries contracts;
(unless otherwise required by the context).
6.2 Upon the issuance of an Exercise Notice (subject to the circumstances under which the WFOE exercises its Equity Transfer Option or Asset Purchase Optionk) by the WFOE:
6.2.1 The Existing Shareholders shall immediately take all necessary actions so as irrevocably undertake to (i) cause the Existing Shareholders to transfer all Target Equity Interests to the WFOE and/or other entity or individual designated by it at the Transfer Price be jointly and to waive any of their rights of first refusal (if any); or (ii) approve the transfer by the Company of all Transferrable Assets to the WFOE and/or other entity or individual designated by it at the Transfer Price;
6.2.2 The Existing Shareholders shall (i) immediately execute equity transfer agreements with the WFOE and/or other entity or individual designated by it whereby they shall transfer all the Target Equity Interests to the WFOE and/or other entity or individual designated by it at the Transfer Price, and shall, in accordance with the request of the WFOE and the requirements of laws and regulations, provide the WFOE with necessary support (including causing the Company to hold a shareholders’ meeting to adopt a shareholders’ meeting resolution on such equity transfer and to provide and execute all relevant legal documents, to perform all governmental approval and registration formalities and assume all relevant obligations) so that the WFOE and/or other entity or individual designated by it can acquire all Target Equity Interests free from any legal defects and any security interest, third party restrictions created by the Existing Shareholders or any other restrictions, and the Existing Shareholders shall cooperate in and cause the completion of relevant registration with the industry and commerce administration and the update of shareholders’ register within thirty (30) days after the issuance of the Exercise Notice by the WFOE; or (ii) cause the Company to execute asset transfer agreements with the WFOE and/or other entity or individual designated by it whereby the Company shall transfer all the Transferrable Assets to the WFOE and/or other entity or individual designated by it at the Transfer Price, and shall, in accordance with the request of the WFOE and the requirements of laws and regulations, cause the shareholders to provide the WFOE with necessary support (including providing and executing all relevant legal documents, performing all governmental approval and registration formalities and assuming all relevant obligations) so that the WFOE and/or other entity or individual designated by it can acquire all the Transferrable Assets free from any legal defects and any security interest, third party restrictions or any other restrictions on the Company Assets.
6.3 If the aggregate Transfer Price received by any of the Existing Shareholders in respect of his transferred equity interests exceeds his capital contributions to the Company, or if any of the Existing Shareholders receives profit distributions, dividends or bonuses in any form from the Company, such Existing Shareholder agrees to compensate the WFOE with the full amount of the Transfer Price obtained from such transferred equity interests and any received profit distributions, dividends or bonuses. Otherwise the Existing Shareholders shall compensate the WFOE and/or other entity or individual then designated by it severally liable for the losses thereby incurredobligations hereunder.
Appears in 1 contract
Undertakings by the Existing Shareholders. The Each of the Existing Shareholders hereby undertake severally undertakes that:
6.1 During Within the valid term of this Agreement, without the WFOE’s prior written consent:
6.1.1 Without prior written consent None of the WFOE, they Existing Shareholder shall not sell, transfer, pledge or otherwise dispose of, or permit to create any encumbrances on (including direct or indirect sale, transfer, pledge or disposal in any manner of the equity interests in the Company or relevant rights and interests thereof (and if the Existing Shareholders indirectly hold equity interests in the Company via intermediary holding companies, they shall not sell, transfer, pledge in any manner transfer or otherwise dispose of their equity interests and any Option Equity or create any encumbrance or other third party rights and interests thereof in such intermediary holding company, and shall ensure such intermediary holding company will not issue equity interests to on any third party)) any lawful or beneficial rights and interests of their equity interests in the Company at any time from the execution date of this Agreement, other than the pledge created on the equity interests in the Company under the Equity Pledge Agreement (including any amendment, supplement or restatement thereto from time to time) executed by and among relevant parties on the same date of this Agreement and the proxy rights created on the equity interests in the Company under the Shareholders’ Voting Rights Agreement (including any amendment, supplement or restatement thereto from time to time) executed by and among relevant parties on the same date of this AgreementOption Equity;
6.1.2 Without prior written consent of he shall not increase or decrease the WFOE, they shall not, during the shareholders’ meeting of the Company, vote in favor of, support Company Registered Capital or execute any shareholders’ resolution to approve the sale, transfer, pledge or disposal in any manner of, cause or permit to create any encumbrances on, any lawful or beneficial rights and interests of any equity interests or assets, except those made to the WFOE or its designated entity or individual;
6.1.3 Without prior written consent of the WFOE, they shall not in any manner agree, support or approve merger or consolidation of the Company to be divided or merged with any other entity, merger or acquisition of the Company by any other entity, or investment by the Company in any entity, or split-up of the Company, change in the registered capital or the form of the Company;
6.1.4 At the request of the WFOE, they shall immediately inform the WFOE of any actual or potential litigation, arbitration or administrative proceedings regarding their equity interests;
6.1.5 Prior to the transfer of all Option Equity Interests to the WFOE, they shall execute all necessary or proper documents, take all necessary or proper actions, raise all necessary or proper claims of right, or raise all necessary or proper claims against claims of compensation so as to maintain the ownership of their equity interests;
6.1.6 At the request of the WFOE, they shall appoint or engage the persons designated by the WFOE as directors and senior management of the Company;
6.1.7 Without prior written consent of the WFOE, they 6.1.3 he shall not and shall not dispose of or cause the management of the Company to dispose of any material Company Assets Material Asset (other than that incurred in the ordinary course of business), or create any security interest encumbrance or other third party rights on the material assetsany Material Asset;
6.1.8 Without prior written consent of the WFOE, they 6.1.4 he shall not and shall not terminate or cause the management of the Company to terminate any Material Agreements Agreement entered into by the Company Company, or enter into any other agreements agreement in conflict with such the existing Material Agreements;
6.1.9 Without prior written consent 6.1.5 he shall not appoint, dismiss or replace any director or supervisor of the WFOE, they shall not appoint Company or remove any directors, supervisors or other management members personnel of the Company who shall be appointed and removed or dismissed by the Existing Shareholders;
6.1.10 Without prior written consent of the WFOE, they 6.1.6 he shall not cause the Company to declare distributions the distribution of or actually effect distributions of in practice release any distributable profitsprofit, bonuses dividend, share profit or dividendsshare interest;
6.1.11 They 6.1.7 he shall ensure that the Company will maintain its valid existence validly exists and will is not be terminated, liquidated or dissolved without prior written consent dissolved; 8 / 18
6.1.8 he shall not amend the articles of association of the WFOECompany;
6.1.12 Without prior written consent of the WFOE, they shall not cause or agree that the Company makes amendments to its articles of association;
6.1.13 Without prior written consent of the WFOE, they shall not cause or agree that the Company materially changes its business scope or terminates or suspends any current business;
6.1.14 Without prior written consent of the WFOE, they 6.1.9 he shall ensure that the Company will not lend or borrow money any money, or provide any guaranty or other form of security, or bear any substantial obligations other than in the ordinary course of business; and
6.1.10 it shall not cause the Company or the management of the Company to approve any of the following acts of any of the Company’s subsidiaries or affiliates (collectively, the “Subsidiaries”):
(a) increase or decrease any Subsidiary’s registered capital or cause or permit any Subsidiary to be divided or merged with any other entity;
(b) dispose of or cause the management of the Subsidiaries to dispose of any Material Asset of any Subsidiary (other than that required in the ordinary course of business), provide guarantee or create any encumbrance or other third party rights on such assets;
(c) terminate or cause the management of the Subsidiaries to terminate any Material Agreement entered into by any Subsidiary, or enter into any other form of security, or assume any substantial obligations beyond its ordinary course of business;
6.1.15 Without prior written consent of the WFOE, they shall not cause or agree that the Company conducts any related party transaction with its direct or indirect shareholders, directors, supervisors, management or their respective related parties;
6.1.16 Without prior written consent of the WFOE, they shall not conduct any action or non-action that will cause a agreement in conflict of interest between them and the Company or the WFOE;
6.1.17 Without prior written consent of the WFOE, they shall not conduct any action or non-action which is likely to impair the assets or goodwill of the Company or affect the validity of the Operation Permits of the Company;
6.1.18 They shall timely inform the WFOE of any circumstances to their knowledge which are likely to have a material adverse effect on the existence, business operation, financial conditions, assets or goodwill of the Company and shall timely take all measures acknowledged by the WFOE to eliminate such adverse circumstances or take effective remedies for such adverse circumstances;
6.1.19 Without prior written consent of the WFOE, they shall not cause or agree that the Company makes any material amendment to its accounting policy or changes its accountants;
6.1.20 They shall strictly comply with all the provisions in this Agreement and other agreements jointly or separately executed by relevant parties, solidly perform all obligations under such agreements, and shall not conduct any action or non-action that will sufficiently affect the validity and enforceability of such agreements. For the purpose of this Section 6.1, “Company” shall refer to the Company and all its subsidiaries (unless otherwise required by the context).
6.2 Upon the issuance of an Exercise Notice (subject to the circumstances under which the WFOE exercises its Equity Transfer Option or Asset Purchase Option) by the WFOE:
6.2.1 The Existing Shareholders shall immediately take all necessary actions so as to (i) cause the Existing Shareholders to transfer all Target Equity Interests to the WFOE and/or other entity or individual designated by it at the Transfer Price and to waive any of their rights of first refusal (if any); or (ii) approve the transfer by the Company of all Transferrable Assets to the WFOE and/or other entity or individual designated by it at the Transfer Price;
6.2.2 The Existing Shareholders shall (i) immediately execute equity transfer agreements with the WFOE and/or other entity or individual designated by it whereby they shall transfer all the Target Equity Interests to the WFOE and/or other entity or individual designated by it at the Transfer Price, and shall, in accordance with the request of the WFOE and the requirements of laws and regulations, provide the WFOE with necessary support (including causing the Company to hold a shareholders’ meeting to adopt a shareholders’ meeting resolution on such equity transfer and to provide and execute all relevant legal documents, to perform all governmental approval and registration formalities and assume all relevant obligations) so that the WFOE and/or other entity or individual designated by it can acquire all Target Equity Interests free from any legal defects and any security interest, third party restrictions created by the Existing Shareholders or any other restrictions, and the Existing Shareholders shall cooperate in and cause the completion of relevant registration with the industry and commerce administration and the update of shareholders’ register within thirty (30) days after the issuance of the Exercise Notice by the WFOE; or (ii) cause the Company to execute asset transfer agreements with the WFOE and/or other entity or individual designated by it whereby the Company shall transfer all the Transferrable Assets to the WFOE and/or other entity or individual designated by it at the Transfer Price, and shall, in accordance with the request of the WFOE and the requirements of laws and regulations, cause the shareholders to provide the WFOE with necessary support (including providing and executing all relevant legal documents, performing all governmental approval and registration formalities and assuming all relevant obligations) so that the WFOE and/or other entity or individual designated by it can acquire all the Transferrable Assets free from any legal defects and any security interest, third party restrictions or any other restrictions on the Company Assets.
6.3 If the aggregate Transfer Price received by any of the Existing Shareholders in respect of his transferred equity interests exceeds his capital contributions to the Company, or if any of the Existing Shareholders receives profit distributions, dividends or bonuses in any form from the Company, such Existing Shareholder agrees to compensate the WFOE with the full amount of the Transfer Price obtained from such transferred equity interests and any received profit distributions, dividends or bonuses. Otherwise the Existing Shareholders shall compensate the WFOE and/or other entity or individual then designated by it for the losses thereby incurred.existing Material Agreements;
Appears in 1 contract
Samples: Exclusive Call Option Agreement (Jupai Holdings LTD)
Undertakings by the Existing Shareholders. The Each of the Existing Shareholders hereby undertake severally undertakes that:
6.1 During Within the valid term of this Agreement, without the WFOE’s prior written consent:
6.1.1 Without prior written consent 6.1.1. None of the WFOE, they Existing Shareholder shall not sell, transfer, pledge or otherwise dispose of, or permit to create any encumbrances on (including direct or indirect sale, transfer, pledge or disposal in any manner of the equity interests in the Company or relevant rights and interests thereof (and if the Existing Shareholders indirectly hold equity interests in the Company via intermediary holding companies, they shall not sell, transfer, pledge in any manner transfer or otherwise dispose of their equity interests and any Option Equity or create any encumbrance or other third party rights and interests thereof in such intermediary holding company, and on any Option Equity;
6.1.2. he shall ensure such intermediary holding company will not issue equity interests to any third party)) any lawful increase or beneficial rights and interests of their equity interests in decrease the Company at any time from the execution date of this Agreement, other than the pledge created on the equity interests in Registered Capital or cause or permit the Company under the Equity Pledge Agreement (including any amendment, supplement to be divided or restatement thereto from time to time) executed by and among relevant parties on the same date of this Agreement and the proxy rights created on the equity interests in the Company under the Shareholders’ Voting Rights Agreement (including any amendment, supplement or restatement thereto from time to time) executed by and among relevant parties on the same date of this Agreement;
6.1.2 Without prior written consent of the WFOE, they shall not, during the shareholders’ meeting of the Company, vote in favor of, support or execute any shareholders’ resolution to approve the sale, transfer, pledge or disposal in any manner of, or permit to create any encumbrances on, any lawful or beneficial rights and interests of any equity interests or assets, except those made to the WFOE or its designated entity or individual;
6.1.3 Without prior written consent of the WFOE, they shall not in any manner agree, support or approve merger or consolidation of the Company merged with any other entity, merger or acquisition of the Company by any other entity, or investment by the Company in any entity, or split-up of the Company, change in the registered capital or the form of the Company;
6.1.4 At the request of the WFOE, they shall immediately inform the WFOE of any actual or potential litigation, arbitration or administrative proceedings regarding their equity interests;
6.1.5 Prior to the transfer of all Option Equity Interests to the WFOE, they shall execute all necessary or proper documents, take all necessary or proper actions, raise all necessary or proper claims of right, or raise all necessary or proper claims against claims of compensation so as to maintain the ownership of their equity interests;
6.1.6 At the request of the WFOE, they shall appoint or engage the persons designated by the WFOE as directors and senior management of the Company;
6.1.7 Without prior written consent of the WFOE, they 6.1.3. he shall not and shall not dispose of or cause the management of the Company to dispose of any material Company Assets Material Asset (other than that incurred in the ordinary course of business), or create any security interest encumbrance or other third party rights on the material assetsany Material Asset;
6.1.8 Without prior written consent of the WFOE, they 6.1.4. he shall not and shall not terminate or cause the management of the Company to terminate any Material Agreements Agreement entered into by the Company Company, or enter into any other agreements agreement in conflict with such the existing Material Agreements;
6.1.9 Without prior written consent 6.1.5. he shall not appoint, dismiss or replace any director or supervisor of the WFOE, they shall not appoint Company or remove any directors, supervisors or other management members personnel of the Company who shall be appointed and removed or dismissed by the Existing Shareholders;
6.1.10 Without prior written consent of the WFOE, they 6.1.6. he shall not cause the Company to declare distributions the distribution of or actually effect distributions of in practice release any distributable profitsprofit, bonuses dividend, share profit or dividendsshare interest;
6.1.11 They 6.1.7. he shall ensure that the Company will maintain its valid existence validly exists and will is not be terminated, liquidated or dissolved without prior written consent dissolved;
6.1.8. he shall not amend the articles of association of the WFOECompany;
6.1.12 Without prior written consent of the WFOE, they shall not cause or agree that the Company makes amendments to its articles of association;
6.1.13 Without prior written consent of the WFOE, they shall not cause or agree that the Company materially changes its business scope or terminates or suspends any current business;
6.1.14 Without prior written consent of the WFOE, they 6.1.9. he shall ensure that the Company will not lend or borrow money any money, or provide any guaranty or other form of security, or bear any substantial obligations other than in the ordinary course of business; and
6.1.10. it shall not cause the Company or the management of the Company to approve any of the following acts of any of the Company’s subsidiaries or affiliates (collectively, the “Subsidiaries”):
(a) increase or decrease any Subsidiary’s registered capital or cause or permit any Subsidiary to be divided or merged with any other entity;
(b) dispose of or cause the management of the Subsidiaries to dispose of any Material Asset of any Subsidiary (other than that required in the ordinary course of business), provide guarantee or create any encumbrance or other third party rights on such assets;
(c) terminate or cause the management of the Subsidiaries to terminate any Material Agreement entered into by any Subsidiary, or enter into any other agreement in conflict with the existing Material Agreements;
(d) appoint, dismiss, or replace any director or supervisor of any Subsidiary or any other management personnel of such Subsidiary who shall be appointed or dismissed by the Company;
(e) terminate, liquidate or dissolve any Subsidiary or act in any way that damages or is likely to damage the valid existence of any Subsidiary;
(f) amend the articles of association of any Subsidiary; and
(g) lend or borrow any money, or provide any guaranty or other form of security, or assume bear any substantial obligations beyond its other than in the ordinary course of business;.
6.1.15 Without prior written consent 6.2 Within the valid term of this Agreement, he shall use his best endeavor to develop the WFOE, they shall not cause or agree that the Company conducts any related party transaction with its direct or indirect shareholders, directors, supervisors, management or their respective related parties;
6.1.16 Without prior written consent of the WFOE, they shall not conduct any action or non-action that will cause a conflict of interest between them and the Company or the WFOE;
6.1.17 Without prior written consent of the WFOE, they shall not conduct any action or non-action which is likely to impair the assets or goodwill business of the Company and ensure that the Company’s operations are legal and in compliance with the regulations, and he will not engage in any act or omission which may damage the Company’s (including the Subsidiaries’) assets and goodwill or affect the validity of the Operation Business Permits of the Company;.
6.1.18 They 6.3 Within the valid term of this Agreement, he shall timely inform notify the WFOE of any circumstances to their knowledge which are likely to that may have a material adverse effect on the existence, business operationoperations, financial conditions, assets or goodwill of the Company (including the Subsidiaries) and shall timely take all the measures acknowledged approved by the WFOE to eliminate remove such adverse circumstances or take effective remedies for such adverse circumstances;remedial measures with respect thereto.
6.1.19 Without prior written consent of 6.4 Once the WFOEWFOE gives the Exercise Notice,
6.4.1. he shall promptly convene a shareholders’ meeting, they shall not cause pass shareholders’ resolutions and take all other necessary actions to approve any Existing Shareholder or agree that the Company makes any material amendment to its accounting policy or changes its accountants;
6.1.20 They shall strictly comply with all the provisions in this Agreement and other agreements jointly or separately executed by relevant parties, solidly perform all obligations under such agreements, and shall not conduct any action or non-action that will sufficiently affect the validity and enforceability of such agreements. For the purpose of this Section 6.1, “Company” shall refer to the Company and all its subsidiaries (unless otherwise required by the context).
6.2 Upon the issuance of an Exercise Notice (subject to the circumstances under which the WFOE exercises its Equity Transfer Option or Asset Purchase Option) by the WFOE:
6.2.1 The Existing Shareholders shall immediately take all necessary actions so as to (i) cause the Existing Shareholders to transfer all Target the Transferred Equity Interests or the Transferred Assets at the Transfer Price to the WFOE and/or any other entity or individual designated by it at the Transfer Price WFOE, and to waive any of their rights of first refusal preemptive right to purchase enjoyed by him (if any); or (ii) approve the ;
6.4.2. he shall promptly enter into an equity transfer by the Company of all Transferrable Assets to agreement with the WFOE and/or any other entity or individual designated by it the WFOE to transfer all the Transferred Equity at the Transfer Price;
6.2.2 The Existing Shareholders shall (i) immediately execute equity transfer agreements with Price to the WFOE and/or any other entity or individual designated by it whereby they shall transfer all the Target Equity Interests WFOE and provide necessary support to the WFOE and/or other entity or individual designated by it at the Transfer Price, and shall, in accordance with the request of the WFOE and the requirements of laws and regulations, provide the WFOE with necessary support (including causing the Company to hold a shareholders’ meeting to adopt a shareholders’ meeting resolution on such equity transfer provision and to provide and execute all relevant legal documents, to perform all governmental approval and registration formalities and assume all relevant obligations) so that the WFOE and/or other entity or individual designated by it can acquire all Target Equity Interests free from any legal defects and any security interest, third party restrictions created by the Existing Shareholders or any other restrictions, and the Existing Shareholders shall cooperate in and cause the completion execution of relevant registration with the industry and commerce administration and the update of shareholders’ register within thirty (30) days after the issuance of the Exercise Notice by the WFOE; or (ii) cause the Company to execute asset transfer agreements with the WFOE and/or other entity or individual designated by it whereby the Company shall transfer all the Transferrable Assets to the WFOE and/or other entity or individual designated by it at the Transfer Price, and shall, in accordance with the request of the WFOE and the requirements of laws and regulations, cause the shareholders to provide the WFOE with necessary support (including providing and executing all relevant legal documents, performing all governmental government approval and registration formalities procedures and assuming all relevant obligations) in accordance with the WFOE’s requirements and the PRC Law so that the WFOE and/or any other entity or individual designated by it can the WFOE may acquire all the Transferrable Assets Transferred Equity, free from and clear of any legal defects and defect or any security interestencumbrance, third party restrictions restriction or any other restrictions on the Company AssetsTransferred Equity.
6.3 If the aggregate Transfer Price received by any of the Existing Shareholders in respect of his transferred equity interests exceeds his capital contributions to the Company, or if any of the Existing Shareholders receives profit distributions, dividends or bonuses in any form from the Company, such Existing Shareholder agrees to compensate the WFOE with the full amount of the Transfer Price obtained from such transferred equity interests and any received profit distributions, dividends or bonuses. Otherwise the Existing Shareholders shall compensate the WFOE and/or other entity or individual then designated by it for the losses thereby incurred.
Appears in 1 contract
Samples: Exclusive Call Option Agreement (Jupai Holdings LTD)
