Dated December 1, 2021 RISE EDUCATION CAYMAN LTD RISE EDUCATION CAYMAN I LTD - and – BAIN CAPITAL RISE EDUCATION IV CAYMAN LIMITED SHARE PURCHASE AGREEMENT
Exhibit 99.3
Execution Version
Dated December 1, 2021
RISE EDUCATION CAYMAN I LTD
- and –
XXXX CAPITAL RISE EDUCATION IV CAYMAN LIMITED
CONTENTS
| SECTION 1 |
DEFINITIONS | 4 | ||||
| SECTION 2 |
SALE AND PURCHASE | 6 | ||||
| SECTION 3 |
COMPLETION AND POST-COMPLETION MATTERS | 6 | ||||
| SECTION 4 |
REPRESENTATIONS AND WARRANTIES | 7 | ||||
| SECTION 5 |
CONDITIONS TO COMPLETION | 9 | ||||
| SECTION 6 |
TERMINATION | 10 | ||||
| SECTION 7 |
NOTICE | 10 | ||||
| SECTION 8 |
GOVERNING LAW AND DISPUTE RESOLUTION | 11 | ||||
| SECTION 9 |
CONFIDENTIALITY | 11 | ||||
| SECTION 10 |
GENERAL PROVISIONS | 12 |
THIS SHARE PURCHASE AGREEMENT (this “Agreement”) is made on the 1st day of December 2021
BETWEEN:
| (1) | RISE EDUCATION CAYMAN LTD, a company duly incorporated and validly existing under the Laws of the Cayman Islands, with its registered office at 000 Xxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxx Xxxxxx XX0-0000, Xxxxxx Xxxxxxx (the “Company”); and |
| (2) | RISE EDUCATION CAYMAN I LTD, a company duly incorporated and validly existing under the Laws of the Cayman Islands, with its registered office at 000 Xxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxx Xxxxxx XX0-0000, Xxxxxx Xxxxxxx (the “Seller”); and |
| (3) | XXXX CAPITAL RISE EDUCATION IV CAYMAN LIMITED, a company duly incorporated and validly existing under the a company duly incorporated and validly existing under the Laws of the Cayman Islands, with its registered office at Xxxxxx Corporate Services Limited, P.O. Box 309, Xxxxxx House, South Church Street, Xxxxxx Town, Grand Cayman KY1-1104, Cayman Islands (the “Purchaser”). |
The Company, the Seller and the Purchaser are referred to collectively as the “Parties” and each individually as a “Party”.
RECITALS:
| (A) | The Company owns, through the Seller (i) all of the issued and outstanding shares of capital stock (the “Rise HK Transferred Shares”) of Rise Education International Limited (formerly known as Xxxx Capital Rise Education (HK) Limited), a company duly incorporated and validly existing under the Laws of Hong Kong, with its registered office at 16/F-19/F, Prince’s Building, 00 Xxxxxx Xxxx, Xxxxxxx, Xxxx Xxxx (“Rise HK”), and (ii) all of the issued and outstanding shares of capital stock (the “Rise IP Transferred Shares”, together with the Rise HK Transferred Shares, the “Transferred Shares”) of Rise IP (Cayman) Limited, a company duly incorporated and validly existing under the Laws of the Cayman Islands, with its registered office at 000 Xxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxx Xxxxxx XX0-0000, Cayman Islands (“Rise IP”, together with “Rise HK”, the “Transferred Subsidiaries”). |
| (B) | The Seller is an indirect wholly-owned subsidiary of the Company. |
| (C) | Rise HK holds 100% equity interests in Rise (Tianjin) Education Information Consulting Co., Ltd., a wholly foreign-owned enterprise duly incorporated and validly existing under the laws of the PRC (“WFOE”). |
| (D) | The Company, Rise HK, WFOE, Wuhan Xinsili Culture Development Co., Ltd., a limited liability company duly incorporated and validly existing under the laws of the PRC (“Wuhan Xinsili”) and certain other parties entered into a purchase agreement on December 1, 2021 (the “Onshore Agreement”), pursuant to which, Rise HK has agreed to sell to Wuhan Xinsili, and Wuhan Xinsili has agreed to purchase from Rise HK, 100% equity interests held by Rise HK in WFOE, upon the terms and conditions thereunder (the “Onshore Sale”). |
| (E) | Pursuant to the terms and conditions set forth in this Agreement, the Company and the Seller have agreed to sell to the Purchaser, and the Purchaser has agreed to purchase from the Seller, the Transferred Shares (the “Transaction”). |
NOW THEREFORE, in consideration of the premises and the mutual agreements and covenants hereinafter set forth, and intending to be legally bound, the Seller and the Purchaser hereby agree as follows:
SECTION 1
DEFINITIONS
Definitions. In this Agreement, unless the context otherwise requires the following words and expressions have the following:
| “Action” | means any litigation, action, suit, charge, binding arbitration, tax audit or other legal, administrative or judicial proceeding. | |
| “Business Day” | means any day other than Saturday, Sunday, public holiday or other day on which commercial banks located in the PRC, the Cayman Islands or Hong Kong are authorized or required by law or executive order to be closed and on which no tropical cyclone warning no.8 or above and no “black” rainstorm warning signal is hoisted in Hong Kong at any time between 8:00 a.m. and 6:00 p.m. Hong Kong time. | |
| “Encumbrance” | means any lien (statutory or otherwise), mortgage, pledge, security interest, charge, right of first refusal, hypothecation, encumbrance on real property, easement, encroachment, right-of-way, restrictive covenant on real property, real property license, lease or conditional sale arrangement. | |
| “Governmental Authority” | means any supranational, national, federal, state, territorial, provincial, municipal or local governmental authority, quasi-governmental authority, instrumentality, court, government or self-regulatory organization, commission, tribunal, arbitral body or organization or any regulatory, administrative or other agency, or any political or other subdivision, department or branch of any of the foregoing of an applicable jurisdiction. | |
| “Governmental Order” | means any order, writ, judgment, injunction, decree, stipulation, determination or award entered by or with any Governmental Authority. | |
| “Hong Kong” | means the Hong Kong Special Administrative Region. | |
| “Law” | means any national, federal, territorial, state, provincial, local or municipal statute, law, common law, ordinance, rule, regulation, judicial, administrative or other order, writ, injunction, directive, judgment, decree or policy or guideline having the force of law of the PRC, Hong Kong or any other applicable jurisdiction. | |
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| “Long Stop Date” | means the date falling three months after the date of this Agreement. | |
| “Material Adverse Effect” | means any circumstance, change in or effect on the Seller that, individually or in the aggregate with all other circumstances, changes in or effects on the Seller, is or is reasonably be expected to prevent or materially delay or materially impair the ability of the Seller to consummate the Transaction or otherwise have a material adverse effect on the Transaction. | |
| “Person” | means an individual, a partnership, a corporation, an association, a limited or unlimited liability company, a joint stock company, a trust, a joint venture, an unincorporated organization or other legal entity or Governmental Authority. | |
| “PRC” | means the People’s Republic of China, for purposes of this Agreement only excluding Hong Kong, Taiwan and Macau. | |
| “US$” | means the legal currency of the United States. | |
Terms Defined Elsewhere in this Agreement. The following terms are defined in this Agreement as follows:
| “Agreement” | Preamble | |
| “Company” | Preamble | |
| “Completion” | Section 3.1 | |
| “Completion Date” | Section 3.1 | |
| “Confidential Information” | Section 9.1 | |
| “HKIAC” | Section 8.2 | |
| “Facilities Agreement” | Section 2.2 | |
| “Lenders” | Section 2.2 | |
| “Notices” | Section 7.1 | |
| “Onshore Agreement” | Preamble | |
| “Onshore Sale” | Preamble | |
| “Party” or “Parties” | Preamble | |
| “Purchaser” | Preamble | |
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| “Rise HK” | Preamble | |
| “Rise IP” | Preamble | |
| “Rise HK Transferred Shares” | Preamble | |
| “Rise IP Transferred Shares” | Preamble | |
| “Seller” | Preamble | |
| “Transaction” | Preamble | |
| “Transferred Shares” | Preamble | |
| “Transferred Subsidiaries” | Preamble | |
| “WFOE” | Preamble | |
| “Xxxxx Xxxxxxx” | Preamble | |
SECTION 2
SALE AND PURCHASE
| 2.1 | Sale and Purchase |
Upon the terms and subject to the conditions set forth in this Agreement, the Seller shall at the Completion sell to the Purchaser, and the Purchaser shall purchase from the Seller, the Transferred Shares, free and clear of any and all Encumbrances and together with all accrued rights and benefits pertaining thereto.
| 2.2 | Consideration |
As consideration for the purchase of the Transferred Shares, at or prior to the Completion, the Purchaser shall (i) pay or cause to be paid US$2,500,000 in cash to the Company, for settlement with the lenders (the “Lenders”) of the facilities agreement dated March 18, 2021 relating to the term and revolving facilities of up to an aggregate amount of US$80,000,000 (the “Facilities Agreement”), pursuant to the terms of a settlement agreement dated December 1, 2021, by and among, the Company, the Seller, the Purchaser, the Lenders, WFOE and certain other parties thereto; and (ii) cause Rise HK and Rise IP to grant WFOE or entities designated by Xxxxx Xxxxxxx a royalty-free, perpetual, irrevocable and exclusive license over all intellectual property rights owned by or licensed to Rise HK and/or Rise IP.
SECTION 3
COMPLETION AND POST-COMPLETION MATTERS
| 3.1 | Completion Date |
The completion of the Transaction (the “Completion”) shall take place remotely via e-mails and telephone communications on the first Business Day following the satisfaction or waiver of all conditions to the obligations of the Parties set forth in Section 5, or at such other place or at such other time or on such other date as the Seller and the Purchaser may mutually agree upon in writing. The date on which the Completion occurs is herein referred to as the “Completion Date”.
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| 3.2 | Completion Actions. |
| (a) | At the Completion, the Seller shall deliver or cause to be delivered to the Purchaser: |
| (i) | an instrument of transfer and sold note in respect of the Rise HK Transferred Shares, in form and substance satisfactory to the Purchaser, duly executed by the Seller in favor of the Purchaser (and, if applicable, any power of attorney under which any such documents are executed on behalf of the Seller); |
| (ii) | a register of members of Rise HK as at the date of the Completion Date reflecting the Purchaser being the sole shareholder of Rise HK, certified by the registered office provider of Rise HK to be a true and complete copy thereof; |
| (iii) | a copy of resolutions of the sole director of Rise HK approving the registration of the Purchaser as the sole shareholder of Rise HK (subject only to the due stamping of the transfer documentation pertaining to the transfer of the Rise HK Transferred Shares); |
| (iv) | an instrument of transfer in respect of the Rise IP Transferred Shares, in form and substance satisfactory to the Purchaser, duly executed by the Seller in favor of the Purchaser (and, if applicable, any power of attorney under which any such documents are executed on behalf of the Seller); and |
| (v) | a register of members of Rise IP as at the date of the Completion Date reflecting the Purchaser being the sole shareholder of Rise IP, certified by the registered office provider of Rise IP to be a true and complete copy thereof. |
| (b) | At the Completion, the Purchaser shall (i) pay or cause to be paid US$2,500,000 in cash to the Company; and (ii) cause Rise HK and Rise IP to grant WFOE or entities designated by Xxxxx Xxxxxxx a royalty-free, perpetual and exclusive license over all intellectual property rights owned by or licensed to Rise HK and/or Rise IP. |
SECTION 4
REPRESENTATIONS AND WARRANTIES
| 4.1 | Mutual Warranties |
The Seller hereby represents and warrants to the Purchaser, and the Purchaser hereby represents and warrants to the Seller, on and as of the date of this Agreement and the Completion Date as follows:
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| (a) | It is duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation. It has the corporate power and lawful authority to own or possess, lease and operate its assets, carry on its business as now being and as previously conducted. |
| (b) | It has the full legal right, power and authority required to enter into this Agreement and to perform fully its obligations hereunder. This Agreement has been duly authorized, executed and delivered by it and, assuming the due authorization, execution and delivery by the other Parties, constitutes the valid and binding obligation of such Party, enforceable against it in accordance with its terms. |
| (c) | The execution, delivery and performance of this Agreement by it do not and will not (i) violate, conflict with or result in the breach of any provision of its constitution or (ii) conflict with or violate any Law or Governmental Orders applicable to it, or any of its assets, properties or businesses. |
| 4.2 | Seller Warranties |
The Seller represents and warrants to the Purchaser that each of the following representations and warranties shall be true and correct and not misleading on and as of the date of this Agreement and the Completion Date:
| 4.2.1. | Transferred Subsidiaries |
| (a) | Each of the Transferred Subsidiaries is duly incorporated, validly existing and in good standing under the laws of the jurisdiction of its incorporation. |
| (b) | Unless otherwise disclosed to the Purchaser, no administrator, receiver or statutory manager has been appointed in respect of the whole or part of the assets and undertaking of each of the Transferred Subsidiaries. |
| (c) | Unless otherwise disclosed to the Purchaser, neither any Transferred Subsidiary is insolvent or in liquidation, and nor any order has been made or effective resolution passed for the liquidation or winding up of any Transferred Subsidiary. |
| 4.2.2. | Transferred Shares |
| (a) | The Seller is the sole legal and beneficial owner of the Transferred Shares. |
| (b) | The Rise HK Transferred Shares, comprising the whole of Rise HK’s allotted and issued share capital, have been properly allotted and issued and are fully paid or credited as fully paid. |
| (c) | The Rise IP Transferred Shares, comprising the whole of Rise IP’s allotted and issued share capital, have been properly allotted and issued and are fully paid or credited as fully paid. |
| (d) | There is no Encumbrance, and there is no agreement, arrangement or obligation to create or give an Encumbrance, in relation to any of the Transferred Shares or any unissued shares in the capital of Rise HK or Rise IP. |
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| (e) | Other than this Agreement or otherwise disclosed to the Purchaser, there is no agreement, arrangement or obligation requiring the creation, allotment, issue, transfer, redemption or repayment of, or the grant to a person of the right (conditional or not) to require the allotment, issue, transfer, redemption or repayment of, any shares in the capital of Rise HK and Rise IP (including an option or right of pre-emption or conversion). |
SECTION 5
CONDITIONS TO COMPLETION
| 5.1 | The obligations of the Parties to consummate the Transaction contemplated by this Agreement shall be subject to the fulfillment or written waiver by the Purchaser of each of the following conditions: |
| 5.1.1. | Representations, Warranties and Covenants |
| (a) | The representations and warranties of the Seller contained in this Agreement shall have been true and correct when made and shall be true and correct in all material respects as of the Completion, except to the extent such representations and warranties are as of another date, in which case, such representations and warranties shall be true and correct as of that date, in each case, with the same force and effect as if made as of the Completion, other than such representations and warranties as are made as of another date; and |
| (b) | The covenants and agreements contained in this Agreement to be complied with by the Seller on or before the Completion shall have been complied with in all material respects. |
| 5.1.2. | No Proceeding or Litigation |
No Action shall have commenced or threatened by or before any Governmental Authority against the Seller, seeking to restrain or materially and adversely alter the Transaction contemplated by this Agreement which, in the reasonable, good faith determination of the Purchaser, is likely to render it impossible or unlawful to consummate such Transaction or which could have a Material Adverse Effect.
| 5.1.3. | Consents |
The Seller shall have received, each in form and substance reasonably satisfactory to the Purchaser, substantially all third party consents required for consummation of the Transaction, including consents from the Lenders.
| 5.1.4. | Completion of Onshore Sale |
The Onshore Sale has been consummated pursuant to the terms and conditions under the Onshore Agreement. WFOE has completed the registration and filing of changes of business information with respect to the Onshore Sale and relevant matters (including but not limited to resignation of the director(s) and supervisor(s) of WFOE, and amendments to the articles of association) to Tianjin Administration for Market Regulation or its local branch and the Seller has delivered or cause to be delivered to the Purchaser, in form and substance satisfactory to the Purchaser, proof of completion of the foregoing registration and filing.
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| 5.1.5. | No Material Adverse Effect |
No event or events shall have occurred, or be reasonably likely to occur, which, individually or in the aggregate, have, or could have, a Material Adverse Effect.
| 5.2 | The Seller shall make all reasonable efforts to satisfy the conditions set out in Section 5.1 as soon as possible after the date of this Agreement and in any event no later than 5:00 p.m. on the Long Stop Date. In the event that the aforementioned conditions are not satisfied by such Long Stop Date such shall not be regarded as a breach of this Agreement, and the provisions of Sections 6.1 and 6.2 shall apply. |
SECTION 6 TERMINATION
| 6.1 | Termination |
This Agreement, shall terminate automatically if any of the conditions precedent to Completion set out in Section 5.1 have not been satisfied or waived by the Purchaser (as applicable) by 5:00 p.m. on the Long Stop Date. Without prejudice to the foregoing, this Agreement may be terminated at any time prior to the Completion by the mutual written consent of the Seller and the Purchaser.
| 6.2 | Effect of Termination |
In the event of termination of this Agreement as provided in Section 6.1, this Agreement shall forthwith become void and there shall be no liability on the part of any Party, and except as set forth in Sections 9 (Confidentiality) and 10.7 (Expenses) none of the Parties shall have any claim against the others for costs, damages, compensation or otherwise (save in respect of any prior breach of this Agreement).
SECTION 7
NOTICE
| 7.1 | Notice Addresses and Method of Delivery |
All notices, requests, demands, consents and other communications (“Notices”) required to be given by each Party to any other Party shall be in writing and delivered by hand delivery or courier; prepaid registered letter sent by first class mail (express courier if to an address in a country other than the country in which the sender is situated), return receipt request or email to the applicable Party at the address or email address as designated by such Party.
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SECTION 8
GOVERNING LAW AND DISPUTE RESOLUTION
| 8.1 | Governing Law |
The execution, validity and performance of and resolution of disputes under this Agreement shall be governed by the Laws of Hong Kong.
| 8.2 | Dispute Resolution |
Any dispute, controversy, difference or claim arising out of or relating to this Agreement, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to it shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (“HKIAC”) under the HKIAC Administered Arbitration Rules in force when the Notice of Arbitration is submitted. The seat of the arbitration shall be Hong Kong, and the language of the arbitration shall be English. The law of this arbitration clause shall be Hong Kong Law.
SECTION 9
CONFIDENTIALITY
| 9.1 | Each Party agrees to, and shall cause its agents, representatives, affiliates, employees, officers and directors to treat and hold as confidential (and not disclose or provide access to any Person to) all information relating to the Transaction (the “Confidential Information”). |
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| 9.2 | A Party may disclose Confidential Information which would otherwise be subject to the provisions of Section 9.1, if and to the extent: |
| (a) | it is required by Law to which such Party is subject or for the purpose of any judicial proceedings; |
| (b) | it is required by any Governmental Authority to which it is subject or submits (whether or not the requirement for information has the force of law); |
| (c) | it is disclosed on a strictly confidential basis to its affiliates or representatives (or to representatives of its affiliates) on a need to know basis; |
| (d) | it was lawfully in its possession or in the possession of any of its affiliates or representatives free of any restriction as to its use or disclosure prior to it being so disclosed; |
| (e) | the information is or has come into the public domain through no fault of that Party or any of its affiliates or representatives; |
| (f) | to the extent such Confidential Information relates to another Party, such other Party has given prior written consent to the disclosure; |
| (g) | it is required to enable that Party to perform this Agreement or enforce its rights under this Agreement, |
and provided that, to the extent permitted by Law, any Confidential Information to be disclosed in reliance on Sections 9.2(a) or 9.2(b) shall, to the extent such Confidential Information relates to another Party, be disclosed only after consultation with such other Party and the Party intending to disclose the Confidential Information shall take into account the reasonable comments or requests of such other Party.
SECTION 10
GENERAL PROVISIONS
| 10.1 | Amendment |
This Agreement may not be amended, modified or supplemented except by a written instrument executed by all the Parties.
| 10.2 | Waiver |
No waiver of any provision of this Agreement shall be effective unless set forth in a written instrument signed by the Party waiving such provision. No failure or delay by a Party in exercising any right, power or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of the same preclude any further exercise thereof or the exercise of any other right, power or remedy. Without limiting the foregoing, no waiver by a Party of any breach by any other Party of any provision hereof shall be deemed to be a waiver of any subsequent breach of that or any other provision hereof.
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| 10.3 | Entire Agreement |
This Agreement, represents the entire understanding and constitutes the whole Agreement among the Parties relating to the subject matter hereof and supersedes any prior agreements or understandings relating to such subject matter.
| 10.4 | Exclusion of Third Party’s Rights |
A Person who is not a party to this Agreement shall not have any rights under the Contracts (Right of Third Parties) Ordinance, Cap. 623, to enforce any term contained herein this Agreement.
| 10.5 | Severability |
Each and every obligation under this Agreement shall be treated as a separate obligation and shall be severally enforceable as such and in the event of any obligation or obligations being or becoming unenforceable in whole or in part. To the extent that any provision or provisions of this Agreement are unenforceable they shall be deemed to be deleted from this Agreement, and any such deletion shall not affect the enforceability of this Agreement as remain not so deleted.
| 10.6 | Assignments |
The rights of each Party under this Agreement shall not be assignable by such Party without the written consent of each other Party.
| 10.7 | Expenses |
All stamp duties applicable to the transfer of any Transferred Shares shall be borne by the Seller. All other costs and expenses, including fees and disbursements of counsel, financial advisors and accountants, incurred in connection with this Agreement and the Transaction contemplated by this Agreement shall be paid by the party incurring such costs and expenses, whether or not the Completion shall have occurred.
| 10.8 | Counterparts |
This Agreement may be executed in any number of counterparts and by the Parties in separate counterparts, including counterparts transmitted by facsimile or by e-mails, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same Agreement. Except as otherwise specified, this Agreement shall become legally binding at the time of execution of the last such counterpart and shall have effect from the date first above written.
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IN WITNESS WHEREOF, the Parties have caused their duly authorized representatives to execute this Agreement as of the date first written above.
| By: | /s/ Xxxxx Xxxx | |
| Name: |
Xxxxx Xxxx | |
| Title: |
Director | |
| RISE EDUCATION CAYMAN I LTD | ||
| By: | /s/ Xxxxxx Xxxx | |
| Name: | Xxxxxx Xxxx | |
| Title: |
Director | |
[Signature page to Share Purchase Agreement]
IN WITNESS WHEREOF, the Parties have caused their duly authorized representatives to execute this Agreement as of the date first written above.
| XXXX CAPITAL RISE EDUCATION IV CAYMAN LIMITED | ||
| By: | /s/ Xxxxxx Xxxx | |
| Name: |
Xxxxxx Xxxx | |
| Title: |
Director | |
[Signature page to Share Purchase Agreement]
