PAYMENT ARRANGEMENT AGREEMENT
Exhibit 10.23
[English Translation]
THIS PAYMENT ARRANGEMENT AGREEMENT (this “Agreement”) is made and entered into in Shanghai, the People’s Republic of China on December 12, 2017 by and among:
(1) XXXXX Xxxx (郑丽娜), a Chinese citizen with the ID No. XXXX;
(2) OneSmart International Education Group Limited 精銳國際教育集團有限公司, a company incorporated under the laws of the Cayman Islands with the registered number 320611 and registered office located at Vistra (Cayman) Limited, X.X. Xxx 00000 Xxxxx Xxxxxxxx, Xxxxxxxx Way, 000 Xxxx Xxx Xxxx, Xxxxx Xxxxxx, XX0-0000 Cayman Islands (the “Cayman Company”);
(3) Shanghai OneSmart Education and Training Co., Ltd. (上海精锐教育培训有限公司), a limited company incorporated under the laws of the People’s Republic of China with the registered office located at West Area, 0xx Xxxxx, 000 Xxxxx Xxxx Xxxx, Xxxxx (Shanghai) Free Trade Zone (“OneSmart”);
(4) Shanghai Xxxx Xxx Xxx Information Technology Co, Ltd. (上海精学锐信息科技有限公司), a limited company incorporated under the laws of the People’s Republic of China with the registered office located at Xxxx X000, 0xx Xxxxx, Xxxxxxxx 0, 0000 Xxxxxx South Road, China (Shanghai) Free Trade Zone (“Xxxx Xxx Rui”);
(5) Shanghai Xxxx Xx Investment Co., Ltd. (上海精育投资有限公司), a limited company incorporated under the laws of the People’s Republic of China with the registered office located at Xxxx 000, 0xx Xxxxx, Xx. 0, Branch 128 Lane 66, Ye Xxx Xxxx South Road, Putuo District, Shanghai (“Xxxx Xx”);
(6) Shanghai Xi Zhi Enterprise Management Co., Ltd. (上海熙智企业管理有限公司), a limited company incorporated under the laws of the People’s Republic of China with the registered office located at Room 2637, 0xx Xxxxx, 0 Xxxxxxx Xxxx, Xxxxxxxxx Xxxxxxxx, Xxxxxxxx (“Xi Zhi”); and
(7) Shanghai Rui Si Science and Technology Information Consulting Co., Ltd. (上海锐思科技信息咨询有限公司), a limited company incorporated under the laws of the People’s Republic of China (“Rui Si”).
Each of the parties to this Agreement is referred to herein individually as a “Party” and collectively as the “Parties”.
RECITALS
(A) The Parties, other than Rui Si and Xi Zhi, and other relevant parties entered into a restructuring agreement on April 21, 2017, which was amended and supplemented by a supplemental agreement to the restructuring agreement entered into by the Parties and other relevant parties on October 31, 2017 (the
restructuring agreement amended and supplemented by the supplemental agreement to the restructuring agreement, the “Restructuring Agreement”). OneSmart and other relevant parties entered into an early payment agreement on December 8, 2017 (the “Early Payment Agreement”). Unless otherwise agreed in this Agreement, the terms used in this Agreement shall have the same meanings given to them in the Restructuring Agreement.
(B) The Parties intend to enter into this Agreement to confirm the specific payment arrangement for the transactions under the Restructuring Agreement, and to further clarify the relevant legal relations.
NOW, THEREFORE, the Parties hereby agree as follows:
1. PAYMENT ARRANGEMENT
1.1 The Parties hereby agree as follows:
1.1.1 Equity Transfer of Xxxx Xx
OneSmart shall pay RMB2,000,000 to XXXXX Xxxx pursuant to Section 2.9.6(1) of the Restructuring Agreement.
1.1.2 Xxxx Xx Loan
(1) OneSmart shall provide a loan of RMB53,838,104.62 to Xxxx Xx (“Xxxx Xx Loan”) free of interest; and
(2) Xxxx Xx shall pay RMB53,838,104.62 to XXXXX Xxxx pursuant to Section 2.9.6(2) of the Restructuring Agreement.
1.1.3 Third Equity Transfer of OneSmart
(1) OneSmart shall provide a loan of RMB761,406,681.54 to Xxxx Xxx Rui (“Xxxx Xxx Xxx Loan I”) free of interest;
(2) Xxxx Xxx Rui shall provide a loan of RMB761,406,681.54 to Xi Zhi (“Xi Zhi Loan I”) with the interest specified in the Loan Agreement (as defined below);
(3) Xi Zhi shall pay the transfer price of the Third Equity Transfer of OneSmart to XXXXX Xxxx pursuant to Section 2.9.1 of the Restructuring Agreement with the funds from Xi Zhi Loan I, and Xi Zhi is entitled to withhold relevant tax and transaction fees and pay the remaining balance to XXXXX Xxxx.
Currency: RMB
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Transferor |
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XXXXX Xxxx |
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Transferee |
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Xi Zhi |
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Equity Transfer Price |
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761,406,681.54 |
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Income Tax To Be Borne by the Transferor |
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18,462,742.99 |
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Transaction Fees To Be Borne by the Transferor |
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619,296.66 |
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Balance |
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742,324,641.89 |
(4) Xi Zhi shall pay, or designate OneSmart to pay, the tax and transaction fees related to the Third Equity Transfer to XXXXX Xxxx with the funds from Xi Zhi Loan I. In the event that Xi Zhi designates OneSmart to pay such tax and/or transaction fees, OneSmart shall deduct such tax and/or transaction fees from Xxxx Xxx Xxx Loan I and provide the remaining balance to Xxxx Xxx Rui, and Xxxx Xxx Xxx shall deduct the amount equivaalent to such tax and/or transaction fees from Xi Zhi Loan I and provide the remaining balance to Xi Zhi; however, such deductions shall not influence the actual amount of Xxxx Xxx Rui Loan I and Xi Zhi Loan I.
(5) The Parties confirm that, the amount of tax which should be borne by the transferor as listed above is the estimated amount (the “Estimated Tax Amount”) to the information of the Parties (including that the investment cost of XXXXX Xxxx is RMB672,900,000). If the amount of the actual tax payable exceeds the Estimated Tax Amount, XXXXX Xxxx shall bear the excess amount and indemnify Xi Zhi, OneSmart or their affiliates the cost, reasonable expenses (including reasonable legal fees), damages, claims, loss, liabilities (including liabilities in accounting books) and penalties arising from such actual tax amount excess, respectively.
1.1.4 Equity Transfer of Rui Si
(1) OneSmart shall provide a loan of RMB2,660,000 to Xxxx Xxx Xxx (“Xxxx Xxx Xxx Loan II”) free of interest;
(2) Xxxx Xxx Rui shall provide a loan of RMB2,660,000 to Xi Zhi (“Xi Zhi Loan II”) with the interest specified in the Loan Agreement (as defined below);
(3) Xi Zhi shall pay RMB2,660,000 to XXXXX Xxxx with the funds from Xi Zhi Loan II pursuant to Section 2.9.6(5) of the Restructuring Agreement.
1.1.5 Rui Si Loan
(1) OneSmart shall provide a loan of RMB10,000,000 to Rui Si (“Rui Si Loan”) free of interest; and
(2) Rui Si shall pay RMB10,000,000 to XXXXX Xxxx pursuant to Section 2.9.6(6) of the Restructuring Agreement.
1.2 For the purpose of the transactions under Section 1.1, XXXXX Xxxx hereby designates the beneficiary account below (the “Onshore Beneficiary Account”) to receive the amount set forth below:
Currency: RMB
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Payer |
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Payee |
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Beneficiary Account |
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Amount |
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OneSmart |
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XXXXX Xxxx |
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XXXX |
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810,822,746.51 |
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OneSmart is entitled to make the payment set forth in this section to XXXXX Xxxx by instalments and shall specify the category of such amount in writing when making the payment of any instalment.
1.3 Upon the date on which OneSmart makes the payment to the Onshore Beneficiary Account designated by XXXXX Xxxx in accordance with Section 1.2 (If OneSmart makes the payment by instalments, then upon the date on which each instalment is paid, the following provisions shall be automatically adjusted according to the category of the amount paid specified by OneSmart in writing and the total amount actually paid),
1.3.1 OneSmart shall be deemed to: (a) have paid to XXXXX Xxxx the transfer price of RMB1,200,000 for the transfer of equity interest in Xxxx Xx under Section 2.3.1 of the Restructuring Agreement in accordance with Section 1.1.1 of this Agreement, (b) have paid to Xxxxx Xx, 50% of the transfer price, i.e. RMB800,000, for the transfer of equity interest in Xxxx Xx under Section 2.3.1 of the Restructuring Agreement in accordance with Section 1.1.1 of this Agreement, and (c) have repaid the debt of RMB800,000 Xxxxx Xx owes to XXXXX Xxxx under Section 2.3.3 of the Restructuring Agreement. For the avoidance of doubt, upon the date on which the payment under Section 1.3 of this Agreement is made, the payment obligations to XXXXX Xxxx under Section 2.9.6(1) of the Restructuring Agreement shall be deemed to have been fully discharged;
1.3.2 OneSmart shall be deemed to have provided Xxxx Xx Loan
(RMB53,838,104.62) to Xxxx Xx pursuant to Section 1.1.2(1) of this Agreement;
1.3.3 Xxxx Xx shall be deemed to have repaid the debts to XXXXX Xxxx under Section 1.1.2(2) of this Agreement. For the avoidance of doubt, upon the date on which the payment under Section 1.3 of this Agreement is made, the obligations of repayment of debts/payment to XXXXX Xxxx under Section 2.9.6(2) of the Restructuring Agreement shall be deemed to have been fully performed;
1.3.4 OneSmart shall be deemed to have provided Xxxx Xxx Rui Loan I (RMB761,406,681.54) to Xxxx Xxx Xxx pursuant to Section 1.1.3(1) of this Agreement;
1.3.5 Xxxx Xxx Rui shall be deemed to have provided Xi Zhi Loan I (RMB761,406,681.54) to Xi Zhi pursuant to Section 1.1.3(2) of this Agreement;
1.3.6 Xi Zhi shall be deemed to have paid the transfer price for the Third Equity Transfer of OneSmart to XXXXX Xxxx in accordance with Section 1.1.3(3). For the avoidance of doubt, upon the date on which the payment under Section 1.3 is made, the transfer price for the Third Equity Transfer of OneSmart payable to XXXXX Xxxx under Section 2.9.6(3) of the Restructuring Agreement shall be deemed to have been fully paid;
1.3.7 OneSmart shall be deemed to have provided Xxxx Xxx Xxx Loan II (RMB2,660,000) to Xxxx Xxx Rui pursuant to Section 1.1.4(1);
1.3.8 Xxxx Xxx Xxx shall be deemed to have provided Xi Zhi Loan II (RMB2,660,000) to Xi Zhi pursuant to Section 1.1.4(2);
1.3.9 Xi Zhi shall be deemed to have paid to XXXXX Xxxx the transfer price of RMB2,660,000 for the transfer of equity interest in Rui Si under Section 2.3.1 of the Restructuring Agreement in accordance with Section 1.1.4(3) of this Agreement. For the avoidance of doubt, upon the date on which the payment under Section 1.3 of this Agreement is made, the transfer price for the transfer of equity interest in Rui Si payable to XXXXX Xxxx under Section 2.9.6(5) of the Restructuring Agreement shall be deemed to have been fully paid;
1.3.10 OneSmart shall be deemed to have provided Rui Si Loan
(RMB10,000,000) to Rui Si pursuant to Section 1.1.5(1) of this Agreement;
1.3.11 Rui Si shall be deemed to have repaid the debts (RMB10,000,000) to XXXXX Xxxx under Section 1.1.5(2) of this Agreement pursuant to Section 1.1.5(2) of this Agreement. For the avoidance of doubt, upon the date on which the payment under Section 1.3 of this Agreement is made, the obligations of repayment of debts/payment to XXXXX Xxxx under Section 2.9.6(6) of the Restructuring Agreement shall be deemed to have been fully performed.
1.4 Xi Zhi hereby confirms that Xi Zhi has assumed the rights and obligation of some of the borrowers under the loan agreement (the “Loan Agreement”) among the VIE agreements executed by Xxxx Xxx Xxx and relevant parties on September 17, 2017 (and such arrangement has been recognized by Xxxx Xxx Rui). The Parties acknowledge that the ultimate purpose of Xi Zhi Loan I (RMB761,406,681.54) and Xi Zhi Loan II (RMB2,660,000) provided by Xxxx Xxx Xxx to Xi Zhi is to promote the development of OneSmart and its related parties, which shall be deemed as loans provided by Xxxx Xxx Rui to Xi Zhi pursuant to the Loan Agreement, regardless of any provisions contained in the Loan Agreement.
2. MISCELLANEOUS
2.1 Unless otherwise agreed among the relevant parties, the timing of payment of the funds in this Agreement shall be subject to the provisions of the Restructuring Agreement and the Early Payment Agreement. Upon the date of the payment under Section 1.3 of this Agreement, all the payment obligations of the relevant parties to XXXXX Xxxx under the Restructuring Agreement shall be deemed to have been fully discharged.
2.2 This Agreement may be executed in multiple counterparts, each of which shall take effect after being signed by each party or its authorized representative. Each counterpart shall have equal legal effect.
2.3 The entry into, effectiveness, interpretation and performance of this Agreement shall be governed by the laws of the People’s Republic of China. Any dispute arising out of and in connection with this Agreement shall be settled by the Parties through consultations and shall, in the absence of an agreement being reached by the Parties within thirty (30) days from its occurrence, be submitted by any Party to China International Economic and Trade Arbitration Commission (“CIETAC”) for arbitration in accordance with the then effective arbitration rules of CIETAC. The place of arbitration shall be Beijing and the language for arbitration shall be Chinese. The arbitral award shall be final and
[SIGNATURE PAGE]
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XXXXX Xxxx (郑丽娜) |
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/s/ Xxxxx Xxxx |
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SIGNATURE PAGE OF PAYMENT ARRANGEMENT AGREEMENT
[SIGNATURE PAGE]
OneSmart International Education Group Limited 精銳國際教育集團有限公司
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/s/ Xxxxx Xx |
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Shanghai OneSmart Education and Training Co., Ltd. (上海精锐教育培训有限公司)
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/s/ Xxxxx Xx |
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Shanghai Xi Zhi Enterprise Management Co., Ltd. (上海熙智企业管理有限公司)
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SIGNATURE PAGE OF PAYMENT ARRANGEMENT AGREEMENT
[SIGNATURE PAGE]
Shanghai Xxxx Xxx Xxx Information Technology Co, Ltd. (上海精学锐信息科技有限公司)
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SIGNATURE PAGE OF PAYMENT ARRANGEMENT AGREEMENT
[SIGNATURE PAGE]
Shanghai Xxxx Xx Investment Co., Ltd. (上海精育投资有限公司)
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SIGNATURE PAGE OF PAYMENT ARRANGEMENT AGREEMENT
[SIGNATURE PAGE]
Shanghai Rui Si Science and Technology Information Consulting Co., Ltd. (上海锐思科技信息咨询有限公司)
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/s/ Shi Wei |
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SIGNATURE PAGE OF PAYMENT ARRANGEMENT AGREEMENT
