Exhibit
10.5


 


Amended
and Restated Exclusive Purchase Right
Contract


 


THIS AMENDED AND RESTATED
EXCLUSIVE PURCHASE RIGHT CONTRACT
(the “Contract”) is entered into in Beijing on July 28, 2010 by and among:


 


(1) Xuecheng Century (Beijing) Information
Technology Co., Ltd., a wholly foreign-owned company incorporated in the
PRC, with its registered address at Room 172, Building No.1, 3 Xijing
Road, Badachu High Technology Park, Shijingshan District, Beijing (“Party A”);


 


(2) Jin Xin and eight other natural persons
(their name list and ownership interests are set out in Schedule 1 hereto) (“Party
B”); and


 


(3)  Beijing Xueda Information Technology Co., Ltd.,
a limited liability company incorporated in the PRC, with its registered
address at Rooms 9506-9508, Building No.3, Block 1, 19 Xinjiekouwai Street,
Haidian District, Beijing (“Party C”).


 


For the purposes hereof, Party A, Party B and Party C
shall be referred to individually as a “Party” and collectively as the “Parties”.


 


WHEREAS,


 


(1) Party B owns as a whole 100% equity interest
in Party C;


 


(2) As of August 28, 2009, Party A and Party
C entered into the Exclusive Technology Consulting and Management Service
Agreement (“Consulting Agreement”); and as of July 28, 2010, Party A and Party
C entered into the Amended and Restated Exclusive Technology Consulting and
Management Service Agreement;


 


(3) As of August 28, 2009, Party A and Party
B entered into the Pledge Agreement (“Pledge Agreement”);


 


(4) As of August 28, 2009, Party A, Party B
and Party C entered into the Exclusive Purchase Right Contract; and


 


(5) Party
A, Party B and Party C have mutually agreed to amend and restate the aforesaid
Exclusive Purchase Right Contract to the effect that their respective rights
and obligations shall be governed by the Exclusive Purchase Right Contract so
amended and restated.


 


NOW, THEREFORE, the Parties agree as follows:


 

















 


1.  Purchase and Sale of Equity


 


1.1 Grant of Right


 


Party B hereby irrevocably grants to Party A an
irrevocable exclusive right to acquire, at any time, directly or through one or
more designated persons (“Designees”), to the extent permissible by Chinese
law, from Party B all or part of its ownership of equity interest in Party C (“Equity
Purchase Right”) at the price set out in Article 1.3 hereof pursuant to
such procedures as determined by Party A in its discretion.   No person other than Party A and Designees
thereof shall have the Equity Purchase Right. Party C hereby agrees for Party B
to grant Party A the Equity Purchase Right. 
For the purpose of this provision as well as this Agreement,  the term “person” means an individual,
company, joint venture, partnership, enterprise, trust or non-corporate
organization.


 


1.2 Procedures of Exercise of
Right


 


Party A’s exercise of its Equity Purchase Right shall
be subject to the requirements of Chinese laws and regulations. When exercising
its Equity Purchase Right, Party A shall give Party B a written notice (“Equity
Purchase Notice”), setting out (a) the decision by Party A of exercising
its purchase right; (b) the percentage of equity interest it intends to
acquire from Party B (“Acquired Equity”); and (c) purchase date/ equity
transfer date.


 


1.3 Equity Purchase Price


 


Except where an appraisal is required by law, the
purchase price for the Acquired Equity (“Equity Purchase Price”) shall the
minimum price permissible by Chinese laws and regulations at the time of such
equity transfer, subject, however, to any separate agreement thereon that may
be reached by Party A and Party B.


 


1.4  Transfer of Acquired Equity


 


On each exercise by Party A of its Equity Purchase
Right:


 


(1)  Party B shall cause Party C to timely hold
its shareholder’s meeting at which a resolution approving the transfer by Party
B of the relevant equity to Party A and/or its Designees shall be adopted;


 


(2)  Party B shall enter into with Party A (or,
as the case may be, with the Designees) an equity transfer contract in
accordance with this Contract and the Equity Purchase Notice;


 


(3)  Relevant parties shall execute all other
necessary contracts, agreements and documents, obtain all necessary
governmental approvals and consents, and shall take all necessary actions to
the effect that Party A and/or its Designees shall be assigned free any
Encumbrance, the valid title to the Acquired Equity and shall become the
registered owners of the Acquired Equity. For the purpose of this provision as
well as this Contract, the term “Encumbrance” includes any security, mortgage,
third party rights or interests, or any equity purchase right, acquisition right,
preemptive right, right of set-off, retention of title or other security
arrangement, but excludes, for the avoidance of doubt, any security interest
arising 


 


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under this Contract, 
or, under the Pledge Agreement, pursuant to which Party B pledges all of
its equity interest in Party C with Party A for the purpose of guaranteeing the
performance by Party C of its obligations under the Exclusive Technology
Consulting and Management Service Agreement.


 


2.  Undertakings as to the Equity


 


2.1 Undertakings of Party C


 


Party C hereby undertakes that:


 


(1)  without prior written consent of Party A, it
will not in any form whatsoever supplement, modify or amend the articles of
association of Party C, or increase or decrease the registered capital of Party
C, or otherwise modify the capitalization structure of Party C;


 


(2) it will in accordance with good financial and
commercial standards and practices maintain its existence and prudentially and
effectively conduct its business and deals with its affairs;


 


(3) without prior written consent of Party A, it
will not incur, inherit, guarantee or permit to exist any debt, except for (i) debts
arising in the normal or ordinary course of business rather than out of borrowings;
and (ii) debts disclosed to Party A and consented to by Party A in
writing;


 


(4) it will at all times conduct all of its
operations during the ordinary course of business so as to maintain the value
of the assets of Party C and will refrain from any action or inaction
sufficient to affect the operating condition and asset value of Party C;


 


(5) without prior written consent of Party A, it
will not enter into any material contract, except for contracts entered into
during the normal course of business (for the purpose of this sub-clause, any
contract with a value of over RMB 100,000 will be deemed a material contract);


 


(6) without prior written consent of Party A, it
will not provide any loan or credit to any person;


 


(7) it will at the request of Party A provide all
information related to the operations and financial condition of Party C;


 


(8) it will take out and maintain with an insurer
acceptable to Party A such insurance in such amounts and of such type as
commonly effected by companies operating similar business in the same area and
possessing similar properties or assets;


 


(9)  without prior written consent of Party A, it
will not merge or consolidate with any person or acquire or invest in any
person;


 


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(10)  it will immediately notify Party A of any
actual or potential suit, arbitration or administrative proceeding in
connection with the assets, operations or revenues of Party C;


 


(11)  it will
execute all such documents, take all such actions, lodge all such charges  and raise all such defenses against claims,
as are necessary or appropriate for the maintenance of Party C’s title to all
of its assets;


 


(12)  without
prior written consent of Party A, it will not distribute in any form whatsoever
any dividend to its shareholders, but will, at the request of Party A,
immediately distribute all of its distributable profits to its shareholders;
and


 


(13)  it will
appoint at the request of Party A any person nominated by Party A to its board.


 


2.2  Party B’s Undertakings


 


Party B undertakes that:


 


(1) without prior written consent of Party A, it
will not at any time after the execution date hereof sell, transfer, mortgage
or otherwise dispose of any legal or beneficial interest in any equity or allow
the creation of any encumbrance thereon, with the exception of the pledge
created on the equity interest of Party B under the relevant pledge agreement
of Party B;


 


(2)  it will cause the shareholders’ meeting of
Party C, not to approve, in the absence of prior written agreement of Party A,
any sale, transfer, mortgage or other disposal of any legal or beneficial
interest in any equity or any creation of any encumbrance thereon, with the
exception of the pledge created on the equity interest of Party B under the
relevant pledge agreement of Party B;


 


(3)  it will cause the shareholders’ meeting of
Party C, not to approve, in the absence of prior written agreement of Party A,
any merger or consolidation of Party C with any person, or any acquisition of
or investment in any person by Party C;


 


(4)  it will timely notify Party A of any actual
or potential suit, arbitration or administrative proceeding in connection with
the equity interest held by it;


 


(5)  it will cause the shareholders’ meeting of
Party C to approve the transfer of the Acquired Equity hereunder;


 


(6) it will execute all such documents, actively
take all such actions and/or lodge all such charges, or raise all such defenses
against claims, as are necessary or appropriate for the maintenance of its
title to all of its equity interests;


 


(7) it will appoint at the request of Party A any
person nominated by Party A to the board of Party C;


 


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(8) it will at the request of Party A immediately
and unconditionally transfer at any time its equity interest to Party A or its
Designees and will waive any of its preemptive rights respecting any such
equity transfer by other shareholders;


 


(9)  it will strictly comply with the provisions
of this Contract and other contracts entered into by and between Party A, Party
B and Party C either on a three-party basis or on a two-party basis, will
effectively fulfill all of its obligations under this Contract and such other
contracts and will refrain from any action or inaction sufficient to affect the
validity or enforceability of this Contract and such other contracts; and


 


(10 Party B irrevocably undertakes that it will be
jointly and severally liable for the obligations under this Contract.


 


3. Representations and Warranties
of Party B and Party C


 


Party B and Party C hereby jointly and severally
represent and warrant to Party A that, as of the date hereof and as of each
date of transfer:


 


3.1 it has the authority and capacity to execute and
deliver this Contract and any equity transfer contract entered into in respect
of each transfer of the Acquired Equity (each a “Transfer Contract”) to which
it is a party and to fulfill all of its obligations hereunder and thereunder.
This Contract and each Transfer Contract to which it is a party shall, once
executed, become its lawful, valid and binding obligations and are enforceable
against it in accordance with their terms.


 


3.2 neither the execution and delivery of this
Contract and any Transfer Contract nor the performance of its obligations
hereunder or thereunder will result in: (i) a violation of any relevant
Chinese laws; (ii) any conflict with its articles of association or other
organizational document; (iii) a breach of or a default under any contract
or agreement to which it is a party or which is binding upon it; (iv) a
breach of any license granted to or any authorization approved in favor of it
and/or any continuing condition thereon; (v) a suspension or revocation of
any license or approval granted to it, or the imposition of any additional
condition;


 


3.3 Party B has good and marketable title to all of
its assets, which are clear and free from any Encumbrance;


 


3.4 Party C has no outstanding debts, except for (i) debts
arising in its ordinary course of business; and (ii) debts disclosed to
Party A and consented to by Party A in writing;


 


3.5 Party C is compliance with all applicable laws and
regulations; and


 


3.6 there is no ongoing or pending or threatened suit,
arbitration or administrative proceeding in connection with Party C or the
equity or asset of Party C.


 


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4. Effective Date and Term


 


This Contract shall become effective as from the date
on which it has been executed by each of the Parties hereto and shall terminate
upon lawful transfer of all of Party B’s equity interest in Party C to Party A
and/or its Designees pursuant to the terms set out herein.


 


5. Governing Law and Dispute
Resolution


 


5.1 Governing Law


 


The entry into, validity, interpretation and performance
of this Agreement as well as the resolution of disputes hereunder shall be
governed by the laws of the PRC.


 


5.2 Dispute Resolution Method


 


Any dispute between the Parties in connection with the
interpretation or performance of this Contract shall be resolved in good faith
by the Parties through consultations. If the Parties fail to resolve any
dispute within thirty (30) days of receipt of a written notice served by one
Party on the other Party(ies) requesting such consultations, any Party may submit
such dispute to China International Economic and Trade Arbitration Commission
for arbitration in accordance with the then effective arbitration rules of
such commission. The place of arbitration shall be Beijing. The language of
arbitration shall be Chinese. The arbitration award shall be final and shall be
binding upon the Parties.


 


6. Taxes and Expenses


 


Each Party shall bear any and all of the transfer and
registration taxes, expenses and costs incurred by or payable by it under
Chinese laws as a result of the preparation and execution of this Contract and
any Transfer Contract and the consummation of the transactions contemplated
hereunder and thereunder.


 


7. Confidentiality


 


Each Party acknowledges and recognizes that any oral
or written information exchanged between them in connection with this Contract
is confidential information. Each Party shall maintain in confidence all such
information and shall not, without the written consent of the other Party(ies),
disclose any such information to any third person, except where such
information: (a) is already known or will be known by the public (but not
as a result of unauthorized disclosure by the receiving Party to the public); (b) 
is required to be disclosed by applicable laws or regulations; (c) is disclosed
by any Party hereto to its legal or financial advisor to the extent required by
the transaction contemplated hereunder, provided that such legal or financial
advisor is bound by similar confidentiality obligations to this provision. Any
disclosure of confidential information by any staff of any Party or by any
entity engaged by such Party shall be deemed a disclosure by such Party itself
and such Party shall assume breach of contract liabilities in accordance with
this Contract. This provision shall survive any termination of this Contract
for any cause.


 


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8. Further Undertaking


 


Each of the Parties agrees to promptly execute such
documents and take such further actions as may be reasonably necessary for or
profitable to the furtherance of the provisions and purpose of this Contract.


 


9. Miscellaneous


 


9.1 Amendment, Modification or
Supplement


 


Any amendment or modification of or supplement to this
Contract shall be effected by a written agreement executed by each of the
Parties.


 


9.2 Compliance with Laws and
Regulations


 


The Parties shall be in compliance with and shall
procure its operations to be in full compliance with all officially promulgated
and publicly available laws and regulations of the PRC.


 


9.3 Entire Agreement


 


This Contract (with the exception of any written
amendment, supplement or modification hereto subsequent to the execution
hereof) constitutes the entire agreement of the Parties with respect to the
subject matter hereof and supersedes any and all oral or written agreement,
representation or contract of the Parties on the subject matter contained
herein.


 


9.4 Headings


 


The headings hereunder are inserted for convenience of
reference only and shall not be used to interpret, explain or otherwise affect
the meaning of the provisions hereof.


 


9.5 Language


 


This Contract is made in Chinese in 10 copies.


 


9.6 Severability


 


If one or more provisions of this Contract is found to
be invalid, illegal or unenforceable in any respect under any law or
regulation, the validity, legality or enforceability of the remaining
provisions of this Contract shall not in any way be affected or impaired. The Parties shall endeavor in good faith
negotiations to replace such invalid, illegal or unenforceable provision(s) with
valid provision(s) the economic effect of which shall come as close as
possible to that of such invalid, illegal or unenforceable provision(s).


 


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9.7 Successor


 


This Contract shall be binding upon the respective
successors and permitted assignees of each of the Parties.


 


9.8 Survival


 


(a) Any liability accrued or becoming due prior
to expiry or early termination of this Contract shall survive the expiry or
early termination of this Contract.


 


(b)  The provisions of Articles 5 and 7 shall
survive the termination of this Contract.


 


9.9 Waiver


 


No waiver by any Party of the terms and conditions
hereof shall be effective unless it is in writing and signed by the relevant
Party. A waiver of any breach of the other Party(ies) under a certain
circumstance shall not be deemed a waiver of any similar breaches of the other
Party(ies)  under other circumstances.


 


IN WITNESS WHEREOF, the Parties have duly executed this Contract as of the date first
above written.


 


(Signature Page Follows;
No Operative Text Below)


 


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  Party A

  
	
   

  
	
  Xuecheng Century (Beijing)
  Information Technology Co., Ltd (seal)

  
	
   

  	
   

  	
   

  
	
  By:

  	
    /s/ HSU WILLIAM SHANG WI

  	
   

  
	
   

  	
   

  
	
  Name:

  	
  HSU WILLIAM SHANG WI

  	
   

  
				



 


 


	
  Party B

  	
   

  
	
   

  	
   

  	
   

  
	
  Jin Xin

  	
  Li Rubin

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Jin Xin

  	
   

  	
  By:

  	
  /s/ Li Rubin

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  Yao Jinbo

  	
  Zhu Changyong

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Yao Jinbo

  	
   

  	
  By:

  	
  /s/ Zhu Changyong

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  Deng Qiang

  	
  Piao Junhong

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Deng Qiang

  	
   

  	
  By:

  	
  /s/ Piao Junhong

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  Wang Yafei

  	
  Chai Chaoming

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Wang Yafei

  	
   

  	
  By:

  	
  /s/ Chai Chaoming

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  Song Junbo

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Song Junbo

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  Party C

  	
   

  
	
   

  	
   

  	
   

  
	
  Beijing Xueda Information
  Technology Co., Ltd (seal)

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/
  Li Rubin

  	
   

  	
   

  
	
   

  	
   

  
	
  Name:  Li Rubin

  	
   

  



 


 


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Schedule 1


 


	
  Number

  	
   

  	
  Name

  	
   

  	
  Percentage of Equity

  Interest

  	
   

  	
  ID No.

  	
   

  
	
  1

  	
   

  	
  Jin Xin

  	
   

  	
  27.03968

  	
  %

  	
  110105197702260013

  	
   

  
	
  2

  	
   

  	
  Li Rubin

  	
   

  	
  23.48493

  	
  %

  	
  372831197709070053

  	
   

  
	
  3

  	
   

  	
  Yao Jingbo

  	
   

  	
  15.66018

  	
  %

  	
  432321197610190959

  	
   

  
	
  4

  	
   

  	
  Zhu Changyong

  	
   

  	
  2.85022

  	
  %

  	
  342101197008140010

  	
   

  
	
  5

  	
   

  	
  Deng Qiang

  	
   

  	
  2.13499

  	
  %

  	
  110102196711032318

  	
   

  
	
  6

  	
   

  	
  Piao Junhong

  	
   

  	
  20.03308

  	
  %

  	
  220204197704073320

  	
   

  
	
  7

  	
   

  	
  Wang Yafei

  	
   

  	
  3.51877

  	
  %

  	
  610103195504123620

  	
   

  
	
  8

  	
   

  	
  Chai Chaoming

  	
   

  	
  2.26258

  	
  %

  	
  310110196911148013

  	
   

  
	
  9

  	
   

  	
  Song Junbo

  	
   

  	
  3.01557

  	
  %

  	
  140502197512043016

  	
   

  



 


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