Common use of Enforcement of Tencent Transaction Documents Clause in Contracts

Enforcement of Tencent Transaction Documents. (a) Each of the Company and Tencent hereby agrees that the Shareholders (other than Tencent or its Affiliates) shall be deemed third party beneficiaries under the Tencent Subscription Agreement, including, without limitation, Section 8 (Indemnity) of the Tencent Subscription Agreement (subject to the limitations on liability set forth therein) and shall have the full power and authority to make a direct claim against Tencent or its Affiliates with respect to any and all claims under the Tencent Subscription Agreement, including, without limitation, Section 8 (Indemnity) of the Tencent Subscription Agreement (subject to the limitations on liability set forth therein); provided that such third party beneficiary right may be exercised by the Shareholders (other than Tencent or its Affiliates) if and only if (x) (i) any director of the Company believes in good faith that the Company has a valid claim against Tencent or its Affiliates under the Tencent Subscription Agreement and (ii) the Company has failed to initiate any claim against Tencent or its Affiliates thereunder within thirty (30) days after written request by such director to the Company to make such claim, and (y) the Shareholders holding at least 66.7% of the issued and outstanding Ordinary Shares of the Company (other than any Ordinary Shares held by Tencent or its Affiliates) and representing no less than 3.3% of the issued and outstanding share capital of the Company, agree in writing, in their own discretion, to appoint a Shareholder as a representative (the “Shareholder Representative”) to so pursue a claim against Tencent on behalf of the Shareholders (other than Tencent or its Affiliates) pursuant to this Section 8.11; provided further that any claims by the Company under Section 8 (Indemnity) of the Tencent Subscription Agreement and any claim by the Shareholder Representative pursuant to this Section 8.11 shall be taken together when determining the application of the limitations on liability under Section 8 (Indemnity) of the Tencent Subscription Agreement. Any such claim pursued by the Shareholder Representative pursuant to this Section 8.11 shall follow the provisions set forth in Section 9.10 (Dispute Resolution) of the Tencent Subscription Agreement, mutantis mutandis. Notwithstanding the definition of Affiliates, the parties agree that for purposes of this Section 8.11, Affiliates of Tencent shall exclude the Group Companies or any of the Group Companies’ Controlled Affiliates. (b) The Shareholders (other than Tencent or its Affiliates) hereby irrevocably appoint the Shareholder Representative as the attorney-in-fact of the Shareholders (other than Tencent or its Affiliates), with full power and authority to act in the name of and for and on behalf of the Shareholders (other than Tencent or its Affiliates) with respect to all matters arising in connection with a claim against Tencent made by such Shareholders pursuant to Section 8.11(a) hereof, including, but not limited to, the power and authority to take any and all of the following actions: (i) to seek any preliminary injunctive relief from any court of competent jurisdiction and/or to commence any arbitral proceedings in accordance with Section 9.10 (Dispute Resolution) of the Tencent Subscription Agreement, as provided under Section 8.11(a) hereof, (iii) to negotiate any settlement agreement or settle any arbitral proceedings, (iv) to enforce any arbitration awards, (v) to retain legal counsel in connection with any and all matters referred to herein, (vi) to disclose to the court or arbitration tribunal such Confidential Information necessary for the Shareholder Representative to pursue a claim pursuant to Section 8.11(a) hereof, and (vii) to incur reasonable costs and expenses including legal costs in connection with such actions. It is understood that the Shareholder Representative shall serve without compensation. For the avoidance of doubt, any actions taken by the Shareholder Representative shall be fully binding upon all Shareholders (other than Tencent or its Affiliates). (c) Each of the Company and Tencent hereby acknowledges the appointment, powers and authority of the Shareholder Representative pursuant to this Section 8.11 and agrees that it will not, and it will procure its Affiliates and the Group Companies and their Controlled Affiliates not to, dispute the appointment, powers and authority of the Shareholder Representative at any court or arbitral proceedings; provided that the Shareholder Representative is duly appointed pursuant to Section 8.11(a). Each of the Company and Tencent further agrees that, in respect to any claim pursued by the Shareholder Representative on behalf of the Shareholders (other than Tencent or its Affiliates) pursuant to this Section 8.11, the Shareholder Representative (i) shall have the full power and authority to claim against Tencent and its Affiliates (other than the Group Companies and their Controlled Affiliates) with respect to any and all claims that the Company may be entitled to under the Tencent Subscription Agreement, including injunctive relief and monetary indemnity, and (ii) shall be entitled to claim the full amount of any and all Losses (as defined in the Tencent Subscription Agreement) incurred by the Company Indemnitees (for the avoidance of doubt, the Losses that may be claimed by the Shareholder Representative are not limited to the Losses suffered by the Shareholders (other than Tencent or its Affiliates) in their capacity of the shareholders of the Company), provided that any such Losses payable by Tencent or its Affiliates pursuant to this Section 8.11 shall be subject to applicable limitations on liability under Section 8 (Indemnity) of the Tencent Subscription Agreement. (d) The Company agrees, promptly and in any event within ten (10) Business Days upon demand, to pay and reimburse the Shareholder Representative any and all reasonable and documented costs and expenses (including legal costs) incurred by the Shareholder Representative in connection with claiming against Tencent pursuant to this Section 8.11; provided that the Company is not obligated to pay or reimburse any costs and expenses that are incurred by the Shareholder Representative in bad faith or as a result of gross negligence or willful misconduct of the Shareholder Representative, or if such costs and expenses are unreasonably wasteful. (e) The Shareholders (other than Tencent or its Affiliates) agree that any and all Losses recovered by the Shareholder Representative pursuant to this Section 8.11 shall be held to the account of the Company and transferred in full to the Company, net of reasonable out-of-pocket costs and expenses incurred by such Shareholder Representative in such claim for which the Shareholder Representative shall be entitled to be reimbursed pursuant to Section 8.11(d) but had not been so reimbursed. (f) Nothing in this Section 8.11 shall be interpreted to limit or restrict the ability or power of any Shareholder to make any claim against the Company or any other Shareholder under this Agreement (in respect of matters not covered by this Section 8.11) or applicable law.