Operating Agreement
Exhibit 4.34
This Operating Agreement (this “Agreement”) is entered
into among the following parties in Beijing, PRC as of
February 28, 2008:
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Party A:
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Baidu Online Network Technology (Beijing) Co., Ltd. | |
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Address:
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12/F., Ideal International Plaza, No. 58 North-West 4th Ring, Haidian District, Beijing, PRC, 100080 | |
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Party B:
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Beijing BaiduPay Science and Technology Co., Ltd. | |
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Address:
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Xxxx 000, 0/X, Xxxxx X, Xxx Xx. 00 Xxxxxxxxxxxx Xxxxx Street, Haidian District, Beijing, PRC, 100081 | |
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Party C:
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Xxx Xx | |
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ID No.:
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310226197403045510 | |
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Party D:
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Beijing Netcom Science Technology Co., Ltd. | |
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Address:
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12/F., Ideal International Plaza, No. 58 North-West 4th Ring, Haidian District, Beijing, PRC, 100080 |
WHEREAS:
1. Party A is a wholly foreign-owned enterprise duly
incorporated and validly existing under the laws of the
People’s Republic of China (the “PRC”), which has
the technology expertise and practical experience in the
development and design of computer software, and also has rich
experience and a team of professionals specializing in
information technology and service;
2. Party B is a limited liability company duly incorporated
and validly existing under PRC law, which carries out the
business of individually operating third party payment platform
(provide online payment for
e-commerce);
3. Party C and Party D are shareholders of Party B, in
which Party C owns 9% and Party D owns
91% of the equity interest;
4. Party A has established a business relationship with
Party B by entering into an Exclusive Technology Consulting and
Services Agreement ( the “Services Agreement”), a Web
Layout Copyright License Agreement, a Trademark License
Agreement and a Domain Name License Agreement;
5. Pursuant to the above-mentioned agreements between Party
A and Party B, Party B shall pay certain sums of money to Party
A. However, no account payable under those agreements has been
paid, and the daily operations of Party B will have a material
effect on Party B’s ability to pay such account payable to
Party A;
NOW THEREFORE, through negotiations, all parties to this
Agreement hereby agree as follows:
1. Party A agrees, subject to the satisfaction of the
relevant provisions herein by Party B, to be the guarantor of
Party B in the contracts, agreements or transactions entered
into between Party B and any third party in connection with
Party B’s business and operations, to provide full
guarantees for the performance of such contracts, agreements or
transactions by Party B. As counter-guarantee, Party B agrees to
pledge the accounts receivable in its operations and all of its
assets to Party A. According to the aforesaid guarantee
arrangement, Party A, when necessary, is willing to enter into
written guarantee contracts with Party B’s counterparties
to assume the guarantor’s liabilities. Party B, Party C and
Party D shall take all necessary actions (including, but not
limited to, executing the relevant documents and filing the
relevant registrations) to carry out the counter-guarantee
arrangement with Party A.
2. In consideration of the requirements of Article 1
hereof and to ensure the performance of the various business
agreements between Party A and Party B and the payment by Party
B of the amounts payable to Party A thereunder, Party B,
together with its shareholders Party C and Party D, hereby
jointly agree that, without Party A’s prior written
consent, Party B shall not engage in any transaction that may
materially affect its assets, liabilities, rights or operations
(except that Party B may, in the ordinary course of its
business, enter into business contracts or
agreements, sell or purchase assets and create liens in favor of
relevant counter parties as required by law.), including, but
not limited to, the following:
2.1 To borrow money from any third party or assume any debt;
2.2 To sell to or acquire from any third party any asset or
rights, including, but not limited to, any intellectual property
rights;
2.3 To provide guarantee for any third party using its
assets or intellectual property rights as collaterals; or
2.4 To assign to any third party its business contracts.
3. In order to ensure the performance of the various
business agreements between Party A and Party B and the payment
by Party B of the amounts payable to Party A thereunder, Party
B, together with its shareholders Party C and Party D, hereby
jointly agree to accept advices and guidance provided by Party A
from time to time relating to its corporate policies on matters
such as employment and dismissal of employees, daily operations
and management, and financial management.
4. Party B, together with its shareholders Party C and
Party D, hereby jointly agree that Party C and Party D shall
appoint candidates recommended by Party A as directors of Party
B, and Party B shall appoint Party A’s senior executive
officers recommended by Party A as its president, chief
financial officer and other senior executive officers. If any of
the above-mentioned senior executive officers of Party A leaves
Party A, whether voluntarily or as a result of dismissal by
Party A, he or she shall also lose
his/her
right to hold any position at Party B, and Party B shall appoint
other senior executive officers of Party A recommended by Party
A to fill such a position. The persons recommended by Party A in
accordance with this Article 4 shall comply with the legal
requirements regarding the qualifications of directors,
presidents, chief financial officers, and other senior executive
officers.
5. Party B, together with its shareholders Party C and
Party D, hereby jointly agree and confirm that Party B shall
first seek a guarantee from Party A if Party B needs any
guarantee for its performance of any of its contracts or for any
borrowing for working capital purposes in the course of its
operations. In such cases, Party A shall have the right, but not
the obligation, to provide the appropriate guarantee to Party B
at Party A’s sole discretion. If Party A decides not to
provide such a guarantee, Party A shall immediately issue a
written notice to Party B and Party B may seek a guarantee from
third parties.
6. In the event that any of the agreements between Party A
and Party B terminates or expires, Party A shall have the right,
but not the obligation, to terminate all agreements between
Party A and Party B including, but not limited to, the Services
Agreement.
7. Any amendment or supplement to this Agreement shall be
made in writing. The amendment or supplement duly executed by
all parties shall form an integral part of this Agreement and
shall have the same legal effect as this Agreement.
8. Should any provision of this Agreement be held invalid
or unenforceable because of inconsistency with applicable laws,
such provision shall be invalid or unenforceable only to the
extent of such applicable laws without affecting the validity or
enforceability of the remainder of this Agreement.
9. Party B shall not assign its rights and obligations
under this Agreement to any third party without the prior
written consent of Party A. Party B hereby agrees that Party A
may assign its rights and obligations under this Agreement as
Party A sees fit, in which case Party A only needs to give a
written notice to Party B and no further consent of Party Bs is
required.
10. Each party acknowledges and confirms that any oral or
written materials exchanged pursuant to this Agreement are
confidential. Each party shall keep confidential all such
materials and not disclose any such materials to any third party
without the prior written consent from the other party except in
the following situations: (a) such materials are or will
become known by the public (through no fault of the receiving
party); (b) any materials as required to be disclosed by
the applicable laws or rules of the stock exchange; or
(c) any materials disclosed by each party to its legal or
financial advisors relating to the transactions contemplated by
this Agreement, and such legal or financial advisors shall
comply with the confidentiality provisions set forth in this
Article 10. Any
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disclosure of confidential information by the personnel of any
party or by the institutions engaged by such party shall be
deemed as a disclosure by such party, and such party shall be
liable for the breach under this Agreement. This Article 10
shall survive the invalidity, cancellation, termination or
unenforceability of this Agreement for any reason.
11. This Agreement shall be governed by and interpreted in
accordance with the laws of the PRC.
12. Any dispute arising in connection with the
interpretation and performance of the provisions of this
Agreement shall be resolved by the parties in good faith through
negotiations. In case no resolution can be reached by the
parties through negotiations, either party may refer such
dispute to the China International Economic and Trade
Arbitration Commission (the “CIETAC”) for arbitration
in accordance with CIETAC’s arbitration rules then in
effect. The seat of arbitration shall be in Beijing, and the
language of the proceedings shall be Chinese. The arbitral award
shall be final and binding upon both of the Parties.
13. This Agreement shall be executed by a duly authorized
representative of each party and become effective as of the date
first written above.
14. Notwithstanding Article 13 hereof, once effective,
this Agreement shall constitute the entire agreement of the
parties hereto with respect to the subject matters hereof and
supersede all prior oral
and/or
written agreements and understandings by the parties with
respect to the subject matters hereof.
15. The term of this Agreement is ten (10) years
unless terminated earlier in accordance with the provisions of
this Agreement or related agreements entered into by the
parties. This Agreement may be extended only with the written
consent of Party A before its expiration. The term of the
extension shall be decided by the parties through negotiation.
If the duration of operation (including any extension thereof)
of Party A or Party B is expired or terminated for other reasons
within the aforesaid term of this Agreement, this Agreement
shall be terminated simultaneously, unless such party has
already assigned its rights and obligations hereunder in
accordance with Article 9 hereof.
16. This Agreement will terminate on the expiration date
unless it is renewed in accordance with the relevant provision
herein. During the term of this Agreement, Party B shall not
terminate this Agreement. Notwithstanding the above stipulation,
Party A shall have the right to terminate this Agreement at any
time by issuing a thirty (30) days’ prior written
notice to Party B.
17. This Agreement shall be executed in four originals,
with each party holding one original. All originals shall have
the same legal effect.
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IN WITNESS THEREOF, each party hereto has caused this
Agreement to be duly executed by himself/herself or a duly
authorized representative on its behalf as of the date first
written above.
Party A: Baidu Online Network Technology (Beijing) Co.,
Ltd.
| Authorized
Representative: /s/ |
Xxxxx Xxxx |
Seal: [Baidu Online Network Technology (Beijing) Co., Ltd. seal]
Party B: Beijing BaiduPay Science and Technology Co., Ltd.
| Authorized
Representative: /s/ |
Xxx Xx |
[Beijing BaiduPay Science and Technology Co., Ltd. seal]
Party C: Xxx Xx
| Signature: /s/ |
Xxx Xx |
Party D: Beijing Netcom Science Technology Co., Ltd.
Signature:
/s/ Xxxxx
Xxxxxxx Xx
Seal: [Beijing Netcom Science Technology Co., Ltd. seal]
4
Exhibit 4.34
Supplementary
Agreement to the Operating Agreement
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Party A:
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Baidu Online Network Technology (Beijing) Co., Ltd. | |
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Address:
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12/F., Ideal International Plaza, No. 58 North-West 4th Ring, Haidian District, Beijing | |
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Party B:
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Beijing BaiduPay Science and Technology Co., Ltd. | |
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Address:
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301 3/F, Jia 00 Xxxxxxxxxxxx Xxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx | |
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Party C:
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CAI Hu | |
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ID No.
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320106197212162416 | |
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Party D:
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Beijing Baidu Netcom Science Technology Co., Ltd. | |
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Address:
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12/F., Ideal International Plaza, No. 58 North-West 4th Ring, Haidian District, Beijing |
(Collectively, the “Parties”)
WHEREAS
1. Party A, Party B, Party C and YU Jun, being an original
shareholder of Party B, have made a certain Operating Agreement
dated February 28, 2008 (the “Original
Agreement”); and
2. Party C is a shareholder of Party B, and Party B’s
current shareholders comprise of Party D and Party C.
NOW, THEREFORE, the Parties agree through friendly
negotiation to amend the Original Agreement as follows on
April 22, 2010:
1. The Parties agree to amend Section 5 of the
Original Agreement as follows:
The original term which reads:
“Party B, together with its shareholder Party C, hereby
jointly agree and confirm that Party B shall first seek a
guarantee from Party A if Party B needs any guarantee for its
performance of any of its contracts or for any borrowing for
working capital purposes in the course of its operations. In
such cases, Party A shall have the right, but not the
obligation, to provide the appropriate guarantee to Party B at
Party A’s sole discretion. If Party A decides not to
provide such a guarantee, Party A shall immediately issue a
written notice to Party B and Party B may seek a guarantee from
third parties.”
Is amended as:
“Party B, together with its shareholder Party C, hereby
jointly agree and confirm that Party B shall first seek a
guarantee from Party A if Party B needs any guarantee for its
performance of any of its contracts or for any borrowing for
working capital purposes in the course of its operations. In
such cases, Party A shall have the obligation to provide
appropriate guarantee to Party B at Party A’s sole
discretion.”
2. This Agreement is an integral part of this Agreement. If
there is any consistency between this Agreement and the Original
Agreement, this Agreement shall prevail. Any matter that is not
provided under this Agreement shall be governed by the Original
Agreement.
3. This Agreement is made in four counterparts with each
Party holding one copy. Each copy has the same legal effect and
will be effective upon signature and affixture of seals by the
Parties.
Party A: Baidu Online Network Technology (Beijing) Co.,
Ltd.
| By |
/s/ Legal
representative/authorized representative
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(seal of Baidu Online Network Technology (Beijing) Co., Ltd.)
Party B: Beijing BaiduPay Science and Technology Co., Ltd.
| By |
/s/ Legal
representative/authorized representative
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(seal of Beijing BaiduPay Science and Technology Co., Ltd.)
Party C: CAI Hu
| By |
/s/ CAI
Hu
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Party D: Beijing Baidu Netcom Science Technology Co., Ltd.
| By |
/s/ Legal
representative/authorized representative
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(seal of Beijing Baidu Netcom Science Technology Co., Ltd.)
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