Exclusive Purchase Option Agreement on Kingsoft Cloud (Beijing) Information Technology Co., Ltd. between The Existing Shareholders of Beijing Yunxiang Zhisheng Technology Co., Ltd as Shown in Appendix I and Kingsoft Cloud (Beijing) Information...
Exhibit 10.14
18 July 2018
Exclusive Purchase Option Agreement
on
Kingsoft Cloud (Beijing) Information Technology Co., Ltd.
between
The Existing Shareholders of Beijing Yunxiang Zhisheng Technology Co., Ltd
as Shown in Appendix I
and
Kingsoft Cloud (Beijing) Information Technology Co., Ltd.
Exclusive Purchase Option Agreement
This Exclusive Purchase Option Agreement (hereinafter referred to as “this Agreement”) was executed by and the among the following parties in the People’s Republic of China (hereinafter referred to as the “PRC”) on 18 July 2018:
| (1) | The two natural persons listed in Appendix I to this Agreement (hereinafter jointly referred to as “Existing Shareholders”) |
Specific information (including domicile and ID card number) about the Existing Shareholders is set out in Appendix I “List of Existing Shareholders and Specific Information Thereof”.
| (2) | Beijing Yunxiang Zhisheng Technology Co., Ltd (hereinafter referred to as the “WFOE”) |
Registered address: Xxxx 0X00, 0/X, Xx. 00, Xxxxxxxx Xxxx Road, Haidian District, Beijing
Legal representative: Xxxxx Xxxx
| (3) | Kingsoft Cloud (Beijing) Information Technology Co., Ltd. (hereinafter referred to as the “Company”) |
Registered address: Xxxx 0X00, 0/X, Xx. 00, Xxxxxxxx Xxxx Road, Haidian District, Beijing
Legal representative: Xxxxx Xxxx
(The aforesaid parties are individually referred to as “one party” and collectively referred to as “the parties” herein.)
Whereas:
| (1) | Existing Shareholders are the registered shareholders of the Company jointly holding 100% equity of the Company. The proportion of their respective shares in the Company and the amount of their contribution are listed in Appendix I to this Agreement; |
| (2) | Existing Shareholders intend to assign all their equity in the Company to the WFOE without prejudice to the PRC laws, and the WFOE intends to accept such assignment; |
| (3) | The Company intends to assign all its assets to the WFOE without prejudice to the PRC laws, and the WFOE intends to accept such assignment; |
| (4) | To effectuate the aforesaid assignment of equity/assets, Existing Shareholders/the Company agree(s) to grant an irrevocable purchase option to the WFOE; according to the purchase option and to the extent permitted by the PRC laws, Existing Shareholders/the Company shall, as required by the WFOE, assign its option equity/assets of the Company (as defined hereunder) to the WFOE and/or any other entity or individual designated thereby in accordance with this Agreement; |
Therefore, the parties arrive at the following agreement upon negotiation:
Article 1 Definitions
| 1.1 | Unless the context otherwise requires, the following terms in this Agreement shall have the following meanings: |
| “PRC laws” |
The then valid laws, administrative regulations, administrative rules, local regulations, judicial interpretations and other binding regulatory documents of the PRC (for the purpose of this Agreement, excluding Hong Kong, Macao and Taiwan). |
| “Purchase option”: | The right conferred by the Existing Shareholders/the Company to the WFOE according to the terms and conditions of this Agreement to require acceptance of assignment of the equity/assets of the Company. | |
| “Option equity”: | Equity equivalent to 100% of the registered capital of the Company held by the Existing Shareholders at the time of exercise of right under this Agreement and under effective supplement (if any) (collectively referred to as “equity assignment option documents”) made thereafter to this Agreement. | |
| “Registered capital of the Company”: | On the date of execution of this Agreement, the registered capital of RMB10,000,000 of the Company, which also includes the expanded registered capital formed by any capital increase during the validity period of this Agreement. | |
| “Exercise”: | Exercise of purchase option by the WFOE to require the Existing Shareholders/the Company to assign the equity/assets of the Company to it or its designated entity or individual, with the amount equivalent to all or part of the option equity/assets of the Company, which shall be determined by the WFOE according to the then PRC laws and its own business considerations. | |
| “Assignment price”: | All the consideration to be paid by the WFOE or its designated entity or individual to the Existing Shareholders for acquiring the equity/assets of the Company at each time of exercise. | |
| “Operation licenses”: | Any approval, permission, filing and registration that the Company shall have to legally and effectively operate all its businesses, including but not limited to Business License of Enterprise as Legal Person, Tax Registration Certificate and other relevant permissions and licenses required by PRC laws at the material time. | |
| “Assets of the Company”: | All the tangible and intangible assets which the Company owns or has the right to use during the validity period of this Agreement, including but not limited to any immovable and movable assets, as well as intellectual properties such as trademarks, copyrights, patents, know-how, domain names and software use rights. | |
| “Material agreements”: | Agreements to which the Company is a party and which has material effects on the Company’s business or assets, including but not limited to Shareholder Voting Right Trust Agreement and Equity Pledge Agreement executed by the Company and the WFOE and the Existing Shareholders on 18 July 2018, Exclusive Consultation and Technical Service Agreement executed by the Company and the WFOE on 18 July 2018, and Loan Agreement and other agreements relating to the Company’s businesses executed by the Existing Shareholders and the WFOE on 18 July 2018. | |
| “Exercise notice”: | Has the meaning conferred in Article 3.5 hereof. | |
| “Confidential information”: | Has the meaning conferred in Article 8.1 hereof. | |
| “Defaulting party”: | Has the meaning conferred in Article 11.1 hereof. | |
| “Default”: | Has the meaning conferred in Article 11.1 hereof. | |
| “The Rights”: | Has the meaning conferred in Article 12.5 hereof. | |
| 1.2 | The references to any PRC law herein shall be deemed: |
| (1) | to include references to the amendments, changes, supplements and reenactments of such law, irrespective of whether they take effect before or after the formation of this Agreement; and |
| (2) | to include references to other decisions, notices or regulations enacted in accordance therewith or effective as a result thereof. |
| 1.3 | Unless otherwise stated in the context herein, all references to an article, clause, item or paragraph shall refer to the relevant article, clause, item or paragraph of this Agreement. |
Article 2 Grant of the Purchase Option
| 2.1 | The Existing Shareholders/The Company agree(s) to irrevocably and unconditionally grant to the WFOE an exclusive purchase option, pursuant to which the WFOE has the right to, as permitted by the PRC laws and subject to the terms and conditions of this Agreement, require the Existing Shareholders/the Company to assign the option equity/assets of the Company to the WFOE or its designated entity or individual. The WFOE also agrees to accept such a purchase option. |
| 2.2 | The Company hereby agrees that the Existing Shareholders may grant to the WFOE the right to purchase the option equity in accordance with Article 2.1 and other provisions of this Agreement. |
| 2.3 | The Existing Shareholders hereby agree that the Company may grant to the WFOE the right to purchase the assets of the Company in accordance with Article 2.1 and other provisions of this Agreement. |
Article 3 Ways of Exercise
| 3.1 | Subject to the terms and conditions of this Agreement, as permitted by the PRC laws, the WFOE has absolute discretion to determine the assignee, equity percentage, quantity of assets, specific time, method and number of times of exercise. |
| 3.2 | Subject to the terms and conditions of this Agreement, the WFOE has the right to require acceptance of assignment of all or part of the option equity/assets of the Company from the Existing Shareholders at any time, either by itself or through other entities or individuals designated by it, according to the then PRC laws. |
| 3.3 | At each time of exercise, the WFOE has the right to arbitrarily designate the amount of option equity/assets of the Company that the Existing Shareholders/the Company should assign to the WFOE and/or other entities or individuals designated by it during relevant exercise. The Existing Shareholders/the Company shall assign the option equity/assets of the Company to the WFOE and/or other entities or individuals designated by it as per the amount required by the WFOE. The WFOE and/or other entities or individuals designated by it shall pay the corresponding assignment price to the Existing Shareholders/the Company for the option equity/assets of the Company assigned during each exercise. |
| 3.4 | During each exercise, the WFOE may accept the assignment of the option equity/assets of the Company by itself, or may designate any third party to accept the assignment of all or part of the option equity/assets of the Company. |
| 3.5 | After the WFOE decides to exercise its right each time, it shall issue a notice to the Existing Shareholders/the Company (hereinafter referred to as the “exercise notice”. The format of the exercise notice is set out in Appendix II to this Agreement). Upon receipt of the exercise notice, the Existing Shareholders/the Company shall immediately assign the option equity/assets of the Company in whole to the WFOE and/or other entities or individuals designated by it at one time in a manner set out in Article 3.3 of this Agreement in accordance with the exercise notice. |
Article 4 Assignment Price
| 4.1 | According to the Loan Agreement (hereinafter referred to as the “loan agreement”) signed by the Existing Shareholders and the WFOE on 18 July 2018, the Existing Shareholders owe a debt totaling RMB10 million to the WFOE. Therefore, the parties hereby agree that the assignment price of the option equity of each Existing Shareholder shall be equivalent to the amount of the corresponding debt owed by each Existing Shareholder to the WFOE under the Loan Agreement at the material time; nevertheless, if the minimum assignment price permitted by the then PRC laws is higher than such debt amount, the minimum assignment price permitted by the PRC laws shall prevail. Notwithstanding the above provisions, the Existing Shareholders shall jointly exempt the WFOE from the payment obligations for the portion of the minimum assignment price permitted by the PRC laws in excess of such debt amount in accordance with the PRC laws and regulations. When the WFOE exercises the purchase option granted to the Existing Shareholders, the WFOE shall have the right to pay the assignment price by directly canceling the debts owed by the Existing Shareholders to the WFOE at the material time. The ratio of the cancelled debt to the total debt owed by the Existing Shareholders at the material time shall be equivalent to the ratio of the equity assigned by the Existing Shareholders to the total equity held by them in the Company. |
| 4.2 | The parties hereby agree that the assignment price of the assets of the Company shall be RMB One (1); nevertheless, if the minimum assignment price permitted by the then PRC laws is higher than the said price, the minimum assignment price permitted by the PRC laws shall prevail. Notwithstanding the above provisions, the Company shall exempt the WFOE from the payment obligations for the portion of the minimum assignment price permitted by the PRC laws in excess of RMB One (1) in accordance with the PRC laws and regulations. |
Article 5 Statements and Undertakings
| 5.1 | The Existing Shareholders hereby severally make the following statements and undertakings: |
| 5.1.1 | The Existing Shareholders are PRC citizens; they have complete and independent legal status and legal capacity to sign, deliver and perform this Agreement and may independently serve as a party of litigation. |
| 5.1.2 | The Existing Shareholders have full power and authority to enter into, deliver and perform this Agreement and all other documents to be signed by them relating to the transactions described in this Agreement, and have full power and authority to complete the transactions described herein. |
| 5.1.3 | This Agreement is legally and properly signed and delivered by the Existing Shareholders. This Agreement is legally binding on them and is enforceable against them. |
| 5.1.4 | The Existing Shareholders are the registered legal owners of the option equity when this Agreement comes into effect. Except for the pledge set out in the Equity Pledge Agreement signed on 18 July 2018 and the Trusted Rights set out in the Shareholder Voting Right Trust Agreement signed on 18 July 2018 by the Existing Shareholders, the WFOE and the Company, no liens, pledges, claims and other security interests and third-party rights are set on the option equity. According to this Agreement, the WFOE and/or other entities or individuals designated by it may, after exercise, obtain the favorable ownership of the assigned equity without liens, pledges, claims and other security interests or third-party rights. |
| 5.2 | The Company hereby makes the following statements and undertakings: |
| 5.2.1 | The Company is a limited liability company duly registered and validly subsisting under PRC laws as an independent legal person; it has complete and independent legal status and legal capacity to sign, deliver and perform this Agreement and may independently serve as a party of litigation. |
| 5.2.2 | The Company has full power and authority within the company to enter into, deliver and perform this Agreement and all other documents to be signed by it relating to the transactions described in this Agreement, and it has full power and authority to complete the transactions described herein. |
| 5.2.3 | This Agreement is legally and properly signed and delivered by the Company. This Agreement is legally binding on it and is enforceable against it. |
| 5.3 | The WFOE makes the following statements and undertakings: |
| 5.3.1 | The WFOE is a limited liability company (wholly owned by a legal person) duly registered and validly subsisting under PRC laws as an independent legal person; it has complete and independent legal status and legal capacity to sign, deliver and perform this Agreement and may independently serve as a party of litigation. |
| 5.3.2 | The WFOE has full power and authority within the company to enter into, deliver and perform this Agreement and all other documents to be signed by it relating to the transactions described in this Agreement, and it has full power and authority to complete the transactions described herein. |
| 5.3.3 | This Agreement is legally and properly signed and delivered by the WFOE. This Agreement is legally binding on it and is enforceable against it. |
Article 6 Undertakings of Existing Shareholders
Existing Shareholders hereby separately undertake as follows:
| 6.1 | During the validity period of this Agreement, without the prior written consent of the WFOE: |
| 6.1.1 | Existing Shareholders shall not assign or otherwise dispose of, or create any security interest or other third party right on, any option equity; |
| 6.1.2 | They shall not increase or decrease the registered capital of the Company or merge with any other entity; |
| 6.1.3 | They shall not dispose of or procure the management of the Company to dispose of any material assets of the Company (including the Company’s long-term investment interests) (except in the ordinary course of business operations); |
| 6.1.4 | They shall not terminate or procure the management of the Company to terminate any material agreement signed by the Company, or enter into any other agreement that conflicts with existing material agreements; |
| 6.1.5 | They shall not appoint or remove any executive director, supervisor or other management personnel of the Company that shall be appointed or removed by Existing Shareholders; |
| 6.1.6 | They shall not declare the distribution of or actually pay any distributable profits, bonuses or dividends; |
| 6.1.7 | They shall ensure that the Company is validly subsisting, and is not terminated, liquidated or dissolved; |
| 6.1.8 | They shall not amend the Company’s articles of association; and |
| 6.1.9 | They shall ensure that the Company will not lend or borrow monies, provide guarantees or make other forms of warranty, or assume any substantive obligations outside of ordinary course of business operations. |
| 6.2 | During the validity period of this Agreement, Existing Shareholders shall do their utmost to develop the Company’s business and ensure that the Company operates in a legal and compliant manner and they will not conduct any act or act of omission that may damage the assets and goodwill of the Company or affect the validity of the Company’s business license. |
| 6.3 | During the validity period of this Agreement, they shall promptly inform the WFOE of any situation that may have a material adverse effect on the Company’s subsistence, business operations, financial condition, assets or goodwill, and shall promptly take all measures approved by the WFOE to eliminate such adverse conditions or take effective remedial measures for the Company. |
| 6.4 | Once the WFOE issues the exercise notice: |
| 6.4.1 | They shall immediately convene a shareholders’ meeting and adopt resolutions of such meeting and take all other necessary actions to agree that Existing Shareholders may assign all option equity/assets of the Company to the WFOE and/or other entities or individuals designated by it at the assignment price and waive any right of first refusal they have; |
| 6.4.2 | They shall promptly sign an equity assignment agreement with the WFOE and/or other entities or individuals designated by it to assign all option equity to the WFOE and/or other entities or individuals designated by it at the assignment price, and shall provide the WFOE with necessary support (including providing and signing all relevant legal documents, performing all government approvals and registration procedures and undertaking all relevant obligations) in accordance with the requirements of the WFOE and laws and regulations so that the WFOE and/or other entities or individuals designated by it obtain all option equity without faults at law. |
Article 7 Undertakings of the Company
| 7.1 | The Company hereby undertakes as follows: |
| 7.1.1 | If the signing and performance of this Agreement and the grant of the equity assignment option under this Agreement are subject to the consent, permission, waiver, authorization of any third party, or the approval, permission, waiver of any government authority or the registration or filing with any government authority (if required by law), the Company will do its best to help meet the above conditions. |
| 7.1.2 | The Company will not assist or allow Existing Shareholders to assign or otherwise dispose of, or create any security interest or other third party right on, any option equity without the prior written consent of the WFOE. |
| 7.1.3 | The Company will not dispose of any material assets (including the Company’s long-term investment interests) (except in the ordinary course of business operations) without the prior written consent of the WFOE. |
| 7.1.4 | The Company shall not engage in or permit any act or action that may adversely affect the interests of the WFOE under this Agreement, including but not limited to any acts and actions subject to Article 6.1. |
| 7.2 | Once the WFOE issues the exercise notice: |
| 7.2.1 | They shall immediately convene a board/shareholders’ meeting and adopt resolutions of such meeting and take all other necessary actions to agree that Existing Shareholders may assign all assets of the Company to the WFOE and/or other entities or individuals designated by it at the assignment price; |
| 7.2.2 | They shall promptly sign an asset assignment agreement with the WFOE and/or other entities or individuals designated by it to assign all assets of the Company to the WFOE and/or other entities or individuals designated by it at the assignment price, and shall provide the WFOE with necessary support (including providing and signing all relevant legal documents, performing all government approvals and registration procedures and undertaking all relevant obligations) in accordance with the requirements of the WFOE and laws and regulations so that the WFOE and/or other entities or individuals designated by it obtain all assets of the Company without faults at law. |
Article 8 Confidentiality Obligation
| 8.1 | Regardless of whether this Agreement has been terminated or not, the parties shall strictly keep confidential the trade secrets, proprietary information, customer information and all other information of confidential nature (hereinafter collectively referred to as “confidential information”) relating to the other parties that are known during the conclusion and performance of this Agreement. Except with the prior written consent of the party disclosing the confidential information or for disclosure to third parties as required by relevant laws, regulations or the listing requirements, the party receiving the confidential information shall not disclose any confidential information to any other third party; except for the purpose of performing this Agreement, the party receiving the confidential information shall not use or indirectly use any confidential information. |
| 8.2 | The following information shall not be deemed as confidential information: |
| (a) | any information proven by written evidence to have been previously obtained by the receiving party through legal means; |
| (b) | any information that is made public for a reason not ascribable to the receiving party; or |
| (c) | any information obtained by the receiving party through other legal means after receiving such information. |
| 8.3 | The receiving party may disclose the confidential information to its relevant employees, agents or professionals engaged by it on the condition that it shall ensure that the above-mentioned persons comply with the relevant terms and conditions of this Agreement and that it shall assume any liability arising from violation of the relevant terms and conditions of this Agreement by the above-mentioned persons. |
| 8.4 | Notwithstanding other provisions of this Agreement, the validity of this article shall not be affected by the termination of this Agreement. |
Article 9 Validity Period of this Agreement
The parties agree that this Agreement shall become effective on the date of formal signing by the parties, and shall be valid until all option equity/assets of the Company are legally assigned to the WFOE and/or other entity or individual designated thereby pursuant to this Agreement.
Article 10 Notice
| 10.1 | Any notices, requests, demands and other correspondences required by this Agreement or made according to this Agreement shall be served in writing to the parties concerned. |
| 10.2 | The above notices or other correspondences shall be deemed to have been served: (i) upon sending, when sent by fax or telex; (ii) upon receipt, when delivered personally; (iii) five (5) days after being posted, when sent by post. |
Article 11 Default Liabilities
| 11.1 | The parties agree and confirm that if any party (hereinafter referred to as the “defaulting party”) materially breaches any of the agreements made hereunder, or substantially fails to perform any of the obligations hereunder, it shall constitute a default under this Agreement (hereinafter referred to as “default”), and the observant party shall have the right to request the defaulting party to make corrections or take remedial actions within a reasonable period. If the defaulting party fails to make corrections or take remedial actions within the reasonable period or within ten (10) days after the observant party notifies the defaulting party in writing and requests for correction, the observant party shall have the right to decide at its own discretion to: |
| (1) | terminate this Agreement and request the defaulting party to give full compensation for damages; or |
| (2) | require the defaulting party to perform its obligations under this Agreement in a compulsory manner and give full compensation for damages; |
| 11.2 | The parties agree and confirm that, except as otherwise required by law, Existing Shareholders and the Company shall not request the termination of this Agreement under any circumstances. |
| 11.3 | Notwithstanding other provisions of this Agreement, the validity of this article shall not be affected by the termination of this Agreement. |
Article 12 Other Matters
| 12.1 | This Agreement is executed in Chinese in five (5) counterparts. |
| 12.2 | The conclusion, validity, performance, modification, interpretation and termination of this Agreement shall be governed by the PRC laws. |
| 12.3 | Any dispute between the parties for the interpretation and performance of terms hereunder shall be settled by the parties through good faith negotiation. If no agreement on solving the dispute is reached within thirty (30) days after one party requests to solve the dispute upon negotiation, any party may refer the relevant dispute to China International Economic and Trade Arbitration Commission for arbitration in Beijing pursuant to the arbitration rules thereof then in effect. The arbitration shall be conducted in Chinese. The arbitration award shall be final and binding on the parties. The parties agree and confirm that the arbitration tribunal and arbitrators shall have the right to grant any remedies (including provisional and permanent remedies) in accordance with this Agreement and the applicable PRC laws, and that during the formation of the arbitration tribunal or where appropriate, any party shall have the right to apply to a court with jurisdiction for provisional remedies. |
| 12.4 | Any rights, powers and remedies conferred on any party by any terms of this Agreement shall not preclude any other rights, powers or remedies conferred on it under the laws and other terms of this Agreement, and any party’s exercise of its rights, powers and remedies shall not preclude its exercise of other rights, powers and remedies enjoyed by it. |
| 12.5 | Any party’s failure to exercise or delay in exercising any rights, powers and remedies (hereinafter referred to as “the Rights”) conferred on it under this Agreement or laws shall not result in its waiver of the Rights, and the waiver of any single or part of the Rights shall also not preclude the party from exercising the Rights in other ways and exercising the other Rights. |
| 12.6 | The titles to the articles of this Agreement are for index purposes only and shall not be used for or affect the interpretation of the provisions of this Agreement under any circumstances. |
| 12.7 | Each term of this Agreement is severable and independent of other terms. If any term or terms of this Agreement become(s) invalid, illegal or unenforceable at any time, the validity, legality and enforceability of other terms of this Agreement shall not in any way be affected thereby. |
| 12.8 | Upon being signed, this Agreement shall replace any other legal documents previously signed by the parties for the same theme. Any amendment and supplement to this Agreement shall be executed in writing and shall take effect upon being duly signed by the parties thereto. |
| 12.9 | No party shall assign any of its rights and/or obligations hereunder to any third party without the prior written consent of the other parties. |
| 12.10 | This Agreement shall be binding on the legal assignees or successors of the parties. The appendixes to this Agreement shall have the same legal force as the text hereof. |
| 12.11 | Upon the execution of this Agreement, the Existing Shareholders shall enter into a power of attorney (hereinafter referred to as the “Power of Attorney”) as shown in Appendix III to authorize the person designated by the WFOE (hereinafter referred to as the “Proxy”) to sign, on their behalf and according to this Agreement, any and all legal documents necessary for the exercise of the WFOE’s rights hereunder. If, according to laws and regulations or relevant requirements of the government, the relevant legal documents must be personally signed by the Existing Shareholders, the Existing Shareholders must act according to the instructions of the WFOE and sign such documents approved by the WFOE in advance. The WFOE shall keep the Power of Attorney, and may submit the Power of Attorney to relevant government departments at any time when necessary. When and only when the WFOE issues a written notice of replacing the Proxy to Existing Shareholders, Existing Shareholders shall immediately designate other person designated by the WFOE at that time to exercise the aforesaid Trusted Rights and re-issue a power of attorney as per the contents and format specified in Appendix III. The new power of attorney shall replace the original one upon being made; apart from that, Existing Shareholders shall not revoke the entrustment and authorization made to the Proxy. |
[The remainder is intentionally left blank]
[The remainder is intentionally left blank, only for signatures]
In witness thereof, this Exclusive Purchase Option Agreement has been executed by the following parties on the date and in the place first above written.
| The Company:
Kingsoft Cloud (Beijing) Information Technology Co., Ltd.
/s/ Seal of Kingsoft Cloud (Beijing) Information Technology Co., Ltd.
/s/ Xxxxx Xxxx Name: Xxxxx Xxxx Position: Legal representative |
The WFOE:
Beijing Yunxiang Zhisheng Technology Co., Ltd
/s/ Seal of Beijing Yunxiang Zhisheng Technology Co., Ltd
/s/ Xxxxx Xxxx Name: Xxxxx Xxxx Position: Legal representative |
Existing Shareholders:
| Xxxxxx Xxx |
| /s/ Xxxxxx Xxx |
| Xxxxx Xxxx |
| /s/ Xxxxx Xxxx
|
Appendix I: List of Existing Shareholders and Specific Information Thereof
| No. |
Name |
ID card No. |
Address |
Shareholding percentage |
Amount of contribution |
Amount of debt |
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| 1 | Xxxxxx Xxx | * | * | 80 | % | 800 | 800 | |||||||||||||
| 2 | Xxxxx Xxxx | * | * | 20 | % | 200 | 200 | |||||||||||||
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| Total |
100 | % | 1000 | 1000 | ||||||||||||||||
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Appendix II:
Format of Exercise Notice
Appendix III:
Power of Attorney
Supplemental Exclusive Purchase Option Agreement
The Supplemental Exclusive Purchase Option Agreement (hereinafter referred to as “this Agreement”) was executed by and among the following parties in the People’s Republic of China (hereinafter referred to as the “PRC”) on 29 November 2019:
Party A: Beijing Yunxiang Zhisheng Technology Co., Ltd, a limited liability company established under PRC laws (“Yunxiang Zhisheng” or “WFOE”);
Party B: Xxxxxx Xxx, a PRC citizen, with ID card No.: *;
Party C: Xxxxx Xxxx, a PRC citizen, with ID card No.: * (referred to as “Existing Shareholders” together with Xxxxxx Xxx);
Party D: Kingsoft Cloud (Beijing) Information Technology Co., Ltd., a limited liability company established under PRC laws (“Kingsoft Cloud Information” or “the Company”);
Party A, Party B, Party C and Party D are individually referred to as “one party” and collectively referred to as “the parties” herein.
Whereas: Kingsoft Cloud Information, Xxxxxx Xxx, Xxxxx Xxxx and Yunxiang Zhisheng signed on 18 July 2018 the Exclusive Purchase Option Agreement Regarding Kingsoft Cloud (Beijing) Information Technology Co., Ltd. (“Exclusive Purchase Option Agreement”), which specified that the Existing Shareholders shall grant a purchase option to Yunxiang Zhisheng. According to the purchase option, Yunxiang Zhisheng, to the extent permitted by the PRC laws, has the right to require the Existing Shareholders to assign the option equity/assets of the Company to Yunxiang Zhisheng or any entity or individual designated thereby.
The parties hereby arrive at the following supplementary agreement upon negotiation. The terms used but not defined in this Agreement shall have the same meanings as those in the Exclusive Purchase Option Agreement:
1. Provision of financial support
To ensure continuous operation of Kingsoft Cloud Information, Yunxiang Zhisheng shall provide financial support (to the extent permitted by the PRC laws and in the way permitted by the PRC laws) for Kingsoft Cloud Information according to actual conditions to meet any cash flow requirements of Kingsoft Cloud Information during daily business operations and/or offset any losses arising during business operations. When Kingsoft Cloud Information is unable to repay the aforesaid financial support funds, Yunxiang Zhisheng shall agree to exempt it from repayment to the extent permitted by the PRC laws. If necessary, Yunxiang Zhisheng and Kingsoft Cloud Information shall sign a separate agreement regarding the specific measures and exemption matters concerning the aforesaid financial support.
2. Amendment to Article 6 of the Exclusive Purchase Option Agreement
| 2.1 | The parties agree and confirm that the title of Article 6 of the Exclusive Purchase Option Agreement shall be amended as “Undertakings of the Existing Shareholders and the Company”, and the beginning of Article 6 shall be amended as “The Existing Shareholders and the Company severally and jointly undertake as follows”. |
| 2.2 | The parties agree and confirm that Article 6.1 of the Exclusive Purchase Option Agreement shall be amended as follows: |
“6.1 During the validity period of this Agreement, without the prior written consent of the WFOE:
| 6.1.1 | Existing Shareholders shall not assign or otherwise dispose of, or create any security interest or other third party right on, any option equity; |
| 6.1.2 | The Company shall not increase or decrease the registered capital, or merge or integrate with any other entity, or acquire or invest in any party; |
| 6.1.3 | Except in the ordinary course of business operations, the Existing Shareholders shall not sell, assign, mortgage or otherwise dispose of any legal or beneficial interests in any material assets, businesses or revenues of the Company, or allow creation of any other encumbrance thereon; |
| 6.1.4 | Except for the contracts signed in the ordinary course of business operations, the Existing Shareholders shall not procure the Company to enter into any material contract, or terminate any material agreement signed by the Company, or enter into any other agreement that conflicts with existing material agreements; |
| 6.1.5 | The Company shall not appoint or remove any executive director, supervisor or other management personnel of the Company that shall be appointed or removed by Existing Shareholders; |
| 6.1.6 | The Company shall not declare the distribution of or actually pay any distributable profits, bonuses or dividends; |
| 6.1.7 | The Existing Shareholders shall ensure that the Company is validly subsisting, and is not terminated, liquidated or dissolved; |
| 6.1.8 | The Existing Shareholders shall not amend the Company’s articles of association; |
| 6.1.9 | The Existing Shareholders shall ensure that the Company will not lend or borrow monies, provide guarantees or make other forms of warranty, or assume any substantive obligations outside of ordinary course of business operations; and |
| 6.1.10 | If the Existing Shareholders obtain any profits, dividends, bonuses, or liquidation income from the Company, they shall, according to the PRC laws, timely give them to the WFOE or any person designated by the WFOE.” |
3. Amendment to Article 11.2 of the Exclusive Purchase Option Agreement
3.1 The parties agree and confirm that Article 11.2 of the Exclusive Purchase Option Agreement is amended as follows:
“The parties agree and confirm that, the Existing Shareholders and the Company shall not require to terminate this Agreement under any circumstances, unless subject to the mandatory provisions of law. The WFOE has the right to unilaterally require to amend, supplement and terminate this Agreement, in which case the other parties shall cooperate and sign relevant agreements and complete corresponding registration and filing procedures (if any) in accordance with relevant legal requirements.”
4. Governing Laws and Settlement of Disputes
4.1 Governing laws
The conclusion, validity, interpretation, performance, modification and termination of this Agreement and settlement of disputes thereunder shall be governed by the PRC laws.
4.2 Settlement of disputes
Any dispute arising from the interpretation and performance of this Agreement shall be settled preferably by the parties thereto through friendly negotiation. If the dispute cannot be resolved within 30 days after one party sends to the other parties a written request of resolving the dispute through negotiation, any party may refer the relevant dispute to China International Economic and Trade Arbitration Commission for arbitration pursuant to the arbitration rules thereof. The arbitration shall be held in Beijing. The arbitration award shall be final and binding on the parties.
5. Confidential Obligations
| 5.1 | The parties acknowledge and determine that any oral or written information related to this Agreement or the contents thereof or exchanged among one another for the preparation or performance of this Agreement is deemed to be confidential. The parties shall keep all such confidential information confidential and shall not disclose any confidential information to any third party without the written consent of the other parties, except for the following information: (a) any information that is or will be in the public domain (other than through the receiving party’s unauthorized disclosure); (b) any information required to be disclosed in accordance with governing laws and regulations, stock trading rules, or orders of government departments or a court; or (c) information required to be disclosed by any party to its shareholders, directors, employees or legal or financial advisers in connection with the transaction described in this Agreement (the said shareholder, director, employee or legal or financial advisor is also required to be bound by confidentiality obligations similar to those in this article). Disclosure of confidential information by a/an shareholder, director, employee or hired agency of any party shall also be deemed as disclosure of confidential information by that party, which party shall be liable for breach of contract according to this Agreement. |
6. Others
6.1 Language
This Agreement shall be executed in Chinese and in four counterparts, with one held by each party. Each copy shall have the same legal force. This Agreement may have multiple signed copies, which constitute one and the same document. Signatures by fax or email or other e-signatures shall have the same legal effect as the original signature.
6.2 Title
The titles of this Agreement are set to facilitate reading only and shall not be used to interpret, explain or otherwise affect the meaning of the provisions of this Agreement.
6.3 Entry into force
This Agreement shall take effect from the date of signing by the parties.
6.4 Entire agreement
This Agreement constitutes an amendment and supplement to the Exclusive Purchase Option Agreement. In case of any inconsistency or conflict between this Agreement and the Exclusive Purchase Option Agreement, this Agreement shall prevail. The validity of relevant stipulations under this Agreement is superior to the same under the Exclusive Purchase Option Agreement. Matters not covered herein shall be as specified in the Exclusive Purchase Option Agreement.
[The remainder is intentionally left blank]
The parties have duly signed this Agreement on the date first above written
| Beijing Yunxiang Zhisheng Technology Co., Ltd |
| /s/ Beijing Yunxiang Zhisheng Technology Co., Ltd |
Signature:
Name:
Position: Legal representative
The parties have duly signed this Agreement on the date first above written
| Kingsoft Cloud (Beijing) Information Technology Co., Ltd. | ||
| /s/ Seal of Kingsoft Cloud (Beijing) Information Technology Co., Ltd. | ||
Signature:
Name:
Position: Legal representative
The parties have duly signed this Agreement on the date first above written
Xxxxxx Xxx
/s/ Xxxxxx Xxx
The parties have duly signed this Agreement on the date first above written
| Xxxxx Xxxx |
| /s/ Xxxxx Xxxx |
