EQUITY PLEDGE AGREEMENT
Exhibit 4.44
This Equity Pledge Agreement (this “Agreement”) is
entered into in Beijing, PRC on December 28, 2011 by the
following parties:
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Pledgee:
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Party A:
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Baidu Online Network Technology (Beijing) Co., Ltd. | |
| Legal Address: Xxxxx Xxxxxx, Xx. 00, Xxxxxxx 10th Street,, Xxxxxxx Xxxxxxxx, Xxxxxxx, XXX, 000000 | ||
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Pledgor:
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Party B:
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Xxxxxxx Xx ID card No.: 110108196811171874 Legal Address: |
WHEREAS,
1. Party A (the “Pledgee”), a wholly
foreign-owned enterprise registered in Beijing, the
People’s Republic of China (the “PRC”).
2. Party B (the “Pledgor”), is a citizen of the
PRC. The Pledgor owns 100% of the equity interest in Baidu HR
Consulting (Shanghai) Co., Ltd., a limited liability company
registered in Shanghai, PRC (the “Company”).
3. Party A and Party B signed a loan agreement on Decmeber
28, 2010, according to which Party B may get a loan in an amount
of RMB 50,000,000.00 (hereinafter the “Loan”) from
Party A.
4. Party A and the Company signed an Exclusive Technology
Consulting and Service Agreement (the “Technology
Agreement”) on December 28, 2010, which has a term of
ten (10) years. Pursuant to the Technology Agreement, the
Company shall pay Party A consulting and services fees (the
“Fees”) for the technology consulting and services
provided by Party A.
5. In order to ensure that Party B will perform its
obligations under the Loan Agreement, the Pledgor agrees to
pledge all his equity interest in the Company as security for
the performance of his obligations under the Loan Agreement.
Party A and Party B plans to sign this contract to specify their
rights and obligations.
NOW THEREFORE, the Pledgee and the Pledgor through
friendly negotiations hereby enter into this Agreement based
upon the following terms:
1. Definitions and Interpretation
Unless otherwise provided in this Agreement, the following terms
shall have the following meanings:
1.1 “Pledge”: refers to the full content of
Article 2 hereunder.
1.2 “Equity Interest”: refers to all of the
equity interest in the Company legally held by the Pledgor.
1.3 “Rate of Pledge”: refers to the ratio between
the value of the Pledge and the services fees under this
Agreement and the total amount of the Loan.
1.4 “Term of Pledge”: refers to the period
provided for under Article 3.2 hereunder.
1.5 “Principal Agreement”: refers to the
Technology Agreement and agreements under loan arragement.
1.6 “Event of Default”: refers to any event
listed in Article 7.1 hereunder.
1.7 “Notice of Default”: refers to the notice of
default issued by the Pledgee in accordance with this Agreement.
2. Pledge
The Pledgor agrees to pledge his Equity Interest in the Company
to the Pledgee as security for his obligations under the loan
arrangement and debt under Technology Agreement. The term
“Pledge” under this Agreement refers to the right of
the Pledgee to be entitled to priority in receiving payment in
the form of the Equity Interest based on the conversion value
thereof, or from the proceeds from the auction or sale of the
Equity Interest pledged by the Pledgor to the Pledgee.
3. Rate of Pledge and Term of Pledge
3.1 The rate of the Pledge
The rate of the Pledge shall be approximately 100%.
3.2 The term of the Pledge
3.2.1 The Pledge shall take effect as of the date when the
pledge of the Equity Interest is recorded in the Register of
Shareholders of the Company and registered in authorized
administration of industry and commerce, and shall remain in
effect until two (2) years after the obligations under the
Principal Agreement will have been fulfilled.
3.2.2 During the term of the Pledge, the Pledgee shall be
entitled to dispose of the pledged assets in accordance with
this Agreement in the event that the Pledgor does not perform
his obligations under the loan arrangement or the Company fails
to pay services fees under the Technology Agreement.
4. Physical Possession of Documents
4.1 During the term of the Pledge under this Agreement, the
Pledgor shall deliver the physical possession of
his/her
Certificate of Capital Contribution and the Register of
Shareholders of the Company to the Pledgee within one
(1) week from the execution date of this Agreement.
4.2 The Pledgee shall be entitled to collect the dividends
for the Equity Interest.
4.3 The Pledge under this Agreement will be recorded in the
Register of Shareholders of the Company within
[ ] days of the signing of this Agreement (See
Appendix 1).
5. Representation and Warranty of the Pledgor
5.1 The Pledgor is the legal owner of the Equity Interest
pledged and through resolutions of shareholders’ meetings
(see Appendix 2), get approval for the pledge under this
agreement.
5.2 Except for the benefit of the Pledgee, the Pledgor has
not pledged the Equity Interest or created other encumbrance on
the Equity Interest.
6. Covenants of the Pledgor
6.1 During the effective term of this Agreement, the
Pledgor covenants to the Pledgee for its benefit that the
Pledgor shall:
6.1.1 Not transfer or assign the Equity Interest, create or
permit the existence of any other pledges which may have an
adverse effect on the rights or benefits of the Pledgee without
prior written consent of the Pledgee;
6.1.2 Comply with laws and regulations with respect to the
pledge of rights; present to the Pledgee the notices, orders or
suggestions with respect to the Pledge issued or made by
relevant government authorities within five (5) days upon
receiving such notices, orders or suggestions; comply with such
notices, orders or suggestions or, alternatively, at the
reasonable request of the Pledgee or with consent from the
Pledgee, raise objection to such notices, orders or suggestions;
6.1.3 Timely notify the Pledgee of any events or any
notices received which may affect the Pledgor’s right to
all or any part of the Equity Interest, and any events or any
received notices which may change the Pledgor’s warranties
and obligations under this Agreement or affect the
Pledgor’s performance of its obligations under this
Agreement.
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6.2 The Pledgor agrees that the Pledgee’s right to the
Pledge obtained from this Agreement shall not be suspended or
inhibited by any legal procedure initiated by the Pledgor or any
successors of the Pledgor or any person authorized by the
Pledgor or any other person.
6.3 The Pledgor promises to the Pledgee that in order to
protect and perfect the security for the payment of the Loan,
the Pledgor shall execute in good faith and cause other parties
who have interests in the Pledge to execute, all title
certificates and contracts or to perform any other actions (and
cause other parties who have interests to take action) as
required by the Pledgee and make access to exercise the rights
and authorization vested in the Pledgee under this Agreement.
6.4 The Pledgor promises to the Pledgee that
he/she will
execute all amendment documents (if applicable and necessary) in
connection with the certificate of the Equity Interest with the
Pledgee or its designated person (being a natural person or a
legal entity) and, within a reasonable period, provide to the
Pledgee all notices, orders and decisions about the Pledge as
the Pledgee deems necessary.
6.5 The Pledgor promises to the Pledgee that
he/she will
comply with and perform all the guarantees, covenants,
warranties, representations and conditions for the benefit of
the Pledgee. The Pledgor shall compensate the Pledgee for all
losses suffered by the Pledgee because of the Pledgor’s
failure to perform in whole or in part its guarantees,
covenants, warranties, representations and conditions.
6.6 Within the period of this Agreement, the Pledgor will
not conduct any act and omission that may influence the value of
the pledged shares for the purpose to keep or increase the value
of the pledged shares. The pledgeor will notice the Pledgee
immediately when there are issues that may decrease the value of
the Pledged shares or the Plegor perform any obligations under
this Agreement and, as required by the Pledgee, provide
guarantee for the difference of the decreased pledged shares.
Such guarantee should be satisfied by the Pledgee.
6.7 When permitting under applicable laws and regulations,
the Pledgor shall assist the Pledgee for the registration,
filing or any other processes as required by the laws and
regulations.
7. Event of Default
7.1 The following events shall be regarded as events of
default:
7.1.1 Pledgor fails to perform his obligations under the
loan arrangement and supplementary agreement;
7.1.2 The Company fails to fully pay the fees on schedule
under the Technology Agreement;
7.1.3 Any representation or warranty made by the Pledgor in
Article 5 hereof contains material misleading statements or
errors
and/or the
Pledgor breaches any warranty in Article 5 hereof;
7.1.4 The Pledgor breaches the covenants under
Article 6 hereof;
7.1.5 The Pledgor breaches another provision of this
Agreement;
7.1.6 The Pledgor waives the pledged Equity Interest or
transfers or assigns the pledged Equity Interest without prior
written consent from the Pledgee;
7.1.7 Any of the Pledgor’s external loans, guaranties,
compensations, undertakings or other obligations (1) is
required to be repaid or performed prior to the scheduled due
date because of a default; or (2) is due but cannot be
repaid or performed as scheduled, causing the Pledgee to believe
that the Pledgor’s ability to perform the obligations
hereunder has been affected;
7.1.8 The Company is incapable of repaying its general
debts or other debts;
7.1.9 This Agreement becomes illegal or the Pledgor is not
capable of continuing to perform the obligations hereunder due
to any reason other than force majeure;
7.1.10 There have been adverse changes to the properties
owned by the Pledgor, causing the Pledgee to believe that the
capability of the Pledgor to perform the obligations hereunder
has been affected;
7.1.11 The breach of the other provisions of this Agreement
by the Pledgor due to
his/her act
or omission.
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7.2 The Pledgor shall immediately give a written notice to
the Pledgee if the Pledgor knows or discovers that any event
specified under Article 7.1 hereof or any event that may
result in the foregoing events has occurred.
7.3 Unless an event of default under Article 7.1
hereof has been solved to the Pledgee’s satisfaction, the
Pledgee, at any time when the event of default occurs or at
anytime thereafter, may give a written notice of default to the
Pledgor, requiring the Pledgor to immediately make full payment
of the outstanding amount under the Technology Agreement and
loan arrangement or requesting to exercise the Pledge in
accordance with Article 8 hereof.
8. Exercise of the Pledge
8.1 The Pledgor shall not transfer or assign the Equity
Interest without prior written approval from the Pledgee prior
to the full repayment of the services fees under the Technology
Agreement and the full performance of
his/her
obligations under the Loan Agreement (subject to the latter of
these two issues).
8.2 The Pledgee shall give a notice of default to the
Pledgor when the Pledgee exercises the Pledge.
8.3 Subject to Article 7.3, the Pledgee may exercise
the Pledge when the Pledgee gives a notice of default in
accordance with Article 7.3 or at anytime thereafter.
8.4 The Pledgee is entitled to priority in receiving
payment in the form of all or part of the Equity Interest based
on the conversion value thereof, or from the proceeds from the
auction or sale of all or part of the Equity Interest in
accordance with legal procedure, until the outstanding debt and
all other payables of the Pledgor under Technology Agreement are
repaid.
8.5 The Pledgor shall not hinder the Pledgee from
exercising the Pledge in accordance with this Agreement and
shall give necessary assistance so that the Pledgee could fully
exercise its Pledge.
9. Assignment
9.1 The Pledgor shall not assign or transfer its rights and
obligations hereunder without prior consent from the Pledgee.
9.2 This Agreement shall be binding upon the Pledgor and
his/her
successors and be binding on the Pledgee and each of its
successors and permitted assigns.
9.3 To the extent permitted by law, the Pledgee may
transfer or assign any or all of its rights and obligations
under the Technology Agreement and loan arrangement to any
person (natural person or legal entity) designated by it at any
time. In that case, the assignee shall have the same rights and
obligations as those of the Pledgee as if the assignee was an
original party hereto. When the Pledgee transfers or assigns the
rights and obligations under the TechnologyAgreement and loan
arrangement, it is only required to provide a written notice to
the Pledgor, and at the request of the Pledgee, the Pledgor
shall execute the relevant agreements
and/or
documents with respect to such transfer or assignment.
9.4 After the Pledgee has been changed as a result of a
transfer or an assignment, the new parties to the Pledge shall
execute a new pledge contract.
10. Effectiveness and Term
This Agreement is effective as of the date first set forth above
and from the date when the pledge is recorded on the
Company’s Register of Shareholders.
11. Termination
This Agreement shall terminate when the loan under the
Technology Agreement and loan arrangement has been fully repaid
and the Pledgor no longer has any outstanding obligations under
the Loan Agreement. Thereafter, the Pledgee shall cancel or
terminate this Agreement as soon as reasonably practicable.
12. Fees and Other Charges
12.1 The Pledgor shall be responsible for all of the fees
and actual expenses in relation to this Agreement including, but
not limited to, legal fees, production costs, stamp tax and any
other taxes and charges. If the Pledgee
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pays the relevant taxes in accordance with the laws, the Pledgor
shall fully indemnify the Pledgee for such taxes paid by the
Pledgee.
12.2 In the event that the Pledgee has to make a claim
against the Pledgor by any means as a result of the
Pledgor’s failure to pay any tax or expense payable by the
Pledgor under this Agreement, the Pledgor shall be responsible
for all the expenses arising from such claim (including but not
limited to any taxes, handling fees, management fees, litigation
fees, attorney’s fees, and various insurance premiums in
connection with the disposition of the Pledge).
13. Force Majeure
13.1 Force Majeure, which includes but is not limited to
acts of governments, change of laws and regulations, acts of
nature, fires, explosions, typhoons, floods, earthquake, tides,
lightning or war, refers to any unforeseen event that is beyond
a party’s reasonable control and cannot be prevented with
reasonable care. However, any insufficiency of creditworthiness,
capital or financing shall not be regarded as an event beyond a
party’s reasonable control. The affected party by Force
Majeure shall promptly notify the other party of such event
resulting in exemption.
13.2 In the event that the affected party is delayed or
prevented from performing its obligations under this Agreement
by Force Majeure, and only to the extent of such delay and
prevention, the affected party shall not be liable for
obligations under this Agreement. The affected party shall take
appropriate measures to minimize or remove the effects of Force
Majeure and attempt to resume performance of the obligations
that were delayed or prevented by the event of Force Majeure.
After the event of Force Majeure is removed, both parties agree
to resume the performance of this Agreement using their best
efforts.
14. Confidentiality
The parties to this Agreement acknowledge and confirm that all
the oral and written materials exchanged relating to this
Agreement are confidential. Each party must keep such materials
confidential and can not disclose such materials to any other
third party without the other party’s prior written
approval, unless: (a) the public knows or will know the
materials (not due of the disclosure by the receiving party);
(b) the disclosed materials are required by law or stock
exchange rules to be disclosed; or (c) materials relating
to the transactions under this Agreement are disclosed to the
parties’ legal or financial advisors, who must keep them
confidential as well. Disclosure of the confidential information
by employees or institutions hired by the parties is deemed as
an act by the parties, therefore, subjecting them to liability.
15. Dispute Resolution
15.1 This Agreement shall be governed by and construed in
accordance with PRC law.
15.2 The parties shall strive to settle any dispute arising
from the interpretation or performance of this Agreement through
friendly consultation. In case no settlement can be reached
through consultation, each party can submit such matter to the
China International Economic and Trade Arbitration Commission
(“CIETAC”) for arbitration. The arbitration shall
follow the current rules of CIETAC, the arbitration proceedings
shall be conducted in Chinese and shall take place in Beijing,
PRC. The arbitration award shall be final and binding upon the
parties.
16. Notice
Any notice which is given by the parties hereto for the purpose
of performing the rights and obligations hereunder shall be in
writing to the bellowing address. Where such notice is delivered
personally, the time of notice is the time when such notice
actually reaches the addressee; where such notice is transmitted
by telex or facsimile, the notice time is the time when such
notice is transmitted. If such notice does not reach the
addressee on a business day or reaches the addressee after
business hours, the next business day following such day is the
date of notice. The delivery place is the address first written
above for each of the parties hereto or the address advised by
such party in writing, including facsimile and telex, from time
to time.
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Party A: Baidu Online Network Technology (Beijing) Co.,
Ltd.
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Legal Address: Xxxxx Xxxxxx, Xx. 00, Xxxxxxx
10th Street,, Haidian District, Beijing, PRC, 100085
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Fax:
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Tel:
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Party B: Xxxxxxx Xx
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PRC ID: 000000000000000000
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Fax:
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Tel:
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17. Entire Contract
Notwithstanding Article 10, the parties agree that this
Agreement constitutes the entire agreement of the parties hereto
with respect to the subject matters herein upon its
effectiveness and supersedes and replaces all prior oral
and/or
written agreements and understandings relating to the subject
matters of this Agreement.
18. Severability
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.
19. Appendices
The appendices to this Agreement shall constitute an integral
part of this Agreement.
20. Amendment or Supplement
20.1 The parties may amend or supplement this Agreement by
written agreement. The amendments or supplements to this
Agreement duly executed by both parties shall form an integral
part of this Agreement and shall have the same legal effect as
this Agreement.
20.2 This Agreement and any amendments, modifications,
supplements, additions or changes hereto shall be in writing and
shall be effective upon being executed and sealed by the parties
hereto.
21. Counterparts
This Agreement is executed in Chinese in duplicate, with each
party hereto holding one copy. Both originals have the same
legal effect.
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[Signature Page]
Pledgee: Baidu Online Network Technology (Beijing) Co.,
Ltd.
| Legal Representative/Authorized Representative: |
/s/ Xxxxx
Xxxx
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Seal: [Baidu Online Network Technology (Beijing) Co., Ltd. seal]
Pledgor: Xxxxxxx Xx
| Signature: |
/s/ Xxxxxxx
Xx
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Appendix 1
Register
of Members of Baidu HR Consulting (Shanghai) Co., Ltd.
Name of Shareholder: Xxxxxxx Xx
PRC ID: 110108196811171874
Address:
Capital Contribution: RMB 50,000,000
Percentage of Capital Contribution: 100%
No. of Certification of Capital Contribution: 001
Xxxxxxx Xx holds 100% of shares of Baidu HR Consulting
(Shanghai) Co., Ltd.. All such shares have been pledged to Baidu
Online Network Technology (Beijing) Co., Ltd.
Baidu Online Network Technology (Beijing) Co., Ltd. holds 100%
pledge of Baidu HR Consulting (Shanghai) Co., Ltd.
Baidu HR Consulting (Shanghai) Co., Ltd.
| Signature: |
/s/ Xxxxxxx
Xx
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Name: Xxxxxxx Xx
Title: Legal Representative
Seal: [Baidu HR Consulting (Shanghai) Co., Ltd. seal]
Appendix 2
Shareholder
Resolution of Baidu HR Consulting (Shanghai) Co., Ltd.
The Shareholder’s meeting of Baidu HR Consulting (Shanghai)
Co., Ltd. DO HEREBY CONSENT to the adoption of the following
resolutions regarding the Equity Pledge Agreement made by and
between the Shareholders of Baidu HR Consulting (Shanghai) Co.,
Ltd. and Baidu Online Network Technology (Beijing) Co., Ltd.:
Agree that each of the Baidu HR Consulting (Shanghai) Co.,
Ltd.’s shareholders pledge
his/her
shares to Baidu Online Network Technology (Beijing) Co., Ltd.
This resolution was signed and submitted by the following
shareholder on December 28, 2010.
Shareholder: Xxxxxxx Xx
| Signature: |
/s/ Xxxxxxx
Xx
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