EXCLUSIVE EQUITY PURCHASE OPTION AGREEMENT
Exhibit 4.38
This Exclusive Equity Purchase Option Agreement (this
“Agreement”) is entered into among the following
parties in Beijing, PRC:
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Party A:
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Baidu Online Network Technology (Beijing) Co., Ltd. | |
|
Legal 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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Hu Cai | |
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ID Number:
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320106198212162416 | |
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Party C:
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Beijing BaiduPay Science and Technology Co., Ltd. | |
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Legal Address:
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Xxxx 000, 0/X, Xxxxx X, Xxx Xx. 00 Xxxxxxxxxxxx Xxxxx Street, Haidian District, Beijing, PRC, 100081 |
In this Agreement, Party A, Party B and Party C are called
collectively as the “Parties” and each of them is a
“Party.”
WHEREAS:
1. Party A, is a wholly foreign-owned enterprise
incorporated under the laws of the People’s Republic of
China (the “PRC”), which has technology expertise and
practical experience in computer software development and
design, and also has rich experience and expertise in
information technology and service;
2. Party C, a liability limited company incorporated in the
PRC, is licensed by is licensed by Beijing Communications
Administration to carry out the business of value-added
telecommunication services such as Internet information services;
3. Party B is the shareholder of Party C. Party B has
ownership of 9 % of the equity interest in Party C (the
“Equity Interest”);
4. Party A and Party B entered into a loan agreement (the
“Loan Agreement”) on April 28, 2009; and
5. Party A and Party B entered into an equity pledge
agreement (the “Equity Pledge Agreement”) on
[Date].
NOW, THEREFORE, the Parties upon negotiation hereby agree
as follows:
1. Purchase and Sale of Equity Interest
1.1 Granting of Rights
Party B (hereafter, the “Transferor”) hereby
irrevocably grants to Party A an option to purchase or cause any
one or more designated persons (“Designated Persons”)
to purchase, to the extent permitted under PRC law, according to
the steps determined by Party A, at the price specified in
Section 1.3 of this Agreement, and at any time from the
Transferor, a portion of, or all of, the equity interests held
by the Transferor in Party C (the “Option”).
No Option shall be granted to any third party other than Party A
and/or the
Designated Persons. Party C hereby agrees to the granting of the
Option by Party B to Party A
and/or the
Designated Persons. The “person” set forth in this
clause and this Agreement means an individual person,
corporation, joint venture, partnership, enterprise, trust or a
non-corporation organization.
1.2 Exercise Steps
Subject to PRC law and regulations, Party A
and/or the
Designated Persons may exercise the Option by issuing a written
notice (the “Notice”) to the Transferor, specifying
the equity interest to be purchased from the Transferor (the
“Purchased Equity Interest”) and the manner of such
purchase.
1.3 Purchase Price
1.3.1 If Party A exercises the Option, the purchase price
of the Purchased Equity Interest (“Purchase Price”)
shall be equal to the original paid-in capital paid by the
Transferor for the Purchased Equity Interest, unless then
applicable PRC laws and regulations require appraisal of the
Purchased Equity Interest or stipulate other restrictions on the
Purchase price.
1.3.2 If the applicable PRC laws require appraisal of the
Purchased Equity Interest or stipulate other restrictions on the
Purchase Price at the time that Party A exercises the Option,
the Parties agree that the Purchase Price shall be set at the
lowest price permissible under applicable law.
1.4 Transfer of the Purchased Equity Interest
At each exercise of the Option:
1.4.1 The Transferor shall cause Party C to convene a
shareholders’ meeting. During the meeting, resolutions
approving the transfer of the Equity Interest from the
Transferor to Party A
and/or the
Designated Persons shall be adopted;
1.4.2 The Transferor shall, in accordance the terms and
conditions of this Agreement and the Notice in connection with
the Purchased Equity Interest, enter into an equity transfer
agreement with Party A
and/or the
Designated Persons (as applicable) for each transfer;
1.4.3 The related parties shall execute all other requisite
contracts, agreements or documents, obtain all requisite
government approvals and consents, and take all necessary
actions to transfer the valid ownership of the Purchased Equity
Interest to Party A
and/or the
Designated Persons free of any security interest, and cause
Party A
and/or the
Designated Persons to be the registered owner(s) of the
Purchased Equity Interest. In this clause and this Agreement,
“Security Interest” means guaranty, mortgage, pledge,
third-party right or interest, any share option, right of
acquisition, right of first refusal, right of set-off,
ownership, detainment or other security arrangements. However,
it does not include any security interest arising under the
Equity Pledge Agreement.
1.5 Payment
The manner of payment of the Purchase Price shall be determined
through negotiations between Party A
and/or the
Designated Persons and the Transferor according to the
applicable laws at the time of the exercise of the Option. The
Parties hereby agree that, subject to applicable laws,
Transferor shall repay to Party A any amount that is paid by
Party A
and/or the
Designated Persons to the Transferor in connection with the
Purchased Equity Interest, as the repayment of the loan
principal under the Loan Agreement, as well as legally permitted
interests or capital.
2. Covenants Relating to the Equity Interest
2.1 Covenants Relating to Party C
Party B and Party C hereby covenant:
2.1.1 Not to supplement, amend or modify Party C’s
articles of association in any way, or to increase or decrease
its registered capital, or to change its registered capital
structure in any way without Party A’s prior written
consent;
2.1.2 To maintain the corporate existence of Party C and
operate its business and deal with matters prudently and
effectively according to good financial and business rules and
practices;
2.1.3 Not to sell, transfer, mortgage or otherwise dispose
of, or permit any other security interest to be created on, any
of Party C’s assets, business or legal or beneficial
interests in its revenue at any time after the signing of this
Agreement without Party A’s prior written consent;
2.1.4 Not to create, succeed to, guarantee or permit any
liability, without Party A’s prior written consent, except
(i) liabilities arising from the normal course of business,
but not arising from loans; and (ii) liabilities disclosed
to Party A and approved by Party A in writing;
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2.1.5 To operate persistently all the business in the
normal course of business to maintain the value of Party
C’s assets, and not to commit any act or omission that
would affect its operations and asset value;
2.1.6 Without prior written consent by Party A, not to
enter into any material agreement, other than agreements entered
into in Party C’s normal course of business (for purpose of
this paragraph, an agreement will be deemed material if its
value exceeds RMB[100,000]);
2.1.7 Not to provide loans or credit to any person without
Party A’s prior written consent;
2.1.8 To provide all information relating to Party C’s
operations and financial conditions upon the request of Party A;
2.1.9 To purchase and maintain insurance from insurance
companies accepted by Party A. The amount and category of the
insurance shall the same as those of the insurance normally
procured by companies engaged in similar businesses and
possessing similar properties or assets in the area where Party
C is located;
2.1.10 Not to merge or consolidate with, or acquire or
invest in, any person without Party A’s prior written
consent;
2.1.11 To promptly notify Party A of any pending or
threatened suit, arbitration or administrative proceedings
concerning Party C’s assets, business or revenue;
2.1.12 To execute all necessary or appropriate documents,
to take all necessary or appropriate actions and to bring all
necessary or appropriate claims or to make all necessary and
appropriate defenses against all claims in order for Party C to
maintain the ownership over all its assets;
2.1.13 Not to distribute dividends to Party C’s
shareholders in any way without Party A’s prior written
consent. However, Party C shall promptly distribute all or part
of its distributable profits to its shareholders upon Party
A’s request;
2.1.14 At the request of Party A, to appoint persons
nominated by Party A to be the directors of Party C;
2.1.15 Dividends distributed by Party C and profits
assigned by any other form shall be converged to Party A.
2.2 Covenants Relating to the Transferor
Party B hereby covenants:
2.2.1 Not to sell, transfer, mortgage or otherwise dispose
of, or allow any other security interest to be created on, the
legal or beneficial interest in the Equity Interest at any time
after the signing of this Agreement without Party A’s prior
written consent, other than the pledge created on Party B’s
Equity Interest in accordance with the Equity Pledge Agreement;
2.2.2 Without Party A’s prior written consent, not to
vote for or sign any shareholders’ resolution at Party
C’s shareholders’ meetings to approve the sale,
transfer, mortgage or disposition in any other manner of, or the
creation of any other security interest on, any legal or
beneficial interest in the Equity Interest, except to or for the
benefit of Party A or its designated persons;
2.2.3 Without Party A’s prior written consent, not to
vote for or sign any shareholders’ resolution at Party
C’s shareholders’ meetings to approve Party C’s
merger or consolidation with, acquisition of or investment in,
any person;
2.2.4 To promptly notify Party A of any pending or
threatened suit, arbitration or administrative proceedings
concerning the Equity Interest owned by it;
2.2.5 To cause the shareholders’ meeting to approve
the transfer of the Purchased Equity Interest under this
Agreement;
2.2.6 To execute all necessary or appropriate documents, to
take all necessary or appropriate actions and to bring all
necessary or appropriate claims or to make all necessary and
appropriate defenses against all claims in order to maintain his
ownership over the Equity Interest;
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2.2.7 At the request of Party A, to appoint persons
nominated by Party A to be the directors of Party C;
2.2.8 At any time, upon the request of Party A, to transfer
its Equity Interest immediately and unconditionally to the
representative designated by Party A, and waive its preemptive
right with respect to the transfer of equity interest by the
other shareholder of Party C;
2.2.9 To fully comply with the provisions of this Agreement
and the other agreements entered into jointly or respectively by
and among the Transferor, Party C and Party A, perform all
obligations under these agreements and not commit any act or
omission that would affect the validity and enforceability of
these agreements.
2.3 Covenants Relating to Party A
Party A hereby convenant:
2.3.1 If Party C needs any loan or other capital support in
its business, under acceptable and reasonable scope, Party A
shall provide capital support;
2.3.2 If Party C cannot repay the loan from Party A as loss
incurred and has sufficient evidence to prove, Party A agrees
that it shall give up the rights of requiring Party C to repay
the laon.
3. Representations and Warranties
As of the execution date of this Agreement and every transfer
date, each of the Transferor and Party C hereby represents and
warrants to Party A as follows:
3.1 It has the power and authority to execute and deliver
this Agreement, and any equity transfer agreement
(“Transfer Agreement”) to which it is party for each
transfer of the Purchased Equity under this Agreement and to
perform its obligations under this Agreement and any Transfer
Agreement. Once executed, this Agreement and any Transfer
Agreement to which it is party will constitute a legal, valid
and binding obligation of it enforceable against it in
accordance with its terms;
3.2 The execution, delivery and performance of this
Agreement or any Transfer Agreement by it will not:
(i) violate any relevant PRC laws and regulations;
(ii) conflict with its articles of association or other
organizational documents; (iii) violate or constitute a
default under any contract or instrument to which it is party or
that binds upon it; (iv) violate any condition for the
grant and/or
continued effectiveness of any permit or approval granted to it;
or (v) cause any permit or approval granted to it to be
suspended, cancelled or attached with additional conditions;
3.3 Party C has good and marketable ownership interest in
all of its assets and has not created any security interest on
the said assets;
3.4 Party C has no outstanding liabilities, except
(i) liabilities arising in its normal course of business;
and (ii) liabilities disclosed to Party A and approved by
Party A in writing;
3.5 Party C complies with all PRC laws and regulations
applicable to the acquisition of assets;
3.6 There are currently no existing, pending or threatened
litigation, arbitration or administrative proceedings related to
the Equity Interest, Party C’s assets or Party C; and
3.7 The Transferor has good and marketable ownership
interest in the Equity Interest and has not created any security
interest on such Equity Interest, other than the security
interest pursuant to the Equity Pledge Agreement.
4. Assignment of Agreement
4.1 Party B and Party C shall not assign their rights and
obligations under this Agreement to any third party without the
prior written consent of Party A.
4.2 Party B and Party C hereby agree that Party A may
assign all its rights and obligation under this Agreement to a
third party without the consent of Party B and Party C, but such
assignment shall be notified in writing to Party B and Party C.
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5. Effective Date and Term
5.1 This Agreement shall be effective as of the date first
set forth above.
5.2 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 with the written consent
of Party A before its expiration. The term of the extension
shall be decided by the Parties through negotiation.
5.3 If the duration of operation (including any extension
thereof) of Party A or Party C is expired or terminated for
other reasons within the term set forth in Article 5.2, this
Agreement shall be terminated simultaneously, except in the
situation where Party A has assigned its rights and obligations
in accordance with Article 4.2 hereof.
6. Applicable Law and Dispute Resolution
6.1 Applicable Law
The formation, validity, interpretation and performance of and
settlement of disputes under this Agreement shall be governed by
the laws of the PRC.
6.2 Dispute Resolution
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 within thirty
(30) days after either party makes a request for dispute
resolution through negotiations, either party may refer such
dispute to China International Economic and Trade Arbitration
Commission (“CIETAC”) for arbitration in accordance
with CIETAC’s arbitration rules then in effect. The seat of
arbitration shall be Beijing and language of proceedings shall
be Chinese. The arbitral award shall be final and binding upon
the Parties.
7. Taxes and Expenses
Every Party shall, in accordance with PRC laws, bear any and all
transfer and registration taxes, expenses and charges incurred
by or levied on it with respect to the preparation and execution
of this Agreement and each Transfer Agreement and the
consummation of the transactions contemplated under this
Agreement and each Transfer Agreement.
8. Confidentiality
The Parties acknowledge and confirm any oral or written
materials exchanged by the Parties in connection with this
Agreement are confidential. The Parties shall maintain the
confidentiality of all such materials. Without the written
approval by the other Parties, any Party shall not disclose to
any third party any relevant materials, but the following
circumstances shall be excluded:
8.1 Materials that are or will become known by the public
(through no fault of the receiving party);
8.2 Materials required to be disclosed by the applicable
laws or rules of the stock exchange;
8.3 Materials disclosed by each Party to its legal or
financial advisors relating the transactions contemplated by
this Agreement, and such legal or financial advisors shall
comply with the confidentiality provisions set forth in this
Article 8. Any 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 8 shall survive the invalidity, cancellation,
termination or unenforceability of this Agreement for any reason.
9. Further Assurances
The Parties agree to promptly execute documents and take further
actions that are reasonably required for, or beneficial to, the
purpose of performing the provisions and carrying out the intent
of this Agreement.
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10. Miscellaneous
10.1 Amendment, Modification or Supplement
Any amendment or supplement to this Agreement shall be made by
the Parties in writing. The amendments or supplements duly
executed by each Party shall be deemed as a part of this
Agreement and shall have the same legal effect as this Agreement.
10.2 Entire Agreement
Notwithstanding Article 5 of this Agreement, the Parties
acknowledge that once this Agreement becomes effective, it shall
constitute the entire agreement of the Parties with respect to
the subject matters hereof and shall supersede all prior oral
and/or
written agreements and understandings by the Parties with
respect to the subject matters hereof.
10.3 Severability
If any provision of this Agreement is judged to be invalid,
illegal or unenforceable in any respect according to any
applicable law or regulation, the validity, legality and
enforceability of the other provisions hereof shall not be
affected or impaired in any way. The Parties shall, through
good-faith negotiations, replace those invalid, illegal or
unenforceable provisions with valid provisions that may bring
about economic effects as similar as possible to those from such
invalid, illegal or unenforceable provisions.
10.4 Headings
The headings contained in this Agreement are for the convenience
of reference only and shall not be used for the interpretation
or explanation or otherwise affect the meaning of the provisions
of this Agreement.
10.5 Language and Copies
This Agreement is executed in Chinese in three copies; each
Party holds one copy and each copy has the same legal effect.
10.6 Successor
This Agreement shall bind upon and inure to the benefit of the
successors and permitted assigns of each Party.
10.7 Survival
Any obligation arising from or becoming due under this Agreement
before its expiration or premature termination shall survive
such expiration or premature termination. Articles 6, 8 and
9 and this Section 11.7 shall survive the termination of
this Agreement.
10.8 Waiver
Any Party may waive the terms and conditions of this Agreement
by a written instrument signed by the Parties. Any waiver by a
Party to a breach by the other Parties in a specific situation
shall not be construed as a waiver to any similar breach by the
other Parties in other situations.
IN WITNESS WHEREOF, each Party has caused this Agreement
to be executed by himself/herself, its legal representative or
its duly authorized representative as of the date first written
above.
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[Signature Page]
Party A: Baidu Online Network Technology (Beijing) Co.,
Ltd.
| Legal Representative/Authorized Representative: |
/s/ Xxxxx
Xxxx
|
Seal: [Baidu Online Network Technology (Beijing) Co., Ltd. seal]
Party B: Hu Cai
| Signature: |
/s/ Hu
Cai
|
Party C: Beijing BaiduPay Science and Technology Co., Ltd.
| Legal Representative/Authorized Representative: |
/s/ Hu
Cai
|
Seal: [Beijing BaiduPay Science and Technology Co., Ltd. seal]
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