Operating Agreement
Exhibit 4.42
This Operating Agreement (this “Agreement”) is entered
into among the following parties in Beijing, PRC as of
December 28, 2010:
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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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Xxxxx Xxxxxx, Xx. 00, Xxxxxxx 10th Street,, Haidian District, Beijing, PRC, 100085 | |
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Party B:
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Baidu HR Consulting (Shanghai) Co., Ltd. | |
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Address:
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Xx. 000-0, Xx. 000 Xxxxxxx Xxxx, Xxxxxxx District, Shanghai, PRC, 201807 | |
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Party C:
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Xxxxxxx Xx | |
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PRC ID:
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110108196811171874 | |
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Address:
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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;
3. Party C is a shareholder of Party B, in which Party C
owns 100 % 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”);
5. Pursuant to the above-mentioned agreement between Party
A and Party B, Party B shall pay certain sums of money to Party
A. 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 and Party C 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 shareholder Party C, 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 shareholder Party C, 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 shareholder Party C, hereby
jointly agree that Party C shall appoint candidates recommended
by Party A as executive directors of Party B, and Party B shall
appoint Party A’s staffrecommended by Party A as its
president, chief financial officer and other senior executive
officers. If any of the above-mentioned staff of Party A leaves
Party A, whether voluntarily or as a result of dismissal by
Party A, or through written notice 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 staff 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 executive directors, chief
financial officers and other senior executive officers.
5. 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 to provide the
appropriate guarantee to Party B at Party A’s sole
discretion.
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 and Party C shall not assign its rights and
obligations under this Agreement to any third party without the
prior written consent of Party A. Party B and Party C hereby
agree 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 B and Party C 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 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
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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. 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 three 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
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Seal: [Baidu Online Network Technology (Beijing) Co., Ltd. seal]
Party B: Baidu HR Consulting (Shanghai) Co., Ltd.
| Authorized Representative: |
/s/ Xxxxxxx
Xx
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Seal: [Baidu HR Consulting (Shanghai) Co., Ltd. seal]
Party C: Xxxxxxx Xx
| Signature: |
/s/ Xxxxxxx
Xx
|
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