LOAN AGREEMENT
Exhibit 4.40
This Loan Agreement (the “Agreement”) is entered into
in Beijing by the following parties.
Party A: Baidu Online Network Technology (Beijing) Co.,
Ltd.
Registration Address: 12/F., Ideal International Plaza,
No. 58 North-West 4th Ring, Haidian District, Beijing,
PRC, 100080
Party B: Hu Cai
ID No.: 320106197212162416
WHEREAS,
1. Party A is a wholly-owned foreign enterprise
incorporated in the People’s Republic of China (the
“PRC”); and
2. Party B is a citizen of the PRC and a shareholder of
Beijing BaiduPay Science and Technology Co., Ltd. (the
“Company”).
NOW THEREFORE, through friendly negotiations, the parties
hereto agree as follows:
1. Party A agrees to provide an interest-free loan to Party
B with an aggregate principal amount of RMB 9,000,000 in
accordance with the terms and conditions set forth in this
Agreement.
2. Party B confirms that he has received the total amount
of the loan and has invested it into the Company as capital
contribution.
3. The Term of the loan starts from the date when Party B
received the loan until ten (10) years after the execution
of this Agreement and may be extended upon written agreement of
the parties hereto. During the term of the loan or any extension
thereof, Party A may notify Party B in writing that the loan
under this Agreement is due and payable immediately and request
Party B to repay the loan in the manner specified herein, if any
of the following events occurs:
(a) Party B resigns from or is dismissed by Party A or its
affiliates;
(b) Party B dies or becomes a person without capacity or
with limited capacity for civil acts;
(c) Party B commits a crime or is involved in a crime;
(d) Any other third party claims more than RMB[100,000]
against Party B; or
(e) Subject to PRC laws, Party A or its designated person
is permitted to invest in the business of value-added
telecommunications services, such as Internet information
services, as well as other businesses that the Company is
engaged in, and Party A has given a written notice to the
Company to exercise its purchase option in accordance with the
exclusive equity purchase option agreement specified in
Article 4 of this Agreement.
4. Both parties hereby agree and confirm that, subject to
PRC laws, Party A shall have the right, but not the obligation,
to purchase, or designate other persons (including natural
persons, legal persons or other entities) to purchase, at
anytime all or part of the equity interests held by Party B in
the Company (the “Option Right”), provided, however,
that Party A shall notify Party B in writing of such purchase of
equity interests. Once the written notice for exercising the
Option Right is given by Party A, Party B shall, according to
Party A’s intention or instruction, transfer his equity
interests in the Company to Party A or other persons designated
by Party A at his original investment price (the “Original
Investment Price”) or, if otherwise specified by laws, at
an other price agreed upon by Party A. Both parties agree and
confirm that, if at the time of Party A’s exercise of the
Option Right, the lowest price permitted under then applicable
laws and regulations is higher than the Original Investment
Price, the purchase price to be paid by Party A or its
designated persons shall be the lowest
price permitted by applicable law. Both parties agree to execute
an Exclusive Equity Purchase Option Agreement (the “Option
Agreement”) in connection with the above matters.
5. Both parties hereby agree and confirm that Party B may
repay the loan only in the following manner: if permitted by PRC
laws, Party B or its successor or assign shall transfer the
equity interests in the Company to Party A or its designated
persons and use the proceeds from such transfer to repay the
loan, when the loan is due and Party A gives a written notice.
6. Both parties hereby agree and confirm that, except as
otherwise provided for herein, the loan under this Agreement is
interest-free. However, if, at the time the loan is due and
Party B needs to transfer his equity interests in the Company to
Party A or its designated persons, the actual transfer price is
higher than the loan principal due to legal requirements or
other reasons, the amount in excess of the loan principal, to
the extent permitted by law, shall be deemed as interests or
capital utilization cost, which shall be repaid to Party A
together with the loan principal.
7. Both parties hereby agree and confirm that Party B shall
be deemed to have fully performed his obligations under this
Agreement only if the following requirements are met:
(a) Party B has transferred all his equity interests in the
Company to Party A
and/or its
designated persons; and,
(b) Party B has paid the total proceeds from such transfer
or the maximum amount (including principal and the highest loan
interest permitted under then applicable law) allowed by
applicable law as repayment of the loan to Party A.
8. To secure the performance of his obligations under this
Agreement, Party B agrees to pledge all his equity interests in
the Company to Party A (the “Equity Pledge”). Both
parties agree to execute an Equity Pledge Agreement (the
“Equity Pledge Agreement”) in connection with the
above matters.
9. Party A hereby represents and warrants to Party B that,
as of the execution date of this Agreement:
(a) Party A is a wholly foreign-owned enterprise
incorporated and validly existing under the laws of PRC;
(b) Party A has the right to execute and perform this
Agreement. The execution and performance of this Agreement by
Party A comply with its business scope, articles of association
and other organizational documents. Party A has obtained all
necessary and appropriate approvals and authorizations for the
execution and performance of this Agreement;
(c) The principal of the loan to Party B is legally owned
by Party A;
(d) The execution and performance of this Agreement by
Party A do not violate any laws, regulations, approvals,
authorizations, notices, other governmental documents to which
Party A is subject, any agreement signed by it with any third
party or any undertaking made by it to any third party; and
(e) When executed by the parties hereto, this Agreement
shall constitute the legal, valid and binding obligations of
Party A.
10. Party B hereby represents and warrants to Party A that,
from the execution date of this Agreement until this Agreement
terminates:
(a) The Company is a limited liability company incorporated
and validly existing under the laws of PRC and Party B is a
legal holder of the equity interest of the Company;
(b) Party B has the right to execute and perform this
Agreement. The execution and performance of this Agreement by
Party B comply with its business scope, articles of association
and other organizational documents. Party B has obtained all
necessary and appropriate approvals and authorizations for the
execution and performance of this Agreement;
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(c) The execution and the performance of this Agreement by
Party B do not violate any laws, regulations, approvals,
authorizations, notices, other governmental documents to which
Party B is subject, any agreement signed by Party B with any
third party or any undertaking made by Party B to any third
party;
(d) When executed by the parties hereto, this Agreement
shall constitute the legal, valid and binding obligations of
Party B;
(e) Party B has paid contribution in full for its equity
interests in the Company in accordance with applicable laws and
regulations;
(f) Except pursuant to the Equity Pledge Agreement and
Option Agreement, Party B has not pledged or created any other
security interest on, made any offer to any third party to
transfer, accepted the offer of any third party to purchase, or
execute agreement with any third party to transfer, Party
B’s equity interests in the Company;
(g) There are no pending or threatened disputes,
litigation, arbitration or other administrative proceedings or
other legal proceedings in connection with the equity interests
of the Company held by Party B; and
(h) The Company has completed all necessary governmental
approval, license, registration and filing.
11. Party B covenants that it shall, during the term of
this Agreement:
(a) Not sell, transfer, pledge or dispose in any other
manner of his equity or other interests in the Company, or allow
the creation of other security interests thereon, without Party
A’s prior written consent, except for equity pledges or
other rights created for the benefit of Party A;
(b) Not vote for at shareholder’s meetings of the
Company or execute any shareholders’ resolutions approving
the sale, transfer, pledge, disposition in any other manner, or
the creation of any other security interest on, any legal or
beneficial interest in the equity of the Company without Party
A’s prior written consent, except to or for the benefit of
Party A or its designated persons;
(c) Not vote for at shareholder’s meetings of the
Company or execute any shareholders’ resolutions approving
the Company to merge or combine with, acquire or invest in any
person without Party A’s prior written consent;
(d) Promptly inform Party A of any pending or threatened
litigation, arbitration or regulatory proceeding concerning the
equity interests of the Company;
(e) Execute all necessary or appropriate documents, take
all necessary or appropriate actions, bring all necessary or
appropriate lawsuits or assert all necessary and appropriate
defenses against all claims in order to maintain his equity
interests of the Company;
(f) Not commit any act or omission that may materially
affect the assets, business and liabilities of the Company
without Party A’s prior written consent;
(g) Appoint any person nominated by Party A to be the
director of the Company;
(h) Upon Party A’s exercise of its Option Right,
transfer promptly and unconditionally, all of Party B’s
equity interests in the Company to Party A or a person
designated by Party A, provided that such transfer is permitted
under the laws of PRC;
(i) Not request the Company to distribute dividends or
profits;
(j) Once he has transferred his equity interests in the
Company to Party A or its designated persons, promptly repay,
subject to applicable laws, the proceeds received for such
transfer in full, as the loan principal and loan interests or
capital utilization cost allowed by laws, to Party A; and
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(k) Comply strictly with the terms of this Agreement, and
perform the obligations pursuant to this Agreement and not
commit any act or omission that would affect the validity and
enforceability of this Agreement.
12. Party B, as the shareholder of the Company, covenants
that he shall cause the Company, during the term of this
Agreement:
(a) Not to supply, amend or modify its articles of
association, or to increase or decrease its registered capital,
or to change its capital structure in any way without Party
A’s prior written consent;
(b) To maintain and operate its business and deal with
matters prudently and effectively, in accordance with good
financial and business rules and practices;
(c) Not to sell, transfer, mortgage, dispose of in any
other manner, or to create other security interest on, any of
its assets, business or legal or beneficial right to its
revenues without Party A’s prior written consent;
(d) Not to create, succeed to, guarantee or permit any
liability, without the Party A’s prior written consent,
except (i) the liability arising from the ordinary course
of business, but not arising through Party B; and (ii) the
liability reported to and approved by Party A in writing;
(e) To operate persistently all the business and to
maintain the value of its assets;
(f) Not to execute any material contracts (for the purpose
of this paragraph, a contract will be deemed material if the
value of it exceeds RMB[100,000]), without Party A’s prior
written consent, other than those executed during the ordinary
course of business;
(g) To provide information concerning all of its operation
and financial affairs upon Party A’s request;
(h) Not to merge or combine with, acquire or invest in, any
other person without Party A’s prior written consent;
(i) Not to issue dividends to shareholders in any form
without Party A’s prior written consent. However, the
Company shall promptly distributable all its distributable
profits to each of its shareholders upon Party A’s request;
(j) To inform promptly Party A of any pending or threatened
suit, arbitration or regulatory proceeding concerning the
assets, business or revenue of the Company;
(k) To execute all necessary or appropriate documents, take
all necessary or appropriate actions, bring all necessary or
appropriate lawsuits or assert all necessary and appropriate
defenses against all claims in order to maintain the ownership
of all its assets;
(l) To comply strictly with the terms of the Exclusive
Technology Consulting and Service Agreement and other agreements
between Party A and the Company, perform its obligations under
aforesaid agreements, and not commit any act or omission that
would affect the validity and enforceability of such agreements.
13. This agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors
and assignees. Without prior written approval of Party A, Party
B can not assign, pledge or otherwise transfer any right,
benefit or obligation under this agreement.
14. Party B agrees that Party A can assign its rights and
duties under this Agreement to a third party when it thinks
necessary, in which case Party A only needs to give a written
notice to Party B and no further consent of Party B is required.
15. The execution, validity, interpretation, performance,
amendment, termination and resolution of disputes in connection
with this Agreement shall be governed by the laws of the PRC.
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16. Arbitration.
Both parties shall strive to settle any dispute, conflict, or
claim arising from the interpretation or performance (including
any issue relating to the existence, validity and termination of
this Agreement) in connection with this Agreement through
friendly consultation. In case no settlement can be reached
within thirty (30) day after one party requests for the
settlement, each party may submit such dispute to China
International Economic and Trade Arbitration Commission (the
“CIETAC”) for arbitration in accordance with its
rules. The arbitration award shall be final and binding upon the
parties.
The seat of the arbitration shall be Beijing.
The language for the arbitration proceedings shall be Chinese.
17. This Agreement shall be formed on the date of
execution. And both parties hereto agree that the terms and
conditions of this Agreement shall be effective as of the date
on which Party B has obtained the loan and shall expire when
both parties have fully performed their obligations under this
Agreement.
18. Party B cannot terminate or revoke this Agreement
unless (a) Party A commits a gross negligence, fraud or
other material illegal acts; or (b) Party A goes bankrupt.
19. This Agreement may not be amended or modified except
with a written agreement reached by both parties. In case of
anything not covered herein, both parties may sign a written
supplementary agreement. Any amendment, modification, supplement
or annex to this Agreement shall form an integral part of this
Agreement.
20. This Agreement constitutes the entire agreement of the
parties hereto with respect to the subject matters hereof and
supersedes all prior verbal discussions or written agreements
between the parties with respect to subject matters hereof.
21. This Agreement is severable. If any clause of this
Agreement is held to be invalid or unenforceable, such
invalidity or unenforceability shall have no effect on the
validity or enforceability of the remainder of this Agreement.
22. Each party should protect the confidentiality of the
information concerning the other party’s business,
operation, financial situation or other confidential information
obtained under this Agreement or during the performance of this
Agreement.
23. Any obligation arising from or becoming due under this
Agreement before the expiration or early termination of this
Agreement shall survive such expiration or early termination.
The Articles 15, 16 and 22 of this Agreement shall survive
the termination of this Agreement.
24. This Agreement shall be executed in two originals, with
each party holding one original. All originals shall have the
same legal effect.
IN WITNESS WHEREOF, each party has caused this Agreement
to be executed by himself, 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
|
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