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Baidu, Inc. – ‘20-F’ for 12/31/16 – ‘EX-4.35’

On:  Friday, 3/31/17, at 6:36am ET   ·   For:  12/31/16   ·   Accession #:  1193125-17-105041   ·   File #:  0-51469

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  As Of               Filer                 Filing    For·On·As Docs:Size             Issuer                      Filing Agent

 3/31/17  Baidu, Inc.                       20-F       12/31/16  152:15M                                    Donnelley … Solutions/FA

Annual Report by a Foreign Non-Canadian Issuer   —   Form 20-F   —   Sect. 13 / 15(d) – SEA’34
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: 20-F        Annual Report by a Foreign Non-Canadian Issuer      HTML   1.78M 
 2: EX-4.34     Instrument Defining the Rights of Security Holders  HTML     96K 
 3: EX-4.35     Instrument Defining the Rights of Security Holders  HTML    113K 
 4: EX-4.36     Instrument Defining the Rights of Security Holders  HTML     75K 
 5: EX-4.37     Instrument Defining the Rights of Security Holders  HTML     68K 
 6: EX-4.38     Instrument Defining the Rights of Security Holders  HTML     61K 
 7: EX-4.39     Instrument Defining the Rights of Security Holders  HTML    115K 
 8: EX-4.40     Instrument Defining the Rights of Security Holders  HTML    105K 
 9: EX-4.41     Instrument Defining the Rights of Security Holders  HTML     40K 
10: EX-4.42     Instrument Defining the Rights of Security Holders  HTML     40K 
11: EX-4.43     Instrument Defining the Rights of Security Holders  HTML     60K 
12: EX-4.44     Instrument Defining the Rights of Security Holders  HTML     78K 
13: EX-4.45     Instrument Defining the Rights of Security Holders  HTML     79K 
14: EX-4.46     Instrument Defining the Rights of Security Holders  HTML     55K 
15: EX-4.47     Instrument Defining the Rights of Security Holders  HTML     55K 
16: EX-4.48     Instrument Defining the Rights of Security Holders  HTML     60K 
17: EX-4.49     Instrument Defining the Rights of Security Holders  HTML     79K 
18: EX-4.50     Instrument Defining the Rights of Security Holders  HTML     78K 
19: EX-4.51     Instrument Defining the Rights of Security Holders  HTML     74K 
20: EX-4.52     Instrument Defining the Rights of Security Holders  HTML     75K 
21: EX-4.53     Instrument Defining the Rights of Security Holders  HTML     40K 
22: EX-4.54     Instrument Defining the Rights of Security Holders  HTML     40K 
23: EX-4.55     Instrument Defining the Rights of Security Holders  HTML     40K 
24: EX-4.56     Instrument Defining the Rights of Security Holders  HTML     40K 
25: EX-4.57     Instrument Defining the Rights of Security Holders  HTML     41K 
26: EX-4.58     Instrument Defining the Rights of Security Holders  HTML     77K 
27: EX-4.59     Instrument Defining the Rights of Security Holders  HTML     72K 
28: EX-4.60     Instrument Defining the Rights of Security Holders  HTML     75K 
29: EX-4.61     Instrument Defining the Rights of Security Holders  HTML     61K 
30: EX-4.68     Instrument Defining the Rights of Security Holders  HTML    711K 
31: EX-4.69     Instrument Defining the Rights of Security Holders  HTML    228K 
32: EX-8.1      Opinion of Counsel re: Tax Matters                  HTML     37K 
35: EX-13.1     Annual or Quarterly Report to Security Holders      HTML     39K 
36: EX-13.2     Annual or Quarterly Report to Security Holders      HTML     39K 
33: EX-12.1     Statement re: Computation of Ratios                 HTML     43K 
34: EX-12.2     Statement re: Computation of Ratios                 HTML     42K 
37: EX-15.1     Letter re: Unaudited Interim Financial Info         HTML     39K 
38: EX-15.2     Letter re: Unaudited Interim Financial Info         HTML     39K 
39: EX-15.3     Letter re: Unaudited Interim Financial Info         HTML     39K 
46: R1          Document and Entity Information                     HTML     67K 
47: R2          Consolidated Balance Sheets                         HTML    190K 
48: R3          Consolidated Balance Sheets (Parenthetical)         HTML     69K 
49: R4          Consolidated Statements Of Comprehensive Income     HTML    142K 
50: R5          Consolidated Statements Of Comprehensive Income     HTML     41K 
                (Parenthetical)                                                  
51: R6          Consolidated Statements Of Cash Flows               HTML    228K 
52: R7          Consolidated Statements Of Shareholders' Equity     HTML    111K 
53: R8          Organization, Consolidation and Presentation of     HTML    128K 
                Financial Statements                                             
54: R9          Summary of Significant Accounting Policies          HTML    189K 
55: R10         Business Combinations                               HTML     57K 
56: R11         Investments                                         HTML    101K 
57: R12         Accounts Receivable                                 HTML     57K 
58: R13         Other Current Assets                                HTML     49K 
59: R14         Fixed Assets                                        HTML     55K 
60: R15         Goodwill and Intangible Assets                      HTML    112K 
61: R16         Accounts Payable and Accrued Liabilities            HTML     54K 
62: R17         Loans Payable                                       HTML     60K 
63: R18         Notes Payable                                       HTML     59K 
64: R19         Income Taxes                                        HTML    111K 
65: R20         Employee Defined Contribution Plan                  HTML     42K 
66: R21         Commitments and Contingencies                       HTML     61K 
67: R22         Redeemable Noncontrolling Interests                 HTML     51K 
68: R23         Shareholders' Equity                                HTML    102K 
69: R24         Earnings Per Share ("Eps")                          HTML     97K 
70: R25         Share-Based Awards Plan                             HTML     80K 
71: R26         Related Party Transactions                          HTML     61K 
72: R27         Segment Reporting                                   HTML     67K 
73: R28         Fair Value Measurement                              HTML    102K 
74: R29         Subsequent Events                                   HTML     45K 
75: R30         Summary of Significant Accounting Policies          HTML    274K 
                (Policies)                                                       
76: R31         Organization, Consolidation and Presentation of     HTML     79K 
                Financial Statements (Tables)                                    
77: R32         Summary of Significant Accounting Policies          HTML     50K 
                (Tables)                                                         
78: R33         Business Combinations (Tables)                      HTML     45K 
79: R34         Investments (Tables)                                HTML     89K 
80: R35         Accounts Receivable (Tables)                        HTML     56K 
81: R36         Other Current Assets (Tables)                       HTML     49K 
82: R37         Fixed Assets (Tables)                               HTML     52K 
83: R38         Goodwill and Intangible Assets (Tables)             HTML    107K 
84: R39         Accounts Payable and Accrued Liabilities (Tables)   HTML     53K 
85: R40         Notes Payable (Tables)                              HTML     58K 
86: R41         Income Taxes (Tables)                               HTML     99K 
87: R42         Commitments and Contingencies (Tables)              HTML     55K 
88: R43         Redeemable Noncontrolling Interests (Tables)        HTML     49K 
89: R44         Shareholders' Equity (Tables)                       HTML     85K 
90: R45         Earnings Per Share ("Eps") (Tables)                 HTML     97K 
91: R46         Share-Based Awards Plan (Tables)                    HTML     77K 
92: R47         Related Party Transactions (Tables)                 HTML     58K 
93: R48         Segment Reporting (Tables)                          HTML     60K 
94: R49         Fair Value Measurement (Tables)                     HTML     96K 
95: R50         Organization, Consolidation and Presentation of     HTML     57K 
                Financial Statements - Additional Information                    
                (Detail)                                                         
96: R51         Financial Statement Balances and Amounts of VIEs    HTML    140K 
                and Their Subsidiaries were Included in                          
                Consolidated Financial Statements After                          
                Elimination of Intercompany Balances and                         
                Transactions Among VIEs and Their Subsidiaries                   
                Within Group (Detail)                                            
97: R52         Summary of Significant Accounting Policies -        HTML    118K 
                Additional Information (Detail)                                  
98: R53         Estimated Useful Lives of Fixed Assets (Detail)     HTML     59K 
99: R54         Weighted Average Useful Lives from Date of          HTML     56K 
                Purchase of Intangible Assets (Detail)                           
100: R55         Business Combinations - Additional Information      HTML     48K  
                (Detail)                                                         
101: R56         Summary of Estimated Fair Values of Assets          HTML     60K  
                Acquired, Liabilities Assumed and Noncontrolling                 
                Interest (Detail)                                                
102: R57         Investments - Short-term Investments - Additional   HTML     44K  
                information (Detail)                                             
103: R58         Investments - Long-term Investments - Additional    HTML     93K  
                information (Detail)                                             
104: R59         Summarized Financial Information (Detail)           HTML     78K  
105: R60         Schedule of Investments at Amortized Cost and Fair  HTML     96K  
                Value (Detail)                                                   
106: R61         Accounts Receivable (Detail)                        HTML     48K  
107: R62         Movement in Allowance for Doubtful Accounts         HTML     48K  
                (Detail)                                                         
108: R63         Other Current Assets (Detail)                       HTML     58K  
109: R64         Fixed Assets (Detail)                               HTML     64K  
110: R65         Fixed Assets - Additional Information (Detail)      HTML     65K  
111: R66         Goodwill and Intangible Assets - Additional         HTML     48K  
                Information (Detail)                                             
112: R67         Changes in Carrying Amount of Goodwill (Detail)     HTML     70K  
113: R68         Finite-Lived Intangible Assets (Detail)             HTML     68K  
114: R69         Estimated Amortization Expense Relating to          HTML     51K  
                Existing Intangible Assets with Finite Lives                     
                (Detail)                                                         
115: R70         Indefinite-Lived Intangible Assets (Detail)         HTML     43K  
116: R71         Accounts Payable and Accrued Liabilities (Detail)   HTML     73K  
117: R72         Loans Payable - Additional Information (Detail)     HTML    267K  
118: R73         Notes Payable - Additional Information (Detail)     HTML     89K  
119: R74         Principal Amount and Unamortized Discount and Debt  HTML     47K  
                Issuance Costs (Detail)                                          
120: R75         Repayment of Principal Amount of Long Term Debts    HTML     57K  
                (Detail)                                                         
121: R76         Income Taxes - Additional Information (Detail)      HTML    143K  
122: R77         Income Before Income Taxes (Detail)                 HTML     48K  
123: R78         Components of Income Tax (Detail)                   HTML     53K  
124: R79         Reconciliation of Effective Income Tax Provision    HTML     78K  
                of Tax Computed By Applying Statutory Income Tax                 
                Rate to Pre-Tax Income (Detail)                                  
125: R80         Tax Effects of Temporary Differences that Gave      HTML     71K  
                Rise to Deferred Tax Balances (Detail)                           
126: R81         Employee Defined Combination Plan - Additional      HTML     42K  
                Information (Detail)                                             
127: R82         Commitment and Contingencies - Additional           HTML     55K  
                Information (Detail)                                             
128: R83         Future Minimum Payments Under Non-Cancelable        HTML     58K  
                Operating Leases with Initial Terms of One-Year or               
                More (Detail)                                                    
129: R84         Future Minimum Payments Under Non-Cancelable        HTML     53K  
                Licensing Agreements (Detail)                                    
130: R85         Summary of Redeemable Noncontrolling Interest       HTML     50K  
                (Detail)                                                         
131: R86         Redeemable Noncontrolling Interests - Additional    HTML     49K  
                Information (Detail)                                             
132: R87         Shareholder's Equity - Additional Information       HTML     88K  
                (Detail)                                                         
133: R88         Shareholders' Equity (Detail)                       HTML     48K  
134: R89         Components of Accumulated Other Comprehensive       HTML     68K  
                Income (Loss) (Detail)                                           
135: R90         Tax Effect Allocated to Each Component of Other     HTML     51K  
                Comprehensive Income (Detail)                                    
136: R91         Reconciliation of Net Income to Numerator for       HTML     48K  
                Computation of Basic and Diluted Net Income per                  
                Share (Detail)                                                   
137: R92         Computation of Basic and Diluted Net Income         HTML     90K  
                Attributable to Baidu, Inc. Per Share for Class A                
                and Class B Ordinary Shares (Detail)                             
138: R93         Share-Based Awards Plan - Additional Information    HTML     96K  
                of Baidu, Inc. (Detail)                                          
139: R94         Option Activity - Baidu, Inc. (Detail)              HTML     97K  
140: R95         Assumptions Used to Estimate Fair Values of Share   HTML     62K  
                Options Granted - Baidu, Inc. (Detail)                           
141: R96         Restricted Shares Activity (Detail)                 HTML     68K  
142: R97         Total Share-Based Compensation Cost Recognized      HTML     53K  
                (Detail)                                                         
143: R98         Related Party Transactions - Additional             HTML     44K  
                Information (Detail)                                             
144: R99         Related Party Balances (Detail)                     HTML     66K  
145: R100        Related Party Balances (Parenthetical) (Detail)     HTML     47K  
146: R101        Segment Reporting - Additional Information          HTML     41K  
                (Detail)                                                         
147: R102        Summary of Group's Operating Segment Results        HTML     60K  
                (Detail)                                                         
148: R103        Fair Value Disclosure and Measurement (Detail)      HTML    133K  
149: R104        Subsequent Events - Additional Information          HTML     71K  
                (Detail)                                                         
151: XML         IDEA XML File -- Filing Summary                      XML    231K  
150: EXCEL       IDEA Workbook of Financial Reports                  XLSX    169K  
40: EX-101.INS  XBRL Instance -- bidu-20161231                       XML   3.59M 
42: EX-101.CAL  XBRL Calculations -- bidu-20161231_cal               XML    411K 
43: EX-101.DEF  XBRL Definitions -- bidu-20161231_def                XML   1.15M 
44: EX-101.LAB  XBRL Labels -- bidu-20161231_lab                     XML   2.29M 
45: EX-101.PRE  XBRL Presentations -- bidu-20161231_pre              XML   1.61M 
41: EX-101.SCH  XBRL Schema -- bidu-20161231                         XSD    304K 
152: ZIP         XBRL Zipped Folder -- 0001193125-17-105041-xbrl      Zip    352K  


‘EX-4.35’   —   Instrument Defining the Rights of Security Holders


This Exhibit is an HTML Document rendered as filed.  [ Alternative Formats ]



  EX-4.35  

Exhibit 4.35

Amended and Restated Loan Agreement

This Amended and Restated Loan Agreement (this “Agreement”) is entered into on June 20, 2016 in Beijing, by and between:

Party A: Baidu Online Network Technology (Beijing) Co., Ltd.

Registered Address: 3/F, No. 10 Shangdi 10th Street, Haidian District, Beijing

Party B: Xiaodong Wang

ID Card No.:

WHEREAS,

 

  1.

Party A is a foreign invested enterprise incorporated under the laws of the PRC,

 

  2.

Party B is a Chinese citizen, holding 50% of equity interests of Beijing Perusal Technology Co., Ltd. (“Perusal”), and is the shareholder of Perusal;

 

  3.

On May 3, 2016, Party A provided Party B with an interest-free loan of RMB1.02344 billion (RMB1,023,440,000), used towards the investment in Perusal. With regards to such loan, Party A and Party B signed a Loan Agreement (the “Original Loan Agreement”) on May 3, 2016.

 

  4.

The Parties propose to amend and restate the Original Loan Agreement as expressed herein.

Party A and Party B, through friendly consultation, agree as follows:

 

  1.

In accordance with the terms and conditions of this Agreement, Party A agrees to provide an interest-free loan in the amount of RMB1.59844 billion yuan (RMB1,598,440,000) to Party B, and Party B agrees to accept such loan.

 

  2.

Party B confirms the receipt of such loan and has applied part of such loan equal to RMB 645,940,000 toward payment of transfer price to acquire the equity interests of Perusal, and the remaining RMB952,500,000 will be used to pay the newly increased registered capital of Perusal subscribed by it.

 

  3.

The term of the loan under this Agreement shall commence on the date Party B receives such loan to the date 10 years from the execution of this Agreement, which may be extended upon mutual written consent of the Parties. During the term of the loan or the extended term of the loan, Party A has the right to cause the loan to be due immediately by written notice, and require Party B to repay the loan in accordance to this Agreement in the event any of the following circumstances occur to Party B:

 

  (1)

Party B leaves or is dismissed from Party A or an affiliated company of Party A;

 

  (2)

Party B’s death, lack or limitation of civil capacity;

 

  (3)

Party B engages in criminal act or is involved in criminal activities;

 

  (4)

Any third party files a claim against Party B that exceeds RMB100,000; or

 

1


  (5)

Subject to the laws of the PRC, Party A or a person designated by Party A is permitted to invest in Perusal to conduct internet information service business, value-added telecommunication business and other business, and Party A has issued a written notice relating to the equity purchase of Perusal to Party B pursuant to the provisions of the Exclusive Equity Purchase and Transfer Agreement mentioned in Article 4 hereof, to exercise the option.

 

  4.

The parties herein agree and confirm that, to the extent and within the scope permitted by the laws of the PRC, Party A shall have the right but not the obligation to purchase or designate other persons (including natural person, legal entity or any other entity) to purchase the equity interests of Perusal held by Party B in whole or in part (hereinafter referred to as “Option Right”), but Party A shall issue a written notice to purchase equity interests to Party B. Upon Party A’s issuance of a written notice to exercise such Option, Party B shall, in accordance with Party A’s wishes and instructions, immediately transfer all of its equity interests in Perusal to Party A or other persons as designated by Party A at the original investment price (“Original Investment Price”) or at another price agreed upon by Party A where the law otherwise requires. The Parties hereby agree and acknowledge, when Party A exercises its Option Right, if in accordance with the applicable laws at the time, the lowest price of the equity interests permitted is higher than the Original Investment Price, then the subscription price of Party A or other persons designated by Party A shall be the lowest price permitted by the laws. The parties agree to execute the Exclusive Equity Purchase and Transfer Agreement with respect to the above.

 

  5.

The parties herein agree and confirm that Party B may repay the loan only by the following methods: the borrower (or his successors or assignees) shall, to the extent permissible by the PRC laws and as required by Party A’s written notice, transfer the equity interest in Perusal to Party A or its designated person and use the proceeds to repay the loan when the loan is due and Party A gives a written notice, or through another method as mutually agreed by the parties herein.

 

  6.

The Parties herein agree and confirm that this loan is an interest-free loan unless there are different provisions in this Agreement. But if the loan is due and Party B has to transfer his equity interests in Perusal to Party A or its designated person and the proceeds exceed the loan principal due to the legal requirement or other reasons, Party B agrees to pay such excess amount over the principal of proceeds, net of the individual income tax and other taxes and fees payable by Party B, to Party A at its decision to the extent permissible by the law.

 

  7.

The parties agree and confirm that Party B shall be deemed to have completed his obligations under this Agreement only if all of the following requirements are met:

 

  (1)

Party B has transferred all his equity interests in Perusal to Party A and/or its designated person; and

 

  (2)

Party B has repaid the total amount of proceeds from the equity interest transfer or the maximum amount (including principal and the maximum interests as permitted by the applicable laws at the time) permitted by applicable laws to Party A.

 

  8.

To secure the performance of debt under this Agreement, Party B agrees to pledge all of his equity interests in Perusal to Party A (the “Equity Pledge”). The parties agree to execute an equity pledge agreement for the above matters.

 

2


  9.

Party A hereby represents and warrants to Party B that, as of the execution date of this Agreement:

 

  (1)

Party A is a wholly foreign-owned enterprise incorporated and validly existing under the laws of the PRC;

 

  (2)

Party A has the right to execute and perform this Agreement. The execution and performance by Party A of this agreement comply with its business scope, Articles or other institutional documents, and Party A has taken necessary actions to get all necessary and appropriate approvals and authorizations;

 

  (3)

The principal of the loan to Party B is legally owned by Party A;

 

  (4)

The execution and performance of this Agreement by Party A does not violate any law, regulation, approval, authorization, notice or other governmental document by which it is bound or affected, or any agreement between Party A and any third party, or any promise made by Party A to a third party; and

 

  (5)

This Agreement, once executed, shall constitute a legal, valid and enforceable 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:

 

  (1)

Perusal is a limited liability company incorporated and validly existing under the laws of the PRC and Party B is the legal holder of the equity interest of Perusal;

 

  (2)

Party B has the right to execute and perform this Agreement. The execution and performance by Party B of this Agreement comply with its business scope, Articles or other institutional documents, and Party B has taken necessary actions to obtain all necessary and appropriate approvals and authorizations;

 

  (3)

The execution and performance of this Agreement by Party B does not violate any law, regulation, approval, authorization, notice or other governmental document by which it is bound or affected, or any agreement between Party B and any third party, or any promise made by Party B to a third party;

 

  (4)

This Agreement, once executed, shall constitute a legal, valid and enforceable obligation of Party B;

 

  (5)

Party B has paid contribution in full for the equity interests he holds in Perusal in accordance with applicable laws and regulations;

 

  (6)

Except pursuant to the provisions stipulated in the equity pledge agreement and exclusive equity purchase and transfer option agreement, Party B did not create any mortgage, pledge or other security over his equity interest in Perusal, make any offer to a third party to transfer his equity, make acceptance for the offer to a third party to purchase his equity, or execute any agreement with a third party to transfer his equity;

 

  (7)

There are no pending or potential disputes, litigation, arbitration, administrative proceedings or other legal proceedings in connection with the equity interests of Perusal held by Party B;

 

  (8)

Perusal has completed all necessary governmental approvals, licenses, registrations and filings.

 

  11.

Party B undertakes, during the term of this Agreement:

 

  (1)

not to sell, transfer, pledge or otherwise dispose of his equity interests or other interests in Perusal, nor to allow the creation of any other security interest over his equity interests without the prior written consent of Party A, except pledges or other rights created for the benefit of Party A;

 

3


  (2)

not to vote for, support or execute any shareholder resolutions at Perusal’s shareholder’s meetings that permit the sale, transfer, pledge or other disposal of, or the creation of any other security interest on, any of his legal or beneficiary equity interests without the prior written consent of Party A, except those made to Party A;

 

  (3)

not to vote for, support or execute any shareholder resolutions at Perusal’s shareholder meetings that permit Perusal to merge or combine with, or acquire or invest in, any person without Party A’s prior written consent;

 

  (4)

to promptly inform Party A of any pending or threatened litigation, arbitration or administrative proceeding relating to the equity interests of Perusal;

 

  (5)

to execute all necessary or appropriate documents, take all necessary or appropriate actions and bring all necessary or appropriate lawsuits or make all necessary and appropriate defenses against all claims in order to maintain his ownership of equity interests in Perusal;

 

  (6)

to refrain from any act and/or omission that may materially affect the assets, business and liabilities of Perusal without the prior written consent of Party A;

 

  (7)

to appoint any person nominated by Party A as executive director of Perusal, upon Party A’s request;

 

  (8)

in connection with Party A’s exercise of the subscription right provided hereunder, to transfer promptly and unconditionally all equity interests in Perusal held by Party B to Party A and/or its designated person, to the extent and within the scope permissible under the laws of the PRC;

 

  (9)

not to request Perusal to distribute dividends or profits to it;

 

  (10)

once Party B transfers his equity interest in Perusal to Party A or its designated person, to repay the consideration he receives as the principal and the interests or capital use cost to Party A to the extent permitted under the laws of the PRC;

 

  (11)

to strictly comply with the terms of this Agreement, perform the obligations under this Agreement, and refrain from any act or omission that suffices to affect the validity and enforceability of this Agreement.

 

  12.

Party B, as the shareholder of Perusal, undertakes to cause Perusal, during the term of this Agreement:

 

  (1)

not to supplement, amend or modify its articles of association, or increase or decrease its registered capital, or to change its capital structure in any form without the prior written consent of Party A;

 

  (2)

to maintain its existence and handle matters prudently and affectively according to good financial and business rules and practices;

 

  (3)

not to sell, transfer, mortgage or otherwise dispose of, nor to permit the creation of any other security interest on, any of its legal or beneficial interests in its assets, business or income without the prior written consent of Party A, at any time as of the date of this Agreement;

 

  (4)

not to incur, succeed, guarantee or permit the existence of any liabilities without the prior written consent of Party A, except the liabilities (i) arising from the ordinary or day-to-day course of business, rather than through Party B; and (ii) disclosed to Party A or approved by Party A in writing;

 

4


  (5)

to operate all businesses on a continued basis and maintain the value of its assets;

 

  (6)

not to execute any material contracts (for the purpose of this item, a contract will be deemed material if its value exceeds RMB [100,000]) without the prior written consent of Party A, other than those executed during the ordinary course of business;

 

  (7)

to provide all information about its operations and financial affairs at Party A’s request;

 

  (8)

not to merge or combine with, acquire or invest in, any other person without the prior written consent of Party A;

 

  (9)

not to distribute dividends to the shareholders in any way without the prior written consent of Party A, and upon Party A’s request, to promptly distribute all distributable profits to the shareholders.

 

  (10)

to promptly inform Party A of any pending or threatened litigation, arbitration or administrative proceeding relating to its assets, business or revenue;

 

  (11)

to execute all necessary or appropriate documents, take all necessary or appropriate actions and bring all necessary or appropriate lawsuits or make all necessary and appropriate defenses against all claims in order to maintain tis ownership of its assets;

 

  (12)

to strictly comply with the terms of the Exclusive Technology Service Agreement (“Service Agreement”) entered into between Perusal and Party A and other agreements, duly perform its obligations under the Service Agreement and such other agreements, and refrain from any act or omission that suffice to affect the validity and enforceability of the Service Agreement.

 

  13.

This Agreement shall be binding on, and only for the benefits of, all parties hereto and their respective successors and assignees. Without prior written consent of Party A, Party B shall not transfer, pledge or otherwise assign any of its rights, interests or obligations hereunder.

 

  14.

Party B agrees that Party A may assign its rights and obligations hereunder to a third party by a written notice to Party B when it considers necessary. No further consent from Party B is required for such transfer.

 

  15.

The execution, validity, interpretation, performance, amendment, termination and dispute resolution of this Agreement are governed by the laws of the PRC.

 

  16.

Arbitration

 

  (1)

Both Parties shall strive to settle any dispute, conflicts, or claims arising from the interpretation or performance (including any issue relating to the existence, validity and termination) of this Agreement through friendly consultation. In case no settlement can be reached within thirty (30) days after one party requests for settlement, any party can submit such matter to China International Economic and Trade Arbitration Commission (the “CIETAC”) in accordance with its then-current rules at the time of application. The arbitration award shall be final and conclusive and binding upon the Parties.

 

  (2)

The arbitration shall take place in Beijing.

 

  (3)

The arbitration language shall be Chinese.

 

5


  17.

This Agreement shall become effective on the date of execution. Both Parties agree that the terms and conditions of this Agreement shall be effective as of the date on which Party B receives the loan, and shall expire as of the date on which both Parties complete their obligations hereunder.

 

  18.

Party B shall not terminate or revoke this Agreement under any circumstances unless (a) Party A commits a gross negligence, fraud, or other material misconduct; or (b) upon Party A’s bankruptcy.

 

  19.

This Agreement shall not be amended or modified without the written consent of the Parties hereto. Any matters not agreed upon in this Agreement may be supplemented by all Parties through the execution of a written agreement. The above amendments, modifications, supplements and any attachment of this Agreement shall be integral parts of this Agreement.

 

  20.

This Agreement constitutes the entire agreement of the Parties with respect to the subject matter herein and supersedes and replaces all prior verbal and written agreements and understandings between the Parties.

 

  21.

This Agreement is severable. The invalidity or unenforceability of any one clause shall not affect the validity or enforceability of other clauses herein.

 

  22.

Each Party shall protect the confidentiality of 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 that is incurred or becomes due before the expiration or early termination of this Agreement shall survive such expiration or early termination. Section 15, 16, and 22 shall survive the termination of this Agreement.

 

  24.

This Agreement shall be executed in two counterparts, and each Party shall hold one counterpart. Both counterparts shall have the same legal effect.

[No text below]

 

6


[No text on this page]

IN WITNESS WHEREOF, each party hereto has executed or caused this Agreement to be duly executed by its legal or authorized representative on its behalf as of the date first written above.

Party A: Baidu Online Network Technology (Beijing) Co., Ltd.

Legal representative/authorized representative:  

/s/ Hailong Xiang

Company seal: /s/ Baidu Online Network Technology (Beijing) Co., Ltd.

Party B: Xiaodong Wang

Signature:

 

/s/ Xiaodong Wang

 

7


Amended and Restated Loan Agreement

This Amended and Restated Loan Agreement (this “Agreement”) is entered into on June 20, 2016 in Beijing, by and between:

Party A: Baidu Online Network Technology (Beijing) Co., Ltd.

Registered Address: 3/F, No. 10 Shangdi 10th Street, Haidian District, Beijing

Party B: Zhixiang Liang

ID Card No.:

WHEREAS,

 

  1.

Party A is a foreign invested enterprise incorporated under the laws of the PRC,

 

  2.

Party B is a Chinese citizen, holding 50% of equity interests of Beijing Perusal Technology Co., Ltd. (“Perusal”), and is the shareholder of Perusal;

 

  3.

On May 3, 2016, Party A provided Party B with an interest-free loan of RMB 1.02344 billion (1,023,440,000) yuan, used towards the investment in Perusal. With regards to such loan, Party A and Party B signed a Loan Agreement (the “Original Loan Agreement”) on May 3, 2016.

 

  4.

The Parties propose to amend and restate the Original Loan Agreement as expressed herein.

 

Party

A and Party B, through friendly consultation, agree as follows:

 

  1.

In accordance with the terms and conditions of this Agreement, Party A agrees to provide an interest-free loan in the amount of RMB1.59844 billion yuan (RMB1,598,440,000) to Party B, and Party B agrees to accept such loan.

 

  2.

Party B confirms the receipt of such loan and has applied part of such loan equal to RMB645,940,000 toward payment of transfer price to acquire the equity interests of Perusal, and the remaining RMB952,500,000 will be used to pay the newly increased registered capital of Perusal subscribed by it.

 

  3.

The term of the loan under this Agreement shall commence on the date Party B receives such loan to the date 10 years from the execution of this Agreement, which may be extended upon mutual written consent of the Parties. During the term of the loan or the extended term of the loan, Party A has the right to cause the loan to be due immediately by written notice, and require Party B to repay the loan in accordance to this Agreement in the event any of the following circumstances occur to Party B:

 

  (1)

Party B leaves or is dismissed from Party A or an affiliated company of Party A;

 

  (2)

Party B’s death, lack or limitation of civil capacity;

 

  (3)

Party B engages in criminal act or is involved in criminal activities;

 

  (4)

Any third party files a claim against Party B that exceeds RMB100,000; or

 

8


  (5)

Subject to the laws of the PRC, Party A or a person designated by Party A is permitted to invest in Perusal to conduct internet information service business, value-added telecommunication business and other business, and Party A has issued a written notice relating to the equity purchase of Perusal to Party B pursuant to the provisions of the Exclusive Equity Purchase and Transfer Option Agreement mentioned in Article 4 hereof, to exercise the option.

 

  4.

The parties herein agree and confirm that, to the extent and within the scope permitted by the laws of the PRC, Party A shall have the right but not the obligation to purchase or designate other persons (including natural person, legal entity or any other entity) to purchase the equity interests of Perusal held by Party B in whole or in part (hereinafter referred to as “Option Right”), but Party A shall issue a written notice to purchase equity interests to Party B. Upon Party A’s issuance of a written notice to exercise such Option, Party B shall, in accordance with Party A’s wishes and instructions, immediately transfer all of its equity interests in Perusal to Party A or other persons as designated by Party A at the original investment price (“Original Investment Price”) or at another price agreed upon by Party A where the law otherwise requires. The Parties hereby agree and acknowledge, when Party A exercises its Option Right, if in accordance with the applicable laws at the time, the lowest price of the equity interests permitted is higher than the Original Investment Price, then the subscription price of Party A or other persons designated by Party A shall be the lowest price permitted by the laws. The parties agree to execute the Exclusive Equity Purchase and Transfer Option Agreement with respect to the above.

 

  5.

The parties herein agree and confirm that Party B may repay the loan only by the following methods: the borrower (or his successors or assignees) shall, to the extent permissible by the PRC laws and as required by Party A’s written notice, transfer the equity interest in Perusal to Party A or its designated person and use the proceeds to repay the loan when the loan is due and Party A gives a written notice, or through another method as mutually agreed by the parties herein.

 

  6.

The Parties herein agree and confirm that this loan is an interest-free loan unless there are different provisions in this Agreement. But if the loan is due and Party B has to transfer his equity interests in Perusal to Party A or its designated person and the proceeds exceed the loan principal due to the legal requirement or other reasons, Party B agrees to pay such excess amount over the principal of proceeds, net of the individual income tax and other taxes and fees payable by Party B, to Party A at its decision to the extent permissible by the law.

 

  7.

The parties agree and confirm that Party B shall be deemed to have completed his obligations under this Agreement only if all of the following requirements are met:

 

  (1)

Party B has transferred all his equity interests in Perusal to Party A and/or its designated person; and

 

  (2)

Party B has repaid the total amount of proceeds from the equity interest transfer or the maximum amount (including principal and the maximum interests as permitted by the applicable laws at the time) permitted by applicable laws to Party A.

 

  8.

To secure the performance of debt under this Agreement, Party B agrees to pledge all of his equity interests in Perusal to Party A (the “Equity Pledge”). The parties agree to execute an equity pledge agreement for the above matters.

 

9


  9.

Party A hereby represents and warrants to Party B that, as of the execution date of this Agreement:

 

  (1)

Party A is a wholly foreign-owned enterprise incorporated and validly existing under the laws of the PRC;

 

  (2)

Party A has the right to execute and perform this Agreement. The execution and performance by Party A of this agreement comply with its business scope, Articles or other institutional documents, and Party A has taken necessary actions to get all necessary and appropriate approvals and authorizations;

 

  (3)

The principal of the loan to Party B is legally owned by Party A;

 

  (4)

The execution and performance of this Agreement by Party A does not violate any law, regulation, approval, authorization, notice or other governmental document by which it is bound or affected, or any agreement between Party A and any third party, or any promise made by Party A to a third party; and

 

  (5)

This Agreement, once executed, shall constitute a legal, valid and enforceable 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:

 

  (1)

Perusal is a limited liability company incorporated and validly existing under the laws of the PRC and Party B is the legal holder of the equity interest of Perusal;

 

  (2)

Party B has the right to execute and perform this Agreement. The execution and performance by Party B of this Agreement comply with its business scope, Articles or other institutional documents, and Party B has taken necessary actions to obtain all necessary and appropriate approvals and authorizations;

 

  (3)

The execution and performance of this Agreement by Party B does not violate any law, regulation, approval, authorization, notice or other governmental document by which it is bound or affected, or any agreement between Party B and any third party, or any promise made by Party B to a third party;

 

  (4)

This Agreement, once executed, shall constitute a legal, valid and enforceable obligation of Party B;

 

  (5)

Party B has paid contribution in full for the equity interests he holds in Perusal in accordance with applicable laws and regulations;

 

  (6)

Except pursuant to the provisions stipulated in the equity pledge agreement and exclusive equity purchase and transfer option agreement, Party B did not create any mortgage, pledge or other security over his equity interest in Perusal, make any offer to a third party to transfer his equity, make acceptance for the offer to a third party to purchase his equity, or execute any agreement with a third party to transfer his equity;

 

  (7)

There are no pending or potential disputes, litigation, arbitration, administrative proceedings or other legal proceedings in connection with the equity interests of Perusal held by Party B;

 

  (8)

Perusal has completed all necessary governmental approvals, licenses, registrations and filings.

 

  11.

Party B undertakes, during the term of this Agreement:

 

  (1)

not to sell, transfer, pledge or otherwise dispose of his equity interests or other interests in Perusal, nor to allow the creation of any other security interest over his equity interests without the prior written consent of Party A, except pledges or other rights created for the benefit of Party A;

 

10


  (2)

not to vote for, support or execute any shareholder resolutions at Perusal’s shareholder’s meetings that permit the sale, transfer, pledge or other disposal of, or the creation of any other security interest on, any of his legal or beneficiary equity interests without the prior written consent of Party A, except those made to Party A;

 

  (3)

not to vote for, support or execute any shareholder resolutions at Perusal’s shareholder meetings that permit Perusal to merge or combine with, or acquire or invest in, any person without Party A’s prior written consent;

 

  (4)

to promptly inform Party A of any pending or threatened litigation, arbitration or administrative proceeding relating to the equity interests of Perusal;

 

  (5)

to execute all necessary or appropriate documents, take all necessary or appropriate actions and bring all necessary or appropriate lawsuits or make all necessary and appropriate defenses against all claims in order to maintain his ownership of equity interests in Perusal;

 

  (6)

to refrain from any act and/or omission that may materially affect the assets, business and liabilities of Perusal without the prior written consent of Party A;

 

  (7)

to appoint any person nominated by Party A as executive director of Perusal, upon Party A’s request;

 

  (8)

in connection with Party A’s exercise of the subscription right provided hereunder, to transfer promptly and unconditionally all equity interests in Perusal held by Party B to Party A and/or its designated person, to the extent and within the scope permissible under the laws of the PRC;

 

  (9)

not to request Perusal to distribute dividends or profits to it;

 

  (10)

once Party B transfers his equity interest in Perusal to Party A or its designated person, to repay the consideration he receives as the principal and the interests or capital use cost to Party A to the extent permitted under the laws of the PRC;

 

  (11)

to strictly comply with the terms of this Agreement, perform the obligations under this Agreement, and refrain from any act or omission that suffices to affect the validity and enforceability of this Agreement.

 

  12.

Party B, as the shareholder of Perusal, undertakes to cause Perusal, during the term of this Agreement:

 

  (1)

not to supplement, amend or modify its articles of association, or increase or decrease its registered capital, or to change its capital structure in any form without the prior written consent of Party A;

 

  (2)

to maintain its existence and handle matters prudently and affectively according to good financial and business rules and practices;

 

  (3)

not to sell, transfer, mortgage or otherwise dispose of, nor to permit the creation of any other security interest on, any of its legal or beneficial interests in its assets, business or income without the prior written consent of Party A, at any time as of the date of this Agreement;

 

  (4)

not to incur, succeed, guarantee or permit the existence of any liabilities without the prior written consent of Party A, except the liabilities (i) arising from the ordinary or day-to-day course of business, rather than through Party B; and (ii) disclosed to Party A or approved by Party A in writing;

 

11


  (5)

to operate all businesses on a continued basis and maintain the value of its assets;

 

  (6)

not to execute any material contracts (for the purpose of this item, a contract will be deemed material if its value exceeds RMB [100,000]) without the prior written consent of Party A, other than those executed during the ordinary course of business;

 

  (7)

to provide all information about its operations and financial affairs at Party A’s request;

 

  (8)

not to merge or combine with, acquire or invest in, any other person without the prior written consent of Party A;

 

  (9)

not to distribute dividends to the shareholders in any way without the prior written consent of Party A, and upon Party A’s request, to promptly distribute all distributable profits to the shareholders.

 

  (10)

to promptly inform Party A of any pending or threatened litigation, arbitration or administrative proceeding relating to its assets, business or revenue;

 

  (11)

to execute all necessary or appropriate documents, take all necessary or appropriate actions and bring all necessary or appropriate lawsuits or make all necessary and appropriate defenses against all claims in order to maintain tis ownership of its assets;

 

  (12)

to strictly comply with the terms of the Exclusive Technology Service Agreement (“Service Agreement”) entered into between Perusal and Party A and other agreements, duly perform its obligations under the Service Agreement and such other agreements, and refrain from any act or omission that suffice to affect the validity and enforceability of the Service Agreement.

 

  13.

This Agreement shall be binding on, and only for the benefits of, all parties hereto and their respective successors and assignees. Without prior written consent of Party A, Party B shall not transfer, pledge or otherwise assign any of its rights, interests or obligations hereunder.

 

  14.

Party B agrees that Party A may assign its rights and obligations hereunder to a third party by a written notice to Party B when it considers necessary. No further consent from Party B is required for such transfer.

 

  15.

The execution, validity, interpretation, performance, amendment, termination and dispute resolution of this Agreement are governed by the laws of the PRC.

 

  16.

Arbitration

 

  (1)

Both Parties shall strive to settle any dispute, conflicts, or claims arising from the interpretation or performance (including any issue relating to the existence, validity and termination) of this Agreement through friendly consultation. In case no settlement can be reached within thirty (30) days after one party requests for settlement, any party can submit such matter to China International Economic and Trade Arbitration Commission (the “CIETAC”) in accordance with its then-current rules at the time of application. The arbitration award shall be final and conclusive and binding upon the Parties.

 

  (2)

The arbitration shall take place in Beijing.

 

  (3)

The arbitration language shall be Chinese.

 

12


  17.

This Agreement shall become effective on the date of execution. Both Parties agree that the terms and conditions of this Agreement shall be effective as of the date on which Party B receives the loan, and shall expire as of the date on which both Parties complete their obligations hereunder.

 

  18.

Party B shall not terminate or revoke this Agreement under any circumstances unless (a) Party A commits a gross negligence, fraud, or other material misconduct; or (b) upon Party A’s bankruptcy.

 

  19.

This Agreement shall not be amended or modified without the written consent of the Parties hereto. Any matters not agreed upon in this Agreement may be supplemented by all Parties through the execution of a written agreement. The above amendments, modifications, supplements and any attachment of this Agreement shall be integral parts of this Agreement.

 

  20.

This Agreement constitutes the entire agreement of the Parties with respect to the subject matter herein and supersedes and replaces all prior verbal and written agreements and understandings between the Parties.

 

  21.

This Agreement is severable. The invalidity or unenforceability of any one clause shall not affect the validity or enforceability of other clauses herein.

 

  22.

Each Party shall protect the confidentiality of 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 that is incurred or becomes due before the expiration or early termination of this Agreement shall survive such expiration or early termination. Section 15, 16, and 22 shall survive the termination of this Agreement.

 

  24.

This Agreement shall be executed in two counterparts, and each Party shall hold one counterpart. Both counterparts shall have the same legal effect.

[No text below]

 

13


[No text on this page]

IN WITNESS WHEREOF, each party hereto has executed or caused this Agreement to be duly executed by its legal or authorized representative on its behalf as of the date first written above.

Party A: Baidu Online Network Technology (Beijing) Co., Ltd.

Legal representative/authorized representative:

 

/s/ Hailong Xiang

Company seal: /s/ Baidu Online Network Technology (Beijing) Co., Ltd.

Party B: Zhixiang Liang

Signature:

 

/s/ Zhixiang Liang

 

14


Dates Referenced Herein

This ‘20-F’ Filing    Date    Other Filings
Filed on:3/31/17None on these Dates
For Period end:12/31/16
6/20/16
5/3/16
 List all Filings 


4 Subsequent Filings that Reference this Filing

  As Of               Filer                 Filing    For·On·As Docs:Size             Issuer                      Filing Agent

 3/15/24  Baidu, Inc.                       20-F       12/31/23  159:24M                                    Donnelley … Solutions/FA
 3/22/23  Baidu, Inc.                       20-F       12/31/22  164:28M                                    Donnelley … Solutions/FA
 3/28/22  Baidu, Inc.                       20-F       12/31/21  168:26M                                    Donnelley … Solutions/FA
 3/09/21  Baidu, Inc.                       20-F       12/31/20  166:25M                                    Donnelley … Solutions/FA
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