|
||||||||||||||||||||||||||
| SEC Info℠ | | | Home | | | Search | | | My Interests | | | Help | | | Sign In | | | Please Sign In | |||||||
|
||||||||||||||||||||||||||
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 |
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-4.40 |
Exhibit 4.40
Amended And Restated Exclusive Equity Purchase and Transfer Option Agreement
This Amended and Restated Exclusive Equity Purchase and Transfer Option Agreement (this “Agreement”) is entered into by and among the following parties in Beijing, PRC on June 20, 2016:
| Party A: | Baidu Online Network Technology (Beijing) Co., Ltd. | |||
| Address: |
Baidu Building, No. 10 Shangdi 10th Street, Haidian District, Beijing | |||
| Party B: | Zhixiang Liang | |||
| ID No.: |
||||
| Party C: | Beijing Perusal Technology Co., Ltd. | |||
| Address: |
A2 2/F No. 17 Building Zhongguancun Software Park, 8 East Bei Wang Road (W), Haidian District, Beijing | |||
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 human resources in information technology and services;
2. Party C, a liability limited company incorporated in the PRC, carries out the business of value-added telecommunication services such as Internet information services;
3. Party B is a shareholder of Party C, owning 50% equity interests in Party C (the “Equity Interest”);
4. Party A and Party B entered into an Amended and Restated Loan Agreement dated June 20, 2016, whereby Party B obtains an interest-free loan up to RMB1,598,440,000 (the “Loan Arrangement”) in connection with his investment in Party C;
5. Party A and Party C entered into a series of agreement on June 23, 2006, including the Exclusive Technology Consulting and Service Agreement (the “Services Agreements”); and
6. Party A and Party B entered into an Amended and Restated Equity Pledge Agreement (the “Equity Pledge Agreement”) dated June 20, 2016;
1
NOW, THEREFORE, the Parties agree as follows through negotiations and to be bound hereby:
| 1. | Purchase and Sale of Equity Interest |
1.1 Granting of Rights
Party B 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 Article 1.3 of this Agreement, and at any time from Party B (the “Transferor”), a portion or all of the equity interests held by Party B 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 granting of the Option by Party B to Party A and/or the Designated Persons. For purpose of this Section 1.1 and this Agreement, “person” means individual, corporation, joint venture, partnership, enterprise, trust or unincorporated 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 “Option 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 actual 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, in accordance the terms and conditions of this Agreement and the Option 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 in a substance and form satisfactory to Party A;
1.4.2 The Transferor shall execute all other requisite contracts, agreements or documents, obtain all requisite government approvals and consents, and take all necessary actions to unconditionally 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. For purpose of this Section 1.4.2 and this Agreement, “Security Interest” includes without limitation guaranty, mortgage, pledge, third-party right or interest, any share option, right of acquisition, right of first refusal, right of set-off, ownership retention or other security arrangements. However, it does not include any security interest arising under the Equity Pledge Agreement.
2
1.5 Payment
Payment manner of the Purchase Price shall be determined through negotiations between Party A and/or the Designated Persons and the Transferor in accordance with then applicable laws at 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 (which amount may be net of any tax and other fees paid by the Transferor in connection with the proposed transaction contemplated under the transfer agreement).
| 2. | Covenants Relating to the Equity Interest |
2.1 Covenants Relating to Party C
Party B and Party C hereby covenant, in relation to Party C:
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 incur, succeed to, guarantee or permit the existence of 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;
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 RMB500,000);
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;
3
2.1.9 To purchase and maintain insurance from insurance companies accepted by Party A. The amount and category of the insurance shall be 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, 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 executive directors of Party C;
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 the Transferor’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;
4
2.2.5 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;
2.2.6 At the request of Party A, to appoint persons nominated by Party A to be executive directors of Party C;
2.2.7 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;
2.2.8 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; and
2.2.9 To transfer to Party A all dividends and any other form of profit distributed to it by Party C.
2.3 Covenants Relating to Party A
Party A hereby covenants:
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 such capital support without imposing any condition or restriction; and
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 will unconditionally give up its right to require Party C to repay the loan.
| 3. | Representations and Warranties |
As of the date of this Agreement and each 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 (the “Transfer Agreement”) to which it is a 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;
5
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 There are currently no existing, pending or threatened litigations, arbitrations or administrative proceedings related to the Equity Interest, Party C’s assets or Party C; and
3.6 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 as Party A sees fit, in which case Party A only needs to give a written notice to Party B and Party C and no further consent of Party B or Party C is required.
| 5. | Effectiveness and Term |
5.1 This Agreement shall be effective as of the date first set forth above.
5.2 This Agreement shall come into force when it is duly executed by each of the Parties and expires when all Equity Interest held by Party B is transferred to Party A and/or Designated Persons in accordance with this Agreement.
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 resolution of any dispute arising from this Agreement shall be protected and governed by the laws of the PRC.
6
| 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. | Notices |
Any notice or other communication forms which is given by the parties hereto shall be in Chinese and delivered personally to the addresses listed as below or the addresses designated by the Parties. The notice time which is deemed as the time when the notice actually reaches the addressee follows: (a) the notice time of the notice delivered personally shall be the day when the person conducts the delivery; (b) the notice time of the notice delivered as mail shall be the tenth (10th) day following the mailing date of the registered mail by air (marked by seal) or shall be the fourth (4th) day following the day handing to internally recognized delivery services organizations; and (c) the notice time of the notice delivered by facsimile shall be the acceptance time on the delivery confirmation.
| Party A: |
Baidu Online Network Technology (Beijing) Co., Ltd. | |
| Address: |
Baidu Building, No. 10 Shangdi 10th Street, Haidian District, Beijing | |
| Facsimile: |
010-59928888 | |
| Telephone: |
010-59928888 | |
| Party B: |
Zhixiang Liang | |
| Address: |
Baidu Building, No. 10 Shangdi 10th Street, Haidian District, Beijing | |
| Facsimile: |
010-59927435 | |
| Telephone: |
010-59928888 | |
| Party C: |
Beijing Perusal Technology Co., Ltd. | |
| Address: |
A2 2/F No. 17 Building Zhongguancun Software Park, 8 East Bei Wang Road (W), Haidian District, Beijing | |
| Facsimile: |
010-59927435 | |
| Telephone: |
010-59928888 | |
7
| 9. | 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:
| a. | Materials that are or will become known by the public (through no fault of the receiving party); |
| b. | Materials required to be disclosed by the applicable laws or rules of the stock exchange; and |
| c. | 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 similar to this article. |
The disclosure of information by the staff or consultants of any party shall be deemed as disclosure by the party itself. This Article 9 shall survive any invalidity, termination, expiration or unenforceability of this Agreement.
| 10. | 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.
| 11. | Miscellaneous |
11.1 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.
| 11.2 | 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.
8
| 11.3 | 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.
11.4 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.
11.5 Language and counterparts
This Agreement is executed in Chinese in three originals; each Party holds one original and each original has the same legal effect.
11.6 Successor
This Agreement shall bind upon and inure to the benefit of the successors and permitted assigns of each Party.
11.7 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 Article 11.7 shall survive the termination of this Agreement.
11.8 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.
[No text below]
9
[This page contains no body text]
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.
| Party A: Baidu Online Network Technology (Beijing) Co., Ltd.
/s/: Hailong Xiang |
| Seal of Baidu Online Network Technology (Beijing) Co., Ltd. |
| Party B: Zhixiang Liang |
| /s/: Zhixiang Liang |
| Party C: Beijing Perusal Technology Co., Ltd. |
| /s/: Hailong Xiang |
| Seal of Beijing Perusal Technology Co., Ltd. |
10
Amended and Restated Exclusive Equity Purchase and Transfer Option Agreement
This Amended and Restated Exclusive Equity Purchase and Transfer Option Agreement (this “Agreement”) is entered into by and among the following parties in Beijing, PRC on June 20, 2016:
| Party A: | Baidu Online Network Technology (Beijing) Co., Ltd. | |||
| Address: |
Baidu Building, No. 10 Shangdi 10th Street, Haidian District, Beijing | |||
| Party B: | Xiaodong Wang | |||
| ID No.: |
||||
| Party C: | Beijing Perusal Technology Co., Ltd. | |||
| Address: |
A2 2/F No. 17 Building Zhongguancun Software Park, 8 East Bei Wang Road (W), Haidian District, Beijing | |||
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 human resources in information technology and services;
2. Party C, a liability limited company incorporated in the PRC, carries out the business of value-added telecommunication services such as Internet information services;
3. Party B is a shareholder of Party C, owning 50% equity interests in Party C (the “Equity Interest”);
4. Party A and Party B entered into an Amended and Restated Loan Agreement dated June 20, 2016, whereby Party B obtains an interest-free loan up to RMB1,598,440,000 (the “Loan Arrangement”) in connection with his investment in Party C;
5. Party A and Party C entered into a series of agreement on June 23, 2006, including the Exclusive Technology Consulting and Service Agreement (the “Services Agreements”); and
6. Party A and Party B entered into an Amended and Restated Equity Pledge Agreement (the “Equity Pledge Agreement”) dated June 20, 2016;
11
NOW, THEREFORE, the Parties agree as follows through negotiations and to be bound hereby:
| 1. | Purchase and Sale of Equity Interest |
1.1 Granting of Rights
Party B 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 Article 1.3 of this Agreement, and at any time from Party B (the “Transferor”), a portion or all of the equity interests held by Party B 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 granting of the Option by Party B to Party A and/or the Designated Persons. For purpose of this Section 1.1 and this Agreement, “person” means individual, corporation, joint venture, partnership, enterprise, trust or unincorporated 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 “Option 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 actual 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, in accordance the terms and conditions of this Agreement and the Option 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 in a substance and form satisfactory to Party A;
1.4.2 The Transferor shall execute all other requisite contracts, agreements or documents, obtain all requisite government approvals and consents, and take all necessary actions to unconditionally 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. For purpose of this Section 1.4.2 and this Agreement, “Security Interest” includes without limitation guaranty, mortgage, pledge, third-party right or interest, any share option, right of acquisition, right of first refusal, right of set-off, ownership retention or other security arrangements. However, it does not include any security interest arising under the Equity Pledge Agreement.
12
1.5 Payment
Payment manner of the Purchase Price shall be determined through negotiations between Party A and/or the Designated Persons and the Transferor in accordance with then applicable laws at 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 (which amount may be net of any tax and other fees paid by the Transferor in connection with the proposed transaction contemplated under the transfer agreement).
| 2. | Covenants Relating to the Equity Interest |
2.1 Covenants Relating to Party C
Party B and Party C hereby covenant, in relation to Party C:
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 incur, succeed to, guarantee or permit the existence of 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;
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 RMB500,000);
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;
13
2.1.9 To purchase and maintain insurance from insurance companies accepted by Party A. The amount and category of the insurance shall be 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, 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 executive directors of Party C;
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 the Transferor’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;
14
2.2.5 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;
2.2.6 At the request of Party A, to appoint persons nominated by Party A to be executive directors of Party C;
2.2.7 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;
2.2.8 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; and
2.2.9 To transfer to Party A all dividends and any other form of profit distributed to it by Party C.
2.3 Covenants Relating to Party A
Party A hereby covenants:
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 such capital support without imposing any condition or restriction; and
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 will unconditionally give up its right to require Party C to repay the loan.
| 3. | Representations and Warranties |
As of the date of this Agreement and each 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 (the “Transfer Agreement”) to which it is a 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;
15
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 There are currently no existing, pending or threatened litigations, arbitrations or administrative proceedings related to the Equity Interest, Party C’s assets or Party C; and
3.6 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 as Party A sees fit, in which case Party A only needs to give a written notice to Party B and Party C and no further consent of Party B or Party C is required.
| 5. | Effectiveness and Term |
5.1 This Agreement shall be effective as of the date first set forth above.
5.2 This Agreement shall come into force when it is duly executed by each of the Parties and expires when all Equity Interest held by Party B is transferred to Party A and/or Designated Persons in accordance with this Agreement.
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 resolution of any dispute arising from this Agreement shall be protected and governed by the laws of the PRC.
16
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. | Notices |
Any notice or other communication forms which is given by the parties hereto shall be in Chinese and delivered personally to the addresses listed as below or the addresses designated by the Parties. The notice time which is deemed as the time when the notice actually reaches the addressee follows: (a) the notice time of the notice delivered personally shall be the day when the person conducts the delivery; (b) the notice time of the notice delivered as mail shall be the tenth (10th) day following the mailing date of the registered mail by air (marked by seal) or shall be the fourth (4th) day following the day handing to internally recognized delivery services organizations; and (c) the notice time of the notice delivered by facsimile shall be the acceptance time on the delivery confirmation.
| Party A: |
Baidu Online Network Technology (Beijing) Co., Ltd. | |
| Address: |
Baidu Building, No. 10 Shangdi 10th Street, Haidian District, Beijing | |
| Facsimile: |
010-59928888 | |
| Telephone: |
010-59928888 | |
| Party B: |
Xiaodong Wang | |
| Address: |
Room 1806 288 Fengyang Road, Huangpu District, Shanghai | |
| Facsimile: |
010-59927435 | |
| Telephone: |
010-59928888 | |
| Party C: |
Beijing Perusal Technology Co., Ltd. | |
| Address: |
A2 2/F No. 17 Building Zhongguancun Software Park, 8 East Bei Wang Road (W), Haidian District, Beijing | |
| Facsimile: |
010-59927435 | |
| Telephone: |
010-59928888 | |
17
| 9. | 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:
| a. | Materials that are or will become known by the public (through no fault of the receiving party); |
| b. | Materials required to be disclosed by the applicable laws or rules of the stock exchange; and |
| c. | 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 similar to this article. |
The disclosure of information by the staff or consultants of any party shall be deemed as disclosure by the party itself. This Article 9 shall survive any invalidity, termination, expiration or unenforceability of this Agreement.
| 10. | 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.
| 11. | Miscellaneous |
11.1 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.
| 11.2 | 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.
18
| 11.3 | 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.
11.4 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.
11.5 Language and counterparts
This Agreement is executed in Chinese in three originals; each Party holds one original and each original has the same legal effect.
11.6 Successor
This Agreement shall bind upon and inure to the benefit of the successors and permitted assigns of each Party.
11.7 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 Article 11.7 shall survive the termination of this Agreement.
11.8 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.
[No text below]
19
[This page contains no body text]
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.
| Party A: Baidu Online Network Technology (Beijing) Co., Ltd. |
| /s/: Hailong Xiang |
| Seal of Baidu Online Network Technology (Beijing) Co., Ltd. |
| Party B: Xiaodong Wang |
| /s/: Xiaodong Wang |
| Party C: Beijing Perusal Technology Co., Ltd. |
| /s/: Hailong Xiang |
| Seal of Beijing Perusal Technology Co., Ltd. |
20
| This ‘20-F’ Filing | Date | Other Filings | ||
|---|---|---|---|---|
 | ||||
| Filed on: | 3/31/17 | None on these Dates | ||
| For Period end: | 12/31/16 | |||
| 6/20/16 | ||||
| 6/23/06 | ||||
| List all Filings | ||||
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 |