EXHIBIT 99.1

 

JOINT FILING AGREEMENT

 

In accordance with Rule 13d-1(k) promulgated under the Securities Exchange Act of 1934, as amended, the undersigned hereby agree to the joint filing with all other Reporting Persons (as such term is defined in the Schedule 13D referred to below) on behalf of each of them of a statement on Schedule 13D (including amendments thereto) with respect to the ordinary shares, par value of $0.00004 per share, of Bitauto Holdings Limited, a Cayman Islands company, and that this Agreement may be included as an Exhibit to such joint filing. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument.

 

[Signature page to follow]

 

 

Signature Page

 

IN WITNESS WHEREOF, the undersigned hereby execute this Agreement as of February  26 , 2015.

 

 

Dated: February 26, 2015	JD.com, Inc.
	By:	/s/ Richard Qiangdong Liu
	Name:	Richard Qiangdong Liu
	Title:	Chairman of the Board and Chief Executive Officer
	JD.com Investment Limited
	By:	/s/ Richard Qiangdong Liu
	Name:	Richard Qiangdong Liu
	Title:	Director
	JD.com Global Investment Limited
	By:	/s/ Richard Qiangdong Liu
	Name:	Richard Qiangdong Liu
	Title:	Director

 

Exhibit 99.2

 

SUBSCRIPTION AGREEMENT

 

dated as of January 9, 2015

 

among

 

BITAUTO HOLDINGS LIMITED

 

JD.COM GLOBAL INVESTMENT LIMITED

 

JD.COM, INC.

 

and

 

DONGTING LAKE INVESTMENT LIMITED

 

 

TABLE OF CONTENTS

 

ARTICLE I DEFINITION AND INTERPRETATION		2
Section 1.1	Definition, Interpretation and Rules of Construction	2
ARTICLE II PURCHASE AND SALE; CLOSING		6
Section 2.1	Issuance, Sale and Purchase of the Subscription Shares	6
Section 2.2	Closings	6
ARTICLE III CONDITIONS TO CLOSING		8
Section 3.1	Conditions to Obligations of All Parties	8
Section 3.2	Conditions to Obligations of Purchasers	8
Section 3.3	Conditions to Obligations of the Company	9
ARTICLE IV REPRESENTATIONS AND WARRANTIES		9
Section 4.1	Representations and Warranties of the Company	9
Section 4.2	Representations and Warranties of Each Purchaser	16
Section 4.3	Additional Representations and Warranties of JD and JD Global	18
ARTICLE V COVENANTS		22
Section 5.1	Conduct of Business of the Company	22
Section 5.2	Conduct of the Business	22
Section 5.3	Assignment of Contracts	23
Section 5.4	Non-competition	23
Section 5.5	Access to Information	24
Section 5.6	Transition Cooperation	24
Section 5.7	Payments Under Assumed Contracts	24
Section 5.8	Trading of Company Securities	25
Section 5.9	Securities Law Filings	25
Section 5.10	FPI Exemption	25
Section 5.11	Lock-up	25
Section 5.12	Standstill	26
Section 5.13	Distribution Compliance Period	27
Section 5.14	Further Assurances	27
ARTICLE VI INDEMNIFICATION		27
Section 6.1	Indemnification	27
Section 6.2	Third Party Claims	27
Section 6.3	Other Claims	29
Section 6.4	Limitations on Liability	29
ARTICLE VII MISCELLANEOUS		29

 

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Section 7.1	Survival of the Representations and Warranties	29
Section 7.2	Governing Law; Arbitration	29
Section 7.3	No Third Party Beneficiaries	30
Section 7.4	Amendment	30
Section 7.5	Binding Effect	30
Section 7.6	Assignment	30
Section 7.7	Notices	30
Section 7.8	Entire Agreement	32
Section 7.9	Severability	32
Section 7.10	Fees and Expenses	32
Section 7.11	Confidentiality	32
Section 7.12	Specific Performance	33
Section 7.13	Termination	33
Section 7.14	Headings	34
Section 7.15	Execution in Counterparts	34
Section 7.16	Public Disclosure	34
Section 7.17	Waiver	34
EXHIBIT A		38
EXHIBIT B		39
EXHIBIT C		40
SCHEDULE I		41

 

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SUBSCRIPTION AGREEMENT

 

This Subscription Agreement (this “ Agreement ”) is made as of January 9, 2015, by and among:

 

1.                                       Bitauto Holdings Limited, a company incorporated under the laws of the Cayman Islands (the “ Company ”);

 

2.                                       JD.com, Inc., a company incorporated under the laws of the Cayman Islands (“ JD ”);

 

3.                                       JD.com Global Investment Limited, a company incorporated in the British Virgin Islands (“ JD Global ”) and a wholly owned Subsidiary of JD; and

 

4.                                       Dongting Lake Investment Limited, a company incorporated in the British Virgin Islands (“ Tencent ,” and together with JD Global, the “ Purchasers ”).

 

W I T N E S S E T H :

 

WHEREAS, the Purchasers, desire to purchase, severally and not jointly, and the Company desires to sell certain ordinary shares (“ Ordinary Shares ”) of the Company to the Purchasers pursuant to the terms and conditions set forth in this Agreement;

 

WHEREAS, JD desires to convey to the Company, and the Company desires to acquire from JD and its Subsidiaries, the Company’s exclusive use of JD’s channels and resources, including but not limited to relevant rights and contracts for the operation of finished automobile e-commerce business, pursuant to the terms and conditions set forth in this Agreement;

 

WHEREAS, contemporaneously herewith, the Company and JD are entering into a Business Cooperation Agreement (the “ BCA ”), a copy of which is attached hereto as Exhibit A , to memorialize their mutual agreements and understandings relating to the Company’s operation of the Business (as defined below);

 

WHEREAS, in relation to this Agreement, the Company and the Purchasers will enter into an Investor Rights Agreement (the “ Investor Rights Agreement ”), in substantially the same form attached hereto as Exhibit B , to memorialize their mutual agreements and understandings relating to the Purchasers’ ownership of the Ordinary Shares and certain rights granted to the Purchasers by the Company in relation thereto; and

 

NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties, covenants and agreements set forth herein, as well as other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each of the Parties hereto, intending to be legally bound, agrees as follows:

 

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ARTICLE I
DEFINITION AND INTERPRETATION

 

Section 1.1                                     Definition, Interpretation and Rules of Construction .

 

(a)                                  As used in this Agreement, the following terms have the following meanings:

 

“ BCA Ancillary Documents ” means the platform sharing agreement and any other agreements or contracts to be entered into by the Company and the JD Group on terms and conditions mutually agreed by the Company and JD after the date hereof for the purposes of implementing the arrangements and agreements set forth in the BCA.

 

“ Business ” means the JD Finished Automobile Business ( 京东整车业务 ) as defined in the BCA.

 

“ Business Day ” means any day other than a Saturday, Sunday or other day on which commercial banks in the People’s Republic of China (the “ PRC ” or “ China ”), Hong Kong SAR or New York are required or authorized by law or executive order to be closed or on which a tropical cyclone warning no. 8 or above or a “black” rainstorm warning signal is hoisted in Hong Kong at any time between 9:00 a.m. and 5:00 p.m. Hong Kong time.

 

“ Commencement Date ” means the Commencement Date ( 合作期限开始日 ) as defined in the BCA.

 

“ Exchange Act ” means the Securities Exchange Act of 1934, as amended, or any successor statute, and the rules and regulations promulgated thereunder.

 

“ IFRS ” means International Financial Reporting Standards, as developed and issued by the International Accounting Standards Board.

 

“ JD Disclosure Schedule ” shall mean the disclosure schedule dated the date hereof regarding this Agreement and provided by JD and JD Global to the Company simultaneously with the signing of this Agreement.

 

“ JD Group ” includes JD and its Subsidiaries listed in Section 4.3(a) of the JD Disclosure Schedule.

 

“ Listed Intellectual Property ” means the Intellectual Property listed in Section 4.3(k) of the JD Disclosure Schedule.

 

“ Material Adverse Effect ” with respect to a party shall mean any event, fact, circumstance or occurrence that, individually or in the aggregate with any other events, facts, circumstances or occurrences, results in or would reasonably be expected to result in a material adverse change in or a material adverse effect on (i) the financial condition, assets, liabilities, results of operations, business, operations or prospects of such party or its Subsidiaries taken as a whole, or (ii) the ability of such party to consummate the transactions contemplated by the Transaction Agreements and to timely perform its material obligations hereunder and thereunder, except to the extent that any such material adverse effect results from (x) changes in generally accepted accounting principles that are generally applicable to comparable companies (to the extent not materially disproportionately affecting such party or its Subsidiaries), (y) changes in general economic and market conditions (to the extent not materially disproportionately affecting such party or its Subsidiaries), or (z)  the announcement or disclosure of this Agreement or any other Transaction Agreement or the consummation of the transactions hereunder or thereunder.

 

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“ NYSE ” means The New York Stock Exchange.

 

“ Purchaser MAE ” shall mean, with respect to either of JD Global, JD or Tencent, as applicable, any event, fact, circumstance or occurrence that, individually or in the aggregate with any other events, facts, circumstances or occurrence, results in or would reasonably be expected to result in a material adverse change in or a material adverse effect on the ability of JD Global or JD or Tencent to consummate the transactions contemplated by this Agreement or any other Transaction Agreement and to timely perform its material obligations under this Agreement or any other Transaction Agreement.

 

“ Sarbanes-Oxley Act ” means the Sarbanes-Oxley Act of 2002, as amended.

 

“ SEC ” means the Securities and Exchange Commission of the United States of America or any other federal agency at the time administering the Securities Act.

 

“ Significant Subsidiaries ” mean the Subsidiaries of the Company as defined in Article 1, Rule 1-02 of Regulation S-X under the Exchange Act, including those listed in Schedule I .

 

“ Subsidiary ” of a party means any organization or entity, whether incorporated or unincorporated, which is controlled by such party and, for the avoidance of doubt, the Subsidiaries of a party shall include any variable interest entity over which such party or any of its Subsidiaries effects control pursuant to contractual arrangements and which is consolidated with such party in accordance with generally accepted accounting principles applicable to such party and any Subsidiaries of such variable interest entity.

 

“Transaction Agreements” include this Agreement, the Investor Rights Agreement, the BCA and the BCA Ancillary Agreements.

 

“ Transition Related Circumstances ” means any circumstance, event, change, effect or development (by itself or when aggregated or taken together with any and all other) directly or indirectly arising out of, relating to or resulting from any of the following: (i) the termination of any Business Contracts that are not Assumed Contracts; (ii) any dispute with respect to Business Contracts resulting from the announcement of the Transaction Agreements; and (iii) subject to Section 5.3, the termination of any Assumed Contracts.

 

(b)                                  Each of the following terms is defined in the Section set forth opposite such term:

 

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Term		Section
“ ADSs ”		4.1(f)
“ Agreement ”		Preamble
“ Assumed Contracts ”		4.3(j)
“ BCA ”		Preamble
“ Business ”		Preamble
“ Business Contracts ”		4.3(j)(i)
“ Business Resources ”		2.1(a)
“ Claim Notice ”		6.2(a)
“ Closings ”		2.2(b)
“ Closing Date ”		2.2(a)
“ Company ”		Preamble
“ Company Financial Statements ”		4.1(h)(ii)
“ Confidential Information ”		7.11(a)
“ Dispute ”		7.2
“ Encumbrances ”		4.1(c)
“ FINRA ”		4.2(f)(vii)
“ FPI Exemption ”		5.10
“ Indemnifying Party ”		6.1
“ Indemnified Party ”		6.1
“ Indemnity Notice ”		6.3
“ Intellectual Property ”		4.1( p)
“ Investor Rights Agreement ”		Preamble
“ JD ”		Preamble
“ JD Cash Consideration ”		2.1(a)
“ JD Closing ”		2.2 (a)
“ JD Global ”		Preamble
“ JD Group Company ”		4.3(a)
“ JD Subscription Shares ”		2.1(a)
“ Lock-Up Period ”		5.11
“ Losses ”		6.1
“ Material Assumed Contract ”		4.3(j)(ii)
“ Material Contracts ”		4.1(n)
“ Ordinary Course of Business ”		5.2
“ Ordinary Shares ”		Preamble
“ Permits ”		4.1(f)
“ Purchasers ”		Preamble
“ Returns ”		4.1( q)
“ SEC Documents ”		4.1(h)(i)
“ Securities Act ”		2.2(e)
“ Subscription Shares ”		2.1(b)
“ Tax ”		4.1(q)
“ Tencent ”		Preamble
“ Tencent Closing ”		2.2(b)
“ Tencent Purchase Price ”		2.1(b)
“ Tencent Subscription Shares ”		2.1(b)
“ Third Party Claim ”		6.2(a)

 

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(c)                                   In this Agreement, except to the extent otherwise provided or that the context otherwise requires:

 

(i)                                      The words “Party” and “Parties” shall be construed to mean a party or the parties to this Agreement, and any reference to a party to this Agreement or any other agreement or document contemplated hereby shall include such party’s successors and permitted assigns.

 

(ii)                                   When a reference is made in this Agreement to an Article, Section, Exhibit or clause, such reference is to an Article, Section, Exhibit or clause of this Agreement.

 

(iii)                                The headings for this Agreement are for reference purposes only and do not affect in any way the meaning or interpretation of this Agreement.

 

(iv)                               Whenever the words “include,” “includes” or “including” are used in this Agreement, they are deemed to be followed by the words “without limitation.”

 

(v)                                  The words “hereof,” “herein” and “hereunder” and words of similar import, when used in this Agreement, refer to this Agreement as a whole and not to any particular provision of this Agreement.

 

(vi)                               All terms defined in this Agreement have the defined meanings when used in any certificate or other document made or delivered pursuant hereto, unless otherwise defined therein.

 

(vii)                            The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms.

 

(viii)                         The use of “or” is not intended to be exclusive unless expressly indicated otherwise.

 

(ix)                               The term “$” means United States Dollars.

 

(x)                                  The word “will” shall be construed to have the same meaning and effect as the word “shall.”

 

(xi)                               A reference to any legislation or to any provision of any legislation shall include any modification, amendment, re-enactment thereof, any legislative provision substituted therefor and all rules, regulations and statutory instruments issued or related to such legislation.

 

(xii)                            References herein to any gender include the other gender.

 

(xiii)                         The Parties hereto have each participated in the negotiation and drafting of this Agreement and if any ambiguity or question of interpretation should arise, this Agreement shall be construed as if drafted jointly by the Parties hereto and no presumption or burden of proof shall arise favoring or burdening any Party by virtue of the authorship of any of the provisions in this Agreement or any interim drafts thereof.

 

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ARTICLE II
PURCHASE AND SALE; CLOSING

 

Section 2.1                                     Issuance, Sale and Purchase of the Subscription Shares .

 

(a)                                  Upon the terms and subject to the conditions of this Agreement, at the JD Closing, JD Global hereby agrees to purchase, and the Company hereby agrees to issue, sell and deliver to JD Global, the number of Ordinary Shares set forth opposite JD Global’s name as set out in Exhibit C (the “ JD Subscription Shares ”, free and clear of all liens or encumbrances (except for restrictions created by virtue of transactions under this Agreement) for (i) an aggregate purchase price of $400,000,000 (the “ JD Cash Consideration ”) and (ii) JD’s contribution of the Business Resources (as defined below) pursuant to this Agreement. The “ Business Resources ” shall include (i) the grant by JD to the Company of an exclusive right to operate the Business pursuant to the terms and conditions set forth in the BCA, and (ii) assignment to the Company or its designated Affiliates of the applicable Business Contracts pursuant to the Section 5.3. Each of the parties acknowledges and agrees that the consideration provided for in this Section 2.1(a) represents fair consideration and reasonable equivalent value for the issue of the JD Subscription Shares and the Business Resources and the transactions, covenants and agreements set forth in this Agreement, which consideration was agreed upon as the result of arm’s-length good faith negotiations between the parties and their respective representatives. The purchase and sale of the JD Subscription Shares at the JD Closing shall be made pursuant to and in reliance upon Regulation S.

 

(b)                                  Upon the terms and subject to the conditions of this Agreement, at the Tencent Closing (as defined below), Tencent hereby agrees to purchase, and the Company hereby agrees to issue, sell and deliver to Tencent, subject to and concurrent with the JD Closing, the number of Ordinary Shares set forth opposite Tencent’s name as set out in Exhibit C (the “ Tencent Subscription Shares, ” together with the JD Subscription Shares, the “ Subscription Shares ”), for an aggregate purchase price of $150,000,000 (the “ Tencent Purchase Price ”), free and clear of all liens or encumbrances (except for restrictions created by virtue of this Agreement).  The purchase and sale of the Tencent Subscription Shares at the Tencent Closing shall be made pursuant to and in reliance upon Regulation S.

 

Section 2.2                                     Closings .

 

(a)                                  JD Closing .  Subject to satisfaction or, to the extent of permissible, waiver by the Party or Parties entitled to the benefit of the conditions set forth in ARTICLE III (other than conditions that by their nature are to be satisfied at the Closings, but subject to the satisfaction or, to the extent permissible, waiver of those conditions at Closings), the closing of the sale and purchase of the JD Subscription Shares pursuant to Section 2.2(a) (the “ JD Closing ”) shall take place at such time, date and place as the Parties may mutually agree, but no later than April 8, 2015.  The date and time of the JD Closing are referred to herein as the “ Closing Date .”

 

(b)                                  Tencent Closing . Subject to satisfaction or, to the extent of permissible, waiver by the Party or Parties entitled to the benefit of the conditions set forth in ARTICLE III (other than conditions that by their nature are to be satisfied at the Closings, but subject to the satisfaction or, to the extent permissible, waiver of those conditions at Closings), the closing of the sale and purchase of the Tencent Subscription Shares pursuant to Section 2.2(b) the “ Tencent Closing ,” and together with the JD Closing, the “ Closing s ”) shall take place concurrently with the JD Closing.

 

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(c)                                   At the Closings, each Purchaser shall purchase the JD Subscription Shares or Tencent Subscription Shares, as applicable.

 

(d)                                  Payment and Delivery .

 

(i)                                      At the JD Closing, JD shall pay and deliver, or cause to be paid and delivered, the JD Cash Consideration to the Company in U.S. dollars by wire transfer, or by such other method as JD and the Company may mutually agree, of immediately available funds to such bank account designated in writing by the Company to JD at least three Business Days prior to the JD Closing. The Company shall deliver a photocopy of a duly executed share certificate registered in the name of JD Global, a certified true copy of the register of members of the Company showing JD Global as the legal and beneficial holder of the JD Subscription Shares and a photocopy of certified true copy of the register of directors of the Company showing the director nominated by the JD Global at the Closing Date as a director of the board of directors of the Company, and the Company shall deliver to JD the originals of each of such documents promptly after the JD Closing.

 

(ii)                                   At the Tencent Closing, Tencent shall pay and deliver the Tencent Purchase Price to the Company in U.S. dollars by wire transfer, or by such other method as Tencent and the Company may mutually agree,  of immediately available funds to such bank account designated in writing by the Company to Tencent at least three Business Days prior to the Tencent Closing, and the Company shall deliver a photocopy of one duly executed share certificate registered in the name of Tencent, together with a certified true copy of the register of members of the Company, showing Tencent as the legal and beneficial holder of the Tencent Subscription Shares, and the Company shall deliver to Tencent the originals of each of such documents promptly after the Tencent Closing.

 

(e)                                   Restrictive Legend .  Each certificate representing any of the Subscription Shares shall be endorsed with the following legend:

 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (AS AMENDED, THE “SECURITIES ACT”) OR UNDER THE SECURITIES LAWS OF ANY STATE.  THIS SECURITY MAY NOT BE TRANSFERRED, SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED: (A) IN THE ABSENCE OF (1) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (2) AN EXEMPTION OR QUALIFICATION UNDER APPLICABLE SECURITIES LAWS, AND (3) OTHERWISE IN COMPLIANCE WITH THE SUBSCRIPTION AGREEMENT AMONG THE COMPANY, JD.COM GLOBAL INVESTMENT LIMITED, JD.COM, INC., AND DONGTING LAKE INVESTMENT LIMITED, DATED JANUARY 9, 2015 (THE “ SUBSCRIPTION AGREEMENT ”).  ANY ATTEMPT TO TRANSFER, SELL, PLEDGE OR HYPOTHECATE THIS SECURITY IN VIOLATION OF THESE RESTRICTIONS OR ANY OTHER RESTRICTIONS SET FORTH IN THE SUBSCRIPTION AGREEMENT SHALL BE VOID.

 

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ARTICLE III
CONDITIONS TO CLOSING

 

Section 3.1                                     Conditions to Obligations of All Parties .

 

(a)                                  No governmental authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any law (whether temporary, preliminary or permanent) that is in effect and restrains, enjoins, prevents, prohibits or otherwise makes illegal the consummation of the transactions contemplated by the Transaction Agreements.

 

(b)                                  No action, suit, proceeding or investigation shall have been instituted or threatened by a governmental authority of competent jurisdiction or any third party that seeks to restrain, enjoin, prevent, prohibit or otherwise make illegal the consummation of the transactions contemplated by the Transaction Agreements.

 

Section 3.2                                     Conditions to Obligations of Purchasers . The respective obligations of each Purchaser to purchase and pay for the Subscription Shares as contemplated by this Agreement are subject to the satisfaction, on or before the Closing Date, of the following conditions, any of which may be waived in writing by such Purchaser in its sole discretion:

 

(a)                                  The representations and warranties of the Company contained in Section 4.1 of this Agreement shall have been true and correct on the date of this Agreement and true and correct in all material respects (or, if qualified by materiality or Material Adverse Effect, true and correct in all respects) on and as of the Closing Date (except for representations and warranties that expressly speak as of an earlier date, in which case on and as of such specified date);

 

(b)                                  The Company shall have performed and complied in all material respects with all, and not be in breach or default in any material respects under any agreements, covenants, conditions and obligations contained in this Agreement that are required to be performed or complied with on or before the Closing Date.

 

(c)                                   There shall have been no Material Adverse Effect with respect to the Company.

 

(d)                                  All corporate and other actions required to be taken by the Company in connection with the issuance and sale of the Subscription Shares shall have been completed.

 

(e)                                   The Company shall have approved the appointment of a director nominated by JD Global to the board of directors of the Company, which shall be effective upon the Closing.

 

(f)                                    The Company shall have duly executed and delivered the Investor Rights Agreement on or prior to the Closings.

 

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Section 3.3                                     Conditions to Obligations of the Company .  The obligation of the Company to issue and sell the JD Subscription Shares or Tencent Subscription Shares, as applicable, to the relevant Purchaser as contemplated by this Agreement are subject to the satisfaction, on or before the Closing Date, of each of the following conditions, any of which may be waived in writing by the Company in its sole discretion:

 

(a)                                  The representations and warranties of each Purchaser contained in Section 4.2 and Section 4.3 of this Agreement shall have been true and correct on the date of this Agreement and true and correct in all material respects (or, if qualified by materiality or Material Adverse Effect, true and correct in all respects) on and as of the Closing Date.

 

(b)                                  Each Purchaser shall have performed and complied in all material respects with all, and not be in breach or default in any material respect under any, agreements, covenants, conditions and obligations contained in this Agreement that are required to be performed or complied with on or before the Closing Date.

 

(c)                                   There shall have been no Purchaser MAE.

 

(d)                                  There shall have been no Material Adverse Effect with respect to the Business.

 

(e)                                   All corporate and other actions required to be taken by each Purchaser in connection with the purchase of the Subscription Shares and all corporate and other actions required to be taken by the JD Group in connection with the contribution of the Business Resources shall have been completed.

 

(f)                                    Each Purchaser shall have duly executed and delivered the Investor Rights Agreement on or prior to the Closings.

 

ARTICLE IV
REPRESENTATIONS AND WARRANTIES

 

Section 4.1                                     Representations and Warranties of the Company . The Company hereby represents and warrants to each Purchaser that, as of the date hereof and as of the Closings, the following representations and warranties are true and correct:

 

(a)                                  Due Formation .  The Company is an exempted company, duly incorporated, validly existing and in good standing under the laws of the Cayman Islands. Each of the Company and the Company’s Subsidiaries is duly formed, validly existing and in good standing in the jurisdiction of its organization.  Each of the Company and its Subsidiaries has all requisite power and authority to carry on its business as it is currently being conducted.

 

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(b)                                  Authority; Valid Agreement .  The Company has all requisite legal power and authority to execute, deliver and perform its obligations under the Transaction Agreements.  The execution, delivery and performance of each of the Transaction Agreements by the Company have been duly authorized by all necessary corporate action on the part of the Company.  This Agreement has been, and each other Transaction Agreements will be duly executed and delivered by the Company and, assuming due authorization, execution and delivery by each of the Purchasers, constitutes (or, when executed and delivered in accordance herewith will constitute) a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as enforcement may be limited by general principles of equity, whether applied in a court of law or a court of equity, and by applicable bankruptcy, insolvency and similar law affecting creditors’ rights and remedies generally.  Without limiting the generality of the foregoing, as of the Closings, no approval by the shareholders of the Company is required in connection with this Agreement or other Transaction Agreements, the performance by the Company of its obligations hereunder or thereunder, or the consummation by the Company of the transactions contemplated hereby or thereby, except for those that have been obtained, waived or exempted on or prior to such Closings.

 

(c)                                   Due Issuance of the Subscription Shares .  The Subscription Shares will be validly issued, fully paid and non-assessable and free and clear of any pledge, mortgage, security interest, encumbrance, lien, charge, assessment, right of first refusal, right of pre-emption, third party right or interest, claim or restriction of any kind or nature (collectively “ Encumbrances ”), except for restrictions arising under the Securities Act or created by virtue of this Agreement or other Transaction Agreements.  Upon entry of the relevant Purchaser into the register of members of the Company as the legal owner of the relevant Subscription Shares, the Company will transfer to the relevant Purchaser good and valid title to the relevant Subscription Shares, free and clear of any encumbrance.

 

(d)                                  Non-contravention .  None of the execution and the delivery of this Agreement and other Transaction Agreements nor the consummation of the transactions contemplated hereby or thereby, will (i) violate any provision of the organizational documents of the Company or violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental entity or court to which the Company is subject, or (ii) conflict with, result in a breach of, constitute a default under, result in the acceleration of or creation of an encumbrance under, or create in any party the right to accelerate, terminate, modify, or cancel, any agreement, contract, lease, license, instrument, or other arrangement to which the Company or any of its Significant Subsidiaries is a party or by which the Company or any of its Significant Subsidiaries is bound or to which any of the Company’s or any of its Significant Subsidiaries’ assets are subject.  There is no action, suit or proceeding, pending or threatened against the Company that questions the validity of the Transaction Agreements or the right of the Company to enter into this Agreement or to consummate the transactions contemplated hereby or thereby.

 

(e)                                   Consents and Approvals .  None of the execution and delivery by the Company of this Agreement or any Transaction Agreements, nor the consummation by the Company of any of the transactions contemplated hereby or thereby, nor the performance by the Company of this Agreement or other Transaction Agreements in accordance with their respective terms requires the consent, approval, order or authorization of, or registration with, or the giving notice to, any governmental or public body or authority or any third party, except such as have been or will have been obtained, made or given on or prior any Closing Date.  The Company, including all controlled entities within the meaning of the rules under the U.S. Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, does not hold any assets located in the U.S. and did not make aggregate sales in or into the U.S. of over US$75.9 million in its most recent fiscal year.

 

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(f)                                    Compliance with Laws .  The business of the Company and its Subsidiaries is not being conducted, and has not been conducted at any time during the five years prior to the date hereof, in violation of any law (including, without limitation, the U.S. Foreign Corrupt Practices Act, as amended, and PRC anti-bribery laws) or government order applicable to the Company except for violations which, individually or in the aggregate, do not and would not have a Material Adverse Effect.  Except as disclosed in the SEC Documents, the Company and each of its Subsidiaries have all permits, licenses, authorizations, consents, orders and approvals (collectively, “ Permits ”) that are required in order to carry on their business as presently conducted, except where the failure to have such Permits or the failure to make such filings, applications and registrations, would not have a Material Adverse Effect.  Except as disclosed in the SEC Documents, all such Permits are in full force and effect and, to the knowledge of the Company, no suspension or cancellation of any of them is threatened, except where such absence, suspension or cancellation, would not have a Material Adverse Effect.  The Company is in compliance with the applicable listing and corporate governance rules and regulations of the NYSE.  The Company and its Subsidiaries have taken no action designed to, or reasonably likely to have the effect of, delisting the American Depositary Shares representing Ordinary Shares of the Company (the “ ADSs ”) from the NYSE.  The Company has not received any notification that the SEC or the NYSE is contemplating suspending or terminating such listing (or the applicable registration under the Exchange Act related thereto).  The Company is in compliance with the Sarbanes-Oxley Act in all material respects.

 

(g)                                   Capitalization .

 

(i)                                      The authorized capital stock of the Company consists of 1,250,000,000 Ordinary Shares, of which 45,022,224 are issued and outstanding as of January 8, 2015.  Except as set forth in the SEC Documents, the Company has no outstanding bonds, debentures, notes or other obligations, the holders of which have the right to vote (or which are convertible into or exercisable for securities having the right to vote) with the shareholders of the Company on any matter. All issued and outstanding Ordinary Shares and ADSs have been duly authorized and validly issued and are fully paid and non-assessable, are free of preemptive rights, were issued in compliance with applicable U.S. and other applicable securities laws and were not issued in violation of any preemptive right, resale right, right of first refusal, or similar right and will be duly listed and admitted and authorized for trading on the NYSE.

 

(ii)                                   Except as set forth above in this Section 4.1(g) and in the SEC Documents, there are no outstanding (A) shares of capital stock or voting securities of the Company, (B) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities of the Company or (C) preemptive or other outstanding rights, options, warrants, conversion rights, “phantom” stock rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements, calls, commitments or rights of any kind that obligate the Company to issue or sell any shares of capital stock or other securities of the Company or any securities or obligations convertible or exchangeable into or exercisable for, or giving any person a right to subscribe for or acquire, any securities of the Company, and no securities or obligations evidencing such rights are authorized, issued or outstanding.

 

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(iii)                                Except as disclosed in the SEC Documents, there are no registration rights, rights of first offer, rights of first refusal, tag-along rights, director appointment rights, governance rights or other similar rights with respect to the securities of the Company or any Significant Subsidiary of the Company that have been granted to any Person.

 

(iv)                               All outstanding shares of capital stock or other securities or ownership interests of the Significant Subsidiaries are duly authorized, validly issued, fully paid and non-assessable and all such shares or other securities or ownership interests in any Significant Subsidiaries (except for directors’ qualifying shares or other ownership interests required to be held by directors under applicable law) are owned, directly or indirectly, by the Company free and clear of any liens.

 

(h)                                  SEC Matters; Financial Statements .

 

(i)                                      The Company has filed or furnished, as applicable, on a timely basis, all registration statements, proxy statements and other statements, reports, schedules, forms and other documents required to be filed or furnished by it with the SEC (all of the foregoing documents filed with or furnished to the SEC and all exhibits included therein and financial statements, notes and schedules thereto and documents incorporated by reference therein being hereinafter referred to as the “ SEC Documents ”). None of the Significant Subsidiaries is required to file periodic reports with the SEC pursuant to the Exchange Act.  As of their respective effective dates (in the case of the SEC Documents that are registration statements filed pursuant to the requirements of the Securities Act) and as of their respective SEC filing dates (in the case of all other SEC Documents), or in each case, if amended prior to the date hereof, as of the date of the last such amendment: (A) each of the SEC Documents complied in all material respects with the applicable requirements of the Securities Act or the Exchange Act and the Sarbanes-Oxley Act and any rules and regulations promulgated thereunder applicable to the SEC Documents (as the case may be) and (B) none of the SEC Documents contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

 

(ii)                                   The financial statements (including any related notes) contained in the SEC Documents (collectively, the “ Company Financial Statements ”): (A) complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (B) were prepared in accordance with IFRS applied on a consistent basis throughout the periods covered thereby and (C) fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the respective dates thereof and the consolidated results of operations and cash flows of the Company and its Subsidiaries for the periods covered thereby, except as disclosed therein and as permitted under the Exchange Act.

 

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(iii)                                Except as disclosed in the SEC Documents, the Company has established and maintains a system of internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act) sufficient to provide reasonable assurance regarding the reliability of financial reporting, including policies and procedures that (A) mandate the maintenance of records that in reasonable detail accurately and fairly reflect the material transactions and dispositions of the assets of the Company, (B) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with IFRS, and that receipts and expenditures of the Company are being made only in accordance with appropriate authorizations of management and the board of directors of the Company and (C) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the assets of the Company. There are no material weaknesses or significant deficiencies in the Company’s internal controls. The Company’s auditors and the audit committee of the board of directors of the Company have not been advised of any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal controls over financial reporting. Since December 31, 2013, there has been no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.

 

(iv)                               The “disclosure controls and procedures” (as defined in Rules 13a-15(e) or 15d-15(e), as applicable, under the Exchange Act) of the Company are designed to ensure that all material information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the management of the Company as appropriate to allow timely decisions regarding required disclosure.

 

(v)                                  Neither the Company nor any of its Subsidiaries is a party to, nor has any commitment to become a party to, any joint venture, off-balance sheet partnership or any similar contract, agreement, arrangement or undertaking (including any contract, agreement, arrangement or undertaking relating to any transaction or relationship between or among one or more of the Company and/or any of its Significant Subsidiaries, on the one hand, and any unconsolidated affiliate, including any structured finance, special purpose or limited purpose entity or Person, on the other hand), or any “off-balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K promulgated by the SEC), where the result, purpose or intended effect of such contract, agreement, arrangement or undertaking is to avoid disclosure of any material transaction involving, or material liabilities of, the Company or any of its Significant Subsidiaries in the Company’s or such Subsidiary’s published financial statements or other SEC Documents.

 

(i)                                      No Undisclosed Liabilities .  Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, neither the Company nor any of its Subsidiaries has incurred or undertaken any liabilities or obligations, whether direct or indirect, liquidated or contingent, matured or unmatured, or entered into any transactions, including any acquisition or disposition of any business or asset, other than (i) liabilities or obligations disclosed and provided for in the Company Financial Statements or in the notes thereto, (ii) liabilities or obligations that have been incurred by the Company or its Subsidiaries since December 31, 2013 in the ordinary course of business or (iii) liabilities or obligations arising under or in connection with the transactions contemplated by this Agreement.

 

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(j)                                     Investment Company .  The Company is not and, after giving effect to the offering and sale of the Subscription Shares, the consummation of the Offering and the application of the proceeds hereof thereof, will not be an “investment company,” as such term is defined in the U.S. Investment Company Act of 1940, as amended.

 

(k)                                  No Registration .  Assuming the accuracy of the representations and warranties set forth in Section 4.2 of this Agreement, it is not necessary in connection with the issuance and sale of the Subscription Shares to register the Subscription Shares under the Securities Act or to qualify or register the Subscription Shares under applicable U.S. state securities laws.  No directed selling efforts (as defined in Rule 902 of Regulation S under the Securities Act) have been made by any of the Company, any of its affiliates or any person acting on its behalf with respect to any Subscription Shares that are not registered under the Securities Act; and none of such persons has taken any actions that would result in the sale of the Subscription Shares to the Purchaser under this Agreement requiring registration under the Securities Act; and the Company is a “foreign issuer” (as defined in Regulation S).

 

(l)                                      Brokers .  Except for Hammer Capital Management Limited and an obligation to pay certain success fee to Hammer Capital Management Limited as disclosed to the Purchasers prior to the date hereof, the Company has not dealt with any broker, finder, commission agent, placement agent or arranger in connection with the sale of the Subscription Shares, and the Company is not under any obligation to pay any broker’s fee or commission in connection with the sale of the Subscription Shares.

 

(m)                              Absence of Changes .  Since September 30, 2014, (i) the Company and its Subsidiaries have, in all material respects, conducted their business in the ordinary course of business consistent with past practice, and (ii) there has not been any Material Adverse Effect, or:

 

(i)                                      any declaration, setting aside or payment of any dividend or other distribution with respect to any securities of the Company or any of its Significant Subsidiaries (except for dividends or other distributions by any Significant Subsidiary to the Company or to any of the Company’s wholly owned Subsidiaries);

 

(ii)                                   any material related party transactions;

 

(iii)                                any issuances or sales of equity securities of the Company or any of its Significant Subsidiaries or any redemption, repurchase, acquisition, share splits, reclassifications, share dividends, share combinations or other recapitalizations of any such equity securities; or

 

(iv)                               any entry into any contract, agreement, instrument or other document in respect of any of the foregoing.

 

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(n)                                  Contracts .  The Company has filed as exhibits to the SEC Documents all contracts, agreements and instruments (including all amendments thereto) that are required to be filed in the SEC Documents (the “ Material Contracts ”).  Each Material Contract is in full force and effect and, to the knowledge of the Company, enforceable against the counterparties of the Company or its Subsidiaries party thereto, except where such failures to be in effect or enforceable would not reasonably be expected to have a Material Adverse Effect.  The Company and its Subsidiaries and, to the knowledge of the Company, each other party thereto, are not in default under, or in breach or violation of, any Material Contract, except where such default, breach or violation would not reasonably be expected to have a Material Adverse Effect.

 

(o)                                  Litigation .  Except as disclosed in the SEC Documents, there are no pending or threatened actions, claims, demands, investigations, examinations, indictments, litigations, suits or other criminal, civil or administrative or investigative proceedings before or by any governmental authority or by any other person against the Company or any of its Subsidiaries or any officer, director or employee of the Company or any of its Subsidiaries in their capacities as such, as would have, if decided adversely, individually or in the aggregate, a Material Adverse Effect.

 

(p)                                  Intellectual Property .  Except as disclosed in the SEC Documents, all registered or unregistered, (i) patents, patentable inventions and other patent rights (including any divisions, continuations, continuations-in-part, reissues, reexaminations and interferences thereof); (ii) trademarks, service marks, trade dress, trade names, taglines, brand names, logos and corporate names and all goodwill related thereto; (ii) copyrights, mask works and designs; (iv) trade secrets, know-how, inventions, processes, procedures, databases, confidential business information and other proprietary information and rights; (v) computer software programs, including all source code, object code, specifications, designs and documentation related thereto; and (vi) domain names, Internet addresses and other computer identifiers, in each case that is material and is used in the operation of the business of the Company or any of its Subsidiaries (the “ Intellectual Property ”) is either (a) owned by the Company or one or more of its Subsidiaries or (b) is used by the Company or one or more of its Subsidiaries pursuant to a valid license.  To the knowledge of the Company, there are no infringements or other violations of any Intellectual Property owned by the Company or any of its Subsidiaries by any third party, except for such infringements and violations which would not have a Material Adverse Effect.  The Company and its Subsidiaries have taken all necessary actions to maintain and protect each item of Intellectual Property, the absence of which will have a Material Adverse Effect.  The conduct of the business of the Company and its Subsidiaries does not infringe or otherwise violate any intellectual property or other proprietary rights of any other person, and there is no action pending or threatened alleging any such infringement or violation or challenging the Company’s or any of its Subsidiaries’ rights in or to any Intellectual Property, except for such infringements and violations which would not have a Material Adverse Effect.

 

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(q)           Tax Status .  Except as disclosed in the SEC Documents, the Company and each of its Subsidiaries (i) has made or filed in the appropriate jurisdictions all material foreign, federal and state income and all other tax returns required to be filed or maintained in connection with the calculation, determination, assessment or collection of any and all federal, state, local, foreign and other taxes, levies, fees, imposts, duties, governmental fees and charges of whatever kind (including any interest, penalties or additions to the tax imposed in connection therewith or with respect thereto) (each a “ Tax ”), including all amended returns required as a result of examination adjustments made by any governmental authority responsible for the imposition of any Tax (collectively, the “ Returns ”), and such Returns are true, correct and complete in all material respects, and (ii) has paid all material Taxes and other governmental assessments and charges shown or determined to be due on such Returns, except those being contested or will be contested in good faith.  Except as disclosed in the SEC Documents, neither the Company nor any of its Subsidiaries has received notice regarding unpaid material Taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the Company is not aware of any reasonable basis for such claim.  No Returns filed by or on behalf of the Company or any of its Subsidiaries with respect to material Taxes are currently being audited, and neither the Company nor any of its Subsidiaries has received notice of any such audit.

 

(r)             Solvency .  Both before and after giving effect to the transactions contemplated by this Agreement and other Transaction Agreements, each of the Company and its Significant Subsidiaries (i) will be solvent (in that both the fair value of its assets will not be less than the sum of its debts and that the present fair saleable value of its assets will not be less than the amount required to pay its probable liability on its recourse debts as they mature or become due) and (ii) will have adequate capital and liquidity with which to engage in the their businesses as currently conducted and as described in the SEC Documents.

 

(s)             As of January 8, 2015, the JD Subscription Shares shall account for 25% of the issued and outstanding share capital of the Company, and the Tencent Subscription Shares shall account for 3.3% of the issued and outstanding share capital of the Company, in each case on a fully diluted basis (as defined in the Exhibit C) and giving effect to the Closings.

 

Section 4.2             Representations and Warranties of Each Purchaser .  Each Purchaser, severally and not jointly, hereby represents and warrants to the Company as of the date hereof and as of the relevant Closing, as follows:

 

(a)            Due Formation .  The relevant Purchaser is duly formed, validly existing and in good standing in the jurisdiction of its organization. The Purchaser has all requisite power and authority to carry on its business as it is currently being conducted.

 

(b)            Authority .  The relevant Purchaser has full power and authority to enter into, execute and deliver this Agreement and other Transaction Agreements to which it is to become a party and each other agreement, certificate, document and instrument to be executed and delivered by the relevant Purchaser pursuant to this Agreement and each such Transaction Agreement and to perform its obligations hereunder and thereunder.  The execution and delivery by the relevant Purchaser of this Agreement and each other Transaction Agreement to which it is or is to become a party and the performance by the relevant Purchaser of its obligations hereunder and thereunder have been duly authorized by all requisite actions on its part.

 

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(c)            Valid Agreement .  This Agreement has been, and each other Transaction Agreement to which it is to become a party will be, duly executed and delivered by the relevant Purchaser and constitutes (or, when executed and delivered in accordance herewith will constitute), the legal, valid and binding obligation of the relevant Purchaser, enforceable against the relevant Purchaser in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of general application affecting enforcement of creditors’ rights generally, and (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies or general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or law).

 

(d)            Non-contravention .  None of the execution and the delivery of this Agreement or any other Transaction Agreement, nor the consummation of the transactions contemplated hereby or thereby, by the relevant Purchaser will (i) violate any provision of the organizational documents of the relevant Purchaser or violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental entity or court to which the relevant Purchaser is subject, or (ii) conflict with, result in a breach of, constitute a default under, result in the acceleration of or creation of an encumbrance under, or create in any party the right to accelerate, terminate, modify, or cancel, any agreement, contract, lease, license, instrument, or other arrangement to which the relevant Purchaser is a party or by which the relevant Purchaser is bound or to which any of the relevant Purchaser’s assets are subject.  There is no action, suit or proceeding, pending or threatened against the relevant Purchaser that questions the validity of this Agreement or the right of the relevant Purchaser to enter into this Agreement or any other Transaction Agreement to which the relevant Purchaser is to become a party or to consummate the transactions contemplated hereby or thereby.

 

(e)            Consents and Approvals .  None of the execution and delivery by the relevant Purchaser of this Agreement and other Transaction Agreements to which the relevant Purchaser is to become a Party, nor the consummation by the relevant Purchaser of any of the transactions contemplated hereby or thereby, nor the performance by the relevant Purchaser of this Agreements or any such Transaction Agreement in accordance with its terms requires the consent, approval, order or authorization of, or registration with, or the giving notice to, any governmental or public body or authority or any third party, except such as have been or will have been obtained, made or given on or prior to the applicable Closing.

 

(f)             Status and Investment Intent .

 

(i)             Experience .  The relevant Purchaser has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of its investment in the relevant Subscription Shares. The relevant Purchaser is capable of bearing the economic risks of such investment, including a complete loss of its investment.

 

(ii)            Purchase Entirely for Own Account .  The relevant Purchaser is acquiring the relevant Subscription Shares that it is purchasing pursuant to this Agreement for investment for its own account for investment purposes only and not with the view to, or with any intention of, resale, distribution or other disposition thereof.  The relevant Purchaser does not have any direct or indirect arrangement, or understanding with any other persons to distribute, or regarding the distribution of the relevant Subscription Shares in violation of the Securities Act or any other applicable state securities law.

 

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(iii)           Solicitation .  The relevant Purchaser was not identified or contacted through the marketing of the transactions contemplated by this Agreement.  The Purchaser did not contact the Company as a result of any general solicitation or directed selling efforts.  The purchase of the Securities by the relevant  Purchaser was not solicited by or through anyone other than the Company.

 

(iv)           Restricted Securities .  The relevant Purchaser acknowledges that the Securities are “restricted securities” that have not been registered under the Securities Act or any applicable state securities law. The relevant Purchaser further acknowledges that, absent an effective registration under the Securities Act, the Securities may only be offered, sold or otherwise transferred (x) to the Company, (y) outside the United States in accordance with Rule 904 of Regulation S under the Securities Act or (z) pursuant to an exemption from registration under the Securities Act.

 

(v)            Not a U.S. Person .  The Purchaser is not a “U.S. person” as defined in Rule 902 of Regulation S.

 

(vi)           Offshore Transaction .  The Purchaser has been advised and acknowledges that in issuing the Securities to the Purchaser pursuant hereto, the Company is relying upon the exemption from registration provided by Regulation S.  The relevant Purchaser is acquiring the relevant Subscription Shares in an offshore transaction executed in reliance upon the exemption from registration provided by Regulation S.

 

(vii)          FINRA .  The relevant Purchaser does not, directly or indirectly, own more than five percent of the outstanding common stock (or other voting securities) of any member of the Financial Industry Regulatory Authority, Inc. (“ FINRA ”) or a holding company for a FINRA member, and is not otherwise a “restricted person” for the purposes of the Free-Riding and Withholding Interpretation of FINRA.

 

Section 4.3             Additional Representations and Warranties of JD and JD Global .  Except as set forth in the JD Disclosure Schedule, each of JD and JD Global hereby represents and warrants to the Company in relation to the Business Resources and the Business as of the date hereof and as of the JD Closing:

 

(a)            Due Formation .  The relevant member under the JD Group (each a “ JD Group Company ”) is duly formed, validly existing and in good standing in the jurisdiction of its organization.  The JD Group Company has all requisite power and authority to carry on its business as it is currently being conducted.

 

(b)            Authority .  The JD Group Company has all requisite legal power and authority to enter into, execute and deliver any Transaction Agreements to which it is to become a party and each other agreement, certificate, document and instrument to be executed and delivered by such JD Group Company pursuant to the Transaction Agreements and to perform its obligations thereunder.  The execution and delivery by the JD Group Company of the Transaction Agreement to which it is to become a party and the performance by such JD Group Company of its obligations thereunder will have been duly authorized by all requisite corporate actions on its part.

 

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(c)            Valid Agreement .  The Transaction Agreements to which a JD Group Company is to become a party will be duly executed and delivered by such company and, assuming due authorization, execution and delivery by any other parties thereto, will constitute the legal, valid and binding obligation of such JD Group Company, enforceable against such JD Group Company in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies or general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or law).

 

(d)            Non-contravention .  None of the execution and the delivery of the Transaction Agreements or any other agreement in relation to the transactions thereunder, nor the consummation of the transactions contemplated thereby, by a JD Group Company will (x) violate any provision of the organizational documents of the relevant company or violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental entity or court to which such JD Group Company is subject, or (y) conflict with, result in a breach of, constitute a default under, result in the acceleration of or creation of an encumbrance under, or create in any party the right to accelerate, terminate, modify, or cancel, any agreement, contract, lease, license, instrument, or other arrangement (except for any Assumed Contracts) to which such JD Group Company is a party or by which such JD Group Company is bound or to which such JD Group Company is subject; in each case, only if such violation, conflict, breach, default, acceleration, encumbrance, termination, modification or cancellation would have a Material Adverse Effect on JD.

 

(e)            Consents and Approvals .  None of the execution and delivery by the relevant  JD Group Company of the Transaction Agreements to which such JD Group Company is to become a Party, nor the consummation by such JD Group Company of any of the transactions contemplated thereby, nor the performance by such JD Group Company of any such Transaction Agreements in accordance with its terms requires the consent, approval, order or authorization of, or registration with, or the giving notice to, any governmental or public body or authority or any third party, except such (i) as have been or will have been obtained, made or given on or prior to the JD Closing, (ii) as may be required from any third party to the Business Contracts, or (iii) as would not have a Material Adverse Effect with respect to the Business.

 

(f)             No Material Adverse Change in Business .  Since September 30, 2014, except for the Transition Related Circumstances, (x) the Business has been, in all material respects, operated in the ordinary course of business in a manner consistent with past practice, and (y) there has not been any Material Adverse Effect with respect to the Business Resources.

 

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(g)            Absence of Proceedings

 

(i)             Except for the Transition Related Circumstances, no material legal proceeding relates to or may affect any of the Business Resources.

 

(ii)            Except for the Transition Related Circumstances, there is no material governmental order outstanding against or applicable to the Business Resources, or that could impose any material liability on the Business Resources, or imposes any material limitation on the ability of the JD Group to operate the Business or the Business Resources as currently conducted or planned to be conducted by the JD Group, and to JD’s and JD Global’s knowledge, there are no facts which would form a basis for any such governmental order.

 

(h)            Permits .  All Permits required to conduct the Business, as conducted on the date hereof, are in the possession of JD Group and are in full force and effect, unless that lack thereof would not have a Material Adverse Effect with respect to the Business.

 

(i)             Compliance with Laws .  JD Group holds the Business Resources in conformity with, in all material respects all applicable Law in China.  To JD’s and JD Global’s knowledge, no event has occurred and no circumstances exist that (with or without the giving of notice or lapse of time or both) may result in a violation of, conflict with, or failure on the part of JD Group to comply with, any law applicable the Business Resources in China, which would result in a Material Adverse Effect.

 

(j)             Assumed Contracts .   Section 4.3(j)(i)-(1) of the JD Disclosure Schedule sets forth a true and correct list, as of the date of this Agreement, of all material contracts for the Business and the Business Resources (the “ Business Contracts ”).  Section 4.3(j)(i)-(2) of the JD Disclosure Schedule sets forth a true and correct list, as of the date of this Agreement, of all material Business Contracts that the Parties plan to assign to the Company or its Subsidiaries according to the Transaction Agreements (the “ Assumed Contracts ”).  The Business Contracts constitute as of the date of this Agreement all of the contracts for the operation of the Business as currently conducted by JD Group to which any JD Group Company is a party.  JD has delivered to the Company a true and correct copy of each Business Contract, together with all amendments, modifications or supplements thereto.

 

(ii)            Each Assumed Contract that (x) requires a payment to or from JD Group in excess of US$1 million or (y) is not cancelable by the JD Group on ninety (90) calendar days’ notice or less without payment or penalty (a “ Material Assumed Contract ”) is, as of the date hereof, a valid and binding agreement of the JD Group Company who is a party thereto and, to the knowledge of JD, the counterparties thereto, and is enforceable against the JD Group Company in accordance with its terms, except (x) as enforcement may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or similar laws affecting creditors’ rights generally or by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or law) and (y) for any circumstance, event, change, effect or development directly or indirectly arising out of or resulted from any Transition Related Circumstance.

 

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(iii)           Except for any Transition Related Circumstance, the JD Group Company has performed in all material respects all of the obligations required to be performed by JD Group under the Material Assumed Contracts, and the JD Group Company is not in material breach or default under any Material Assumed Contract, nor have there occurred events which would constitute a material breach or default with the passage of time or giving notice or both.  To the knowledge of JD and JD Global, except for any Transition Related Circumstance, no third party to any of the Material Assumed Contracts is in material breach or default thereunder, except for any Transition Related Circumstance.

 

(iv)           To the knowledge of JD and JD Global, except for any Transition Related Circumstance, no third party intends to terminate any Material Assumed Contract and no third party has made, or threatened to make, a claim that JD Group has breached any Material Assumed Contract.

 

(v)            None of the JD Group Companies is a party to or bound or affected by any contract that restricts such party to compete with respect to the Business.

 

(k)            Intellectual Property .  To the knowledge of JD, there are no material infringements or other violations on the part of relevant JD Group Company with respect to any Listed Intellectual Property against any third party.  The relevant JD Group Companies have taken all necessary actions to maintain and protect the Listed Intellectual Property.

 

(ii)           The use, possession, reproduction and distribution, involving any of the Listed Intellectual Property do not breach, violate, infringe, misappropriate or interfere with any rights, including Intellectual Property, of any other Person, except for such breaches, violations, infringements, misappropriation, dilution or interferences.  There is no proceeding pending or, to the knowledge of JD and JD Global, threatened: (x) alleging any such infringement, misappropriation or other violation of any third-party’s Intellectual Property with respect to the Listed Intellectual Property, or (y) challenging JD Group’s use of the Listed Intellectual Property, excluding any such proceeding which would not have a Material Adverse Effect with respect to the Business.

 

(iii)           No Listed Intellectual Property is the subject of any legal proceeding (excluding any office action or other form of preliminary or final refusal of registration in the ordinary course of business) before any governmental, registration or other authority in any jurisdiction which would have a Material Adverse Effect with respect to the Business.

 

(iv)           The consummation of the transactions contemplated under the Transaction Agreements will not alter or impair any Listed Intellectual Property.

 

(v)            Each JD Group Company has taken commercially reasonable measures to protect the secrecy and confidentiality of all of their material trade secrets with respect to the Business and, to the knowledge of JD and JD Global, there has been no unauthorized disclosure thereof which would have a Material Adverse Effect with respect to the Business.

 

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ARTICLE V
COVENANTS

 

Section 5.1             Conduct of Business of the Company .  From the date hereof until the Closing Date,

 

(a)            the Company shall, and the Company shall cause each of its Significant Subsidiaries to, (i) conduct its business and operations in the ordinary course of business consistent with past practice, and (ii) not take any action, or omit to take any action, that would reasonably be expected to make any of its representations and warranties in this Agreement untrue at, or as of any time before, the Closing Date except for (i) any Transition Related Circumstance, (ii) any action or inaction that would not result in a Material Adverse Effect on JD, or (iii) as the Purchasers shall otherwise consent in writing; and

 

(b)            the Company shall (i) take all actions necessary to continue the listing and trading of its ADSs on the NYSE and shall materially comply with the Company’s reporting, filing and other obligations under the rules of the NYSE, in each case, through the Closing, and (ii) file with the NYSE a supplemental listing application in respect of Subscription Shares.

 

Section 5.2             Conduct of the Business From and after the date hereof and until the Closings, except (i) as otherwise expressly contemplated by this Agreement or other Transaction Agreements, (ii) any Transition Related Circumstance, or (iii) as the Company shall otherwise consent in writing, JD will, and will cause the JD Group Company, to conduct the Business, and cause the Business to be conducted, in the ordinary course and in substantially the same manner as currently conducted, including maintaining platform for the sales of the finished automobiles in accordance with current practices, pay or perform all obligations relating to the Business as they become due and owing, and shall use reasonable efforts to preserve intact the Business and related relationships with material customers, automobile makers and dealers, and regulators (collectively, “ Ordinary Course of Business ”).  From and after the date hereof and to the Closing, except (A) as otherwise expressly contemplated by this Agreement or other Transaction Agreements, (B) for any Transition Related Circumstance, or (C) as the Company shall otherwise consent in writing, JD covenants and agrees that, with respect to the Business, JD Group shall not:

 

(a)            sell, pledge, dispose of, transfer, lease, license, encumber or authorize the sale, pledge, disposition, transfer, lease, license or encumbrance of any assets that are (or would otherwise be) Business Resources and with an amount exceeding US$1 million, other than in the Ordinary Course of Business consistent with past practice;

 

(b)            acquire any properties or assets that constitute Business Resources and with an amount exceeding US$1 million, other than in the Ordinary Course of Business;

 

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(c)            enter into any new contract that would be an Assumed Contract or renew any contract pertaining to the Business Resources, or the Business (other than Contracts in the Ordinary Course of Business for payment of less than US$1 million);

 

(d)            terminate, waive any material provision of, or amend or otherwise modify in any material respect any Assumed Contract;

 

(e)            fail to take any material action necessary to protect or maintain the Listed Intellectual Property or to prosecute any pending applications for Listed Intellectual Property or file any documents or other information or pay any maintenance or other fees related thereto;

 

(f)             intentionally disclose or agree to disclose to any Person, other than representatives of the Company or its Affiliates or JD Group, any material trade secret relating to the Business owned by JD Group except pursuant to a written non-disclosure agreement restricting disclosure and use of such trade secrets by such Person entered into in the ordinary course of business;

 

(g)            terminate, cancel, permit to lapse, amend, waive or modify any material Permits for the Business Resources, except as required by any Governmental Authority;

 

(h)            waive or forgive any accounts receivable from the Business in excess of US$1 million;

 

(i)             fail to pay when due any accounts payable for the Business in excess of US$1 million;

 

(j)             abandon any material rights relating to any of the Business Resources or the Business;

 

(k)            agree, in writing or otherwise, to take or authorize the taking of any of the foregoing actions.

 

Section 5.3             Assignment of Contracts .  JD shall use reasonable best efforts to assign, or cause its affiliates to assign the rights and obligations under the Assumed Contracts to the Company or its designated affiliates on or prior to the Commencement Date; and if any of these contracts fail to be assigned to the Company or its designated affiliates on or prior to the Commencement Date, JD shall use reasonable best efforts to terminate, or cause its affiliates to terminate such contract as soon as commercially reasonable.  The Company shall provide, or cause its relevant affiliates to provide, reasonable assistance with respect to the assignment of the above contracts.

 

Section 5.4            Non-competition .  JD shall comply with the non-competition obligation as provided in the BCA.

 

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Section 5.5             Access to Information .  From the date of this Agreement and through the Closings, upon reasonable notice, the Company shall, subject to applicable law, afford JD and its officers, employees, agents, accountants, counsel and representatives reasonable access, during normal business hours, to the offices, personnel, books and records of the Company.  From the date of this Agreement and through the Closings, upon reasonable notice, JD and JD Global shall, subject to applicable law, afford the Company and its officers, employees, agents, accountants, counsel and representatives reasonable access, during normal business hours, to the offices, personnel, books and records of JD Group, in each case to the extent relating to the Business.  All Confidential Information furnished to a party or its advisor by a party or its advisor in connection with the transactions contemplated hereby shall be subject to, and the recipient of such information shall hold all such information in confidence in accordance with, the confidentiality provisions in Section 7.11.

 

Section 5.6             Transition Cooperation .  As soon as practicable after the date hereof and in any event within ninety (90) days after the date hereof:

 

(a)            the Company and JD shall establish a business integration team (the “ Business Integration Team ”) comprised of representatives from each of the Company and JD (including its technical and operations experts).  The Company and JD shall use their reasonable best efforts to cause the Business Integration Team to diligently work together to (i) discuss and formulate working plans to implement the business cooperation arrangements set forth in the BCA, (ii) coordinate and provide to the representatives dispatched by the Company with reasonable access, during normal business hours, to the offices, personnel, systems, data or other information of the JD Group to facilitate implementation of working plans formulated by the Business Integration Team; (iii) cooperate with and provide assistance to the representatives dispatched by the Company to run any tests (including onsite tests) and carry out any other tasks necessary or desirable for the Company to operate the Business on or prior to the Commencement Date, and (iv) provide technical assistance and support in relation to the Business at the request of the Company so that the Company may start to operate the Business as soon as practicable.

 

(b)            JD shall, and shall procure each JD Group Company will, use its reasonable best efforts to negotiate in good faith with the Company to enter into the BCA Ancillary Agreements.  The Company and JD agree that the BCA Ancillary Agreements shall contain representations and warranties customary for transactions of this kind and shall be otherwise mutually agreeable to the Company and JD.  JD shall and shall procure each JD Group Company will perform its obligations thereunder to the fullest extent, carry out the terms and the intent of the BCA and the BCA Ancillary Agreements (including any amendments hereto).

 

Section 5.7             Payments Under Assumed Contracts .  If and to the extent that JD Group Company has, prior to the Commencement Date, received any deposit or payment in advance in respect of obligations to be satisfied by the Company or its designated affiliates after the Commencement Date under any Assumed Contract, JD shall cause the JD Group to reimburse to the Company or its designated affiliates, within thirty (30) Business Days from the Commencement Date, an amount corresponding to the amount of such deposit or payment received in advance, on a pro rata basis in the case of pre-paid payment for certain period cross the Commencement Date.  No later than two (2) Business Days prior to the Closing Date, JD shall provide to the Company a report listing all Assumed Contracts for which the JD Group Company has received a deposit or payment in advance in respect of obligations reasonably expected to be satisfied by the Company or its designated affiliates after the Commencement Date.  The report shall include the names of such Assumed Contracts, the amounts deposited or paid thereunder and the parties thereto.

 

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(b)            If and to the extent that the JD Group has, prior to the Commencement Date, received any goods or service prior to the Commencement Date under any Assumed Contract, the payment for which becomes due and payable and is paid by the Company after the Commencement Date upon request and the presentation of reasonable supporting documentation of such payment by the Company, JD shall cause the JD Group to reimburse the Company for the amount of such payment within thirty (30) calendar days from the date of such request.  On the date that is two (2) Business Days prior to the JD Closing, JD shall provide to the Company a report listing those Assumed Contracts for which any goods or services were provided prior to the JD Closing and for which payment is reasonably expected to become due and payable after the Commencement Date.  The report shall include the names of such Assumed Contracts, the amounts due and payable thereunder after the Closing Date and the parties thereto.

 

Section 5.8             Trading of Company Securities .  Each of Purchasers and JD shall not, directly or indirectly, engage in trading of Ordinary Shares or derivatives of the Company’s equity securities during the period up to and including the Closings.

 

Section 5.9             Securities Law Filings .  Each of the Purchasers and JD shall timely file all forms, reports and documents required to be filed by each with the SEC (including filing any required statements of beneficial ownership on Schedule 13D or Schedule 13G and such filings as may be required under Section 16 of the Exchange Act).

 

Section 5.10           FPI Exemption .

 

Without limiting the generality of the foregoing, the Company shall promptly after the date hereof and reasonably prior to the Closing take all necessary or desirable actions required to duly and validly rely on the exemption for foreign private issuers (“ FPI Exemption ”) from applicable rules and regulations of the NYSE with respect to corporate governance to rely on “home country practice” in connection with the transactions contemplated hereunder (including an exemption from any NYSE rules that would otherwise require seeking shareholder approval in respect of such transactions), including without limitation making disclosures, notices and filings to or with the SEC and the NYSE and obtaining an adequate opinion of counsel in respect of the home country practice exemption.  The Company shall provide to the Purchasers copies of any material written communication relevant to the FPI Exemption, including adequate evidence reflecting that the Company has validly relied on the FPI Exemption.

 

Section 5.11           Lock-up .  The relevant Purchaser shall not, during the applicable Lock-Up Period (as defined below), directly or indirectly, offer, sell, contract to sell, pledge, transfer, assign or otherwise dispose of any of the relevant Subscription Shares, or enter into a transaction which would have the same effect, or enter into any swap, hedge or other arrangement that transfers, in whole or in part, any of the economic consequences of ownership of the relevant Subscription Shares, whether any such aforementioned transaction is to be settled by delivery of the Ordinary Shares, ADSs or such other securities, in cash or otherwise, or publicly disclose the intention to make any such offer, sale, contract to sell, pledge or disposition, or to enter into any such transaction, swap, hedge or other arrangement, without, in each case, the prior written consent of the Company.   As used herein, the “ Lock-Up Period ” with respect to any Subscription Shares will commence on the relevant Closing Date and continue until and include the date that is twelve months after such relevant Closing Date. Notwithstanding the foregoing, any Purchaser may transfer its Subscription Shares to an affiliate during the one-year period from the date of this Agreement, subject to applicable law.

 

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Section 5.12          Standstill .

 

(a)           Each Purchaser covenants to and agrees with the Company that, without the Company’s prior written consent, neither such Purchaser nor any of its Affiliates will, directly or indirectly until the date that is twelve (12) months after the Closing Date (the “ Standstill Period ”):

 

(i)            in any way acquire, offer or propose to acquire or agree to acquire legal title to or Beneficial Ownership of any Company Securities;

 

(ii)           make any public announcement with respect to, or submit to the Company or any of its directors, officers, representatives, trustees, employees, attorneys, advisors, agents or Affiliates, any proposal for the acquisition of any Company Securities or with respect to any merger, consolidation, business combination, restructuring, recapitalization or purchase of any substantial portion of the assets of the Company of any of its Subsidiaries, in which such Purchaser and its Affiliates are involved, and whether or not such proposal might require the making of a public announcement by the Company unless the Company shall have made a prior written request to such Purchaser to submit such a proposal;

 

(iii)          seek or propose to influence, advise, change or control the management, the board of directors of the Company, governing instruments or policies or affairs of the Company by way of any public communication or communication with any Person other than the Company, or make, or in any way participate in, any “solicitation” of “proxies” (as such terms are defined or used in Regulation 14A under the Exchange Act) to vote any Company Securities or become a “participant” in any “election contest” as such terms are defined and used in Rule 14a-11 under the Exchange Act) with respect to Company Securities; provided, however, that nothing in this clause (iii) shall prevent such Purchaser or its Affiliates from (x) voting in any manner any Company Securities over which such Purchaser or such Affiliates has Beneficial Ownership or (y) communicating privately with shareholders of the Company to the extent such communication does not constitute a “solicitation” of “proxies,” as such terms are defined or used in Regulation 14A under the Exchange Act and the number of persons with whom such Purchaser communicates is fewer than ten (10); or

 

(iv)          make a request to amend or waive any provision of this Section 5.12(a) .

 

Notwithstanding the above provisions under this Section 5.12, with respect to each case under items (i) — (iii) above, if at any time the Company issues any Company Securities (except for any Company Securities issued or granted pursuant to the employee share incentive plan of the Company existing as of the date hereof (but such exception shall not apply to any future amendments which may be made to such plan)) or sells any treasury ADSs, each Purchaser shall have the right to acquire such number of Company Securities in order to maintain the same percentage ownership it owns in the Company prior to such issuance or sale of such Company Securities or treasury ADSs (as applicable) (on a fully diluted and as converted basis as defined in the Exhibit C).

 

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(b)            For purposes of this Agreement, a Person shall be deemed to have “ Beneficial Ownership ” of any securities in respect of which such Person or any such Person’s Affiliates is considered to be a “Beneficial Owner” under Rule 13d-3 under the Exchange Act as in effect on the date hereof.

 

Section 5.13           Distribution Compliance Period .  Each Purchaser agrees not to resell, pledge or transfer any Subscription Shares within the United States or to any U.S. Person, as each of those terms is defined in Regulation S, during the 40 days following the Closings.

 

Section 5.14           Further Assurances . From the date of this Agreement until the Closings, the Parties shall each use their respective reasonable best efforts to fulfill or obtain the fulfillment of the conditions precedent to the consummation of the transactions contemplated hereby and by the Transaction Agreements.

 

ARTICLE VI
INDEMNIFICATION

 

Section 6.1             Indemnification .  From and after the relevant Closing Date, each Party, as applicable (the “ Indemnifying Party ”), shall indemnify and hold the other Parties and their respective directors, officers and agents (collectively, the “ Indemnified Party ”) harmless from and against any losses, claims, damages, liabilities, judgments, fines, obligations, expenses and liabilities of any kind or nature whatsoever, including but not limited to any investigative, legal and other expenses incurred in connection with, and any amounts paid in settlement of, any pending or threatened legal action or proceeding, and any taxes or levies that may be payable by such person by reason of the indemnification of any indemnifiable loss hereunder (collectively, “ Losses ”) resulting from or arising out of: (i) the breach of any representation or warranty of the Indemnifying Party contained in the Transaction Agreements; (ii) the violation or nonperformance, partial or total, of any covenant or agreement of the Indemnifying Party contained in the Transaction Agreements.  In calculating the amount of any Losses of an Indemnified Party hereunder, there shall be subtracted the amount of any insurance proceeds and third-party payments received by the Indemnified Party with respect to such Losses, if any.  For the avoidance of doubt, the obligations of the Purchasers hereunder shall be several but not joint and neither Purchaser shall have any liability with respect to the compliance or non-compliance of the other Purchaser under this Agreement or any other Transaction Agreements.

 

Section 6.2             Third Party Claims .

 

(a)            If any third party shall notify any Indemnified Party in writing with respect to any matter involving a claim by such third party (a “ Third Party Claim ”) which such Indemnified Party believes would give rise to a claim for indemnification against the Indemnifying Party under this ARTICLE IV, then the Indemnified Party shall promptly following receipt of notice of such claim (i) notify the Indemnifying Party thereof in writing and (ii) transmit to the Indemnifying Party a written notice (“ Claim Notice ”) describing in reasonable detail the nature of the Third Party Claim, a copy of all papers served with respect to such claim (if any), and the basis of the Indemnified Party’s request for indemnification under this Agreement.  Notwithstanding the foregoing, no failure or delay in providing such notice shall constitute a waiver or otherwise modify the Indemnified Party’s right to indemnity hereunder, except to the extent that the Indemnifying Party shall have been prejudiced by such failure or delay.

 

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(b)            Upon receipt of a Claim Notice with respect to a Third Party Claim, the Indemnifying Party shall have the right to assume the defense of any Third Party Claim by, within 30 days of receipt of the Claim Notice, notifying the Indemnified Party in writing that the Indemnifying Party elects to assume the defense of such Third Party Claim, and upon delivery of such notice by the Indemnifying Party, the Indemnifying Party shall have the right to fully control and settle the proceeding, provided, that, any such settlement or compromise shall be permitted hereunder only with the written consent of the Indemnified Party.  Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim if (i) the Third Party Claim relates to or arises in connection with any criminal action, (ii) the Third Party Claim seeks an injunction or equitable relief against any Indemnified Party (other than immaterial equitable relief in connection with an award of monetary damages), (iii) the Third Party Claim is or would reasonably be expected to result in Losses in excess of the amounts available for indemnification pursuant to Section 6.4 or (iv) the Indemnifying Party has not acknowledged that such Third Party Claim is subject to indemnification pursuant to this ARTICLE IV.  If the Indemnifying Party assumes the defense of a Third Party Claim pursuant to this Section 6.2(b), the Indemnifying Party shall conduct such defense in good faith.

 

(c)            If requested by the Indemnifying Party, the Indemnified Party shall, at the sole cost and expense of the Indemnifying Party, cooperate reasonably with the Indemnifying Party and its counsel in contesting any Third Party Claim which the Indemnifying Party elects to contest, including in connection with the making of any related counterclaim against the person asserting the Third Party Claim or any cross complaint against any person.  The Indemnified Party shall have the right to receive copies of all pleadings, notices and communications with respect to any Third Party Claim, other than any privileged communications between the Indemnifying Party and its counsel, and shall be entitled, at its sole cost and expense, to retain separate co-counsel and participate in, but not control, any defense or settlement of any Third Party Claim assumed by the Indemnifying Party pursuant to Section 6.2(b).

 

(d)            In the event of a Third Party Claim for which the Indemnifying Party elects not to assume the defense or fails to make such an election within the 30 days of the Claim Notice, the Indemnified Party may, at its option, defend, settle, compromise or pay such action or claim at the expense of the Indemnifying Party; provided that any such settlement or compromise shall be permitted hereunder only with the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed.

 

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Section 6.3             Other Claims .  In the event any Indemnified Party should have a claim against the Indemnifying Party hereunder which does not involve a Third Party Claim, the Indemnified Party shall promptly transmit to the Indemnifying Party a written notice (the “ Indemnity Notice ”) describing in reasonable detail the nature of the claim, the Indemnified Party’s best estimate of the amount of Losses attributable to such claim and the basis of the Indemnified Party’s request for indemnification under this Agreement; provided , that no failure or delay in providing such notice shall constitute a waiver or otherwise modify the Indemnified Party’s right to indemnity hereunder, except to the extent that the Indemnifying Party shall have been prejudiced by such failure or delay.  If the Indemnifying Party does not notify the Indemnified Party within 30 days from its receipt of the Indemnity Notice that the Indemnifying Party disputes such claim, the Indemnifying Party shall be deemed to have accepted and agreed with such claim.

 

Section 6.4             Limitations on Liability .  Notwithstanding the foregoing, and in each case, other than with respect to fraud, (a) the Company shall have no liability to Tencent (for indemnification or otherwise) with respect to any Losses in excess of the Tencent Purchase Price and shall have no liability to JD and JD Global (for indemnification or otherwise) with respect to any Losses in excess of the total consideration paid by JD and JD Global hereunder, (b) Tencent shall have no liability (for indemnification or otherwise) with respect to any Losses in excess of the Tencent Purchase Price (c) JD and JD Global together shall have no liability (for indemnification or otherwise) with respect to any Losses in excess of the total consideration paid by JD and JD Global hereunder.

 

ARTICLE VII
MISCELLANEOUS

 

Section 7.1             Survival of the Representations and Warranties .  All representations and warranties made by any Party shall expire on the date that is two years after the Closings, except as to any claims thereunder which have been asserted in writing pursuant to Section 6.1 against the Party making such representations and warranties on or prior to such applicable expiration date and the relevant Party’s fundamental representations contained in Section 4.1(a) to Section 4.1(g), Section 4.2(a) to Section 4.2(f), and Section 4.3(a) to Section 4.3(e) hereof, each of which shall survive indefinitely.

 

Section 7.2             Governing Law; Arbitration .  This Agreement shall be governed and interpreted in accordance with the New York laws.  Any dispute arising out of or relating to this Agreement, including any question regarding its existence, validity or termination (“ Dispute ”) shall be referred to and finally resolved by arbitration at the Hong Kong International Arbitration Centre in accordance with the Hong Kong International Arbitration Centre Administered Arbitration Rules then in force.  There shall be three arbitrators.  The Company shall have the right to appoint one arbitrator, the Purchasers collectively, shall have the right to appoint one arbitrator, and the third arbitrator shall be appointed by the Hong Kong International Arbitration Centre.  The language to be used in the arbitration proceedings shall be English.  Each of the Parties irrevocably waives any immunity to jurisdiction to which it may be entitled or become entitled (including without limitation sovereign immunity, immunity to pre-award attachment, post-award attachment or otherwise) in any arbitration proceedings and/or enforcement proceedings against it arising out of or based on this Agreement or the transactions contemplated hereby.

 

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Section 7.3            No Third Party Beneficiaries .  This Agreement shall be binding upon and inure solely to the benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever, except as expressly provided in this Agreement.

 

Section 7.4             Amendment .  This Agreement shall not be amended, changed or modified, except by another agreement in writing executed by the Parties hereto.

 

Section 7.5             Binding Effect .  This Agreement shall inure to the benefit of, and be binding upon, each of the Parties and their respective heirs, successors and permitted assigns and legal representatives.

 

Section 7.6             Assignment .  Neither this Agreement nor any of the rights, duties or obligations hereunder may be assigned by the any Party without the express written consent of the other Parties.  Any purported assignment in violation of the foregoing sentence shall be null and void.  Notwithstanding the foregoing, either Purchaser may assign its rights hereunder to any affiliate of such Purchaser, provided that no such assignment shall relieve such Purchaser of its obligations hereunder.

 

Section 7.7             Notices .  All notices, requests, demands, and other communications under this Agreement shall be in writing and shall be deemed to have been duly given if (a) in writing and served by personal delivery upon the party for whom it is intended; (b) if delivered by facsimile with receipt confirmed; or (c) if delivered by certified mail, registered mail or courier service, return-receipt received to the party at the address set forth below:

 

if to Company:		New Century Hotel Office Tower 6/F
		No. 6 South Capital Stadium Road
		Beijing, 100044
		The People’s Republic of China
		Attention: Bin LI
		Facsimile: (86 10) 6849-2200
with a copy to:		Skadden, Arps, Slate, Meagher & Flom LLP
		c/o 42/F, Edinburgh Tower, The Landmark
		15 Queen’s Road Central
		Hong Kong
		Attention: Z. Julie Gao, Esq.
		Tel: +852 3740-4700
If to JD or JD Global, at:		JD.com, Inc.
		10th Floor, Building A, North Star Century Center
		8 Beichen West Street, Chaoyang District
		Beijing 100101, P.R. China
		Attention: Legal Department
		Email: legalnotice@jd.com

 

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with a copy to:		JD.com, Inc.
		10th Floor, Building A, North Star Century Center
		8 Beichen West Street, Chaoyang District
		Beijing 100101, P.R. China
		Attention: Corporate Development Department
With a copy to:		Orrick, Herrington & Sutcliffe LLP
		47/F PARK PLACE
		1601 NANJING ROAD WEST
		SHANGHAI 200040 CHINA
		Fax:	+8621 61097022
		Attn:	Jie SUN (Jeffrey)
If to the Tencent, at:		Attn.: Compliance and Transactions Department
		Address:		c/o Tencent Holdings Limited
				29/F., Three Pacific Place,
				No.1 Queen’s Road East, Wanchai,
				Hong Kong
		E-mail:		legalnotice@tencent.com
With a copy to:		Address:		Tencent Building, Kejizhongyi Avenue,
				Hi-tech Park, Nanshan District, Shenzhen, 518057, P.R. China
		Attn.:		Mergers and Acquisitions Department
		E-mail:		PD_Support@tencent.com
With a copy to:		Paul, Weiss, Rifkind, Wharton & Garrison LLP
		12th Floor, The Hong Kong Club Building
		3A Chater Road, Central
		Hong Kong
		Fax:	(852) 2840-4300
		Attn:	Jeanette K. Chan, Esq
		Paul, Weiss, Rifkind, Wharton & Garrison LLP
		1285 Avenue of the Americas
		New York, NY 10019-6064
		USA
		Fax:	(212) 492-0257
		Attn:	Steven J. Williams, Esq

 

Any Party may change its address for purposes of this Section 7.7 by giving the other Parties hereto written notice of the new address in the manner set forth above.

 

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Section 7.8             Entire Agreement .  This Agreement (together with the schedules and exhibits hereto) constitutes the entire understanding and agreement between the Parties with respect to the matters covered hereby, and all prior agreements and understandings, oral or in writing, if any, between the Parties with respect to the matters covered hereby are merged and superseded by this Agreement.

 

Section 7.9             Severability .  If any provisions of this Agreement shall be adjudicated to be illegal, invalid or unenforceable in any action or proceeding whether in its entirety or in any portion, then such provision shall be deemed amended, if possible, or deleted, as the case may be, from the Agreement in order to render the remainder of the Agreement and any provision thereof both valid and enforceable, and all other provisions hereof shall be given effect separately therefrom and shall not be affected thereby.

 

Section 7.10           Fees and Expenses .  Except as otherwise provided in this Agreement or other Transaction Agreements, the Parties will bear their respective expenses incurred in connection with the negotiation, preparation and execution of this Agreement and other Transaction Agreements and the transactions contemplated hereby and thereby, including fees and expenses of attorneys, accountants, consultants and financial advisors.

 

Section 7.11           Confidentiality .

 

(a)            Each Party shall keep confidential any non-public material or information with respect to the business, technology, financial conditions, and other aspects of the other Parties which it is aware of, or have access to, in signing or performing this Agreement (including written or non-written information, hereinafter the “ Confidential Information ”).  Confidential Information shall not include any information that is (a) previously known on a non-confidential basis by the receiving Party, (b) in the public domain through no fault of such receiving Party, its affiliates or its or its affiliates’ officers, directors or employees, (c) received from a party other than the Company or the Company’s representatives or agents, so long as such party was not, to the knowledge of the receiving party, subject to a duty of confidentiality to the Company or (d) developed independently by the receiving Party without reference to confidential information of the disclosing Party.  No Party shall disclose such Confidential Information to any third Party.  Either Party may use the Confidential Information only for the purpose of, and to the extent necessary for performing this Agreement; and shall not use such Confidential Information for any other purposes.  The Parties hereby agree, for the purpose of this Section 7.11, that the existence and terms and conditions of this Agreement and schedule hereof shall be deemed as Confidential Information.

 

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(b)            Notwithstanding any other provisions in this Section 7.11, if any Party believes in good faith that any announcement or notice must be prepared or published pursuant to applicable laws (including any rules or regulations of any securities exchange or valid legal process) or information is otherwise required to be disclosed to any governmental authority, such Party may, in accordance with its understanding of the applicable laws, make the required disclosure in the manner it deems in compliance with the requirements of applicable laws; provided that, the Party who is required to make such disclosure shall, to the extent permitted by law and so far as it is practicable, provide the other Parties with prompt notice of such requirement and cooperate with the other Parties  at such other Parties’ request and at the requesting Party’s cost, to enable such other Parties to seek an appropriate protection order or remedy.  In addition, each Party may disclose, after giving prior notice to the other Parties to the extent practicable under the circumstances and subject to any practicable arrangements to protect confidentiality, Confidential Information to the extent required under judicial or regulatory process or in connection with any judicial process regarding any legal action, suit or proceeding arising out of or relating to this Agreement or any other Transaction Agreement; provided that, the Party who is required to make such disclosure shall, to the extent permitted by law and so far as it is practicable, at the other Parties’ request and at the requesting Party’s cost, cooperate with the other Parties to enable such other Parties to seek an appropriate protection order or remedy.

 

(c)            Each Party may disclose the Confidential Information only to its affiliates and its and its affiliates’ officers, directors, employees, agents and representatives on a need-to-know basis in the performance of the Transaction Agreements; provided that, such Party shall ensure such persons strictly abide by the confidentiality obligations hereunder.

 

(d)            The confidentiality obligations of each Party hereunder shall survive the termination of this Agreement.  Each Party shall continue to abide by the confidentiality clause hereof and perform the obligation of confidentiality it undertakes until the other Party approves release of that obligation or until a breach of the confidentiality clause hereof will no longer result in any prejudice to the other Party.

 

Section 7.12           Specific Performance .  The Parties agree that irreparable damage would occur in the event any provision of this Agreement were not performed in accordance with the terms hereof and that the Parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy at law or equity.

 

Section 7.13           Termination .

 

(a)            This Agreement shall automatically terminate upon the earliest to occur of

 

(i)             the written consent of each of the Parties; or

 

(ii)            by either the Company or the Purchasers if the Closings shall not have occurred by April 8, 2015; provided , however , that the right to terminate this Agreement under this Section 7.13(a)(ii) shall not be available to any party whose failure to fulfill any obligation under this Agreement shall have been the principal cause of, or shall have resulted in, the failure of the Closings to occur on or prior to such date;

 

(b)            Upon any termination of this Agreement, this Agreement will have no further force or effect, except for the provisions of Section 7.11 hereof, which shall survive any termination under this Section 7.13(b); provided, that no termination of this Agreement shall relieve any Party hereto of liability for any breach of this Agreement prior to such termination.

 

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Section 7.14           Headings .  The headings of the various articles and sections of this Agreement are inserted merely for the purpose of convenience and do not expressly or by implication limit, define or extend the specific terms of the section so designated.

 

Section 7.15           Execution in Counterparts .  For the convenience of the Parties and to facilitate execution, this Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute but one and the same instrument.  Signatures in the form of facsimile or electronically imaged “PDF” shall be deemed to be original signatures for all purposes hereunder.

 

Section 7.16          Public Disclosure .  Without limiting any other provision of this Agreement, both Purchasers and the Company shall consult with each other and issue a joint press release with respect to the execution of this Agreement and any other Transaction Agreements and the transactions contemplated hereby and thereby.  Thereafter, neither the Company nor any Purchaser, nor any of their respective Subsidiaries, shall issue any press release or other public announcement or communication (to the extent not previously publicly disclosed or made in accordance with this Agreement or any other Transaction Agreements) with respect to the transactions contemplated hereby or thereby without the prior written consent of the other parties (such consent not to be unreasonably withheld, conditioned or delayed), except to the extent a party’s counsel deems such disclosure necessary or desirable in order to comply with any law or the regulations or policies of any securities exchange or other similar regulatory body (in which case the disclosing party shall give the other parties notice as promptly as is reasonably practicable of any required disclosure to the extent permitted by applicable law), shall limit such disclosure to the information such counsel advises is required to comply with such law or regulations, and if reasonably practicable, shall consult with the other party regarding such disclosure and give good faith consideration to any suggested changes to such disclosure from the other party.  Notwithstanding anything to the contrary in this Section 7.16, each Purchaser and the Company may make public statements in response to specific questions by the press, analysts, investors or those attending industry conferences or financial analyst conference calls, so long as any such statements are not materially inconsistent with previous press releases, public disclosures or public statements made by the Company or either Purchaser and do not reveal material, non-public information regarding the other Parties or the transactions contemplated by this Agreement.

 

Section 7.17           Waiver .  No waiver of any provision of this Agreement shall be effective unless set forth in a written instrument signed by the Party waiving such provision.  No failure or delay by a Party in exercising any right, power or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of the same preclude any further exercise thereof or the exercise of any other right, power or remedy.

 

[SIGNATURE PAGE FOLLOWS]

 

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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the day and year first above written.

 

 

	BITAUTO HOLDINGS LIMITED
	By:	/s/ Bin Li
	Name:	Bin Li
	Title:	Chairman of the Board of Directors and Chief Executive Officer

 

 

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the day and year first above written.

 

 

	JD.COM GLOBAL INVESTMENT LIMITED
	By:		/s/ Richard Qiangdong Liu
	Name:		Richard Qiangdong Liu
	Title:		Director
	JD.COM, INC.
	By:	/s/ Richard Qiangdong Liu
	Name:	Richard Qiangdong Liu
	Title:	Chairman

 

 

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the day and year first above written.

	DONGTING LAKE INVESTMENT LIMITED
	By:	/s/ Ma Huateng
	Name:	Ma Huateng
	Title:	Director

 

 

Exhibit A

 

The Business Cooperation Agreement

 

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Exhibit B

 

Form of Investor Rights Agreement

 

39

 

Exhibit C

 

Subscription

 

Purchasers		Investment  Amount		Ordinary Shares  to be Purchased		Share Percentage on a  fully diluted basis (as at January 8, 2015)
JD Global		US$400 million in cash		15,689,443 Ordinary Shares		25	%
		US$750.2 million of Business Resources
Tencent		US$150 million		2,046,106 Ordinary Shares		3.3	%

 

On a “fully diluted basis” shall mean, for the purpose of calculating share numbers and percentages, that the calculation is to be made assuming that all outstanding options, warrants and other securities convertible into or exercisable or exchangeable for Ordinary Shares (whether or not by their terms then currently convertible, exercisable or exchangeable) upon the Closings, have been so converted, exercised or exchanged, including the shares to be issued upon the exercise of options or vesting of restricted shares or restricted share units under the Company’s ESOPs.

 

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Schedule I

 

Significant Subsidiaries of the Company

 

Bitauto Hong Kong Limited

Beijing C&I Advertising Company Limited

Beijing Bitauto Information Technology Company Limited

Beijing Easy Auto Media Company Limited

Beijing Yihui Interactive Advertising Company Limited,

Beijing New Line Advertising Company Limited

Beijing Bitauto Interactive Advertising Company Limited

Beijing You Jie Information Company Limited

Beijing Taoche Information Technology Company Limited

Beijing BitOne Technology Company Limited

Beijing Bit EP Information Technology Company Limited

Beijing Bitcar Interactive Information Technology Company Limited

Beijing Runlin Automobile and Technology Co., Ltd.

 

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Exhibit 99.3

 

Strategic Cooperation Agreement

 

 

Between

 

 

JD.com, Inc.

 

 

And

 

 

Bitauto Holdings Limited

 

 

 

January 9, 2015

 

 

This STRATEGIC COOPERATION AGREEMENT (this “ Agreement ”), dated as of January 9, 2015, is made by and between:

 

Party A: JD.com, Inc. (together with its affiliates, “ JD ”)

 

Registered address: PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands

 

And

 

Party B: Bitauto Holdings Limited (together with its affiliates, “ Bitauto ’)

 

Registered address: Offshore Incorporations (Cayman) Limited, Scotia Centre, 4th Floor, P.O. Box 2804, George Town, Grand Cayman KY1-1112, Cayman Islands

 

Party A and Party B are hereinafter collectively referred to as the “ Parties ”, and individually as a “ Party ”.

 

WHEREAS:

 

1.                    JD is one of the leading providers of online electronic commerce services in China and is principally engaged in providing self-operated and platform electronic commercial services through its website and mobile phone applications;

 

2.                    Bitauto is a leading automobile website in China which businesses include yiche.com, EP platform services, taoche.com, automobile financial services, and digital marketing solutions in the automobile sector;

 

3.                    The Parties, together with other signatories, have signed a certain Share Subscription Agreement dated January 9, 2015 (the “ Share Subscription Agreement ”) and related agreements, whereby Party A agrees to become one of the shareholders of Party B by subscribing certain number of shares of Party B, and intends to sign an Investor Rights Agreement with other related parties in connection with the SSA (the documents described in this Paragraph 3 collectively as the “ Transaction Documents ”);

 

4.                    As required under the Transaction Documents, Party A and Party B hereby initiate cooperation regarding the Finished Automobile Business (as defined below) pursuant to the terms and conditions of this Agreement with the view to integrating related resources and giving full play to the respective advantages of each Party; and

 

5.                    The Parties acknowledge and agree this Agreement provides the framework for the business cooperation and support between the Parties, which details are subject to discussion and implementation by the Parties after execution of this Agreement.

 

NOW, THEREFORE, the Parties agree as follows:

 

1.                                       Definitions

 

In this Agreement:

 

(1)                                  “Affiliate” means, in respect of any company (or any other entity), any other entity controlling, controlled by, or under common control with, such company. For purposes of this definition, “control” means the possession of more than 50% equity interests or voting rights, or the power to decide or control the operations of a company (or any other entity) by contract or otherwise.  In respect of each of the Parties, its affiliate means any subsidiary directly or indirectly controlled by it (including any subsidiary controlled by VIE structure).

 

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(2)                                  “Finished Automobile Business” means the finished automobile (including new and used automobiles) marketing services directly and indirectly provided within China, as well as the finished automobile advertising services in the finished automobile channel, through JD.COM (including its mobile website), PaiPai (including its mobile website), and JD mobile applications.  For avoidance of any doubt, Finished Automobile Business excludes any business regarding automobile parts, components and decorations.

 

(3)                                  “JD.COM” means the website of the same domain name owned by Beijing JD 360 Du E-Commerce Co., Ltd., including its mobile website.  On the website, users may publish, display, enquire and communicate information, agree upon transactions, and receive other services provided by other users.

 

(4)                                  “JD Open Platform” means the open platform operated on JD.COM, which serves as a specialized network space where the Merchants (as defined below) on JD.COM operate shops and agree upon transactions with consumers.  The Merchants may open shop and conduct transaction in this space upon completion of relevant procedures with JD Merchants Management System.

 

(5)                                  “JD Mall” means JD Open Platform and the shopping mall platform operated by JD on JD.COM, including their respective mobile websites.

 

(6)                                  “PaiPai” means the website with domain name of paipai.com and owned by Shenzhen PaiPai Electronic Commerce Information Technology Co., Ltd., including its mobile website.  On the website, users may publish, display, enquire and communicate information, agree upon transactions, and receive other services provided by other users.

 

(7)           “JD App Mobile Terminal” means the mobile application services platform provided by mobile applications installed on mobile phones, Pad or other mobile terminal devices by JD.

 

(8)                                  “JD Merchants Management System” means the software system for which JD provides technical support and system maintenance in order to provide support for the operation of JD Open Platform, including Merchants Online Residence System and Merchants Back-office Management System. Bitauto Acknowledges and agrees that subject to notice from JD no less than three days in advance (except under special circumstance in which adjustment must be made for purpose of compliance or avoiding material loss), JD shall have the right to make improvement and adjustment to such System; provided, however , that the Parties shall negotiate prior to making any adjustment which may have material adverse impact on the Finished Automobile Business.

 

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(9)                                  Merchants and Residence by Merchants: A Merchant mean a legal entity which opens shop to transact business on JD Open Platform (including the Finished Automobile Business Channel) as a third-party operator, including Bitauto.  Residence by Merchants means the process through which the Merchant intending to be a third-party operator on JD Open Platform follow the procedures and requirements of JD Open Platform to sign residence agreement, provide required information, prove acceptable under JD’s review, and have its shop accessible to Merchants Back-office Management System.  The Parties agree that the Merchants and Residence by Merchants at the Finished Automobile Channel means the Merchant intending to be an independent third-party operator on the Finished Automobile Channel follow the procedures and requirements of Bitauto to sign residence agreement with JD and Bitauto (if necessary), provide required information, prove acceptable under Bitauto’s review, and have its shop accessible to Merchants Back-office Management System.  Such procedures and requirements of Bitauto shall be consistent with laws and regulations.  Should any of such procedures and requirements conflict with any of JD platform rules or other related procedures, such conflict shall be resolved by the Parties through negotiations.

 

(10)                           “Shop” means the online virtual shop with sole and independent ID and shop name (subject to adjustment under relevant rules) applied by the Merchant upon completion of the Residence process in accordance with relevant agreement to conduct legal operations and approved by JD.  It is agreed by the Parties that the shop on the Finished Automobile Channel means the online virtual shop with sole and independent ID and shop name applied by the Merchant upon completion of the Residence process with Bitauto in accordance with relevant agreement and channel rules to conduct legal operations and approved by Bitauto.

 

(11)                           “JD Platform Rules” means any guideline document identified on JD Open Platform which is related to business operation of the Merchants and always requires attention from the Merchants, including without limitation Merchants Manual, Merchants Back-office Announcement, Merchants Back-office Help  Center.  Bitauto acknowledges and agrees that subject to notice by JD no less than three days in advance and without impact on Bitauto’s operation of the Finished Automobile Channel, JD shall have the right to update and change JD Platform Rules pursuant to applicable laws, regulations and policies and the operational conditions of JD Open Platform.  Should such change conflict with any provision of this Agreement, such conflict shall be resolved by the Parties through negotiations.  It is agreed by the Parties that the platform rules regarding the Finished Automobile Channel shall be prepared by Bitauto with reference to applicable laws and filed with JD.  Should such rules conflict with any of JD Platform Rules,  such conflict shall be resolved by the Parties through negotiations.

 

(12)                           “Force Majeure” means occurrence of any event after the date of this Agreement which interferes performance of all or any part of this Agreement by any of the Parties and is beyond the control, unavoidable, insurmountable, unresolvable by any of the Parties, and unforeseeable upon execution of this Agreement.  Such event includes, among others, earthquake, typhoon, floods, wars, international or domestic traffic interruption, breakdown of power, network, computer, communications and other systems, strikes (including lock-outs or industrial disturbances), labor disputes, government actions, orders from international or domestic courts.  For avoidance of any doubt, such event will not constitute Force Majeure under this Agreement unless it is beyond the control of, unavoidable, insurmountable and unresolvable by the Parties.

 

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(13)                           “China” means the People’s Republic of China which, for purpose of this Agreement, not includes Taiwan, Hong Kong and Macau Special Administrative Regions.

 

2.                                       Exclusive Cooperation

 

2.1.                             During the Period of Cooperation (as defined below), JD authorizes, irrevocably and without consideration, Bitauto to solely and exclusively operate and manage the Finished Automobile Business, the details of which are as follows:

 

·                   JD authorizes, irrevocably and without consideration, Bitauto to solely and exclusively operate and manage the network space on the Finished Automobile Channel of JD Mall (including its mobile website and JD App mobile terminals) (the linkage of which is http://channel.jd.com/car.html) and Paipai.com (including its mobile website (together with the Finished Automobile Channel on JD Mall, the “Finished Automobile Channel”), with the view to operating Finished Automobile Business by Bitauto; and

 

·                   If JD sets up new business platform during the Period of Cooperation, JD will negotiate with Bitauto in good faith and authorizes irrevocably and without consideration Bitauto to operate and manage Finished Automobile Business on such new business platform.

 

The Parties confirm that unless otherwise provided under this Agreement, any and all income generated from operation of the Finished Automobile Channel by Bitauto during the Period of Cooperation shall be owned by Bitauto.  It its further confirmed that Bitauto shall make best efforts to sell at least 10,000 vehicles on the relevant channels of PaiPai during the first year of the Period of Cooperation, and achieve annual vehicles sales growth by 30% in each subsequent year.  Bitauto will make best efforts to achieve the above goals, and the Parties will conduct separate negotiations if Bitauto fails to achieve such goal.

 

2.2.                             Subject to compliance with legal requirements, Bitauto shall have the right during the Period of Cooperation to independently operate and manage the Finished Automobile Business on the Finished Automobile Channel, decide the contents and page design, Merchant’s residence, and manage the  Merchants and Shops at a service fee on the Finished Automobile Channel.  Bitauto agrees that:

 

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·                   The top and bottom parts on the pages of the Finished Automobile Channel will maintain the uniform design of JD channel (including without limitation JD logo, search bar, service menu and channel link, shopping guide, payment methods, and “About Us”), as well as the links to certain products designated by JD other than finished automobiles (including three to five showcase positions, provided that JD agrees that the name and logo of Bitauto will be conspicuously displayed on the page of Finished Automobile Channel); and

 

·                   Without consent from JD, such Channel may not have any link to any other website.

 

2.3.                             The Parties will make active cooperation after execution of this Agreement to complete Bitauto’s residence at the Finished Automobile Channel, for which JD will provide technical support without consideration.  Upon execution of this Agreement, the Parties will make active cooperation pursuant to Transaction Documents to subject the existing Merchants on the Finished Automobile Channel to the management of Bitauto (including without limitation transfer the agreement signed by such Merchants and deposited paid by such Merchants to JD to Bitauto, or make reasonable efforts to terminate any agreement which is non-transferable or transfer the economic benefits under such agreement to Bitauto), and JD will cause such transfer and provide technical support thereof without consideration (“ Transfer of Existing Merchants ’).  Transfer of Existing Merchants will commence on the same date when the Period of Cooperation begins.  Residence of any new Merchant after the date of this Agreement will be subject to decision and management of Bitauto, for which JD will provide technical support without consideration.

 

Unless otherwise expressly provided under this Agreement, any and all cooperation and/or restrictions provided under this Agreement will be limited to the territory of PRC.

 

2.4.                             Traffic support: during the Period of Cooperation, JD agrees to provide strategic traffic support to Finished Automobile Business without consideration, including:

 

·                   Traffic entrance at JD homepage : provide first-level channel entrance for Finished Automobile Business at the homepage of JD.COM;

 

·                   Traffic entrance at JD App mobile terminal: provide first-level traffic entrance for Finished Automobile Business at JD APP mobile terminals, and during the term of strategic cooperation between JD and Tencent (which means the strategic cooperation with long-stop date on March 31, 2019 pursuant to the strategic cooperation agreement dated March 10, 2014 between Tencent Holdings Limited and JD.com, Inc., the “ Tencent Strategic Cooperation Period ”), activity entrance for Finished Automobile Business will be provided no less than five days each month on WeChat’s centralized entrances;

 

·                   Finished Automobile Promotion By JD: major promotions to market finished automobiles will be made no less than six times each year, and exclusive and all-round traffic entrance will be provided for Finished Automobile Business at the homepage of JD.COM; and

 

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·                   Other traffic support provided by JD: JD will provide daily traffic support for Finished Automobile Business, including support for membership marketing and certain Tencent resources (subject to Tencent Strategic Cooperation Period), the details of which are subject to further discussions of the Parties.  PaiPai will also provide to its finished automobile business traffic support similar to that provided by JD, the details of which are subject to further discussions of the Parties.

 

2.5.                             Advertising business: During the Period of Cooperation, Bitauto has the exclusive and sole right to operate the Finished Automobile Business at the Finished Automobile Channel, and any and all advertising income from such operation shall be owned by Bitauto.  JD agrees to provide technical support for the Finished Automobile Business at the Finished Automobile Channel without consideration.  The details regarding the matters beyond the Finished Automobile Channel shall be subject to further discussions of the Parties.

 

2.6.                             Financial services: the Parties agree that Bitauto and/or any of its Affiliates will play the leading role in providing financial leasing and other financial services to the businesses in the Finished Automobile Channel, for which JD will provide necessary technical and other support.  JD reserves the right to provide automobile financial services and JD financial group has the right to participate in the financial services provided to the businesses in the Finished Automobile Channel by Bitauto and/or any of its Affiliates (including Yixin Capital Limited).  The details are subject to further discussions of the Parties.

 

2.7.                             Mega data support: Subject to compliance with laws, regulations and user privacy protection rules, the Parties agree to provide mega data support to each other, the details of which are subject to further discussions of the Parties.

 

2.8.                             Infrastructure support: During the Period of Cooperation, JD agrees to provide infrastructure support for the Finished Automobile Business to Bitauto without consideration, including without limitation providing Bitauto the access to JD Merchant Management System for its management of the Merchants and shops on JD Merchant Management System, the software license and technical support for the Finished Automobile Business, and making improvement or adjustment at reasonable request of Bitauto to satisfy the needs of the Finished Automobile Business, as well as any other necessary infrastructure support.  The details are subject to further discussions of the Parties.

 

2.9.                             Unless otherwise expressly provided in this Agreement, during the Period of Cooperation, JD will provide Bitauto the most favored nation status on any other commercial cooperation terms, which means the commercial terms provided to any third party by JD will be no more favorable than those provided by JD to Bitauto, except the special preferences received by any third party as part of a packaged consideration for sufficient payment.

 

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2.10.                      Non-compete: During the Period of Cooperation, other than Bitauto, JD (including any of its VIEs) may not manage and operate, directly or indirectly, finished automobiles (including new and used automobiles) marketing or advertising services within China, control or invest in any business or entity engaged in such services, and procure and ensure JD.COM and other JD platforms have no finished automobile business other than the business operated by Bitauto.  Notwithstanding the foregoing, the Parties acknowledge that JD and any of its Affiliates are able to conduct the business of finished automobiles that are auctioned through judicial process, the details of which are subject to negotiations of the Parties.

 

2.11.                      Settlements: JD and Bitauto will settle the payments for the orders generated by the Shops formed under this Agreement as follows:

 

2.11.1.            Where Bitauto agrees and authorizes JD to collect payment on its behalf, JD will introduce a third party payment agency or bank to provide such services, for which Bitauto will enter into related agreement with such third party payment agency or bank, if any.

 

2.11.2.            JD Finished Automobile Business Platform will automatically generate billing statement on each settlement date (which will be postponed to the immediately next business day if the settlement date falls on a weekend day or public holiday) and, upon confirmation by Bitauto, JD will send payment instruction to the payment agency, which will pay the price of the products to Bitauto after deduction of technical services fee and other expenses;

 

1)                          T+1 settlement (T means the date on which the order is displayed as “completed” on the JD Finished Automobile Business Platform), under which the first business day immediately next to T will be the settlement date;

 

Considering this settlement method is subject to continued and consistent operation of the third party payment company cooperative with JD, Bitauto agrees to apply for early opening of this settlement method with JD and the third party payment company, and use such payment method upon approval from JD.

 

2.11.3.            Bitauto will provide the information of settlement account acceptable to JD for settlement of product prices by JD.  Any change of such information shall be notified to JD no less than three days in advance.

 

3.                                       Consumer Rights Protection

 

3.1.                             The Parties will jointly protect the valid rights of the consumers regarding the Finished Automobile Business, and ensure compliance with applicable laws and regulations, respective after-sale service commitments and the Consumer Rights Protection And Services Terms.  In order to improve user experience, the Parties will assist to share information if any complaint is raised to JD by any consumer against any operation by Bitauto.  JD will provide advice or recommendation with consideration of the facts, for Bitauto will provide active support for resolution.

 

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4.                                       Supervision

 

4.1.                             The Parties shall cooperate to ensure compliance of the operation of the Finished Automobile Business. Should any operation of the Finished Automobile Business be found of any non-compliance, JD will have the right to notify Bitauto of such non-compliance and, if Bitauto fails to address such non-compliance, take actions to correct such non-compliance.

 

4.2.                             Upon receipt of any regulatory comments from any regulatory authority, JD will have the right to provide the information at the request of the regulatory authority and notify Bitauto, and Bitauto shall provide active support to implement such regulatory comments.

 

4.3.                             The Parties shall cooperate to supervise and review the data, information and transaction disclosed by the Finished Automobile Business, and notify the other Party promptly of any non-compliance or any damage to the safety and consistency of the system.  Bitauto shall provide explanation or correction promptly upon its receipt of notice from JD (including deletion of any non-compliant information or data).

 

4.4.                             Each of the Parties shall obtain and maintain all licenses and approvals required to operate the relevant businesses, including all government and third party approvals, consents, authorizations, permits, filings and licenses (in respect of JD, required for JD.COM, JD Open Platform, PaiPai and JD App mobile terminal devices; in respect of Bitauto, required for the Finished Automobile Business, financial leasing and other financial services), including without limitation the license for value-added telecommunication operation.

 

5.                                       Period of Cooperation

 

5.1.                             This Agreement shall be effective as of the Closing Date set forth under the Share Subscription Agreement.  The period of cooperation under this Agreement shall commence on the earlier of: (i) three months after execution of this Agreement, or (ii) the residence of Bitauto in JD (the “ Commencement Date ”), and end on the 5 th  anniversary of the Commencement Date (the “ Period of Cooperation ”).  The Period of Cooperation (possibly including the sole and exclusive arrangement thereof) may be extended upon its expiry subject to agreement of the Parties.  Notwithstanding the foregoing, if the Period of Cooperation is otherwise provided under this Agreement, such provision shall prevail.

 

5.2.                             Upon expiry of the Period of Cooperation: (1) the Parties may continue cooperation regarding the Finished Automobile Business pursuant to the rules of JD Open Platform or any other rules acceptable to the Parties then effect, (2) If the sales volume of the automobiles sold (i.e., net GMV) by Bitauto through the Finished Automobile Business consistently ranks among the top three in the league table of Internet based and mobile Internet based automobile sales in China during the Period of Cooperation and the relevant period thereafter, Bitauto will continue to have the most favored nation status provided under Section 2.9 of this Agreement during the relevant period after the Period of Cooperation.

 

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6.                                       Intellectual Properties and User Data

 

6.1.                             After execution of this Agreement and before commencement of the Period of Cooperation, JD will define the name, trade name or intellectual properties regarding JD Automobiles (see Exhibit I for details, which include the intellectual properties under application), and license Bitauto to such name, trade name or intellectual properties in connection with the Finished Automobile Business without consideration.

 

6.2.                             During the Period of Cooperation, the Parties agree to provide to each other its user membership without consideration, including without limitation providing automobile advertising or marketing or customized services recommendations to individual users of JD Open Platform by Bitauto.

 

6.3.                             Providing any and all materials, information and intellectual properties thereof by any of the Parties and their respective Affiliates to the other Party for purpose of this Agreement will not change the ownership of such materials, information or any rights thereof, unless otherwise expressly provided under the intellectual properties transfer agreement separately agreed by the Parties.

 

6.4.                             Unless otherwise expressly provided under this Agreement or any intellectual property authorization or license agreement separately agreed by the Parties, without prior written consent of the other Party, neither Party (or any of its Affiliates) may use or copy any patent, trademark, name, logo, business information, technology, data, information, domain name, copyright or any other intellectual property of the other Party, or apply to register any intellectual property which is similar to such intellectual property.  Any data received by Bitauto from the Finished Automobile Business by Bitauto shall be used only for the Finished Automobile Business according to this Agreement.

 

6.5.                             Any new intellectual property developed by the Parties (including their respective Affiliates) in connection with the business cooperation will be owned subject to separate agreement of the Parties.

 

6.6.                             Any Party (including any of its Affiliates) shall indemnify any loss incurred by the other Party (including any of its Affiliates) arising from infringement of any intellectual property or other valid right of the indemnified Party (including any of its Affiliates) by the indemnifying Party (including any of its Affiliates) or any product, service or material provided by the indemnifying Party (including any of its Affiliates).

 

7.                                       Other Covenants

 

7.1.                             The Parties agree to make best efforts to negotiate in good faith the provisions in Sections 2 and 3 of this Agreement within 45 days after the date hereof.  The details to execute and implement such provisions will be provided in supplemental or ancillary agreement to ensure operation of the Finished Automobile Business by Bitauto in accordance with and for purpose of this Agreement.

 

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7.2.                             The Parties agree to jointly establish a cooperation committee after execution of this Agreement, which will be responsible to coordinate the activities in connection with the cooperation contemplated under this Agreement during the Period of Cooperation.  Each of the Parties will be represented by Shen Haohan and Li Bin, respectively, in the committee.  The committee will have PaiPai, financial and technical teams and intend to invite Kui Yingchun, Chen Shengqiang and other department head to join the teams.  Such teams will meet regularly (on monthly or bi-monthly basis) to discuss how to improve working synergies and present work report to the board.

 

7.3.                             The Parties agree that JD will take all actions necessary to ensure any and all rights of Bitauto under this Agreement will not be affected by any merger, acquisition, division, restructuring or material business restructuring, including without limitation any material business restructuring relating to Online To Offline business and, at the request of Bitauto, make appropriate arrangement prior to such merger, acquisition, division, restructuring or material business restructuring so that Bitauto will continue operating the Finished Automobile Business upon completion of such merger, acquisition, division, restructuring or material business restructuring.

 

8.                                       Force Majeure and Limited Liabilities

 

Any delay to perform this Agreement arising from any force majeure event will not constitute breach of this Agreement by any of the Parties.  Neither Party will be liable for any damages arising thereof, provided such Party will make efforts to eliminate the cause of such delay and make best efforts (including without limitation seeking and using any alternative ways and methods) to eliminate any damage caused by such force majeure event, and notify the other Party of the occurrence and the potential damages of such force majeure within 15 business days (excluding the day of notice) when the elements of such force majeure are eliminated.  During delayed performance of this Agreement, the Party encountering the force majeure event will implement reasonable alternative or take any other commercially reasonable action to facilitate performance of its obligations under this Agreement until such delay is eliminated.

 

9.                                       Non-disclosure and Use of Information

 

The Parties acknowledge and agree that any oral or written information exchanged between each other in connection with this Agreement and the existence and any content of this Agreement are confidential and shall be kept in confidence by each Party, and may not be disclosed to any third party without prior written consent of the other Party, except for: (1) any information which has been available to the general public not disclosed by the receiving Party or any of its affiliates; (2) any information required for disclosure by any applicable law, competent government agency, security exchange, exchange rules or guidelines, under which circumstance and to the extent permitted by law, the disclosing Party will notify the other Party in advance so that the Parties will reach agreement regarding the scope and content of such disclosure; or (3) any information provided by any Party to its legal or financial advisor on as-need basis, provided that such legal or financial advisor will also comply with non-disclosure provisions similar to this Section 9.  The Parties agree to use the confidential information provided by the other Party only in connection with this Agreement and, at the request of the providing Party, destroy or return such confidential information upon the end of this Agreement.  Any Party will be liable for breach of this Section 9 by any Party’s affiliate, any employee of such affiliate or any of its advisors which breach will be deemed breach by such Party.  This Section 9 will survive any ineffectiveness, termination or expiration of this Agreement for any reason.

 

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Notwithstanding the foregoing, Bitauto acknowledges and agree that JD will have the right to maintain after the end of this Agreement any information or data provided by Bitauto necessary to open shop, operate business or perform obligations under this Agreement by Bitauto, and any data, shop and product comments information generated during operation of the Finished Automobile Business by Bitauto; before and after the end of this Agreement, JD will have the right to reasonably use such data and information, including without limitation in connection with market analysis and research, provided it will comply with the provisions under Section 9.

 

10.                                Taxes

 

Each of the Parties will bear any and all of its own taxes arising from execution and performance of this Agreement.

 

11.                                Representations and Warranties

 

11.1.                      Each of the Parties represents and warrants to the other Party that:

 

(1)                      It is a company duly incorporated and validly existing;

 

(2)                      It has the powers to enter this Agreement, and its authorized representative has the full authority to execute this Agreement on its behalf;

 

(3)                      No filing with or notice with any government agency, and no license, consent, permit or any other approval from any government agency or any third party is required in connection with its execution, delivery and performance of this Agreement; and

 

(4)                      It is capable to perform its obligations under this Agreement, and such performance will violate any provision of its articles of association or any other organizational document.

 

11.2.                      If any legal document signed by it prior to the date of this Agreement has any conflict with any term of this Agreement, it will notify the other Party in writing in the principles of good faith, integrity and amicableness so that the Parties may resolve such conflict through negotiations.  It will also be liable for any loss incurred by the other Party arising from such conflict.

 

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11.3.                      If any consent, agreement or approval from any third party is found necessary during its performance of this Agreement, it will notify the other Party in writing within 30 days and make best efforts to obtain such consent, agreement or approval; if such consent, agreement or approval fails to be obtained within a reasonable period, it will provide a resolution for such issue acceptable to the other Party.

 

12.                               Notice and Delivery

 

12.1.                      Any notice and other communication required or provided under this Agreement will be sent by person, registered mail, mail with prepaid postage or commercial courier service or facsimile to the address of the receiving Party.  Each notice shall be additionally delivered in electronic mail.  Such notice will be deemed duly delivered:

 

(1)                      If by person, courier service or registered mail with prepaid postage, upon receipt or rejection of such notice at the address provided under this Agreement.

 

(2)                      If by facsimile, upon its successful transmission (subject to automatically generated confirmation of such delivery).

 

12.2.                      For purpose of notice, the address of each of the Parties is as follows:

 

Party A:

 

Address:                                                Floor 10, Block A, Beichen Century Center, 8 Beichen West Road, Chaoyang District, Beijing, China

Attention:                                          General Counsel

Telephone:                                    +8610 58955500

 

Party B:

 

12.3.                      Each Party may change its address of notice under this Agreement by sending a change notice to the other Party pursuant to this Section 12.

 

13.                                Breach Liability

 

13.1.                      Any of the Parties (the “Indemnifying Party”) shall indemnify and hold harmless the other Party and any of its directors, affiliates, officers and agents (the “Indemnified Party”) from and against any and all losses, claims, damages, liabilities, judgments, fines, duties or costs (the “Losses’) incurred as a result of (i) breach of any of its representations or warranties under this Agreement by the Indemnifying Party, or (ii) breach or failure to perform any of its representations, warranties or agreements under this Agreement by the Indemnifying Party, including without limitation any investigation or settlement costs and expenses in connection with any pending or potential lawsuits or proceedings, and any taxes or charges payable in connection with indemnity for any loss under this Agreement.

 

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13.2.                      Third Party Claim: if any third party notifies the Indemnified Party in writing of any claim involving such third party (the “Third Party Claim”), and the Indemnified Party believes that such Third Party Claim will result in right of indemnity against the Indemnifying Party under Section 13 of this Agreement, the Indemnified Party will immediately notify the Indemnifying Party in writing of such Third Party Claim (the “Claim Notice”), describing in reasonable details such Third Party Claim and providing copies of all related documents (if any) and the basis of such indemnity.  Notwithstanding the foregoing, any failure or delay to provide such notice will not constitute waiver or change of the claim for indemnity by the Indemnified Party under this Agreement, unless and only to the extent that the Indemnifying Party incurs any damages from such failure or delay; provided, however , that the Indemnifying Party will be deemed to have accepted and agreed to such claim if the Indemnifying Party raises no objection to such claim within 30 days upon its receipt of the Claim Notice in writing.

 

13.3.                      Other Claim: if the Indemnified Party makes any claim against the Indemnifying Party under this Agreement and such claim involves no Third Party Claim, the Indemnified Party will immediately notify the Indemnifying Party in writing (the “Indemnity Notice”), describing in reasonable details such claim, the best estimate of the loss to be covered under the indemnity and the basis of such indemnity; provided, however , that any failure or delay to provide such notice will not constitute waiver or change of the claim for indemnity by the Indemnified Party under this Agreement, unless and only to the extent that the Indemnifying Party incurs any damages from such failure or delay.  The Indemnifying Party will be deemed to have accepted and agreed to such claim if the Indemnifying Party raises no objection to such claim within 30 days upon its receipt of the Indemnity Notice in writing.

 

13.4.                      This Section 13 will be included in any agreement made between any Party and any of its Affiliates in connection with this Agreement.

 

14.                                Governing Law and Dispute Resolution

 

14.1.                      Execution, validity, interpretation, performance, amendment and termination of this Agreement and resolution of any dispute arising thereof shall be governed by the laws of Hong Kong.

 

14.2.       Any dispute arising from interpretation or performance of this Agreement shall be first resolved by negotiations of the Parties and, if the negotiations fail, submitted to Hong Kong International Arbitration Center for arbitration in accordance with its arbitration rules by any Party after 30 days when the notice for negotiation is provided to the other Party in writing. The arbitration will be in Hong Kong.  The arbitrary award will be final and binding upon each of the Parties.

 

14.3.                      During arbitration of any dispute arising from interpretation or performance of this Agreement, other than the matter under dispute, each of the Parties will continue to have all of its rights and obligations under this Agreement.

 

15.                                Miscellaneous

 

15.1.                      Any amendment or supplement to this Agreement shall be made in writing.  Any amendment or supplement hereto duly executed by the Parties will be an integral part of and have the same effect with this Agreement.

 

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15.2.                      Without prior written consent of the other Party, neither Party may transfer any of its rights and obligations under this Agreement to any third party, except that it may delegate its appropriate affiliate to perform certain matter in connection with the operation under this Agreement.

 

15.3.                      Unless otherwise provided, during the term of this Agreement, neither Party may make any negative comment on the other Party, including without limitation any comment regarding corporate image, branding, product design, development, application, business strategy and all other corporate or product information of the other Party.

 

15.4.                      Once effective, this Agreement will constitute the entire agreements and understanding between the Parties in respect of the subject matter under this Agreement, and supersede any and all agreements and understanding, oral or written, made by the Parties prior to the date of this Agreement.

 

15.5.                      If any provision herein is held invalid, illegal or unenforceable, it will not affect the validity, legality or enforceability of the remainder of this Agreement.  The Parties shall negotiate in good faith to address such invalid, illegal or unenforceable provision with the view to realizing the original business intent as much as possible.

 

15.6.                      Each of the Parties will cause any of its Affiliates to perform its obligations under this Agreement.

 

15.7.                      This Agreement is in four (4) originals with each Party holding two thereof.  Each original shall have the same effect.

 

 (no text below)

 

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IN WITNESS WHEREOF, the Parties have caused this Agreement signed by their respective authorized representatives on the date first above written.

 

 

	JD.com, Inc.
	By:	/s/ Richard Qiangdong Liu
		Name:	Richard Qiangdong Liu
		Title:	Chairman