0000950103-14-004819.txt : 20140710 0000950103-14-004819.hdr.sgml : 20140710 20140710071933 ACCESSION NUMBER: 0000950103-14-004819 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20140710 DATE AS OF CHANGE: 20140710 GROUP MEMBERS: OHIO RIVER INVESTMENT LTD SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: 58.com Inc. CENTRAL INDEX KEY: 0001525494 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER PROGRAMMING, DATA PROCESSING, ETC. [7370] IRS NUMBER: 000000000 STATE OF INCORPORATION: E9 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-87683 FILM NUMBER: 14968276 BUSINESS ADDRESS: STREET 1: Block E, The North American Bus Center STREET 2: Yi 108 Beiyuan road, Chaoyang District CITY: Beijing STATE: F4 ZIP: 100101 BUSINESS PHONE: (86 10) 5796-08888 MAIL ADDRESS: STREET 1: Block E, The North American Bus Center STREET 2: Yi 108 Beiyuan road, Chaoyang District CITY: Beijing STATE: F4 ZIP: 100101 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Tencent Holdings Ltd CENTRAL INDEX KEY: 0001293451 IRS NUMBER: 000000000 STATE OF INCORPORATION: E9 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: ROOM 3506, 35TH FLOOR STREET 2: TOWER 2, LIPPO CENTRE CITY: ADMIRALTY STATE: K3 ZIP: 00000 BUSINESS PHONE: 86-755-86013388 MAIL ADDRESS: STREET 1: ROOM 3506, 35TH FLOOR STREET 2: TOWER 2, LIPPO CENTRE CITY: ADMIRALTY STATE: K3 ZIP: 00000 SC 13D 1 dp47736_sc13d.htm FORM SC 13D
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.  20549
 
SCHEDULE 13D
Under the Securities Exchange Act of 1934
 
58.COM INC.
(Name of Issuer)
 
Class A ordinary shares, par value US$0.00001 per share
(Title of Class of Securities)
 
31680Q104**
(CUSIP Number)
 
Tencent Holdings Limited
29/F., Three Pacific Place,
No. 1 Queen’s Road East, Wanchai, Hong Kong
Telephone: +852 3148 5100
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
 
June 30, 2014
(Date of Event which Requires Filing of this Statement)
 
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-l(f) or 240.13d-l(g), check the following box.  o
 
*The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
 
The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Exchange Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
 
**This CUSIP number applies to the American Depositary Shares, evidenced by American Depositary Receipts, each representing two Class A ordinary shares, par value $0.00001 per share. No CUSIP has been assigned to the ordinary shares.
 
 
 
 
 
CUSIP No.
 
 
31680Q104
1.
NAMES OF REPORTING PERSONS
 
Ohio River Investment Limited
2.
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
(a) o
(b) o
3.
SEC USE ONLY
 
 
4.
SOURCE OF FUNDS (SEE INSTRUCTIONS)
 
AF
5.
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E)
 
o
6.
CITIZENSHIP OR PLACE OF ORGANIZATION
 
British Virgin Islands
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7.
SOLE VOTING POWER
 
None
8.
 
SHARED VOTING POWER
 
36,805,000*
9.
 
SOLE DISPOSITIVE POWER
 
None
10.
 
SHARED DISPOSITIVE POWER
 
36,805,000*
11.
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
36,805,000*
12.
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
 
o
13.
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
42.27%*
14.
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
 
CO

* Such amount consists of 22,083,000 Class A ordinary shares and 14,722,000 Class B ordinary shares directly held by Ohio River Investment Limited. Each Class B ordinary share is convertible at the option of the holder into one Class A ordinary share. Pursuant to Rule 13d-3(d)(1)(i), the percentage in Row 13 is calculated based upon 72,347,942 Class A ordinary shares outstanding as of June 30, 2014 as communicated by the Issuer to the Reporting Persons on June 30, 2014, which includes the 22,083,000 Class A ordinary shares directly held by Ohio River Investment Limited, plus 14,722,000 Class B ordinary shares directly held by Ohio River Investment Limited (assuming conversion of the 14,722,000 Class B ordinary shares into 14,722,000 Class A ordinary shares).  If the percentage ownership of the Reporting Person were to be calculated in relation to all of the Issuer’s outstanding Class A and B ordinary shares, such percentage would be 20.97%.
 
 
Page 2
 
 
 
CUSIP No.
 
 
31680Q104
1.
NAMES OF REPORTING PERSONS
 
Tencent Holdings Limited
2.
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
(a) o
(b) o
3.
SEC USE ONLY
 
 
4.
SOURCE OF FUNDS (SEE INSTRUCTIONS)
 
AF
5.
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E)
 
o
6.
CITIZENSHIP OR PLACE OF ORGANIZATION
 
Cayman Islands
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7.
SOLE VOTING POWER
 
0
8.
 
SHARED VOTING POWER
 
36,805,000*
9.
 
SOLE DISPOSITIVE POWER
 
0
10.
 
SHARED DISPOSITIVE POWER
 
36,805,000*
11.
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
36,805,000*
12.
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
 
o
13.
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
42.27%*
14.
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
 
CO

* Such amount consists of 22,083,000 Class A ordinary shares and 14,722,000 Class B ordinary shares directly held by Ohio River Investment Limited. Each Class B ordinary share is convertible at the option of the holder into one Class A ordinary share. Pursuant to Rule 13d-3(d)(1)(i), the percentage in Row 13 is calculated based upon 72,347,942 Class A ordinary shares outstanding as of June 30, 2014 as communicated by the Issuer to the Reporting Persons on June 30, 2014, which includes the 22,083,000 Class A ordinary shares directly held by Ohio River Investment Limited, plus 14,722,000 Class B ordinary shares directly held by Ohio River Investment Limited (assuming conversion of the 14,722,000 Class B ordinary shares into 14,722,000 Class A ordinary shares).  If the percentage ownership of the Reporting Person were to be calculated in relation to all of the Issuer’s outstanding Class A and B ordinary shares, such percentage would be 20.97%.
 
 
Page 3
 
 
Item 1.  Security and Issuer

This statement on Schedule 13D (this “Statement”) relates to Class A ordinary shares, par value US$0.00001 per share (the “Class A Shares”) of 58.com Inc., a company incorporated under the laws of the Cayman Islands (the “Issuer”).  The address of the principal executive offices of the Issuer is Block E, The North American International Business Center, Yi 108 Beiyuan Road, Chaoyang District, Beijing 100101, People’s Republic of China.

The Issuer’s American Depositary Shares (the “ADSs”), evidenced by American Depositary Receipts, each representing two Class A Shares, are listed on the New York Stock Exchange under the symbol “WUBA.”  The Reporting Persons (as defined below), however, only beneficially own Ordinary Shares.
 
In addition to Class A Shares, the Issuer also has outstanding Class B ordinary shares, par value US$0.00001 per share (the “Class B Shares”, and together with the Class A Shares, the “Ordinary Shares”). The Class B Shares have the same rights as the Class A Shares, except for voting and conversion rights.  Each Class A Share is entitled to one vote, and each Class B Share is entitled to ten votes and is convertible into one Class A Share at any time by the holder thereof.  The Class A Shares are not convertible into Class B Shares under any circumstances.

Item 2.  Identity and Background

(a) – (c), (f)  This Statement is being filed by:
 
(i)  Tencent Holdings Limited, a Cayman Islands company (“Tencent”); and
 
(ii)  Ohio River Investment Limited, a British Virgin Islands company and a direct wholly owned subsidiary of Tencent (“Ohio River”).
 
Each of the foregoing is referred to as a “Reporting Person” and collectively as the “Reporting Persons.”  Each of the Reporting Persons is party to that certain Joint Filing Agreement filed herewith as Exhibit 1.  Accordingly, the Reporting Persons are hereby filing a joint Schedule 13D.
 
The address of Tencent’s principal office is Cricket Square, Hutchins Drive, P.O. Box 2681, Grand Cayman KY1-1111, Cayman Islands.  The address of Ohio River’s principal office is P.O. Box 957, Offshore Incorporations Centre, Road Town, Tortola, British Virgin Islands.  Ohio River is a direct wholly owned subsidiary of Tencent and is principally engaged in the business of holding securities in portfolio companies in which Tencent invests.
 
Tencent is an internet service portal in China providing value-added internet, mobile and telecom services and online advertising and has been listed on the main board of the Hong Kong Stock Exchange since June 16, 2004 (SEHK 700).
 
Attached hereto as Appendix A, and incorporated herein by reference, is information concerning each executive officer and director of Tencent and Ohio River, which is required to be disclosed in response to Item 2 and General Instruction C to Schedule 13D.
 
(d)-(e)  None of the Reporting Persons nor any of the persons or entities referred to in Appendix A has, during the last five years, been convicted in a criminal proceeding (excluding traffic violations and similar misdemeanors) or been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree, or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
 
 
Page 4
 
 
Item 3.  Source and Amount of Funds or Other Consideration

On June 30, 2014, Ohio River acquired 22,083,000 Class A Shares and 14,722,000 Class B Shares (the “Securities”) from the Issuer for a purchase price of US$20 per share (the “Share Subscription”) pursuant to an investment agreement dated June 27, 2014 between the Issuer and Ohio River (the “Investment Agreement”). On June 30, 2014, Ohio River paid US$736,100,000 in cash to the Issuer (the “Subscription Price”).

Ohio River used funds from an affiliate, which is a wholly owned subsidiary of Tencent, to pay the Subscription Price.

Item 4.  Purpose of Transaction 

As described in Item 3 above and Item 6 below, which descriptions are incorporated herein by reference in response to this Item 4, this Statement is being filed in connection with the acquisition of the Securities by Ohio River pursuant to the Investment Agreement. As a result of the transactions described in this Statement, the Reporting Persons acquired approximately 42.27% of the total Class A Shares outstanding on June 30, 2014 and received the right to appoint one director on the board of directors of the Issuer.

The Reporting Persons acquired the Securities for investment purposes and in connection with the transactions contemplated under the Investment Agreement.  Consistent with such purposes, and subject to the limitations, rules and requirements under applicable law, limitations under the memorandum and articles of association of the Issuer, as well as any restrictions under the transaction documents described under Item 6 below, the Reporting Persons may engage in communications with, without limitation, management of the Issuer, one or more members of the board of directors of the Issuer, other shareholders of the Issuer and other relevant parties, and may make suggestions, concerning the business, assets, capitalization, financial condition, operations, governance, management, prospects, strategy, strategic transactions, financing strategies and alternatives, and future plans of the Issuer, and such other matters as the Reporting Persons may deem relevant to their investment in the Issuer, which communications and suggestions may include proposing or considering one or more of the actions described in subsections (a) through (j) of Item 4 of Schedule 13D.
 
Depending on various factors (including, without limitation, the Issuer’s financial position and strategic direction, actions taken by the board of directors, market conditions and general economic and industry conditions), the Reporting Persons may take such actions with respect to their investment in the Issuer as they deem appropriate, including, without limitation, purchasing additional Ordinary Shares or other financial instruments of or related to the Issuer (such as the Issuer’s ADSs) or selling some or all of their beneficial holdings and/or otherwise changing their intention with respect to any and all matters referred to in Item 4 of Schedule 13D.

Other than as set forth in this Statement or in the transaction documents described under Item 6 below, neither the Reporting Persons, nor to the knowledge of the Reporting Persons, any person named in Appendix A hereto has any plans or proposal which relate to, or would result in, any of the matters described in subsections (a) through (j) of Item 4 of Schedule 13D (although the Reporting Persons reserve the right to develop such plans or proposals, subject to compliance with applicable laws).
 
 
Page 5
 

 
Item 5.  Interest in Securities of the Issuer

(a) — (b) As of the date of this Statement, each Reporting Person may be deemed to have beneficial ownership and shared power to vote or direct the vote of 22,083,000 Class A Shares and 14,722,000 Class B Shares.

Based on a total of (i) 72,347,942 Class A Shares outstanding as of June 30, 2014, as communicated by the Issuer to the Reporting Persons on June 30, 2014, which includes 22,083,000 Class A Shares newly issued by the Issuer to Ohio River under the Investment Agreement, and (ii) 14,722,000 Class B Shares newly issued by the Issuer to Ohio River under the Investment Agreement (assuming conversion of the 14,722,000 Class B ordinary shares into 14,722,000 Class A ordinary shares), the Reporting Persons beneficially held approximately 42.27% of the total Class A Shares outstanding on June 30, 2014.  Based on a total of 72,347,942 Class A Shares and 103,170,001 Class B Shares outstanding as of June 30, 2014, as communicated by the Issuer to the Reporting Persons on June 30, 2014, each of which respectively include the 22,083,000 Class A Shares and 14,722,000 Class B Shares newly issued by the Issuer to Ohio River under the Investment Agreement (assuming conversion of the 14,722,000 Class B ordinary shares into 14,722,000 Class A ordinary shares), the Reporting Persons beneficially held approximately 20.97% of the total Ordinary Shares outstanding on June 30, 2014.  Based on their holdings of Ordinary Shares, the Reporting Persons control approximately 15.33% of the total voting power of the total Ordinary Shares outstanding as described above as of June 30, 2014.  The percentage of voting power was calculated by dividing the voting power beneficially owned by the Reporting Persons by the voting power of all of the Issuer’s holders of Class A Shares and Class B Shares as a single class as at the date of June 30, 2014.  Each holder of Class A Shares is entitled to one vote per share and each holder of Class B Shares is entitled to ten votes per share on all matters submitted to them for a vote.
 
Except as set forth in this Item 5(a) and (b), to the knowledge of the Reporting Persons, no person identified in Appendix A hereto beneficially owns any Shares.
 
(c) Except as described in this Statement, there have been no transactions in the Ordinary Shares by the Reporting Persons during the past 60 days. To the knowledge of the Reporting Persons, there have been no transactions in the Ordinary Shares by any of the persons identified in Appendix A hereto during the past 60 days.

The information set forth in Item 3 above and in Item 6 is also incorporated herein by reference.

(d) Other than the Reporting Persons, no other person is known to have the right to receive or the power to direct the receipt of dividends from, or any proceeds from the sale of, the Ordinary Shares beneficially owned by the Reporting Persons.

(e) Not applicable.

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

Investment Agreement

The information set forth in Item 3 above is incorporated herein by reference.

The Investment Agreement contains customary representations and warranties from each of the Issuer and Ohio River, and customary indemnities from the Issuer, for a transaction of this nature.  Pursuant to the Investment Agreement, the Issuer used a portion of the proceeds from the Share Subscription to repurchase certain Class B Shares from certain of its existing shareholders concurrently with such Share Subscription.
 
 
Page 6
 
 
The foregoing description of the Investment Agreement does not purport to be a complete description of the terms thereof and is qualified in its entirety by reference to the full text of the Investment Agreement. A copy of the Investment Agreement is filed as Exhibit 2 hereto and is incorporated herein by reference.

Investor Rights Agreement

On June 30, 2014, simultaneously with the Share Subscription, Ohio River entered into an investor rights agreement (the “Investor Rights Agreement”) with the Issuer, Jinbo Yao and Nihao China Corporation (collectively, the “Founder Parties”). Pursuant to the Investor Rights Agreement, Ohio River received certain governance and other rights, a brief summary of which is set forth below.
 
Board Representation: As long as Ohio River holds at least 50% of the Ordinary Shares held by it as of the date of the Investor Rights Agreement, Ohio River is entitled to (i) appoint one director (the “Investor Director”) to the board of directors of the Issuer; and (ii) if the Investor Director is not a member of any committee of the board of the Issuer, the Investor Director has the right, as a non-voting observer, to attend meetings of any such committee, provided that the chairman of such committee may, at his or her discretion, exclude the Investor Director from any meeting of such committee or portions thereof if he or she believes in good faith that such exclusion is appropriate or necessary.
 
Restrictions on Transactions with Certain Persons: As long as Ohio River holds at least 50% of the Ordinary Shares held by it as of the date of the Investor Rights Agreement, without the prior written approval of Ohio River, neither the Issuer nor any of its subsidiaries will effect, and no Founder Party will vote in favor of any (i) change of control with certain persons to be mutually agreed between the Issuer and Ohio River (an “Adverse Person”); or (ii) issuance of equity securities to any Adverse Person other than in an underwritten public offering.
 
Transfer Restriction: For three years from the date of the Investor Rights Agreement, without the prior written approval of Ohio River and for so long as Ohio River has not transferred any of its Ordinary Shares owned as of the date of the Investor Rights Agreement to any person other than an affiliate of Tencent, no Founder Party will transfer any securities to any Adverse Person, other than in an underwritten public offering or on the open market.
 
Preemptive Rights: As long as Ohio River holds at least 50% of the Ordinary Shares held by it as of the date of the Investor Rights Agreement, Ohio River will have customary preemptive rights to purchase, on a pro rata basis, any proposed issuance of securities by the Issuer, except in connection with: (i) issuances under share option and similar plans approved by the Issuer, which in aggregate over the 12-month period preceding such issuance do not exceed 20% of the then total outstanding share capital of the Issuer; (ii) issuances in a bona fide business acquisition by the Issuer or its subsidiaries, which in aggregate over the 12-month period preceding such issuance do not exceed 20% of the then total outstanding share capital of the Issuer; and (iii) issuances to persons that the Issuer has bona fide business relations for non-equity financing purposes, which in aggregate over the 12-month period preceding such issuance do not exceed 1% of the then total outstanding share capital of the Issuer.
 
Registration Rights: Ohio River has certain customary demand, piggyback and Form F-3 shelf registration rights with respect to the registrable securities held by it, which registration rights terminate upon the earlier of (i) the fifth anniversary of the date of the Investor Rights Agreement; and (ii) at such time as all registrable securities held by Ohio River may be sold in any 90-day period without registration pursuant to Rule 144 under the U.S. Securities Act of 1933, as amended.
 
 
Page 7
 
 
The foregoing description of the Investor Rights Agreement does not purport to be a complete description of the terms thereof and is qualified in its entirety by reference to the full text of the Investor Rights Agreement.  A copy of the Investor Rights Agreement is filed as Exhibit 3 hereto and is incorporated herein by reference.
 
Item 7.  Material to be Filed as Exhibits

Exhibit 1:
Joint Filing Agreement, dated July 10, 2014, between Ohio River Investment Limited and Tencent Holdings Limited

Exhibit 2:
Investment Agreement, dated June 27, 2014, between 58.com Inc. and Ohio River Investment Limited

Exhibit 3:
Investor Rights Agreement, dated June 30, 2014, among 58.com Inc., Ohio River Investment Limited, Jinbo Yao and Nihao China Corporation
 
 
 
Page 8
 
 
SIGNATURE
 
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
 
Date: July 10, 2014
 


 
OHIO RIVER INVESTMENT LIMITED
  
     
     
 
By:
/s/ Ma Huateng
  
    Name:
Ma Huateng
  
    Title: Director  


 
TENCENT HOLDINGS LIMITED
  
     
     
 
By:
/s/ Ma Huateng
  
    Name:
Ma Huateng
  
    Title: Chairman of the Board  



 
Page 9
 

 
Appendix A
 
EXECUTIVE OFFICERS AND DIRECTORS OF OHIO RIVER INVESTMENT LIMITED
 
The names of the directors and the names and titles of the executive officers of Ohio River Investment Limited and their principal occupations are set forth below.  The business address of each of the directors or executive officers is c/o Tencent Holdings Limited, 29/F., Three Pacific Place, No. 1 Queen’s Road East, Wanchai, Hong Kong.  Unless otherwise indicated, each occupation set forth opposite an individual’s name refers to Ohio River Investment Limited.
 
Name
 
Citizenship
 
Title
Directors:
    
Ma Huateng
People’s Republic of China
Director
Charles St Leger Searle
Republic of South Africa
Director
Executive officers:
    
N/A
    

 
 
 
Page 10
 
 
EXECUTIVE OFFICERS AND DIRECTORS OF TENCENT HOLDINGS LIMITED
 
The names of the directors and the names and titles of the executive officers of Tencent Holdings Limited and their principal occupations are set forth below.  The business address of each of the directors or executive officers is c/o Tencent Holdings Limited, 29/F., Three Pacific Place, No. 1 Queen’s Road East, Wanchai, Hong Kong.  Unless otherwise indicated, each occupation set forth opposite an individual’s name refers to Tencent Holdings Limited.
 
Name
 
Citizenship
 
Title
Directors:
    
Ma Huateng
People’s Republic of China
Chairman of the Board
Lau Chi Ping Martin
People’s Republic of China
(Hong Kong SAR)
Director
Charles St Leger Searle
Republic of South Africa
Director
Jacobus Petrus Bekker
Republic of South Africa
Director
Li Dong Sheng
People’s Republic of China
Director
Iain Ferguson Bruce
People’s Republic of China
(Hong Kong SAR)
Director
Ian Charles Stone
People’s Republic of China
(Hong Kong SAR)
Director
Executive officers:
    
Ma Huateng
People’s Republic of China
Chief Executive Officer
Lau Chi Ping Martin
People’s Republic of China
(Hong Kong SAR)
President
Zhang Zhidong
People’s Republic of China
Chief Technology Officer
Xu Chenye
People’s Republic of China
Chief Information Officer
Ren Yuxin
People’s Republic of China
Chief Operating Officer
James Gordon Mitchell
United Kingdom of Great Britain and Northern Ireland
Chief Strategy Officer and
Senior Executive Vice President
John Shek Hon Lo
People’s Republic of China
(Hong Kong SAR)
Senior Vice President and
Chief Financial Officer

 
Page 11
 EX-99.1 2 dp47736_ex9901.htm EXHIBIT 99.1
Exhibit 1
 
JOINT FILING AGREEMENT

In accordance with Rule 13d-1(k) under the Securities Exchange Act of 1934, as amended, the persons named below agree to the joint filing on behalf of each of them of a statement on Schedule 13D relating to Class A ordinary shares, par value US$0.00001 per share, of 58.com Inc., a company incorporated under the laws of the Cayman Islands. This Joint Filing Agreement shall be included as an Exhibit to such joint filing, and may be executed in any number of counterparts all of which together shall constitute one and the same instrument

In evidence thereof, each of the undersigned, being duly authorized, hereby execute this Joint Filing Agreement.

Date: July 10, 2014
 
 
OHIO RIVER INVESTMENT LIMITED
  
     
     
 
By:
/s/ Ma Huateng
  
    Name:
Ma Huateng
  
    Title: Director  


 
TENCENT HOLDINGS LIMITED
  
     
     
 
By:
/s/ Ma Huateng
  
    Name:
Ma Huateng
  
    Title: Chairman of the Board  

 
 
 
 
 
 EX-99.2 3 dp47736_ex9902.htm EXHIBIT 99.2
Exhibit 2
 
 
CONFIDENTIAL
 

 Execution Version
 
 
 
 
 
 
 
INVESTMENT AGREEMENT
 
dated as of
 
June 27, 2014
 
among
 
58.COM INC.,
 
and
 
OHIO RIVER INVESTMENT LIMITED
 
 
 
 
 

 
 
 
 

TABLE OF CONTENTS
 
Page
 
ARTICLE 1
Definitions
 
Section 1.01.  Definitions
1
Section 1.02.  Other Definitional and Interpretative Provisions
6
   
ARTICLE 2
Purchase and Sale
 
Section 2.01.  Purchase and Sale
7
Section 2.02.  Closing
7
   
ARTICLE 3
Representations and Warranties of The Company
 
Section 3.01.  Organization and Qualification
8
Section 3.02.  Subsidiaries
8
Section 3.03.  Capitalization.
8
Section 3.04.  Authorization; Enforcement; Validity
9
Section 3.05.  No Conflicts
10
Section 3.06.  Consents
10
Section 3.07.  Valid Issuance
10
Section 3.08.  No Registration
11
Section 3.09.  No Integrated Offering
11
Section 3.10.  SEC Documents
11
Section 3.11.  Financial Statements
12
Section 3.12.  No Undisclosed Liabilities
12
Section 3.13.  Internal Controls and Procedures
12
Section 3.14.  Absence of Changes
13
Section 3.15.  Contracts
13
Section 3.16.  Litigation
13
Section 3.17.  Permits; Compliance with Applicable Laws
13
Section 3.18.  Tax Status
14
Section 3.19.  Ownership of Assets
14
Section 3.20.  Intellectual Property
15
Section 3.21.  Variable Interest Entities
15
Section 3.22.  Transactions with Affiliates and Employees
15
Section 3.23.  Solvency
15
Section 3.24.  Brokers and Finders
16
 
 
i
 
 
ARTICLE 4
Representations and Warranties of The Purchaser
 
Section 4.01.  Organization
16
Section 4.02.  Authorization; Enforcement; Validity
16
Section 4.03.  No Conflicts
16
Section 4.04.  Consents
17
Section 4.05.  Status and Investment Intent of the Purchaser.
17
   
ARTICLE 5
Covenants
 
Section 5.01.  Interim Conduct; Further Assurances.
17
Section 5.02.  Public Disclosure
19
Section 5.03.  Listing of Securities
19
Section 5.04.  Reservation of Shares
19
Section 5.05.  Director Appointment
19
Section 5.06.  Use of Proceeds
19
Section 5.07.  No Integrated Offering
20
   
ARTICLE 6
Conditions to Closing
 
Section 6.01.  Conditions to Obligations of All Parties
20
Section 6.02.  Conditions to Obligation of the Purchaser
20
Section 6.03.  Conditions to Obligation of the Company
22
   
ARTICLE 7
Survival; Indemnification
 
Section 7.01.  Survival.
22
Section 7.02.  Indemnification
23
Section 7.03.  Third Party Claim Procedures.
23
Section 7.04.  Direct Claim Procedures
24
   
ARTICLE 8
Termination
 
Section 8.01.  Grounds for Termination
25
Section 8.02.  Effect of Termination
25
   
ARTICLE 9
Miscellaneous
 
Section 9.01.  Notices
26
 
 
ii
 
 
Section 9.02.  Amendments and Waivers
27
Section 9.03.  Expenses
28
Section 9.04.  Successors and Assigns
28
Section 9.05.  Governing Law
28
Section 9.06.  Arbitration
28
Section 9.07.  Counterparts; Effectiveness; Third Party Beneficiaries
28
Section 9.08.  Entire Agreement
29
Section 9.09.  Severability
29
Section 9.10.  Specific Performance
29
 
 
 

 
iii
 

 
INVESTMENT AGREEMENT
 
INVESTMENT AGREEMENT, dated as of June 27, 2014 (this “Agreement”), by and among (i) 58.com Inc., a company incorporated under the laws of the Cayman Islands (the “Company”), (ii) and Ohio River Investment Limited, a company organized under the laws of the British Virgin Islands (the “Purchaser”).
 
W I T N E S S E T H:
 
WHEREAS, the Company desires to issue, sell and deliver to the Purchaser, and the Purchaser desires to purchase and acquire from the Company (the “Investment”), upon the terms and conditions set forth in this Agreement, certain Ordinary Shares (as defined below) of the Company.
 
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto hereby agree as follows:
 
 
ARTICLE 1
Definitions
 
Section 1.01.  Definitions.  The following terms, as used herein, have the following meanings:
 
“ADSs” means the American Depositary Shares of the Company, each representing two (2) Class A Ordinary Shares.
 
“Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with such Person; provided that none of the Company, any of its Subsidiaries shall be considered an Affiliate of the Purchaser.  For purposes of this definition, “control” when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the terms “controlling” and “controlled” have correlative meanings.
 
“Applicable Law” means, with respect to any Person, any international, domestic or foreign federal, state or local law (statutory, common or otherwise), constitution, treaty, convention, ordinance, code, rule, regulation, order, injunction, judgment, decree, ruling or other similar requirement enacted, adopted, promulgated or applied by a Governmental Authority that is binding upon or applicable to such Person, as amended unless expressly specified otherwise.
 
 
 
 
 
“Board” means the board of directors of the Company.
 
“Business Cooperation Agreement” means a business cooperation agreement, to be dated as of the Closing Date, between the Company and the Purchaser, in the form attached hereto as Exhibit B.
 
“Business Day” means a day, other than Saturday, Sunday or other day on which commercial banks in New York, New York, the Cayman Islands, Hong Kong or the PRC are authorized or required by Applicable Law to close.
 
“Circular 75” means Circular 75, issued by the State Administration of Foreign Exchange of the PRC on October 21, 2005, titled “Notice Regarding Certain Administrative Measures on Financing and Inbound Investments by PRC Residents Through Offshore Special Purpose Vehicles,” () effective as of November 1, 2005, or any successor rule or regulation under PRC law.
 
“Class A Shares” means Class A ordinary shares, par value US$0.00001 per share, in the share capital of the Company.
 
“Class B Shares” means the Class B ordinary shares, par value US$0.00001 per share, in the share capital of the Company.
 
“Closing Date” means the date of the Closing.
 
“Contract” means any agreement, contract, lease, indenture, instrument, note, debenture, bond, mortgage or deed of trust or other agreement, commitment, arrangement or understanding, whether written or oral.
 
“Encumbrance” means any security interest, pledge, mortgage, lien, charge, claim, hypothecation, title defect, right of first option or refusal, right of preemption, or other encumbrance of any kind.
 
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, and any rules and regulations promulgated thereunder.
 
“Existing Shareholders Agreement” means the amended and restated shareholders’ agreement, dated August 4, 2011, by and among the Company and certain of its shareholders.
 
“Fundamental Company Representations” means the representations and warranties by the Company contained in Sections ‎3.01, 3.03, 30.4, 3.05, 3.06, 3.07 and ‎3.24.
 
“GAAP” means generally accepted accounting principles in the United States.
 
 
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“Governmental Authority” means any transnational, domestic or foreign federal, state or local governmental, regulatory or administrative authority, department, court, agency or official, including any political subdivision thereof.
 
“HKSE” means Hong Kong Stock Exchange.
 
“Hong Kong” means the Hong Kong Special Administrative Region of the PRC.
 
“Intellectual Property” means any and all rights in any of the following: (a) trademarks and service marks, trade dress, trade names and other indications of origin, applications or registrations in any jurisdiction pertaining to the foregoing and all goodwill associated therewith; (b) inventions, discoveries, improvements, ideas, know-how, formula methodology, processes, technology, software (including rights in password unprotected interpretive code or source code, object code, development documentation, programming tools, drawings, specifications and data) and patent applications and patents in any jurisdiction pertaining to the foregoing, including re-issues, continuations, divisions, continuations-in-part, renewals or extensions; (c) trade secrets, including confidential information and the right in any jurisdiction to limit the use or disclosure thereof; (d) copyrights in writings, designs software, mask works or other works, applications or registrations in any jurisdiction for the foregoing and all moral rights related thereto; (e) database rights; (f) rights in Internet Web sites, domain names and applications and registrations pertaining thereto; (g) books and records pertaining to the foregoing; and (h) claims or causes of action arising out of past, present or future infringement or misappropriation of any of the foregoing.
 
“Investor Rights Agreement” means an investor rights agreement, to be dated as of the Closing Date, among the Company, the Purchaser and the other parties named therein, in the form attached hereto as Exhibit A.
 
“Issued Shares” means 22,083,000 Class A Shares and 14,722,000 Class B Shares to be newly issued by the Company to the Purchaser on the Closing Date.
 
“knowledge” of any Person that is not an individual means the knowledge of such Person’s officers after reasonable inquiry.
 
“Material Adverse Effect” means any event, circumstance, development, change or effect that, individually or in the aggregate, has or would reasonably be expected to have a material adverse effect on (i) the condition (financial or otherwise), business, assets, results of operations or prospects of the Company and its Subsidiaries, taken as a whole, excluding any such effect resulting from (A) the announcement of the transactions contemplated by this Agreement, (B)
 
 
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changes affecting any of the industries in which the Company or its Subsidiaries operate generally or the economy generally or (C) changes affecting general worldwide economic or capital market conditions (provided that in the case of (B) or (C), only to the extent such changes do not disproportionately adversely affect the Company and its Subsidiaries relative to other similarly situated participants in the industry in which they operate), or (ii) the authority or ability of the Company to perform its obligations under this Agreement and the other Transaction Documents and to consummate the transactions contemplated hereby and thereby.
 
“Memorandum and Articles” means the Memorandum and Articles of Association of the Company in effect from time to time.
 
“NYSE” means the New York Stock Exchange.
 
“Ordinary Shares” means collectively the Class A Shares and the Class B Shares.
 
“Person” means an individual, corporation, partnership, limited liability company, association, trust or other entity or organization, including a Governmental Authority.
 
“PRC” means the People’s Republic of China, but, for the purposes of this Agreement, shall not include Hong Kong, the Macau Special Administrative Region or Taiwan.
 
“PRC Resident” has the meaning as set forth in Circular 75.
 
“Purchaser Director” means the one (1) individual whom the Purchaser is entitled to designate for appointment or election as a director of the Board.
 
“Sarbanes-Oxley Act” means the Sarbanes-Oxley Act of 2002.
 
“SEC” means the U.S. Securities and Exchange Commission.
 
“Securities” means any Ordinary Shares or any equity interest of, or shares of any class in the share capital (ordinary, preferred or otherwise) of, the Company and any convertible securities, options, warrants and any other type of equity or equity-linked securities convertible, exercisable or exchangeable for any such equity interest or shares of any class in the share capital of the Company.
 
“Securities Act” means the U.S. Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
 
“Subsidiary” of any Person means any corporation, partnership, limited liability company, joint stock company, joint venture or other organization or
 
 
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entity, whether incorporated or unincorporated, which is controlled by such Person and, for the avoidance of doubt, the Subsidiaries of any Person shall include any variable interest entity over which such Person or any of its Subsidiaries effects control pursuant to contractual arrangements and which is consolidated with such Person in accordance with generally accepted accounting principles applicable to such Person and any Subsidiaries of such variable interest entity.
 
“Tax Representations” means the representations and warranties by the Company contained in ‎Section 3.18.
 
“Transaction Documents” mean this Agreement, the Investor Rights Agreement, the Business Cooperation Agreement, the Repurchase Agreement and each of the other agreements and documents entered into or delivered by the parties hereto or their respective Affiliates in connection with the transactions contemplated by this Agreement.
 
“U.S.” or “United States” means the United States of America.
 
(b)      Each of the following terms is defined in the Section set forth opposite such term:
 
Term
Section
2010 Plan
‎3.03(a)
2013 Plan
‎3.03(a)
Agreement
Preamble
Bankruptcy Exception
‎3.04
Closing
‎2.02
Company Share Plans
‎3.03(a)
Control Contracts
‎3.21
Damages
‎7.02
e-mail
‎9.01
Financial Statements
‎3.11
HKIAC
‎9.06
Indemnified Parties
‎7.02
Indemnifying Party
‎7.03
Investment
Recital
Judgment
‎3.16
Material Contract
‎3.15
Permits
‎3.17
Proceedings
‎3.16
Purchaser
Preamble
Repurchase
‎5.06
Repurchase Agreement
‎5.06
Repurchase Shares
‎5.06
 
 
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Term
Section
Returns
‎3.18
Rules
‎9.06
SEC Documents
‎3.10
Sellers
‎5.06
Subscription Price
‎2.01
Tax
‎3.18
Third Party Claim
‎7.03
Warranty Breach
‎7.02
 
Section 1.02.  Other Definitional and Interpretative Provisions.  The words “hereof”, “herein” and “hereunder” and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.  The captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof.  References to Articles, Sections, Exhibits and Schedules are to Articles, Sections, Exhibits and Schedules of this Agreement unless otherwise specified.  All Exhibits and Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein.  Any capitalized terms used in any Exhibit or Schedule but not otherwise defined therein, shall have the meaning as defined in this Agreement.  Any singular term in this Agreement shall be deemed to include the plural, and any plural term the singular.  Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”, whether or not they are in fact followed by those words or words of like import.  “Writing”, “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form.  References to any statute shall be deemed to refer to such statute as amended from time to time and to any rules or regulations promulgated thereunder.  References to any agreement or contract are to that agreement or contract as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof; provided that with respect to any agreement or contract listed on any schedules hereto, all such amendments, modifications or supplements must also be listed in the appropriate schedule.  References to any Person include the successors and permitted assigns of that Person.  References from or through any date mean, unless otherwise specified, from and including or through and including, respectively.  References to “law”, “laws” or to a particular statute or law shall be deemed also to include any and all Applicable Law.
 
 
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ARTICLE 2
Purchase and Sale
 
Section 2.01.  Purchase and Sale.  Upon the terms and subject to the conditions of this Agreement, at the Closing, the Company agrees to issue and sell to the Purchaser, and the Purchaser agrees to subscribe for and purchase from the Company, the Issued Shares. The aggregate subscription price for the Issued Shares is US$736,100,000 (“Subscription Price”). The Subscription Price shall be paid as provided in ‎Section 2.02.
 
Section 2.02.  Closing.  The closing (the “Closing”) of the issuance and sale of the Issued Shares (“Subscription Closing”) hereunder shall take place remotely via the electronic exchange of documents and signatures, as soon as possible, but in no event later than five Business Days, after satisfaction or, to the extent permissible, waiver by the party or parties entitled to the benefit of the conditions set forth in ‎Article 6 (other than conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or, to the extent permissible, waiver of those conditions at the Closing), or at such other time or place as the parties hereto may agree.  At the Closing:
 
(a)      the Purchaser shall deliver to the Company the Subscription Price by wire transfer in U.S. dollars of immediately available funds to a bank account designated by the Company at least one Business Day prior to the Closing Date;
 
(b)      the Company shall deliver to the Purchaser: (i) a certified copy of the relevant page of the register of members of the Company reflecting the Purchaser as the owner of Issued Shares, (ii) a share certificate representing the Issued Shares duly executed on behalf of the Company and registered in the name of the Purchaser (or, if not available at the Closing, a certified copy of such share certificate with the original to be delivered promptly as soon as possible after the Closing), (iii) copies of the resolutions of the Board and any other required corporate approvals of the Company duly authorizing and approving this Agreement and the other Transaction Documents and the transactions contemplated hereunder and thereunder, (iv) a certificate of good standing in respect of the Company issued by the Registrar of Companies in the Cayman Islands, dated no later than a date 30 days prior to the Closing, (v) each of the documents listed in ‎Section 6.02(b), Section 6.02(c) and Section 6.02(d), and (vi) the Investor Rights Agreement and an indemnification agreement (“Director Indemnity”) in respect of the Purchaser Director in the same form as any indemnification agreements to which the other directors of the Company are parties as of the Closing, each dated the Closing Date and duly executed by the Company.
 
 
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ARTICLE 3
Representations and Warranties of The Company
 
The Company hereby represents and warrants to the Purchaser as of the date hereof and as of the Closing Date that:
 
Section 3.01.  Organization and Qualification.  The Company is an exempted company duly incorporated, validly existing and in good standing under the laws of the Cayman Islands, and has the requisite corporate power and authorization to own, lease and operate its properties and to carry on its business as now being conducted and as described in the SEC Documents. The Company is duly qualified or licensed to do business in each jurisdiction in which the property owned, leased or operated by it or the nature of the business conducted by it makes such qualification or licensing necessary, except to the extent that the failure to be so qualified or licensed would not have a Material Adverse Effect. The memorandum and articles of association of the Company, as filed with the SEC on September 27, 2013, is the current Memorandum and Articles and is in full force and effect. The Company is not in violation of any of the provisions of its Memorandum and Articles except as would not have a Material Adverse Effect.
 
Section 3.02.  Subsidiaries.  Each Subsidiary of the Company has been duly organized, is validly existing and in good standing (with respect to jurisdictions that recognize the concept of good standing) under the laws of its jurisdiction of organization, and has the requisite corporate power and authorization to own, lease and operate its properties and to carry on its business as now being conducted and as described in the SEC Documents. Each Subsidiary of the Company is duly qualified or licensed to do business in each jurisdiction in which the property owned, leased or operated by it or the nature of the business conducted by it makes such qualification or licensing necessary, except to the extent that the failure to be so qualified or licensed would not have a Material Adverse Effect. The constitutional documents of each of the Company’s Subsidiaries are in full force and effect except as would not have a Material Adverse Effect. None of the Company’s Subsidiaries is in violation of any of the provisions of its constitutional documents except as would not have a Material Adverse Effect.
 
Section 3.03.  Capitalization.
 
(a)      As of the date of this Agreement, the authorized share capital of the Company consists of 4,800,000,000 Class A Shares and 200,000,000 Class B Shares. As of the date of this Agreement, (x)(i) 49,824,942 Class A Shares are issued and outstanding (including no Class A Shares that have been issued to the Company’s depositary and reserved for future grants under the Company Share Plans), (ii) 8,135,504 Class A Shares are reserved and available for issuance
 
 
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pursuant to share-based compensation awards granted under the Company’s 2010 Employee Stock Option Plan (the “2010 Plan”) and the Company’s 2013 Share Incentive Plan (the “2013 Plan”, and together with the 2010 Plan, the “Company Share Plans”) and (y) 116,051,751 Class B Shares are issued and outstanding. Except as set forth in this ‎Section 3.03(a), as of the date of this Agreement, no Securities were issued, reserved for issuance or outstanding and no securities of any of its Subsidiaries convertible into or exchangeable or exercisable for any Securities were issued or are outstanding. All outstanding Ordinary Shares are, and all such shares that may be issued prior to the date hereof will be, when issued, duly authorized, validly issued, fully paid and non-assessable and not subject to preemptive rights. Except for any obligations pursuant to this Agreement or as otherwise set forth above in this ‎Section 3.03(a), as of the date of this Agreement, there are no options or other rights to acquire from the Company, or other obligation of the Company to issue, any additional Securities. There are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any Securities, stock-based performance units or share appreciation rights, other than pursuant to the Company Share Plans.
 
(b)      All of the outstanding capital or other voting securities of each Subsidiary is owned by the Company, directly or indirectly, free and clear of any Encumbrance, except with respect to any variable interest entity over which the Company effects control pursuant to the Control Contracts, and with respect to such variable interest entity, all of the outstanding capital or other voting securities of each Subsidiary thereof is owned by such variable interest entity, directly or indirectly, free and clear of any Encumbrance. All of the issued equity securities of each non-PRC Subsidiary of the Company are validly issued, fully paid and non-assessable, and were issued in compliance with the applicable registration and qualification requirements of Applicable Laws.
 
(c)      Except for the registration rights under the Existing Shareholders Agreement and rights granted under the Control Contracts, there are no preemptive rights, registration rights, rights of first offer, rights of first refusal, tag-along rights, director appointment rights, governance rights, veto rights or other similar rights with respect to the Securities or the securities of any Subsidiary of the Company that have been granted to any Person (other than the Company or any Subsidiary).
 
(d)      After giving effect to the Investment and the Repurchase, the Issued Shares shall represent (x) 19.9% of the total outstanding share capital of, and (y) 15.2% of the total voting power represented by the total outstanding share capital of, the Company, in each case on a fully diluted basis (including, for the avoidance of doubt, all shares issuable under Company Share Plans).
 
Section 3.04.  Authorization; Enforcement; Validity.  The Company has the requisite corporate power and authority to execute and deliver this Agreement and the other Transaction Documents and perform its obligations under this Agreement
 
 
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and the other Transaction Documents and to issue the Issued Shares in accordance with the terms hereof. This Agreement and the other Transaction Documents to be executed on the date hereof have been, and any Transaction Documents signed after the date hereof will be by the time of execution, duly executed and delivered by the Company, and, assuming the due authorization, execution and delivery by the Purchaser (and each other party thereto), constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles (the “Bankruptcy Exception”).
 
Section 3.05.  No Conflicts.  The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents and the consummation by the Company of the transactions contemplated hereby and thereby (including the issuance of the Issued Shares) will not (a) result in a violation of the Memorandum and Articles, (b) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any Contract to which the Company or any of its Subsidiaries is a party, or (c) result in a violation of any Applicable Law to the Company or by which any property or asset of the Company or any of its Subsidiaries is bound or affected, except in the case of clauses ‎(b) and ‎(c) above, for such conflicts, defaults, rights or violations which would not have a Material Adverse Effect.
 
Section 3.06.  Consents.  The execution, delivery and performance of this Agreement and the other Transaction Documents by the Company require no (a) consent, approval, authorization, action or order of, any exemption by, any notice to, or any filing or registration with, any Governmental Authority or (b) any consent, approval or authorization from or any waiver by any third party pursuant to any Contract to which the Company or any of its Subsidiaries except as would have a Material Adverse Effect.  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.
 
Section 3.07.  Valid Issuance.  The Issued Shares are duly authorized, and, when issued and paid for in accordance with the terms hereof and entered in the register of members of the Company, shall be validly issued and non-assessable and free from all preemptive or similar rights and Encumbrances, and the Purchaser shall be entitled to all rights accorded to a holder of the Class A Shares or the B Shares with respect to the Issued Shares (as applicable).
 
 
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Section 3.08.  No Registration.  Assuming the accuracy of the representations and warranties set forth in ‎Scction 4.05 of this Agreement, it is not necessary in connection with the issuance and sale of the Issued Shares to register the Issued Shares under the Securities Act or to qualify or register the Issued Shares under applicable U.S. state securities laws.  None of the Company, its Subsidiaries or their respective Affiliates or any Person acting on its or their behalf have engaged in any “directed selling efforts” within the meaning of Rule 903 of Regulation S under the Securities Act or any form of general solicitation or general advertising within the meaning of Rule 502(c) under the Securities Act with respect to the Issued Shares.
 
Section 3.09.  No Integrated Offering.  None of the Company, any of its Affiliates, or any Person acting on their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would require registration of the issuance of any of the Issued Shares under the Securities Act, whether through integration with prior offerings or otherwise.
 
Section 3.10.  SEC Documents.  The Company has timely filed or furnished, as applicable, all reports, schedules, forms, statements and other documents required to be filed or furnished by it with the SEC pursuant to the Securities Act or the Exchange Act (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”). As of their respective filing or furnishing dates, the SEC Documents complied in all material respects with the requirements of the Sarbanes-Oxley Act, the Securities Act or the Exchange Act, as the case may be, and the rules and regulations promulgated thereunder, as applicable, to the respective SEC Documents, and, other than as corrected or clarified in a subsequent SEC Document prior to the date of this Agreement, none of the SEC Documents, at the time they were filed or furnished, 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. The information contained in the SEC Documents, considered as a whole and as amended as of the date hereof, do not as of the date hereof, and will not as of the Closing Date, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. There are no contracts, agreements, arrangements, transactions or documents which are required to be described or disclosed in the SEC Documents or to be filed as exhibits to the SEC Documents which have not been so described, disclosed or filed.
 
 
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Section 3.11.  Financial Statements.  As of their respective dates, the financial statements of the Company included in the SEC Documents (the “Financial Statements”) complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto. The Financial Statements (including any related notes thereto) included or incorporated by reference in the SEC Documents fairly presented in all material respects the consolidated financial position of the Company as of the dates indicated therein and the consolidated results of its operations, cash flows and changes in shareholders’ equity for the periods specified therein. Such Financial Statements were prepared in accordance with GAAP applied on a consistent basis (except (a) as may be otherwise indicated in such Financial Statements or the notes thereto, or (b) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed to summary statements).
 
Section 3.12.  No Undisclosed Liabilities.  There are no liabilities of the Company or any Subsidiary of any kind, whether accrued, contingent, absolute, determined, determinable or otherwise, and there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a liability, other than: (a) liabilities reflected on, reserved against, or disclosed in the Company’s unaudited consolidated balance sheet as of March 31, 2014, (b) liabilities incurred since March 31, 2014 in the ordinary course of business and (c) any other undisclosed liabilities that are not material to the Company and its Subsidiaries, taken as a whole. There are no unconsolidated Subsidiaries of the Company or any off-balance sheet arrangements of any type (including any off-balance sheet arrangement required to be disclosed pursuant to Item 303(a)(4) of Regulation S-K promulgated under the Securities Act) that have not been so described in the SEC Documents nor any obligations to enter into any such arrangements.
 
Section 3.13.  Internal Controls and Procedures.  The Company has established and maintains disclosure controls and procedures as such terms are defined in, and required by, Rule 13a-15 or Rule 15d-15 under the Exchange Act. Except as may be disclosed in the SEC Documents, such disclosure controls and procedures are effective to ensure that all material information required to be disclosed by the Company in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC. The Company maintains a system of internal controls over financial reporting sufficient to, except to the extent disclosed in the SEC Documents, provide reasonable assurance that (a) transactions are executed in accordance with management’s general or specific authorizations and (b) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP. Other than the material weakness in such internal controls over financial reporting disclosed in the SEC Documents, there are no such other material weaknesses in such system
 
 
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of internal controls.  To the knowledge of the Company, there is no reason that its chief executive officer and chief financial officer will not be able to give the certifications and attestations required pursuant to the rules and regulations adopted pursuant to Section 404 of the Sarbanes-Oxley Act, without qualification, when next due.
 
Section 3.14.  Absence of Changes.  Except for the execution and performance of this Agreement and the discussions, negotiations and transactions related thereto, since March 31, 2014, the Company and its Subsidiaries have conducted their respective businesses in all material respects in the ordinary course of business consistent with past practice, and without limiting the generality of the foregoing, there has not been any Material Adverse Effect.
 
Section 3.15.  Contracts.  The Company has filed as exhibits to the SEC Documents all Contracts (including all amendments thereto) that are required to be filed in the SEC Documents (any such Contract that is so required to be filed, a “Material Contract”).  Each Material Contract is in full force and effect and, to the knowledge of the Company, enforceable against the counterparties of the Company or the 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.
 
Section 3.16.  Litigation.  Except as disclosed in the SEC Documents, there are no pending or, to the Company’s knowledge, threatened, legal, administrative, arbitral or other claims, suits, actions or proceedings or governmental or regulatory investigations (“Proceedings”) of any nature against the Company or any of its Subsidiaries or any director or officer of the Company or any of its Subsidiaries (in their capacity as directors and officers of the Company or any of its Subsidiaries), which would have a Material Adverse Effect, or any Proceedings that seek to restrain or enjoin the consummation of the transactions contemplated by the Transaction Documents. There is no judgment, order, injunction or decree (“Judgment”) outstanding against Company, any of its Subsidiaries, any of their equity interests, material properties or assets, or any of their directors and officers (in their capacity as directors and officers), except for any Judgment which would not have a Material Adverse Effect.
 
Section 3.17.  Permits; Compliance with Applicable Laws.  The Company and each of its Subsidiaries have conducted their businesses in compliance with all Applicable Laws (including, without limitation, the U.S. Foreign Corrupt Practices Act, as amended, and PRC anti-bribery laws) except as may be disclosed in the SEC Documents and as would not have a Material Adverse Effect. Except as may be disclosed in the SEC Documents, the Company and each
 
 
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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 may be 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 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), and has no knowledge of any facts that would reasonably be expected to lead to delisting or suspension of its ADSs from the NYSE in the foreseeable future. The Company is in compliance with the Sarbanes-Oxley Act in all material respects.
 
Section 3.18.  Tax Status.  Except as may be disclosed in the SEC Documents, the Company and each of its Subsidiaries (a) 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 (b) has paid all material Taxes and other governmental assessments and charges shown or determined to be due on such Returns, except those being contested in good faith or will be contested in good faith. Except as may be 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.
 
Section 3.19.  Ownership of Assets.  Except as may be disclosed in the SEC Documents, the Company and its Subsidiaries have good and marketable title to, or in the case of leased property and assets, have valid leasehold interests in, all property and assets (whether real, personal, tangible or intangible) reflected
 
 
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on the Company’s unaudited consolidated balance sheet as of March 31, 2014 or acquired thereafter, except for properties and assets sold since such date in the ordinary course of business consistent with past practices and where the failure to have such good and marketable title or valid leasehold interests would not have a Material Adverse Effect.  None of such property or assets is subject to any Encumbrance, except for Encumbrances: (a) disclosed in the SEC Documents and (b) which would not reasonably be expected to have a Material Adverse Effect.
 
Section 3.20.  Intellectual Property.  The Company and its Subsidiaries own or possess adequate rights or licenses to use all material Intellectual Property used to conduct their businesses as now conducted and as described in the SEC Documents. 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 conduct of the business of the Company and its Subsidiaries as currently conducted and as described in the SEC Documents does not infringe or otherwise violate any proprietary right or Intellectual Property of any third party, except for such infringements and other violations which would not have a Material Adverse Effect. There is no Proceeding pending or, to the knowledge of the Company, threatened against the Company or any Subsidiary: (i) alleging any such infringement or other violation of any third party’s proprietary rights; or (ii) challenging the Company’s or any Subsidiary’s ownership or use of, or the validity or enforceability of any material Intellectual Property owned by the Company or its Subsidiaries, except for any Proceeding that, if resolved in an adverse manner to the Company or its Subsidiaries would not have a Material Adverse Effect.
 
Section 3.21.  Variable Interest Entities.  The Company controls its variable interest entity, Beijing 58 Information Technology Co., Ltd., through a series of contractual arrangements (“Control Contracts”), and there is no enforceable agreement or understanding to rescind, amend or change the nature of such captive structure or the terms of the Control Contracts, except as may be disclosed in the SEC Documents.
 
Section 3.22.  Transactions with Affiliates and Employees.  All related party transactions required to be disclosed under applicable rules of the NYSE or the Securities Act have been accurately described in the SEC Documents in all material respects.  Any such related party transaction was entered into on terms and conditions no less favorable to the Company or its applicable Subsidiary than those applicable in comparable transactions between independent parties acting at arm’s length.
 
Section 3.23.  Solvency.  Both before and after giving effect to the transactions contemplated by the Transaction Documents, each of the Company and its Subsidiaries (a) will be solvent (in that both the fair value of its assets
 
 
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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 (b) will have adequate capital and liquidity with which to engage in the their businesses as currently conducted and as described in the SEC Documents.
 
Section 3.24.  Brokers and Finders.  Neither the Company nor any of its Subsidiaries is a party to any agreement, arrangement or understanding with any investment banker, broker, finder or other intermediary that would give rise to any valid right, interest or claim against or upon the Purchaser or the Company for any brokerage commission, finder’s fee or other similar compensation, as a result of the transactions contemplated by the Transaction Documents.
 
 
ARTICLE 4
Representations and Warranties of The Purchaser
 
The Purchaser represents and warrants to the Company as of the date hereof and as of the Closing Date that:
 
Section 4.01. Organization.  The Purchaser is duly incorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation and has the requisite corporate power and authorization to own, lease and operate its properties and to carry on its business as now being conducted.
 
Section 4.02. Authorization; Enforcement; Validity.  The Purchaser has the requisite corporate power and authority to execute and deliver this Agreement and the other Transaction Documents and perform its obligations under this Agreement and the other Transaction Documents in accordance with the terms hereof. The execution, delivery and performance of this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by all requisite corporate action by the Purchaser and no other filing, consent or authorization on the part of the Purchaser is necessary to authorize or approve this Agreement or the other Transaction Documents or to consummate the transactions contemplated hereby or thereby. This Agreement and the other Transaction Documents have been or will be duly executed and delivered by the Purchaser, and, assuming the due authorization, execution and delivery by the Company, constitutes a legal, valid and binding obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms, subject to the Bankruptcy Exception.
 
Section 4.03.  No Conflicts.  The execution, delivery and performance by the Purchaser of this Agreement and the other Transaction Documents and the consummation by the Purchaser of the transactions contemplated hereby and thereby will not (a) result in a violation of the organizational or constitutional
 
 
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documents of the Purchaser, (b) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any Contract to which the Purchaser is a party, or (c) result in a violation of any Applicable Law to the Purchaser or by which any property or asset of the Purchaser is bound or affected, except in the case of clauses ‎(b) and ‎(c) above, for such violations which would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Purchaser to perform its obligations hereunder.
 
Section 4.04. Consents.  The execution, delivery and performance of this Agreement and the other Transaction Documents by the Purchaser require no (a) consent, approval, authorization, action or order of, any exemption by, any notice to, or any filing or registration with, any Governmental Authority or (b) any consent, approval or authorization from or any waiver by any third party pursuant to any Contract to which it is a party, in each case, as would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Purchaser to perform its obligations hereunder.
 
Section 4.05. Status and Investment Intent of the Purchaser.
 
(a)      The Purchaser is not a “U.S. person” within the meaning of of Regulation S under the Securities Act and is acquiring the Issued Shares in an offshore transaction under Rule 903 of Regulation S under the Securities Act.
 
(b)      The Purchaser (i) has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks involved in purchasing the Issued Shares and (ii) is capable of bearing the economic risk of the Investment.
 
(c)      The Purchaser is acquiring the Issued Shares for its own account and not with a view towards, or for resale in connection with, the public sale or distribution thereof, except pursuant to sales registered or exempted under the Securities Act.
 
(d)      The Purchaser acknowledges and affirms that, with the assistance of its advisors, it has conducted and completed its own investigation, analysis and evaluation related to the investment in the Issued Shares.
 
 
ARTICLE 5
Covenants
 
Section 5.01.  Interim Conduct; Further Assurances.
 
 
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(a)      From the date hereof until the Closing Date, the Company shall, and shall cause each of its Subsidiaries to, (i) conduct its business and affairs in the ordinary course of business consistent with past practice, (ii) not take any action, or omit to take any action, that would reasonably be expected to make (x) any of its representations and warranties in this Agreement untrue, or (y) any of the conditions for the benefit of the Purchaser set forth in ‎Article 6 not to be satisfied, in each case, at, or as of any time before, the Closing Date.
 
(b)      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 Purchaser 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.
 
(c)      Each party hereto shall use its respective best efforts to promptly fulfill or obtain the fulfillment of the conditions precedent to the consummation of the transactions contemplated by this Agreement, including the execution and delivery of any documents, certificates, instruments or other papers that are required for the consummation of such transactions, and will cooperate and consult with the other and use its best efforts to prepare and file all necessary documentation, to effect all necessary applications, notices, petitions, filings and other documents, and to obtain all necessary Permits of, or any exemption by, all Governmental Authorities, necessary or advisable to consummate the transactions contemplated by this Agreement. After the Closing Date, each party shall execute and deliver such further certificates, agreements and other documents and take such other actions as the other party may reasonably request to consummate or implement any applicable transactions contemplated hereby or to evidence any relevant events or matters.
 
(d)      Without limiting the generality of the foregoing, the Company agrees that from the date hereof until the Closing Date, it shall not make (or otherwise enter into any Contract with respect to) (x) any material change in any method of accounting or accounting practice by the Company or any of its Subsidiaries; (y) any declaration, setting aside or payment of any dividend or other distribution with respect to any Securities of the Company or any of its Subsidiaries (except for dividends or other distributions by any Subsidiary to the
 
 
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Company or to any of the Company’s wholly owned Subsidiaries) or (z) any redemption, repurchase or other acquisition of any share capital of the Company or any of its Subsidiaries, except in each case for the avoidance of doubt as contemplated by the Transaction Documents.
 
Section 5.02. Public Disclosure.  Each party hereto agrees to consult with the other parties hereto before issuing or making, and to provide each other reasonable prior opportunity to review, comment upon and concur with, and use all reasonable efforts to agree on, any press release, public statement or disclosure with respect to this Agreement or the other Transaction Documents or the transactions contemplated hereby or thereby, and further agrees not to issue any such press release, public statement or disclosure without the prior written consent of the other parties; provided that a party may without the prior written consent of the other parties issue any such press release, public statement or disclosure if such party has used reasonable efforts to consult with the other parties and to obtain the consent of such other parties but has been unable to do so prior to the time such press release or public statement or disclosure is required to be released pursuant to Applicable Law or any listing agreement with any national securities exchange including the NYSE or HKSE, provided that such party has also notified the other parties in writing of the details and content of the press release or public statement or disclosure to be released reasonably in advance of such release.
 
Section 5.03.  Listing of Securities.  The Company shall (a) 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 (b) at its own cost file with the NYSE a supplemental listing application in respect of the Issued Shares.
 
Section 5.04.  Reservation of Shares.  The Company shall ensure that it has sufficient number of duly authorized Ordinary Shares at the Closing to comply with its obligations to issue the Issued Shares.
 
Section 5.05. Director Appointment.  The Company shall take all necessary or desirable actions as may be required under Applicable Law and in accordance with its Memorandum and Articles to cause the individual designated by the Purchaser as the initial Purchaser Director to be appointed to the Board at the Closing.
 
Section 5.06. Use of Proceeds.  The Company shall use the proceeds of the Subscription Price as follows:
 
(a)      Upon receipt by the Company of the Subscription Price, it shall promptly repurchase (the “Repurchase”) from certain existing shareholders of
 
 
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the Company (“Sellers”) certain of their Ordinary Shares (“Repurchase Shares”) pursuant to a repurchase agreement (“Repurchase Agreement”) to be entered into on the date hereof between the Sellers and the Company, which Repurchase Agreement shall provide that, among other things, (i) the Sellers shall only be required to provide customary representations regarding its authorization of the Repurchase, valid organization, title to the Repurchase Shares and compliance with other instruments and agreements, (ii) concurrently with the Repurchase, the Company and the Sellers shall take any and all actions required to promptly cancel all of the Repurchase Shares and (iii) the closing of the Repurchase shall occur substantially concurrently with the Closing.
 
(b)      The Company shall use the remainder of the proceeds of the Subscription Price for general corporate purposes, including without limitation potential mergers, acquisitions and investments.
 
Section 5.07.  No Integrated Offering.  The Company shall not, and shall cause its Affiliates and any Person acting on its or their behalf not to, directly or indirectly, make any offers or sales of any security or solicit any offers to buy any security, under circumstances that would require registration of the issuance of any of the Issued Shares under the Securities Act whether through integration with prior offerings or otherwise.
 
 
ARTICLE 6
Conditions to Closing
 
Section 6.01. Conditions to Obligations of All Parties.  The obligations of each party hereto to consummate the Closing are subject to the satisfaction of the following conditions:
 
(a)      No provision of any Applicable Law or no Judgment entered by or with any Governmental Authority with competent jurisdiction, shall be in effect that enjoins, prohibits or materially alters the terms of the transactions contemplated by the Transaction Documents.
 
(b)      No Proceeding challenging any Transaction Document or the transactions contemplated hereby and thereby, or seeking to prohibit, alter, prevent or materially delay the Closing, shall have been instituted or be pending before any Governmental Authority.
 
Section 6.02.  Conditions to Obligation of the Purchaser.  The obligation of the Purchaser to consummate the Closing is subject to the satisfaction of the following further conditions:
 
 
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(a)      (i) The Fundamental Company Representations and Warranties shall be true and correct in all respects on and as of the Closing Date as though made on and as of the Closing Date; (ii) the representations and warranties of the Company (other than the Fundamental Company Representations) that are qualified by materiality or Material Adverse Effect shall be true and correct in all respects on and as of the Closing Date as though made on and as of the Closing Date; (iii) the representations and warranties of the Company (other than the Fundamental Company Representations) that are not qualified by materiality or Material Adverse Effect shall be true and correct in all material respects on and as of the Closing Date as though made on and as of the Closing Date; (iv) the Company shall have performed or complied with all obligations and conditions in this Agreement required to be performed or complied with by the Company on or prior to the Closing Date; (v) there shall have been no Material Adverse Effect; and (vi) the Purchaser shall have received a certificate signed by an authorized officer of the Company to the foregoing effect.
 
(b)      The Company shall have procured that the Purchaser Director be appointed or elected as a director of the Board at the Closing, and the Purchaser shall have received a duly certified true and complete copy of the register of directors of the Company, evidencing such appointment.
 
(c)      The Purchaser shall have received an opinion, dated the Closing Date, of Conyers Dill & Pearman, Cayman Islands counsel for the Company, in form and substance reasonably satisfactory to the Purchaser.
 
(d)      The Purchaser shall have received an opinion, dated the Closing Date, of Han Kun Law Offices, PRC counsel for the Company, in form and substance reasonably satisfactory to the Purchaser.
 
(e)      The Purchaser shall have received all documents referred to in ‎Section 5.01(b), and the FPI Exemption shall be in effect.
 
(f)      The Company and any other parties thereto shall have duly executed and delivered the Investor Rights Agreement and the Director Indemnity and the Purchaser shall have received such executed counterparts thereof.
 
(g)      The Company shall have duly executed and delivered the Business Cooperation Agreement and the Purchaser shall have received such executed counterparts thereof.
 
(h)      The Repurchase shall consummate, or shall have been consummated, substantially concurrently with the Closing.
 
 
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Section 6.03.  Conditions to Obligation of the Company.  The obligations of the Company to consummate the Closing are subject to the satisfaction of the following further conditions:
 
(a)      The representations and warranties of the Purchaser in this Agreement shall be true and correct on and as of the Closing Date as though made on and as of the Closing Date.
 
(b)      The Purchaser shall have performed all obligations and conditions herein required to be performed or observed by the Purchaser on or prior to the Closing Date.
 
(c)      The Purchaser shall have duly executed and delivered the Business Cooperation Agreement, and the Company shall have received such executed counterparts thereof.
 
 
ARTICLE 7
Survival; Indemnification
 
Section 7.01.  Survival.
 
(a)      The Fundamental Company Representations shall survive indefinitely or until the latest date permitted by law. The Tax Representations shall survive until the expiration of any applicable statute of limitations with respect thereto. All representations and warranties of the Company contained in this Agreement, other than the Fundamental Company Representations and the Tax Representations, shall survive the Closing until the second anniversary of the Closing Date.
 
(b)      The covenants and agreements of the parties contained in this Agreement or in any certificate or other writing delivered pursuant hereto or in connection herewith shall survive the Closing indefinitely or for the shorter period explicitly specified therein, except that for such covenants and agreements that survive for such shorter period, breaches thereof shall survive indefinitely or until the latest date permitted by law.
 
(c)      Notwithstanding anything to the contrary in the foregoing clauses, (i) any breach of representation or warranty in respect of which indemnity may be sought under this Agreement shall survive the time at which it would otherwise terminate pursuant to the preceding sentences, if notice of the inaccuracy or breach thereof giving rise to such right of indemnity shall have been given to the party against whom such indemnity may be sought prior to such time and (ii) any breach of representation or warranty in respect of which indemnity may be
 
 
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sought that was caused as a result of fraud or intentional misrepresentation shall survive indefinitely or until the latest date permitted by law.
 
Section 7.02. Indemnification.  Effective at and after the Closing, the Company hereby indemnifies and holds harmless the Purchaser, its Affiliates and its and their respective directors, officers, employees, agents, successors and assigns (the “Indemnified Parties”) against and from any and all damage, loss, liability and expense (including reasonable expenses of investigation and reasonable attorneys’ fees and expenses) (“Damages”), incurred or suffered by the Indemnified Parties arising out of any misrepresentation or breach of representation or warranty (with the amount of Damages being determined without regard to any qualification or exception contained therein relating to materiality or Material Adverse Effect or any similar qualification or standard) or breach of covenants by the Company under this Agreement; provided that (except for any breaches in respect of Fundamental Company Representations and except for the obligation of the Company to issue the Issued Shares to the Purchaser under ‎Section 2.01), (i) the Company shall not be liable under this ‎Section 7.02 unless the aggregate amount of Damages exceeds US$1,000,000 in which case the Company shall be liable for all such Damages, and (ii) the Company’s maximum liability under this ‎Section 7.02 shall not exceed the Subscription Price.
 
Section 7.03.  Third Party Claim Procedures.
 
(a)      The Indemnified Party seeking indemnification under ‎Section 7.02 agrees to give reasonably prompt notice in writing to the party against whom indemnity is sought (the “Indemnifying Party”) of the assertion of any claim or the commencement of any suit, action or proceeding by any third party (“Third Party Claim”) in respect of which indemnity may be sought under ‎Section 7.02.  Such notice shall set forth in reasonable detail such Third Party Claim and the basis for indemnification (taking into account the information then available to the Indemnified Party).  The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have actually materially and adversely prejudiced the Indemnifying Party.
 
(b)      The Indemnifying Party shall be entitled to participate in the defense of any Third Party Claim and, subject to the limitations set forth in this ‎Section 7.03, shall be entitled to control and appoint lead counsel (that is reasonably satisfactory to the Indemnified Party) for such defense, in each case at its own expense; provided that prior to assuming control of such defense, the Indemnifying Party must (i) acknowledge in writing that it would have an indemnity obligation to the Indemnified Party for the Damages resulting from such Third Party Claim and (ii) furnish the Indemnified Party with reasonable evidence that the Indemnifying Party has adequate resources to defend the Third Party Claim and fulfill its indemnity obligations hereunder.
 
 
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(c)      The Indemnifying Party shall not be entitled to assume or maintain control of the defense of any Third Party Claim and shall pay the reasonable fees, costs and expenses of counsel retained by the Indemnified Party if (i) the Indemnifying Party does not deliver the acknowledgment referred to in ‎Section 7.03(b) within thirty (30) days of receipt of notice of the Third Party Claim pursuant to ‎Section 7.03(a), (ii) the Third Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (iii) the Indemnified Party reasonably believes an adverse determination with respect to the Third Party Claim would be materially detrimental to the reputation or future business prospects of the Indemnified Party or any of its Affiliates, (iv) the Third Party Claim seeks an injunction or equitable relief against the Indemnified Party or any of its Affiliates or (v) the Indemnifying Party has failed or is failing to prosecute or defend the Third Party Claim vigorously and prudently.
 
(d)      If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of ‎Section 7.03(c), the Indemnifying Party shall obtain the prior written consent of the Indemnified Party (which shall not be unreasonably withheld) before entering into any settlement of such Third Party Claim if the settlement does not expressly unconditionally release the Indemnified Party and its Affiliates from all liabilities and obligations with respect to such Third Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party or any of its Affiliates.
 
(e)      In circumstances where the Indemnifying Party is controlling the defense of a Third Party Claim in accordance with ‎Section 7.03(c), the Indemnified Party shall be entitled to participate in the defense of any Third Party Claim and to employ separate counsel of its choice for such purpose, in which case the fees, costs and expenses of such separate counsel shall be borne by the Indemnified Party; provided that Indemnifying Party shall pay the fees, costs and expenses of such separate counsel of the Indemnified Party if (i) incurred by the Indemnified Party prior to the date the Indemnifying Party assumes control of the defense of the Third Party Claim, (ii) if representation of both the Indemnifying Party and the Indemnified Party by the same counsel would create a conflict of interest or (iii) the Indemnified Party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the Indemnifying Party.
 
(f)      Each party shall reasonably cooperate, and cause their respective Affiliates to reasonably cooperate, in the defense or prosecution of any Third Party Claim.
 
Section 7.04.  Direct Claim Procedures.  In the event an Indemnified Party has a claim for indemnity under ‎Section 7.02 against the Indemnifying Party that does not involve a Third Party Claim, the Indemnified Party agrees to give notice in writing of such claim to the Indemnifying Party.  Such notice shall set
 
 
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forth in reasonable detail such claim and the basis for indemnification (taking into account the information then available to the Indemnified Party).  The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have actually materially and adversely prejudiced the Indemnifying Party. If the Indemnifying Party does not notify the Indemnified Party within thirty (30) days following the receipt of a notice with respect to any such claim that the Indemnifying Party disputes its indemnity obligation to the Indemnified Party for any Damages with respect to such claim, such Damages shall be conclusively deemed a liability of the Indemnifying Party and the Indemnifying Party shall promptly pay to the Indemnified Party any and all Damages arising out of such claim. If the Indemnifying Party has timely disputed its indemnity obligation for any Damages with respect to such claim, the parties shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through such negotiations, such dispute shall be resolved by arbitration determined pursuant to ‎Section 9.06.
 
 
ARTICLE 8
Termination
 
Section 8.01.  Grounds for Termination.  This Agreement may be terminated at any time prior to the Closing:
 
(a)     by the mutual written consent of each party hereto;
 
(b)     by the Purchaser or the Company if the Closing shall not have occurred on or before July 15, 2014; provided that such right to terminate this Agreement shall not be available to any party whose failure to fulfill any obligation under this Agreement shall have been the cause of, or shall have resulted in, the failure of the Closing to occur on or prior to such date; or
 
(c)     by any party in the event that any Governmental Entity shall have issued a Judgment or taken any other action restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement and such Judgment or other action shall have become final and non-appealable.
 
The party desiring to terminate this Agreement pursuant to ‎Section 8.01(b) or ‎Section 8.01(c) shall give notice of such termination to the other parties hereto specifying the provision hereof pursuant to which such termination is made.
 
Section 8.02.  Effect of Termination.  In the event of termination of this Agreement, this Agreement shall forthwith become void and of no further force or effect (except for ‎Section 5.02 and ‎Article 9, which shall survive such termination) and there shall be no liability on the part of any party hereto except that nothing herein shall relieve any party from any liability for Damages for any breach of this Agreement.
 
 
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ARTICLE 9
Miscellaneous
 
Section 9.01. Notices.  All notices, requests and other communications to any party hereunder shall be in writing (including facsimile transmission and electronic mail (“e-mail”) transmission, so long as a receipt of such e-mail is requested and received) and shall be given,
 
if to the Company, to:
 
58.com Inc.
Block E, The North American International Business Center
Yi 108 Beiyuan Road, Chaoyang District,
Beijing 100101 People’s Republic of China
Attention: Mr. Hao Zhou, Chief Financial Officer
Facsimile: +86 10 6445 9926
Email: zhouhao@58.com
 
with a copy (which shall not constitute notice) to:
 
Skadden, Arps, Slate, Meagher & Flom LLP
42/F, Edinburgh Tower, The Landmark
15 Queen's Road Central
 Hong Kong
Attention: Z. Julie Gao; Will H. Cai
Fascimile: +852.3910.4863 ; +852 3910.4891
Email: julie.gao@skadden.com; will.cai@skadden.com
 
if to the Purchaser, to:
 
c/o Level 29, Three Pacific Place
1 Queen’s Road East
Wanchai, Hong Kong
Attention: Assistant General Counsel
Facsimile: +852 2420 1148
Email: richard.pu@tencent.com.hk
 
 
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with a copy (which shall not constitute notice) to:
 
Tencent Building
Kejizhongyi Avenue, Hi-tech Park
Nanshan District, Shenzhen
518057, People’s Republic of China
Attention: General Counsel
Facsimile: +86 755 8601 3090 (Ext. 82238)
Email: brentirvin@tencent.com
 
Attention: General Manager, M&A
Facsimile: +86 755 8601 3090
Email: richardpeng@tencent.com
 
and
 
Davis Polk & Wardwell
Hong Kong Club Building
3A Chater Road
Central
Hong Kong
Attention: Miranda So
Facsimile: +852 2533 1773
Email: miranda.so@davispolk.com
 
or such other address or facsimile number as such party may hereafter specify for the purpose by notice to the other parties hereto.  All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5:00 p.m. in the place of receipt and such day is a Business Day in the place of receipt.  Otherwise, any such notice, request or communication shall be deemed not to have been received until the next succeeding Business Day in the place of receipt.
 
Section 9.02.  Amendments and Waivers.  Any provision of this Agreement may be amended or waived if, but only if, such amendment or waiver is in writing and is signed, in the case of an amendment, by each party to this Agreement, or in the case of a waiver, by the party against whom the waiver is to be effective.
 
(b)      No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.
 
 
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Section 9.03. Expenses.  Except as otherwise provided herein, all costs and expenses incurred in connection with this Agreement shall be paid by the party incurring such cost or expense.
 
Section 9.04. Successors and Assigns.  The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; provided that no party may assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the consent of each other party hereto; except that the Purchaser may assign any rights or obligations hereunder to any of its Affiliates without obtaining the prior written consent of the other parties hereto.
 
Section 9.05. Governing Law.  This Agreement, the rights and obligations of the parties hereto, and all claims or disputes relating hereto, shall be governed by and construed in accordance with the law of Hong Kong, without regard to the conflicts of law rules thereunder.
 
Section 9.06.  Arbitration.   Any dispute, controversy or claim arising out of or relating to this Agreement, including, but not limited to, any question regarding the breach, termination or invalidity thereof shall be finally resolved by arbitration in Hong Kong in accordance with the administered rules (the “Rules”) of the Hong Kong International Arbitration Centre (the “HKIAC”) in force at the time of commencement of the arbitration, which Rules are deemed to be incorporated by reference into this Section. The number of arbitrators shall be three and shall be selected in accordance with the Rules.  All selections shall be made within thirty (30) days after the selecting party gives or receives, as the case may be, the demand for arbitration. The seat of the arbitration shall be in Hong Kong and the language to be used shall be English. Any arbitration award shall be (i) in writing and shall contain the reasons for the decision, (ii) final and binding on the parties hereto and (iii) enforceable in any court of competent jurisdiction, and the parties hereto agree to be bound thereby and to act accordingly.
 
Section 9.07. Counterparts; Effectiveness; Third Party Beneficiaries.  This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. Signatures in the form of facsimile or electronically imaged “PDF” shall be deemed to be original signatures for all purposes hereunder. This Agreement shall become effective when each party hereto shall have received a counterpart hereof signed by all of the other parties hereto.  Until and unless each party has received a counterpart hereof signed by the other party hereto, this Agreement shall have no effect and no party shall have any right or obligation hereunder (whether by virtue of any other oral or written agreement or other communication).  No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon
 
 
28
 
 
any Person other than the parties hereto and their respective successors and assigns.
 
Section 9.08. Entire Agreement.  This Agreement and the other Transaction Documents constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior agreements and understandings, both oral and written, between the parties with respect to the subject matter of this Agreement.
 
Section 9.09.  Severability.  If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other Governmental Authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party.  Upon such a determination, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.
 
Section 9.10.  Specific Performance.  The parties hereto agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof, in addition to any other remedy to which they are entitled at law or in equity.
 

 
 
29
 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
 
58.COM INC.
 
By:
 /s/ Jinbo Yao
 
Name:
 Jinbo Yao
 
Title:
 CEO

 

 
 
 
 


 
OHIO RIVER INVESTMENT LIMITED
 
By:
 /s/ Ma Huateng
 
Name:
 Ma Huateng
 
Title:
 Director

 


 
 
 
 
 
 EX-99.3 4 dp47736_ex9903.htm EXHIBIT 99.3
Exhibit 3
 
CONFIDENTIAL
 
Execution Version
 
 
 
 
 
INVESTOR RIGHTS AGREEMENT
 
 
dated as of June 30, 2014
 
 
among
 
 
58.COM INC.,
 
 
OHIO RIVER INVESTMENT LIMITED
 
 
and
 
 
CERTAIN OTHER PARTIES NAMED HEREIN
 
 
 
 
 
 

 
 
 
 
TABLE OF CONTENTS
 
ARTICLE 1
Definitions
 
Section 1.01.  Definitions
1
Section 1.02.  Other Definitional and Interpretative Provisions
5
   
ARTICLE 2
Corporate Governance
 
Section 2.01.  Board Representation
6
Section 2.02.  Investor Observer
7
Section 2.03.  Expenses and Indemnification.
7
Section 2.04.  No Inconsistent Amendments.
7
Section 2.05.  Actions Requiring Consent.
8
Section 2.06.  Termination of Governance Rights
8
   
ARTICLE 3
Transfer Restriction; Preemptive Rights; Registration Rights
 
Section 3.01.  Transfer Restriction.
8
Section 3.02.  Preemptive Rights
9
Section 3.03.  Termination of Rights
11
Section 3.04.  Registration Rights
11
   
ARTICLE 4
Certain Covenants and Agreements
 
Section 4.01.  Additional Founder Parties
11
Section 4.02.  Conflicting Agreements
11
Section 4.03.  Performance of Company Obligations
11
   
ARTICLE 5
Miscellaneous
 
Section 5.01.  Binding Effect; Assignability; Benefit
11
Section 5.02.  Notices
12
Section 5.01.  Severability
13
Section 5.02.  Entire Agreement
14
Section 5.03.  Counterparts
14
Section 5.04.  Descriptive Headings
14
Section 5.05.  Amendment; Termination
14
Section 5.06.  Governing Law
14
 
 
i
 
 
Section 5.07.  Arbitration
14
Section 5.08.  Expenses
15
Section 5.09.  Further Assurances
15
 
Schedules and Exhibits
 
Schedule 1
Registration Rights
Exhibit A
Form of Joinder Agreement
 
 
 
 
ii
 

INVESTOR RIGHTS AGREEMENT
 
INVESTOR RIGHTS AGREEMENT, dated as of June 30, 2014 (this “Agreement”), among (1) 58.com Inc., a company incorporated under the laws of the Cayman Islands (the “Company”), (2) Jinbo Yao (the “Founder”), (3) Nihao China Corporation (together with the Founder, the “Founder Parties”), and (4) Ohio River Investment Limited, a company organized under the laws of the British Virgin Islands (the “Investor”).
 
W I T N E S S E T H:
 
WHEREAS, pursuant to the Investment Agreement, dated as of June 27, 2014 (the “Investment Agreement”), between the Company and the Investor, the Investor will has agreed to acquire certain Company Securities (as defined below); and
 
WHEREAS, in connection with the consummation of the transactions contemplated by the Investment Agreement, the parties hereto desire to enter into this Agreement to govern certain of their rights, duties and obligations after consummation of the transactions contemplated by the Investment Agreement.
 
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree as follows:
 
 
ARTICLE 1
Definitions
 
Section 1.01.  Definitions.  (a) As used in this Agreement, the following terms have the following meanings:
 
“Adverse Person” means such Persons to be mutually agreed and designated in writing by the Investor and the Company from time to time, and including such Persons’ Affiliates, and any Person in which any of such Persons (together with their Affiliates) directly or indirectly, hold at least 50% voting interest or own at least 50% beneficial interest at any time.
 
“Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by or under common control with such Person.  For purposes of this definition, “control” when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or
 
 
 
 
 
otherwise, and the terms “controlling” and “controlled” have correlative meanings.
 
“Aggregate Ownership” means, with respect to any Person, the total number of Ordinary Share Equivalents which are, directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, held by such Person (including any of its Permitted Transferees) as of the date of such calculation.
 
“Aggregate Ownership Percentage” means, with respect to the Investor, the quotient (expressed as a percentage) obtained by dividing (i) the Aggregate Ownership held by the Investor by (ii) the Aggregate Ownership of all holders of Ordinary Shares.
 
“Applicable Law” means, with respect to any Person, any transnational, domestic or foreign federal, state or local law (statutory, common or otherwise), constitution, treaty, convention, ordinance, code, rule, regulation, order, injunction, judgment, decree, ruling or other similar requirement enacted, adopted, promulgated or applied by a Governmental Authority that is binding upon or applicable to such Person, as amended unless expressly specified otherwise.
 
“Board” means the board of directors of the Company.
 
“Business Day” means a day, other than Saturday, Sunday or other day on which commercial banks in New York, New York, the Cayman Islands, Hong Kong or the PRC are authorized or required by Applicable Law to close.
 
“Change of Control” means the occurrence of (i) the consummation of any transaction or series of related transactions (including, without limitation, any merger, consolidation or other business combination), the result of which is that any Person or group becomes the beneficial owner, directly or indirectly, of more than 50% of the then outstanding number of shares of the Company’s Ordinary Share Equivalents or voting rights; (ii) the consummation of any transaction or series of related transactions (including, without limitation, any merger, consolidation or other business combination), the result of which is that any Person or group acquires the power to appoint and/or remove all or the majority of the members the Board, in each case whether obtained directly or indirectly, and whether obtained by ownership of capital, the possession of voting rights, contract or otherwise; (iii) any sale or disposition, directly or indirectly, of all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole; or (iv) an exclusive licensing of all or substantially all of the intellectual property of the Company and its Subsidiaries to any third party.
 
 
2
 
 
“Class A Shares” means Class A ordinary shares, par value US$0.00001 per share, in the share capital of the Company.
 
“Class B Shares” means the Class B ordinary shares, par value US$0.00001 per share, in the share capital of the Company.
 
“Closing” means the consummation of the transactions contemplated by the Investment Agreement.
 
“Company Securities” means (i) Ordinary Shares, (ii) securities convertible into or exchangeable for Ordinary Shares, (iii) any options, warrants or other rights to acquire Ordinary Shares and (iv) any depository receipts or similar instruments issued in respect of Ordinary Shares.
 
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, and any rules and regulations promulgated thereunder.
 
“Existing Shareholders Agreement” means the Amended and Restated Shareholders’ Agreement dated August 4, 2011 by and among the Company and certain other parties named therein.
 
“Governmental Authority” means any international, domestic or foreign federal, state or local governmental, regulatory or administrative authority, department, court, agency or official, including any political subdivision thereof.
 
“Hong Kong” means the Hong Kong Special Administrative Region of the PRC.
 
“Initial Investor Ownership Percentage” means the quotient (expressed as a percentage) obtained by dividing (i) the Aggregate Ownership of the Investor as of the date of such calculation by (ii) the Aggregate Ownership of the Investor as of the Closing (as proportionally adjusted to give effect to any stock split, stock dividend, recapitalization or any similar transaction after the Closing).
 
 “Memorandum and Articles” means the Memorandum and Articles of Association of the Company in effect from time to time.
 
 “Ordinary Share Equivalents” means (i) with respect to Ordinary Shares, the number of Ordinary Shares and (ii) with respect to any Company Securities that are convertible into or exchangeable for Ordinary Shares, the number of Ordinary Shares issuable in respect of the conversion or exchange of such securities into Ordinary Shares.
 
“Ordinary Shares” means the Class A Shares and the Class B Shares, and any other security into which such Ordinary Shares may hereafter be converted or changed.
 
 
3
 
 
“Person” means an individual, corporation, partnership, limited liability company, association, trust or other entity or organization, including a Government Entity.
 
“PRC” means the People’s Republic of China, but, for the purposes of this Agreement, shall not include Hong Kong, the Macau Special Administrative Region or Taiwan.
 
“Securities” means any shares, stocks, debentures, funds, bonds, notes or any rights, warrants, options or interests in respect of any of the foregoing or any other derivatives or instruments having similar economic effect.
 
“Securities Act” means the U.S. Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
 
“Shareholder” means at any time, any Person who is a record holder of Company Securities.
 
“Subsidiary” means any entity of which a majority of the outstanding equity securities or other ownership interests representing a majority of the outstanding equity interests or otherwise having ordinary voting power to elect a majority of the board of directors or other Persons performing similar functions are at the time directly or indirectly owned by the Company. For the avoidance of doubt, the Subsidiaries of the Company shall include any variable interest entity over which the Company or any of its Subsidiaries effects control pursuant to contractual arrangements and which is consolidated with the Company in accordance with generally accepted accounting principles applicable to the Company.
 
“Third Party” means, with respect to a proposed Transfer of Company Securities by a Person, any Person who is not a Permitted Transferee of such Person.
 
“Transaction Documents” mean this Agreement, the Investment Agreement, and each of the other agreements and documents entered into or delivered by the parties hereto in connection with the transactions contemplated by the Investment Agreement.
 
“Transfer” means, with respect to any Company Securities, (i) when used as a verb, to, directly or indirectly, sell, assign, dispose of, exchange, pledge, encumber, hypothecate or otherwise transfer such Company Securities or any participation or interest therein, whether directly or indirectly (including pursuant to a derivative transaction or a transfer of ownership or beneficial interests in a direct or indirect holder of such Company Securities), or agree or commit to do any of the foregoing and (ii) when used as a noun, a direct or indirect sale,
 
 
4
 
 
assignment, disposition, exchange, pledge, encumbrance, hypothecation, or other transfer of such Company Securities or any participation or interest therein or any agreement or commitment to do any of the foregoing.
 
“U.S.” means the United States of America.
 
(b) Each of the following terms is defined in the Section set forth opposite such term:
 
Term
Section
Agreement
Preamble
Cause
‎2.01(d)
Company
Preamble
Exercise Notice
‎3.02(b)
Founder
Preamble
Founder Parties
Preamble
HKIAC
‎5.07
Investor Director
‎‎2.01(a)
Investor Observer
‎2.02
Issuance Notice
‎3.02
Permitted Transferee
‎4.01
Rules
‎5.07
Investment Agreement
Preamble
Subject Securities
‎3.02
Subscriber
‎3.02

Section 1.02.  Other Definitional and Interpretative Provisions.  The words “hereof”, “herein” and “hereunder” and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.  The captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof.  References to Articles, Sections, Clauses, Annexes, Exhibits and Schedules are to Articles, Sections, Clauses, Exhibits and Schedules of this Agreement unless otherwise specified.  All Annexes, Exhibits and Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein.  Any capitalized terms used in any Exhibit or Schedule but not otherwise defined therein, shall have the meaning as defined in this Agreement.  Any singular term in this Agreement shall be deemed to include the plural, and any plural term the singular.  Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”, whether or not they are in fact followed by those words or words of like import.  “Writing”, “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form.  References to any Person include the successors and permitted assigns of that Person.  References from or through
 
 
5
 
 
any date mean, unless otherwise specified, from and including or through and including, respectively.  References to “law”, “laws” or to a particular statute or law shall be deemed also to include any and all Applicable Law.  References to any statute shall be deemed to refer to such statute as amended from time to time and to any rules or regulations promulgated thereunder.  References to “dollars” or “$” shall refer to U.S. dollars.  References from or through any date mean, unless otherwise specified, from and including or through and including, respectively.
 
 
ARTICLE 2
Corporate Governance
 
Section 2.01.  Board Representation. (a) The Investor shall be entitled to designate one (1) director to the Board (such director, or such other individual who may be designated by the Investor from time to time, the “Investor Director”), and the Company shall promptly cause, and the Founder Parties shall promptly take actions to support and otherwise agree not take any action to prevent, the appointment or election of such Investor Director to the Board, including, convening a meeting of the Board pursuant to the Memorandum and Articles and appointing such Investor Director to the Board, and in the case of an election, (i) nominating such individual to be elected as a director as provided herein, (ii) recommending to the Shareholders the election of such Investor Director to the Board in any meeting of Shareholders to elect directors, (iii) including such nomination and recommendation regarding such individual in the Company’s notice for any meeting of Shareholders to elect directors and (iv) if necessary, expanding the size of the Board in order to appoint the Investor Director.
 
(b) In the event of the death, disability, retirement or resignation of the Investor Director (or any other vacancy created by removal thereof), the Investor shall have the exclusive right to designate a replacement to fill such vacancy and serve on the Board, and the Company shall cause the Board to appoint such individual to the Board (who shall, following such appointment, be the Investor Director for purposes of this Agreement).  Each Founder Party shall take actions to support, and otherwise agrees not to take any action to prevent, any such appointment.
 
(c) At any meeting of the Board or any annual general or other meeting of the Shareholders that may be held from time to time at which the Investor Director is up for re-appointment to the Board, the Company shall cause the Board to re-appoint the Investor Director to serve on the Board and shall use best efforts to ensure that the Investor Director is re-appointed by the Shareholders to the Board pursuant to the terms of the Memorandum and Articles and any
 
 
6
 
 
Applicable Law, and the Founder Parties shall not take any action to prevent the re-appointment of such Investor Director to the Board.
 
(d) Each Founder Party agrees that, if at any time it is then entitled to vote for the removal of directors from the Board, it shall not vote, or cause to be voted, or execute proxies or written consents, as the case may be, and the Company agrees that it shall not take any action, in favor of the removal of the Investor Director unless such removal shall be for Cause.  Removal for “Cause” shall mean removal of a director because of such director’s (i) willful misconduct that is materially injurious, monetarily or otherwise, to the Company or any of its Subsidiaries, (ii) conviction for, or guilty plea to, a felony or a crime involving moral turpitude or (iii) abuse of illegal drugs or other controlled substances or habitual intoxication.
 
Section 2.02.  Investor Observer.  If at any time the Investor Director is not a member of any committee of the Board (including without limitation, the audit committee, the compensation committee and the nominating and corporate governance committee), the Investor Director shall have the right, as a non-voting observer to any such committee of the Board (acting in such capacity, the “Investor Observer”), to attend all meetings of, observe all deliberations of, and receive copies of materials provided to, any such committees, provided that such Investor Observer shall have no voting rights with respect to actions taken or elected not to be taken by any such committees; provided further that the chairman of such committee of the Board may, at his or her discretion, exclude the Investor Observer from certain meetings of such committee or portions thereof if such chairman believes in good faith that excluding the Investor Observer from such meetings is appropriate or necessary (and in such case, for the avoidance of doubt, also not provide copies of any materials provided to any such committees in connection with such meetings or portions thereof).
 
Section 2.03.  Expenses and Indemnification. The Company agrees to reimburse the Investor Director for all reasonable out-of-pocket expenses incurred in connection with the performance of his or her services as an Investor Director, including without limitation reasonable out-of-pocket expenses incurred in attending meetings of the Board or any committee thereof, to the same extent as other members of the Board, and the Company shall indemnify and hold harmless the Investor Director under indemnification arrangements and director and officer insurance coverage equivalent to such arrangements and insurance coverage applicable to all non-employee directors of the Company or to which all non-employee directors of the Company are entitled to receive.
 
Section 2.04.  No Inconsistent Amendments. For so long as the Investor has the right to designate an Investor Director and except as otherwise required by Applicable Law, the Company shall not amend its Memorandum and Articles in any manner (or take any similar action), and the Founder Parties agree not to take
 
 
7
 
 
any action, that would adversely affect in any material respect the Investor’s rights under this ‎Article 2 or the Company’s ability to comply with its obligations under this ‎Article 2.
 
Section 2.05.  Actions Requiring Consent. Without the prior written approval of the Investor, to the extent permitted by Applicable Law, (x) the Company shall not take, and shall cause each of its Subsidiaries not to take, any action (including any action by its board of directors or any committee thereof or any action at a meeting of their shareholders or otherwise) with respect to, (y) each of the Founder Parties shall not vote any of their Company Securities or execute proxies or written consents, as the case may be, in favor of (as applicable), any of the following matters:
 
(a) any Change of Control with, involving or to any Adverse Person;
 
(b) any issuance of Company Securities or any equity securities by any Subsidiary of the Company to any Adverse Person other than an issuance of such Company Securities in an underwritten public offering; or
 
(c) approve, authorize or enter into any agreement with respect to any of the foregoing.
 
Section 2.06.  Termination of Governance Rights.  In the event that, any time after the date hereof, the Initial Investor Ownership Percentage is less than 50%, the Investor’s rights under this ‎Article 2 shall automatically terminate and be of no further force and effect.
 
 
ARTICLE 3
Transfer Restriction; Preemptive Rights; Registration Rights
 
Section 3.01.  Transfer Restriction.
 
(a) Without the Investor’s prior written consent, each Founder Party hereby agrees that during the period beginning on the date hereof and ending on the date that is the third anniversary of the date hereof, it shall not Transfer any Company Securities held by any Founder Party to an Adverse Person, including for the avoidance of doubt any Transfer effected through a repurchase or redemption of a Founder Party’s Company Securities and the issuance of Company Securities to such Adverse Person or any similar structure (or otherwise authorize, enter into any agreement, understanding or commitment with respect thereto), but not including any sale by a Founder Party of Company Securities in an underwritten public offering or on the open market on the New York Stock Exchange. Any attempt to Transfer any Company Securities not in compliance with this Section shall be null and void, and the Company shall not, and shall
 
 
8
 
 
cause any transfer agent or registrar not to, give any effect in the Company’s share register or equivalent documents to such attempted Transfer, and no party hereto, including the Company, shall otherwise recognize any such Transfer, sale or issuance or change in beneficial ownership of the Company.
 
(b) The Investor’s consent right in ‎Section 3.01(a) shall automatically terminate and be of no further force and effect if at any time after the date hereof until the date that is the third anniversary of the date hereof, it Transfers any Company Securities owned as of the date hereof to any Person other than an Affiliate of Tencent Holdings Limited.
 
Section 3.02.  Preemptive Rights.  (a) Subject to ‎Section 3.02(e), the Company shall, or shall cause its Subsidiaries, as the case may be, to give the Investor notice (an “Issuance Notice”) of any proposed issuance by the Company of any Company Securities (together, “Subject Securities”) at least ten Business Days prior to the proposed issuance date. The Issuance Notice shall specify the price at which such Subject Securities are to be issued, the Person to which the Subject Securities shall be issued (the “Subscriber”) and the other material terms of the issuance.  Subject to ‎Section 3.02(e), the Investor shall be entitled to purchase up to an amount equal to its Aggregate Ownership Percentage (determined immediately before giving effect to the issuance) multiplied by the Subject Securities proposed to be issued, at the price and on the terms specified in the Issuance Notice.
 
(b) The Investor may elect to purchase any or all of the amount equal to its Aggregate Ownership Percentage multiplied by the Subject Securities specified in the Issuance Notice by delivering written notice to the Company (each, an “Exercise Notice”) of its election to purchase such Subject Securities within ten Business Days following receipt of the Issuance Notice, specifying the number (or amount) of Subject Securities to be purchased by the Investor and shall constitute exercise by the Investor of its rights under this Section and a binding agreement of the Investor to purchase, at the price and on the terms specified in the Issuance Notice, the number (or amount) of Subject Securities specified in the Exercise Notice.  If, at the termination of such ten-Business-Day period, the Investor shall not have delivered an Exercise Notice to the Company, the Investor shall be deemed to have waived all of its rights under this ‎Section 3.02 with respect to the purchase of such Subject Securities.
 
(c) The Company or the applicable Subsidiary, as the case may be, shall have ninety days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such Subject Securities that the Investor has not elected to purchase to the Subscriber at the price and upon terms that are not less favorable to the Company or such Subsidiary, as the case may be, than those specified in the Issuance Notice; provided that, if such issuance is subject to regulatory approval, such 90-day period shall be extended until the expiration of
 
 
9
 
 
five (5) Business Days after all such approvals have been received.  If the Company or the applicable Subsidiary, as the case may be, proposes to issue any such Subject Securities after such 90-day period, it shall again comply with the procedures set forth in this ‎Section 3.02.
 
(d) At the consummation of the issuance of such Subject Securities, the Company shall issue upon the written request of the Investor, certificates representing the Subject Securities to be purchased by the Investor registered in the name of the Investor, against payment by the Investor of the purchase price for such Subject Securities in accordance with the terms and conditions as specified in the Issuance Notice.
 
(e) Notwithstanding the foregoing, the Investor shall not be entitled to purchase Subject Securities as contemplated by this ‎Section 3.02 in connection with:
 
(i) any grant of options, restricted shares, performance units or the issuance of any Subject Securities pursuant to the exercise of share options, restricted shares or performance units granted (whether prior to, on or after the date of this Agreement), pursuant to any duly approved equity compensation, share purchase or share option plans of the Company in effect from time to time established for the purpose of retaining and compensating employees, consultants, directors and other service providers of the Company, provided that at the time of such issuance, the aggregate of all such issuances of Subject Securities under this subsection in the preceding 12 month-period does not represent an amount exceeding 20% of the then total outstanding share capital of the Company;
 
(ii) Subject Securities issued or issuable in connection with a bona fide business acquisition by the Company or its Subsidiaries with a third party whether by merger, consolidation, sale of assets, sale or exchange of shares or otherwise; provided that at the time of such issuance, the aggregate of all such issuances of Subject Securities under this subsection in the preceding 12 month-period does not represent an amount exceeding 20% of the then total outstanding share capital of the Company;
 
 
10
 
 
(iii) Subject Securities issued or issuable to Persons with which the Company has bona fide business relations provided that the primary purpose for such issuances is not equity financing; provided further that at the time of such issuance, the aggregate of all such issuances of Subject Securities under this subsection in the preceding 12 month-period does not represent an amount exceeding 1% of the then total outstanding share capital of the Company.
 
Section 3.03.  Termination of Rights.  In the event that, any time after the date hereof, the Initial Investor Ownership Percentage is less than 50%, the Investor’s rights under ‎Section 3.02 shall automatically terminate and be of no further force and effect.
 
Section 3.04.  Registration Rights.  The Investor shall have the rights, and the Company shall have the obligations, set forth in Schedule 1 hereto, provided that the rights of the Investor under Clauses ‎3, 4 and ‎5 of Schedule 1 shall terminate and be of no further force and effect at the earlier of (x) the fifth anniversary of the date hereof and (y) such time at which all Registrable Securities held by the Investor (and any Associate of the Investor with whom the Investor must aggregate its ales under Rule 144 of the Securities Act) proposed to be sold may be sold under Rule 144 of the Securities Act in any ninety (90)-day period without registration in compliance with Rule 144 of the Securities Act.
 
 
ARTICLE 4
Certain Covenants and Agreements
 
Section 4.01.  Additional Founder Parties.  Each of the Investor and each Founder Party agrees to cause any Affiliate to which it has validly Transferred any Company Securities on or after the date of this Agreement in compliance with the terms of this Agreement (and who is not a party hereto) to execute and deliver to the Company and each other party hereto, a Joinder Agreement in the form of Exhibit A hereto (each such Transferee, a “Permitted Transferee”).
 
Section 4.02.  Conflicting Agreements.  The Company and each Founder Party agrees that it shall not enter into any agreement or arrangement of any kind with any Person with respect to any Company Securities inconsistent with the provisions of this Agreement or for the purpose or with the effect of denying or reducing the rights of the Investor under this Agreement.
 
Section 4.03.  Performance of Company Obligations.  Without limitation of any provision of this Agreement, the Founder Parties shall (to the extent possible) vote Company Securities held by such Founder Parties to support the Company to perform and comply with its obligations under this Agreement.
 
 
ARTICLE 5
Miscellaneous
 
Section 5.01.  Binding Effect; Assignability; Benefit.  (a) This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, successors, legal representatives and permitted assigns.
 
 
11
 
 
(b) Neither this Agreement nor any right, remedy, obligation or liability arising hereunder or by reason hereof shall be assignable by any party without the prior written consent of the other parties hereto; provided that except as otherwise specified herein, the Investor may assign any right, remedy, obligation or liability arising under this Agreement or by reason hereof to any of its Affiliates that executes and delivers to each party hereto a Joinder Agreement in the form of Exhibit A hereto.
 
(c) Nothing in this Agreement, expressed or implied, is intended to confer on any Person other than the parties hereto, and their respective heirs, successors, legal representatives and permitted assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement.
 
(d) For the avoidance of doubt, the Founder Parties agree that each of their obligations hereunder shall be joint and several with each other.
 
Section 5.02.  Notices.  All notices, requests and other communications to any party hereunder shall be in writing (including facsimile transmission and electronic mail (“e-mail”) transmission, so long as a receipt of such e-mail is requested and received) and shall be given,
 
if to the Company, to:
 
58.com Inc.
Block E, The North American International Business Center
Yi 108 Beiyuan Road, Chaoyang District,
Beijing 100101 People’s Republic of China
Attention: Mr. Hao Zhou, Chief Financial Officer
Facsimile: +86 10 6445 9926
Email: zhouhao@58.com
 
with a copy (which shall not constitute notice) to:
 
Skadden, Arps, Slate, Meagher & Flom LLP
42/F, Edinburgh Tower, The Landmark
15 Queen's Road Central
Hong Kong
Attention: Z. Julie Gao/ Will H. Cai
Fascimile: +852.3910.4850
Email: julie.gao@skadden.com; will.cai@skadden.com
 
if to the Investor, to
 
c/o Level 29, Three Pacific Place
1 Queen’s Road East
Wanchai, Hong Kong
 
 
12
 
 
Attention: Assistant General Counsel
Facsimile: +852 2420 1148
Email: richard.pu@tencent.com.hk
 
with a copy (which shall not constitute notice) to:
 
Tencent Building
Kejizhongyi Avenue, Hi-tech Park
Nanshan District, Shenzhen
518057, People’s Republic of China
Attention: General Counsel
Facsimile: +86 755 8601 3090 (Ext. 82238)
Email: brentirvin@tencent.com
 
Attention: General Manager, M&A
Facsimile: +86 755 8601 3090
Email: richardpeng@tencent.com
 
and
 
Davis Polk & Wardwell
Hong Kong Club Building
3A Chater Road
Central
Hong Kong
Attention: Miranda So
Facsimile: +852 2533 1773
Email: miranda.so@davispolk.com
 
or such other address or facsimile number as the parties may hereafter specify by notice to the other parties hereto.  All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5:00 p.m. in the place of receipt and such day is a Business Day in the place of receipt.  Otherwise, any such notice, request or communication shall be deemed not to have been received until the next succeeding Business Day in the place of receipt.
 
Section 5.01.  Severability.  If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other Governmental Authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party.  Upon such a determination, the parties shall negotiate in good faith to modify this Agreement
 
 
13
 
 
so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.
 
Section 5.02.  Entire Agreement.  This Agreement and the other Transaction Documents constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior agreements and understandings, both oral and written, between the parties with respect to the subject matter of this Agreement.
 
Section 5.03.  Counterparts.  This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon 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 5.04.  Descriptive Headings.  The descriptive headings of this Agreement are inserted for convenience only and do not constitute a part of this Agreement.
 
Section 5.05.  Amendment; Termination.  (a) The provisions of this Agreement may be amended or modified only upon the prior written consent of all parties hereto.  The failure of any party to enforce any of the provisions of this Agreement shall in no way be construed as a waiver of such provisions and shall not affect the right of such party thereafter to enforce each and every provision of this Agreement in accordance with its terms.
 
(b) This Agreement shall terminate and be of no further force and effect upon the Investor and its Affiliates ceasing to own any Company Securities acquire; provided that the provisions of this Article shall survive any termination of this Agreement.
 
Section 5.06.  Governing Law.  This Agreement, the rights and obligations of the parties hereto, and all claims or disputes relating hereto, shall be governed by and construed in accordance with the law of Hong Kong, without regard to the conflicts of law rules thereunder.
 
Section 5.07.  Arbitration.  Any dispute, controversy or claim arising out of or relating to this Agreement, including, but not limited to, any question regarding the breach, termination or invalidity thereof shall be finally resolved by arbitration in Hong Kong in accordance with the administered rules (the “Rules”) of the Hong Kong International Arbitration Centre (the “HKIAC”) in force at the time of commencement of the arbitration, which Rules are deemed to be incorporated by reference into this Section. The number of arbitrators shall be three and shall be selected in accordance with the Rules.  All selections shall be
 
 
14
 
 
made within thirty (30) days after the selecting party gives or receives, as the case may be, the demand for arbitration. The seat of the arbitration shall be in Hong Kong and the language to be used shall be English. Any arbitration award shall be (i) in writing and shall contain the reasons for the decision, (ii) final and binding on the parties hereto and (iii) enforceable in any court of competent jurisdiction, and the parties hereto agree to be bound thereby and to act accordingly.
 
Section 5.08.  Expenses.  Except as otherwise provided herein, all costs and expenses incurred in connection with this Agreement, or any amendment or waiver hereof, and the transactions contemplated hereby shall be paid by the party incurring such costs or expenses.
 
Section 5.09.  Further Assurances.  From time to time following the date hereof, the parties hereto shall execute and deliver such other instruments of assignment, transfer and delivery and shall take such other actions as any other party hereto reasonably may request in order to consummate, complete and carry out the transactions contemplated by this Agreement.
 

 
[Signature Pages Follow]
 
 
 
 
 
15
 
 
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth above.
 
58.COM INC.
 
By:
 /s/ Jinbo Yao
 
Name:
 Jinbo Yao
 
Title:
 CEO
 
 
OHIO RIVER INVESTMENT LIMITED
 
By:
 /s/ Ma Huateng
 
Name:
 Ma Huateng
 
Title:
 Director
 
JINBO YAO
 
By:
 /s/ Jinbo Yao
 
Name:
 Jinbo Yao
 
Title:
 CEO
 
 
NIHAO CHINA CORPORATION
 
By:
 /s/ Jinbo Yao
 
Name:
 Jinbo Yao
 
Title:
 Director






[Signature Page to Investor Rights Agreement]
 
 
16
 
 
SCHEDULE 1
 
REGISTRATION RIGHTS
 
1.  
Applicability of Rights.  The Investor shall be entitled to the following rights with respect to any potential public offering of Ordinary Shares in the United States and shall be entitled to reasonably analogous or equivalent rights with respect to any other offering of Company Securities in any other jurisdiction pursuant to which the Company undertakes to publicly offer or list such Company Securities for trading on a recognized securities exchange.  References to “Clauses” herein are to Clauses of this Schedule 1.
 
2.  
Definitions.  For purposes of this Schedule 1:
 
(a)  
Registration.  The terms “register,” “registered,” and “registration” refer to a registration effected by preparing and filing a registration statement in compliance with the Securities Act, and the declaration or ordering of effectiveness of such registration statement.
 
(b)  
Registrable Securities.  The term “Registrable Securities” means:  (1) the Company Securities acquired by the Investor pursuant to the Investment Agreement; (2) any Ordinary Shares issued as (or issuable upon the conversion or exercise of any warrant, right or other security which is issued as) a dividend or other distribution with respect to, or in exchange for or in replacement of, any Company Securities described in clause ‎(1) of this subsection ‎(b); and (3) any other Ordinary Shares of the Company owned or hereafter acquired by the Investor.  Notwithstanding the foregoing, “Registrable Securities” shall exclude any Registrable Securities sold by a person in a transaction in which rights under this Schedule 1 are not assigned in accordance with this Agreement or any Registrable Securities sold in a public offering, whether sold pursuant to Rule 144 promulgated under the Securities Act, or in a registered offering, or otherwise. With respect to any shares of an Existing Holder, “Registrable Securities” shall have the meaning ascribed to it under Schedule 2 of the Existing Shareholders Agreement.
 
(c)  
Existing Holder.  For purposes of this Schedule 1, the term “Existing Holder” has the same meaning as the term “Holder” as set forth in Schedule 2 of the Existing Shareholders Agreement.
 
(d)  
Form S-3 and Form F-3.  The terms “Form S-3” and “Form F-3” mean such respective form under the Securities Act as is in effect on the date hereof or any successor registration form under the Securities Act subsequently adopted by the SEC which permits inclusion or incorporation of substantial information by reference to other documents filed by the Company with the SEC.
 
 
17
 
 
(e)  
SEC.  The term “SEC” means the U.S. Securities and Exchange Commission.
 
3.  
Demand Registration.
 
(a)  
Request by Investor.  If the Company shall receive a written request from the Investor that the Company file a registration statement under the Securities Act covering the registration of Registrable Securities pursuant to this Clause ‎3, then the Company shall use all reasonable efforts to effect, as soon as practicable, the registration under the Securities Act of all Registrable Securities that the Investor request to be registered, subject only to the limitations of this Clause ‎3; provided that the Company shall not be obligated to effect any such registration if the Company has, within the six (6) month period preceding the date of such request, already effected a registration under the Securities Act pursuant to this Clause ‎3 or Clause ‎5, or in which the Investor had an opportunity to participate pursuant to Clause ‎(iii), other than a registration from which the Registrable Securities of the Investor have been excluded (with respect to all or any portion of the Registrable Securities the Investor requested be included in such registration) pursuant to Clause ‎4(b).
 
(b)  
Underwriting.  If the Investor intends to distribute the Registrable Securities covered by its request by means of an underwriting, then it shall so advise the Company as a part of its request made pursuant to this Clause.  In such event, the right of the Investor to include its Registrable Securities in such registration shall be conditional upon the Investor’s participation in such underwriting and the inclusion of the Investor’s Registrable Securities in the underwriting to the extent provided herein.  The Investor shall enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting by the Investor and reasonably acceptable to the Company.  Notwithstanding any other provision of this Clause, if the underwriter(s) advise(s) the Company in writing that marketing factors require a limitation of the number of securities to be underwritten then the Company shall so advise the Investor, and the number of Registrable Securities that may be included in the underwriting shall be reduced as required by the underwriter(s) and allocated among the Investor and each of the Existing Holders on a pro rata basis according to the number of Registrable Securities then outstanding held by each such Person requesting registration; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and registration shall not be reduced unless all other Securities are first entirely excluded from the underwriting and registration.  If the Investor disapproves of the terms of any such underwriting, the Investor may elect to withdraw therefrom by written notice to the Company and the underwriter(s), delivered at least ten (10) Business Days prior to the effective date of the registration statement.  Any Registrable Securities excluded or withdrawn from such underwriting shall be excluded and withdrawn from the registration.  If the underwriter has not limited the number of Registrable
 
 
18
 
 
 
Securities to be underwritten, the Company may include its securities for its own account in such registration if the underwriter so agrees and if the number of Registrable Securities which would otherwise have been included in such registration and underwriting will not thereby be limited.
 
(c)  
Maximum Number of Demand Registrations.  The Company shall be obligated to effect three (3) such demand registrations for the Investor.
 
(d)  
Deferral.  Notwithstanding the foregoing, the Company shall not be required to effect a registration pursuant to this Clause:
 
(i)  
during the period starting with the date sixty (60) Business Days prior to the Company’s good faith estimate of the date of the filing of, and ending on a date one hundred eighty (180) Business Days following the effective date of, a Company-initiated registration subject to Clause ‎(iii) below, provided that the Company is actively employing in good faith all reasonable efforts to cause such registration statement to become effective;
 
(ii)  
if the Investor proposes to dispose of Registrable Securities that may be registered on Form S-3 or Form F-3 pursuant to Clause ‎5 hereof; or
 
(iii)  
if the Company shall furnish to the Investor a certificate signed by the President or Chief Executive Officer of the Company stating that in the good faith judgment of the Board, it would be materially detrimental to the Company and its shareholders for such registration statement to be filed, then the Company shall have the right to defer such filing for a period of not more than ninety (90) days after receipt of the request of the Investor; provided, however, that the Company may not utilize this right more than once in any twelve (12) month period; provided further, that the Company shall not register any other of its Securities during such twelve (12) month period.  A demand right shall not be deemed to have been exercised until such deferred registration shall have been effected.
 
4.  
Piggyback Registrations.  The Company shall notify the Investor in writing at least twenty (20) days prior to filing any registration statement under the Securities Act for purposes of effecting a public offering of Securities of the Company (including, but not limited to, registration statements relating to secondary offerings of Securities of the Company, but excluding registration statements relating to any registration under Clause ‎3 or Clause ‎5 or to any employee benefit plan or a corporate reorganization) and will afford the Investor an opportunity to include in such registration statement all or any part of the Registrable Securities then held by the Investor.  The Investor shall within eighteen (18) days after receipt of the above-described notice from the Company, so notify the Company in writing, and in such notice shall inform the Company of the number of Registrable Securities the Investor wishes to include in
 
 
19
 
 
 
such registration statement. If the Investor decides not to include all of its Registrable Securities in any registration statement thereafter filed by the Company, the Investor shall nevertheless continue to have the right to include any Registrable Securities in any subsequent registration statement or registration statements as may be filed by the Company with respect to offerings of its Securities, all upon the terms and conditions set forth herein.
 
(a)  
Right to Terminate Registration.  The Company shall have the right to terminate or withdraw any registration initiated by it under this Clause prior to the effectiveness of such registration whether or not the Investor has elected to include Securities in such registration.  The expenses of such withdrawn registration shall be borne by the Company in accordance with Clause ‎6(i) hereof.
 
(b)  
Underwriting.  If a registration statement under which the Company gives notice under this Clause is for an underwritten offering, then the Company shall so advise the Investor.  In such event, the right of the Investor to be included in a registration pursuant to this Clause shall be conditional upon the Investor’s participation in such underwriting and the inclusion of the Investor’s Registrable Securities in the underwriting to the extent provided herein.  The Investor shall enter into an underwriting agreement in customary form with the managing underwriter or underwriters selected for such underwriting.  Notwithstanding any other provision of this Agreement, if the managing underwriter(s) determine(s) in good faith that marketing factors require a limitation of the number of shares to be underwritten, then the managing underwriter(s) may exclude up to seventy percent (70%) of the Registrable Securities from the registration and the underwriting, and the number of shares that may be included in the registration and the underwriting shall be allocated, first to the Company, second, to the Investor and the Existing Holders, pro rata among them based on the respective total number of their respective Registrable Securities which they had requested to be included in such registration and underwriting; and third, to holders of other Securities of the Company, provided, however, that the right of the underwriter(s) to exclude shares (including Registrable Securities) from the registration and underwriting as described above shall be restricted so that (i) the number of Registrable Securities included in any such registration is not reduced below thirty percent (30%) of the aggregate number of Registrable Securities for which inclusion has been requested; and (ii) all shares that are not Registrable Securities and are held by any other person, including, without limitation, the Founder and any other person who is an employee, officer, consultant or director of the Company (or any Subsidiary of the Company) shall first be excluded from such registration and underwriting before any Registrable Securities are so excluded.  If the Investor disapproves of the terms of any such underwriting, the Investor may elect to withdraw therefrom by written notice to the Company and the underwriter(s), delivered at least ten (10) days prior to
 
 
20
 
 
 
the effective date of the registration statement. Any Registrable Securities excluded or withdrawn from such underwriting shall be excluded and withdrawn from the registration.
 
(c)  
Not Demand Registration.  Registration pursuant to this Clause shall not be deemed to be a demand registration as described in Clause ‎3 above.  Except as otherwise provided herein, there shall be no limit on the number of times the Investor may request registration of Registrable Securities under this Clause.
 
5.  
Form S-3 or Form F-3 Registration.  In case the Company shall receive from the Investor a written request or requests that the Company effect a registration on Form S-3 or Form F-3 and any related qualification or compliance with respect to all or a part of the Registrable Securities owned by the Investor, then the Company will:
 
(a)  
Registration.  As soon as practicable, effect such registration and all such qualifications and compliances as may be so requested and as would permit or facilitate the sale and distribution of all or such portion of the Investor’s Registrable Securities as are specified in such request; provided, however, that the Company shall not be obligated to effect any such registration, qualification or compliance pursuant to this Clause:
 
(1)  
if Form S-3 or Form F-3 is not available for such offering by the Investor;
 
(2)  
if the Company shall furnish to the Investor a certificate signed by the President or Chief Executive Officer of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be materially detrimental to the Company and its shareholders for such Form S-3 or Form F-3 registration to be effected at such time, in which event the Company shall have the right to defer the filing of the Form S-3 or Form F-3 registration statement no more than once during any twelve month period for a period of not more than ninety (90) days after receipt of the request of the Investor under this Section 5; provided that the Company shall not register any of its other Securities during such ninety (90) day period; or
 
(3)  
if the Company has, within the twelve (12) month period preceding the date of such request, already effected two (2) registrations under the Securities Act other than a registration from which the Registrable Securities of the Investor have been excluded (with respect to all or any portion of the Registrable Securities the Investor requested be included in such registration) pursuant to the provisions of Section ‎3(b) or Section ‎4(b).
 
(b)  
Not Demand Registration.  Form S-3 or Form F-3 registrations shall not be deemed to be demand registrations as described in Section ‎3 above.  Except as
 
 
21
 
 
 
otherwise provided herein, there shall be no limit on the number of times the Investor may request registration of Registrable Securities under this Clause.
 
6.  
Obligations of the Company.  Whenever required to effect the registration of any Registrable Securities under this Agreement the Company shall, as expeditiously as reasonably possible:
 
(a)  
Registration Statement.  Prepare and file with the SEC a registration statement with respect to such Registrable Securities and use all reasonable efforts to cause such registration statement to become effective, provided, however, that the Company shall not be required to keep any such registration statement effective for more than sixty (60) days.
 
(b)  
Amendments and Supplements.  Prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection with such registration statement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement.
 
(c)  
Prospectuses.  Furnish to the Investor such number of copies of a prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as it may reasonably request in order to facilitate the disposition of the Registrable Securities owned by it that are included in such registration.
 
(d)  
Blue Sky.  Use all reasonable efforts to register and qualify the securities covered by such registration statement under such other securities or Blue Sky laws of such jurisdictions as shall be reasonably requested by the Investor, provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.
 
(e)  
Underwriting.  In the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement in usual and customary form, with the managing underwriter(s) of such offering.  The Investor participating in such underwriting shall also enter into and perform its obligations under such an agreement.
 
(f)  
Notification.  Notify the Investor at any time when a prospectus relating thereto is required to be delivered under the Securities Act of (i) the issuance of any stop order by the SEC in respect of such registration statement, or (ii) the happening of any event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing.
 
 
22
 
 
(g)  
Opinion and Comfort Letter.  Furnish, at the request of the Investor, on the date that such Registrable Securities are delivered to the underwriter(s) for sale, if such securities are being sold through underwriters, or, if such securities are not being sold through underwriters, on the date that the registration statement with respect to such securities becomes effective, (i) a copy of an opinion, dated as of such date, of the counsel representing the Company for the purposes of such registration, in form and substance as is customarily given to underwriters in an underwritten public offering, addressed to the underwriters, and (ii) a copy of the “comfort” letter dated as of such date, from the independent certified public accountants of the Company, in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to the underwriters.
 
(h)  
Notwithstanding any of the foregoing provisions, the Company shall not be required to pay for any expenses of any registration proceeding begun pursuant to Clause ‎3 or ‎5 if the registration request is subsequently withdrawn at the request of the Investor (in which case the Investor shall bear such expenses), unless, in the case of a registration requested under Clause ‎3, the Investor agrees to forfeit such right to demand registration pursuant to Clause ‎3; provided further, however, that if at the time of such withdrawal, the Investor has learnt of a material adverse change in the condition, business, or prospects of the Company not known to the Investor at the time of its request for such registration and have withdrawn its request for registration with reasonable promptness after learning of such material adverse change, then the Investor shall not be required to pay any of such expenses and such registration shall not constitute the use of a demand registration pursuant to Clause ‎3.
 
(i)  
The Company shall pay all expenses incurred in connection with each registration requested pursuant to this Agreement, including without limitation all U.S. federal, “blue sky” and all foreign registration, filing and qualification fees, printers’ and accounting fees, and fees and disbursements of counsel for the Company (but excluding underwriters’ or brokers’ discounts and commissions relating to shares sold by the Investor), and reasonable expenses of one legal counsel if such counsel is for the Investor and all other Existing Holders participating in such registration.
 
7.  
Furnish Information. It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Schedule 1 with respect to the Registrable Securities of the Investor that the Investor shall furnish to the Company such information regarding itself, the Registrable Securities held by it and the intended method of disposition of such securities as shall be required to timely effect the registration of their Registrable Securities.  In connection therewith, the Investor shall be required to represent and warrant to the Company that all such information which is
 
 
23
 
 
 
given in writing expressly for inclusion in such registration is true and accurate in all material respects.
 
8.  
No Registration Rights to Third Parties.  Without the prior consent of the Investor, the Company covenants and agrees that it shall not grant, or cause or permit to be created, for the benefit of any person or entity any registration rights of any kind (whether similar to the demand, “piggyback” or Form S-3 or Form F-3 registration rights described in this Schedule 1, or otherwise) relating to any Securities of the Company, other than rights that are not senior in right to the Investor.
 
9.  
Assignment.  The registration rights under this Schedule 1 may be transferred or assigned by the Investor to any transferee or assignee of its Company Securities representing five percent (5%) or more of the issued share capital of the Company.
 
10.  
Re-sale Rights.  The Company shall at its own cost use its best efforts to assist the Investor in the sale or disposition of, and to enable the Investor to sell under Rule 144 promulgated under the Securities Act the maximum number of, its Registrable Securities, including without limitation (a) the prompt delivery of applicable instruction letters to the Company’s transfer agent to remove legends from the Investor’s share certificates, (b) causing the prompt delivery of appropriate legal opinions from the Company’s counsel in forms reasonably satisfactory to the Investor’s counsel, (c) if the Company has depository receipts listed or traded on any exchange or inter-dealer quotation system, (i) the prompt delivery of instruction letters to the Company’s share registrar and depository agent to convert the Investor’s securities into depository receipts or similar instruments to be deposited in the Investor’s brokerage account(s), (ii) the prompt payment of all costs and fees related to such depositary facility, including conversion fees and maintenance fees for Registrable Securities held by the Investor and (iii) taking any and all other steps necessary to facilitate the conversion into depository receipts or similar instruments.  The Company acknowledges that time is of the essence with respect to its obligations under this Clause, and that any delay will cause the Investor irreparable harm and constitutes a material breach of its obligations under this Agreement.
 
11.  
Rule 144 Reporting.  The Company agrees to: (a) make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act, at all times; (b) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act; and (c) so long as the Investor owns any Registrable Securities, to furnish to the Investor promptly upon request (i) a written statement by the Company as to its compliance with the reporting requirements of Rule 144, the Securities Act and the Exchange Act, or its qualification as a registrant whose securities may be resold pursuant to Form F-3 (at any time after it so qualifies), (ii) a copy of the most recent annual or quarterly report of the Company, and (iii) such other reports and documents of the Company as the Investor may reasonably request in availing itself of any rule or
 
 
24
 
 
 
regulation of the SEC that permits the selling of any such securities without registration or pursuant to Form F-3.
 
 
 
25
 
 
EXHIBIT A
 
FORM OF JOINDER TO INVESTOR RIGHTS AGREEMENT
 
This Joinder Agreement (this “Joinder Agreement”) is made as of the date written below by the undersigned (the “Joining Party”) in accordance with the Investor Rights Agreement dated as of June 30, 2014 (as amended, restated or otherwise modified from time to time, the “Investor Rights Agreement”) among 58.com Inc., Jinbo Yao, Nihao China Corporation and Ohio River Investment Limited.  Capitalized terms used, but not defined, herein shall have the meaning ascribed to such terms in the Investor Rights Agreement.
 
The Joining Party hereby acknowledges, agrees and confirms that, by its execution of this Joinder Agreement, the Joining Party shall be deemed to be a party to the Investor Rights Agreement as of the date hereof and shall have all of the rights and obligations of [a Founder Party][the Investor] thereunder as if it had executed the Investor Rights Agreement.  The Joining Party hereby ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions and conditions contained in the Investor Rights Agreement.
 
IN WITNESS WHEREOF, the undersigned has executed this Joinder Agreement as of the date written below.
 
Date: _________________ ____, _________
 
[NAME OF JOINING PARTY]
  
   
By:
    
 
Name:
    
 
Title:
    
       
Address, fax number and email for notices:
  
   
   
   
   

 
Accepted and Agreed:
 
 
 
 
 

 
[OTHER PARTIES TO INVESTOR RIGHTS AGREEMENT AT THE TIME JOINDER AGREEMENT IS EXECUTED]
 
By:
  
 
Name:
  
 
Title:
  





 
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