SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO §240.13d−1(a) AND AMENDMENTS THERETO FILED
PURSUANT TO §240.13d−2(a)
Under the Securities Exchange Act of 1934
| Qihoo 360 Technology Co. Ltd. |
| (Name of Issuer) |
| Class A ordinary shares, par value US$0.001 per share |
| (Title of Class of Securities) |
| 74734M109** |
| (CUSIP Number) |
|
Hongyi Zhou c/o Qihoo 360 Technology Co. Ltd. Building #2, 6 Jiuxianqiao Road, Chaoyang District, Beijing 100015 People's Republic of China
With a copy to:
David T. Zhang Jesse Sheley Kirkland & Ellis 26th Floor, Gloucester Tower The Landmark 15 Queen’s Road, Central Hong Kong
|
| (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) |
| December 18, 2015 |
| (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−1(f) or 240.13d−1(g), check the following box.¨
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d−7 for other parties to whom copies are to be sent.
* 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, as amended (the “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, every two representing three Class A ordinary shares, par value $0.001 per share.
| CUSIP No. 74734M109 | 13D | Page 2 of 16 Pages |
| 1 | Names of Reporting Persons | |
| Hongyi Zhou | ||
| 2 |
Check the Appropriate Box if a Member of a Group
|
(a) ¨ |
| (b) ¨ | ||
| 3 |
SEC Use Only
| |
| 4 |
Source of Funds
PF, OO | |
| 5 | Check if Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e)
|
¨ |
| 6 | Citizenship or Place of Organization | |
| People’s Republic of China | ||
|
Number of Shares Beneficially Owned by Each Reporting Person With |
7 | Sole Voting Power |
31,290,255 | ||
| 8 | Shared Voting Power | |
0 | ||
| 9 | Sole Dispositive Power | |
31,290,255 | ||
| 10 | Shared Dispositive Power | |
0 |
| 11 | Aggregate Amount Beneficially Owned by Each Reporting Person | |
31,290,255 | ||
| 12 | Check if the Aggregate Amount In Row (11) Excludes Certain Shares
|
¨ |
| 13 | Percent of Class Represented By Amount In Row (11) | |
17.4%(1) | ||
| 14 | Type of Reporting Person | |
IN | ||
(1) As a percentage of 179,568,811 total outstanding issued Class A and Class B ordinary shares (other than treasury shares, which consisted of ordinary shares repurchased but un-cancelled and ordinary shares reserved for future issuance upon exercise of vested stock options) as of November 30, 2015, as disclosed by the Issuer (as defined below) in the Merger Agreement (as defined below). The voting power of the ordinary shares beneficially owned by the reporting person represents 42.4% of total outstanding voting power of all Class A and Class B ordinary shares.
| CUSIP No. 74734M109 | 13D | Page 3 of 16 Pages |
| 1 | Names of Reporting Persons | |
Global Village Associates Limited | ||
| 2 |
Check the Appropriate Box if a Member of a Group
|
(a) ¨ |
| (b) ¨ | ||
| 3 |
SEC Use Only
| |
| 4 |
Source of Funds
| |
| 5 | Check if Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e)
|
¨ |
| 6 | Citizenship or Place of Organization | |
British Virgin Islands | ||
|
Number of Shares Beneficially Owned by Each Reporting Person With |
7 | Sole Voting Power |
31,177,755 | ||
| 8 | Shared Voting Power | |
0 | ||
| 9 | Sole Dispositive Power | |
31,177,755 | ||
| 10 | Shared Dispositive Power | |
0 |
| 11 | Aggregate Amount Beneficially Owned by Each Reporting Person | |
31,177,755 | ||
| 12 | Check if the Aggregate Amount In Row (11) Excludes Certain Shares
|
¨ |
| 13 | Percent of Class Represented By Amount In Row (11) | |
17.4%(1) | ||
| 14 | Type of Reporting Person | |
CO | ||
(1) As a percentage of 179,568,811 total outstanding issued Class A and Class B ordinary shares (other than treasury shares, which consisted of ordinary shares repurchased but un-cancelled and ordinary shares reserved for future issuance upon exercise of vested stock options) as of November 30, 2015, as disclosed by the Issuer (as defined below) in the Merger Agreement (as defined below). The voting power of the ordinary shares beneficially owned by the reporting person represents 42.4% of total outstanding voting power of all Class A and Class B ordinary shares.
| CUSIP No. 74734M109 | 13D | Page 4 of 16 Pages |
|
1 |
Names of Reporting Persons | |
Fair Point International Limited | ||
| 2 |
Check the Appropriate Box if a Member of a Group
|
(a) ¨ |
| (b) ¨ | ||
| 3 |
SEC Use Only
| |
| 4 |
Source of Funds
| |
| 5 | Check if Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e)
|
¨ |
| 6 | Citizenship or Place of Organization | |
British Virgin Islands | ||
|
Number of Shares Beneficially Owned by Each Reporting Person With |
7 | Sole Voting Power |
31,177,755 | ||
| 8 | Shared Voting Power | |
0 | ||
| 9 | Sole Dispositive Power | |
31,177,755 | ||
| 10 | Shared Dispositive Power | |
0 |
| 11 | Aggregate Amount Beneficially Owned by Each Reporting Person | |
31,177,755 | ||
| 12 | Check if the Aggregate Amount In Row (11) Excludes Certain Shares
|
¨ |
| 13 | Percent of Class Represented By Amount In Row (11) | |
17.4%(1) | ||
| 14 | Type of Reporting Person | |
CO | ||
(1) As a percentage of 179,568,811 total outstanding issued Class A and Class B ordinary shares (other than treasury shares, which consisted of ordinary shares repurchased but un-cancelled and ordinary shares reserved for future issuance upon exercise of vested stock options) as of November 30, 2015, as disclosed by the Issuer (as defined below) in the Merger Agreement (as defined below). The voting power of the ordinary shares beneficially owned by the reporting person represents 42.4% of total outstanding voting power of all Class A and Class B ordinary shares.
| CUSIP No. 74734M109 | 13D | Page 5 of 16 Pages |
Preamble
This Statement on Schedule 13D (this “Schedule 13D”) supersedes the Statement on Schedule 13G, as last amended by Amendment No. 3 on February 13, 2015, filed by Mr. Hongyi Zhou (the “Chairman”), Global Village Associates Limited (“Global Village”) and Fair Point International Limited (“Fair Point”) relating to Class A ordinary shares and Class B ordinary shares of Qihoo 360 Technology Co. Ltd. This Schedule 13D is being filed as a result of the events described in Item 4 below.
Item 1. Security and Issuer.
The title and class of equity securities to which this Schedule 13D relates are the Class A ordinary shares (“Class A Shares”) and Class B ordinary shares (“Class B Shares”, together with Class A Shares, the “Ordinary Shares”), each par value US$0.001 per share, of Qihoo 360 Technology Co. Ltd., a Cayman Islands company (the “Issuer”). The address of the principal executive offices of the Issuer is 3/F, Building #2, 6 Jiuxianqiao Road, Chaoyang District, Beijing 100015, the People’s Republic of China.
The rights of the holders of Class A Shares and Class B Shares are identical, except with respect to conversion rights and voting rights. Each Class B Share is convertible at the option of the holder into one Class A Share. Each Class B Share is entitled to five votes, whereas each Class A Share is entitled to one vote.
The Issuer’s American Depositary Shares (the “ADSs”), evidenced by American Depositary Receipts, every two representing three Class A Shares, are listed on the New York Stock Exchange under the symbol “QIHU.”
Item 2. Identity and Background.
(a) - (c), (f) This Statement is being filed by the Chairman, Global Village and Fair Point. Each of the foregoing is referred to as a “Reporting Person” and collectively as the “Reporting Persons.”
The Chairman is currently resident in, and a citizen of, the People’s Republic of China. His principal occupation is as chief executive officer and chairman of the board of directors of the Issuer. The business address of the Chairman is Building #2, 6 Jiuxianqiao Road, Chaoyang District, Beijing, the People’s Republic of China.
Global Village is solely engaged in investment holdings. Its registered office is P.O. Box 957, Offshore Incorporations Centre, Road Town, Tortola, British Virgin Islands and its executive offices are located at Building #2, 6 Jiuxianqiao Road, Chaoyang District, Beijing, the People’s Republic of China. Global Village is a wholly-owned subsidiary of Fair Point and the Chairman is the sole executive officer of Global Village.
Fair Point is solely engaged in investment holdings. Its registered office is P.O. Box 957, Offshore Incorporations Centre, Road Town, Tortola, British Virgin Islands and its executive offices are located at Building #2, 6 Jiuxianqiao Road, Chaoyang District, Beijing, the People’s Republic of China. Fair Point is wholly-owned by a revocable trust constituted under the laws of Singapore with the Chairman and his wife as the settlers, the Chairman as investment manager with sole voting and dispositive power, and certain family members of the Chairman as the beneficiaries.
(d) - (e) During the last five years, none of the Reporting Persons has been: (i) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) 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.
The Reporting Persons entered into a Joint Filing Agreement on December 28, 2015 (the “Joint Filing Agreement”), pursuant to which they have agreed to file this Schedule 13D jointly in accordance with the provisions of Rule 13d-1(k)(1) under the Exchange Act. A copy of the Joint Filing Agreement is attached hereto as Exhibit 99.1.
| CUSIP No. 74734M109 | 13D | Page 6 of 16 Pages |
Item 3. Source and Amount of Funds or Other Consideration.
It is anticipated that, at the price per ADS or per Ordinary Share set forth in the Merger Agreement (as described in Item 4 below), approximately US$7.7 billion will be expended in acquiring (i) all of the outstanding Ordinary Shares other than Founder Securities (as defined in Item 4 below) and treasury shares, which consisted of ordinary shares repurchased but un-cancelled and ordinary shares reserved for future issuance upon exercise of vested stock options, and (ii) outstanding vested stock options in connection with the Merger (as defined in Item 4 below).
It is anticipated that the funding for the Merger will be provided by a combination of debt and equity financing. Equity financing will be provided by the Equity Investors (as defined in Item 4 below) pursuant to the terms of the Equity Commitment Letters (as defined in Item 4 below). Debt financing will be provided by China Merchants Bank Co., Ltd. (the “Lender”) in the form of certain credit facilities.
Item 4. Purpose of Transaction.
On December 18, 2015, the Issuer entered into an agreement and plan of merger (the “Merger Agreement”) with Tianjin Qixin Zhicheng Technology Co., Ltd, a limited liability company incorporated under the laws of the PRC (“Holdco”), Tianjin Qixin Tongda Technology Co., Ltd., a limited liability company incorporated under the laws of the PRC (“Parent”), True Thrive Limited, an exempted company incorporated with limited liability under the laws of the Cayman Islands (“Midco”), New Summit Limited, an exempted company incorporated with limited liability under the laws of the Cayman Islands (“Merger Sub” and, together with Holdco, Parent and Midco, each a “Parent Party” and collectively the “Parent Parties”), Global Village Associated Limited, a British Virgin Islands company (“Global Village”), and Young Vision Group Limited, a British Virgin Islands company (“Young Vision” and, together with Global Village, the “Founder Securityholders”).
Pursuant to the Merger Agreement, Merger Sub will be merged with and into the Issuer (the “Merger”), with the Issuer surviving the Merger and becoming a wholly-owned subsidiary of Midco as a result of the Merger. At the effective time of the Merger (the “Effective Time”), each Ordinary Share (including Ordinary Shares represented by ADSs) issued and outstanding immediately prior to the Effective Time, other than (a) Ordinary Shares owned by (or represented by ADSs which are owned by) any Parent Party or the Issuer (as treasury shares, if any), (b) Ordinary Shares reserved (but not yet allocated) by the Issuer for settlement upon exercise of stock options of the Issuer or by any direct or indirect wholly-owned subsidiary of any Parent Party or the Issuer, (c) Ordinary Shares owned by shareholders who have validly exercised and have not effectively withdrawn or lost their right to dissent from the Merger under the Companies Law of the Cayman Islands (the “Dissenting Shares”), and (d)(i) 3,534 Class A Shares and 29,340,466 Class B Shares held by Global Village and (ii) 4,904,709 Class B Shares held by Young Vision ((i) and (ii) together, the “Founder Securities”) (Ordinary Shares described under (a) through (d) above are collectively referred to herein as the “Excluded Shares”), will be cancelled and cease to exist in exchange for the right to receive US$51.33 in cash without interest. For the avoidance of doubt, because each ADS represents 1 1/2 Class A Shares, each ADS that is issued and outstanding immediately prior to the Effective Time (other than ADSs that represent Excluded Shares) shall represent the right to surrender the ADS in exchange for $77.00 in cash without interest. The Excluded Shares other than Dissenting Shares will be cancelled for no consideration. The Dissenting Shares will be cancelled for their fair value determined in accordance with the Companies Law of the Cayman Islands. The Merger is subject to the approval of the Issuer’s shareholders and various other closing conditions.
Pursuant to the Merger Agreement, each Founder Securityholder has agreed (i) to vote all Ordinary Shares held or otherwise beneficially owned by it in favor of the authorization and approval of the Merger Agreement and the transactions contemplated thereby (the “Transactions”), including the Merger, and (ii) to the cancellation of the Founder Securities held by it for no consideration.
| CUSIP No. 74734M109 | 13D | Page 7 of 16 Pages |
Concurrently with the execution of the Merger Agreement, each of the Founder Securityholders and CITIC Guoan Information Industry Co., Ltd. (中信国安信息产业股份有限公司), Shen Zhen Ping An Real Estate Investment Co., Ltd (深圳市平安置业投资有限公司), Sunshine Life Insurance Company Ltd. (阳光人寿保险股份有限公司), Taikang Life Insurance Co., Ltd. (泰康人寿保险股份有限公司), New China Capital International Management Limited (新华资本国际管理有限公司), Tai Ping Asset Management Co., Ltd. (太平资产管理有限公司), Jiangsu Huatai Ruilian M&A Fund (LLP) (江苏华泰瑞联并购基金 (有限合伙) ), Greenland Financial Holdings Group Co., Ltd. (绿地金融投资控股集团有限公司), SIP Oriza Chongyuan M&A Fund Partnership (Limited Partnership) (苏州工业园区元禾重元并购股权投资基金合伙企业(有限合伙)), Shanghai Sailing Merger and Acquisition Investment Fund Partnership (Limited Partnership) (上海赛领并购投资基金合伙企业 (有限合伙) ), Shanghai Sailing Boda Equity Investment Fund Partnership (Limited Partnership) (上海赛领博达股权投资基金合伙企业 (有限合伙) ), Fortune Fountain (Beijing) Holding Group Co., Ltd. (沣沅弘 (北京) 控股集团有限公司), Beijing ZGC Trinitas Venture Capital Investment Center (Limited Partnership) (北京中关村国盛创业投资中心 (有限合伙) ), Shanghai Mango Creative Equity Investment Fund (芒果文创 (上海) 股权投资基金合伙企业 (有限合伙) ), Qiancai NO.1 Equity Investment Limited Partnership Enterprise (千采壹号 (象山) 股权投资合伙企业 (有限合伙) ), Pearl River Life Insurance Co., Ltd. (珠江人寿保险股份有限公司), Hengdian Group Holdings Limited (横店集团控股有限公司), Jiangsu Gaoli Group (江苏高力集团有限公司), Minsheng Royal Asset Management Co., Ltd. (民生加银基金管理有限公司), CCB International Capital Management (Tianjin) Ltd. (建银国际资本管理 (天津) 有限公司), China Merchants Wealth Asset Management Co., Ltd. (招商财富资产管理有限公司), Huarong Ruize Investment Management Co., Ltd. (华融瑞泽投资管理有限公司), Beijing Sequoia Yi Yuan Equity Investment Center (Limited Partnership) (北京红杉懿远股权投资中心 (有限合伙) ), Golden Brick Silk Road Investment (Shenzhen) LLP (金砖丝路 (深圳) 股权投资合伙企业 (有限合伙) ), CICC Jiatai (Tianjin) Equity Investment Fund, L.P. (中金佳泰 (天津) 股权投资基金合伙企业 (有限合伙) ), Shanghai Huasheng Lingfei Equity Investment (Limited Partnership) (上海华晟领飞股权投资合伙企业 (有限合伙) ), BR Wiston Capital (宁波博睿维森股权投资合伙企业 (有限合伙) ), Yi Capital Qiyuan Fund, L.P. (宁波执一奇元股权投资中心 (有限合伙) ), Jiaxingyingfei Investment Center (Limited Partnership) (嘉兴英飞投资中心 (有限合伙) ), Jiaxing Yun Qi Internet Plus Venture Partners LLP (嘉兴云启网加创业投资合伙企业 (有限合伙) ), Ruipu Wenhua (Tianjin) Investment Center (Limited Partnership) (锐普文华 (天津) 投资中心 (有限合伙) ), Shanghai Trust Bridge Partners Investment Management LLC (上海挚信投资管理有限公司), LTW Chuanfu Investment (Shenzhen) LLP (朗泰传富投资 (深圳) 合伙企业 (有限合伙) ), Zhejiang Puhua Tianqin Equity Investment Management Co., Ltd. (浙江普华天勤股权投资管理有限公司), Tianjin Xinxin Qiyuan Investment Limited Partnership (天津信心奇缘股权投资合伙企业 (有限合伙) ) and Tianjin Xinxinsheng Investment Limited Partnership (天津欣新盛股权投资合伙企业 (有限合伙) ) (collectively, the “Equity Investors” and, together with the Founder Securityholders, the “Investors”) entered into an interim investors agreement with Holdco, Parent, Midco and Merger Sub (the “Interim Investors Agreement”), which would govern, among other matters, the actions of Holdco, Parent, Midco and Merger Sub and the relationship among the Investors with respect to the Merger Agreement and the Transactions.
Concurrently with the execution of the Merger Agreement, each of the Equity Investors entered into an equity commitment letter (collectively, the “Equity Commitment Letters”) with Holdco, Parent and the Issuer pursuant to which such Equity Investor undertook to make certain equity contributions (such Equity Investor’s “Equity Commitment”) to Holdco and Parent the proceeds of which will be used to fund the Transactions. In addition, concurrently with the execution of the Merger Agreement, each of the Equity Investors entered into an escrow agreement (the “Escrow Agreements”) with Parent and the Issuer pursuant to which each Equity Investor will deposit a percentage of its Equity Commitment with Parent as earnest money which will be applied toward the payment of certain of such Equity Investor’s obligations under the Interim Investors Agreement and such Equity Investor’s Equity Commitment Letter and Limited Guarantee.
Concurrently with the execution of the Merger Agreement, each of the Investors entered into a limited guarantee (each a “Limited Guarantee”) with Holdco, Parent and the Issuer to guarantee a portion of the Parent Parties’ obligation to pay the Parent Termination Fee (as defined under the Merger Agreement) and certain other payment obligations of the Parent Parties in relation to the financing for the Merger. In addition, concurrently with the execution of the Merger Agreement, Global Village entered into a limited guarantee (the “Global Village Guarantee”) in favor of the Issuer to guarantee the payment obligations of Tianjin Xinxin Qiyuan Investment Limited Partnership under its Equity Commitment Letter and Limited Guarantee.
Prior to the execution of the Merger Agreement, the Lender executed a debt commitment letter in favor of Holdco and a debt commitment letter in favor of Parent (collectively, the “Debt Commitment Letters”), pursuant to which the Lender has agreed, subject to the terms and conditions set forth therein, to make available to Holdco and Parent certain credit facilities immediately prior to the closing of the Transactions.
References to each of the Merger Agreement, the Interim Investors Agreement, the Equity Commitment Letters, the Escrow Agreements, the Limited Guarantees, the Global Village Guarantee and the Debt Commitment Letters in this Schedule 13D are qualified in their entirety by reference to such above-mentioned documents, as applicable, which are attached hereto as exhibits and incorporated herein by reference as if set forth in their entirety herein.
| CUSIP No. 74734M109 | 13D | Page 8 of 16 Pages |
If the Merger is completed, the ADSs would be delisted from the New York Stock Exchange, and the Issuer’s obligation to file periodic reports under the Exchange Act, would terminate. In addition, consummation of the Transactions could result in one or more of the actions specified in clauses (a)-(j) of Item 4 of Schedule 13D, including the acquisition or disposition of securities of the Issuer, a merger or other extraordinary transaction involving the Issuer, a change to the board of directors of the Issuer (as the surviving company in the Merger), and a change in the Issuer’s memorandum and articles of association to reflect that the Issuer would become a privately held company.
Item 5. Interest in Securities of the Issuer.
(a) — (b) The following disclosure assumes that there are 136,911,908 Class A Shares (other than treasury shares, which consisted of ordinary shares repurchased but un-cancelled and ordinary shares reserved for future issuance upon exercise of vested stock options) and 42,656,903 Class B Shares (other than treasury shares) issued and outstanding as of November 30, 2015, as disclosed by the Issuer in the Merger Agreement.
With respect to each of the Reporting Persons, the cover pages of this Schedule 13D are incorporated herein by reference, as if set forth in their entirety.
By virtue of their actions in respect of the Merger as described herein, the Reporting Persons may be deemed to constitute a “group” with the Investors and/or their respective affiliates within the meaning of Rule 13d-5(b) under the Exchange Act. As a member of a group, each Reporting Person may be deemed to beneficially own the Ordinary Shares beneficially owned by the members of the group as a whole; thus, the Reporting Persons may be deemed to beneficially own in the aggregate 31,290,255 Ordinary Shares (including Class A Shares represented by ADSs, and including stock options that vest within 60 days), which represents approximately 17.4% of the total outstanding Ordinary Shares (including Class A Shares represented by ADSs) and 42.4% of the voting power of the total outstanding Ordinary Shares (including Class A Shares represented by ADSs). Except as otherwise stated herein, each Reporting Person expressly disclaims any beneficial ownership of such shares held by each other Reporting Person.
(c) Except as set forth in Item 3 above and incorporated herein by reference, none of the Reporting Persons has effected any transactions in the Ordinary Shares or ADSs during the 60 days preceding the filing of this Schedule 13D.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.
The information set forth and/or incorporated by reference in Items 3, 4 and 7 is hereby incorporated by reference into this Item 6. To the best knowledge of the Reporting Persons, except as set forth herein, there are no contracts, arrangements, understandings or relationships (legal or otherwise), including, but not limited to, transfer or voting of any of the securities, finder’s fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies, between the persons enumerated in Item 2, and any other person, with respect to any securities of the Issuer, including any securities pledged or otherwise subject to a contingency the occurrence of which would give another person voting power or investment power over such securities other than standard default and similar provisions contained in loan agreements.
Item 7. Material to be Filed as Exhibits.
Exhibit 99.1 Joint Filing Agreement, dated December 28, 2015 among the Chairman, Global Village and Fair Point
Exhibit 99.2 Merger Agreement, incorporated by reference to Exhibit 99.2 to Form 6-K filed by the Issuer on December 18, 2015
Exhibit 99.3 Equity Commitment Letter, dated December 18, 2015 among CITIC Guoan Information Industry Co., Ltd. (中信国安信息产业股份有限公司), Holdco, Parent, and the Company
| CUSIP No. 74734M109 | 13D | Page 9 of 16 Pages |
Exhibit 99.4 Equity Commitment Letter, dated December 18, 2015 among Shen Zhen Ping An Real Estate Investment Co., Ltd. (深圳市平安置业投资有限公司), Holdco, Parent, and the Company
Exhibit 99.5 Equity Commitment Letter, dated December 18, 2015 among Sunshine Life Insurance Company Ltd. (阳光人寿保险股份有限公司), Holdco, Parent, and the Company
Exhibit 99.6 Equity Commitment Letter, dated December 18, 2015 among Taikang Life Insurance Co., Ltd. (泰康人寿保险股份有限公司), Holdco, Parent, and the Company
Exhibit 99.7 Equity Commitment Letter, dated December 18, 2015 among New China Capital International Management Limited (新华资本国际管理有限公司), Holdco, Parent, and the Company
Exhibit 99.8 Equity Commitment Letter, dated December 18, 2015 among Tai Ping Asset Management Co., Ltd. (太平资产管理有限公司), Holdco, Parent, and the Company
Exhibit 99.9 Equity Commitment Letter, dated December 18, 2015 among Jiangsu Huatai Ruilian M&A Fund (LLP) (江苏华泰瑞联并购基金 (有限合伙) ), Holdco, Parent, and the Company
Exhibit 99.10 Equity Commitment Letter, dated December 18, 2015 among Greenland Financial Holdings Group Co., Ltd. (绿地金融投资控股集团有限公司), Holdco, Parent, and the Company
Exhibit 99.11 Equity Commitment Letter, dated December 18, 2015 among SIP Oriza Chongyuan M&A Fund Partnership (Limited Partnership) (苏州工业园区元禾重元并购股权投资基金合伙企业(有限合伙)), Holdco, Parent, and the Company
Exhibit 99.12 Equity Commitment Letter, dated December 18, 2015 among Shanghai Sailing Merger and Acquisition Investment Fund Partnership (Limited Partnership) (上海赛领并购投资基金合伙企业 (有限合伙) ), Holdco, Parent, and the Company
Exhibit 99.13 Equity Commitment Letter, dated December 18, 2015 among Shanghai Sailing Boda Equity Investment Fund Partnership (Limited Partnership) (上海赛领博达股权投资基金合伙企业 (有限合伙) ), Holdco, Parent, and the Company
Exhibit 99.14 Equity Commitment Letter, dated December 18, 2015 among Fortune Fountain (Beijing) Holding Group Co., Ltd. (沣沅弘 (北京) 控股集团有限公司), Holdco, Parent, and the Company
Exhibit 99.15 Equity Commitment Letter, dated December 18, 2015 among Beijing ZGC Trinitas Venture Capital Investment Center (Limited Partnership) (北京中关村国盛创业投资中心 (有限合伙) ), Holdco, Parent, and the Company
Exhibit 99.16 Equity Commitment Letter, dated December 18, 2015 among Shanghai Mango Creative Equity Investment Fund (芒果文创 (上海) 股权投资基金合伙企业 (有限合伙) ), Holdco, Parent, and the Company
Exhibit 99.17 Equity Commitment Letter, dated December 18, 2015 among Qiancai NO.1 Equity Investment Limited Partnership Enterprise (千采壹号 (象山) 股权投资合伙企业 (有限合伙) ), Holdco, Parent, and the Company
Exhibit 99.18 Equity Commitment Letter, dated December 18, 2015 among Pearl River Life Insurance Co., Ltd. (珠江人寿保险股份有限公司), Holdco, Parent, and the Company
Exhibit 99.19 Equity Commitment Letter, dated December 18, 2015 among Hengdian Group Holdings Limited (横店集团控股有限公司), Holdco, Parent, and the Company
Exhibit 99.20 Equity Commitment Letter, dated December 18, 2015 among Jiangsu Gaoli Group (江苏高力集团有限公司), Holdco, Parent, and the Company
| CUSIP No. 74734M109 | 13D | Page 10 of 16 Pages |
Exhibit 99.21 Equity Commitment Letter, dated December 18, 2015 among Minsheng Royal Asset Management Co., Ltd. (民生加银基金管理有限公司), Holdco, Parent, and the Company
Exhibit 99.22 Equity Commitment Letter, dated December 18, 2015 among CCB International Capital Management (Tianjin) Ltd. (建银国际资本管理 (天津) 有限公司), Holdco, Parent, and the Company
Exhibit 99.23 Equity Commitment Letter, dated December 18, 2015 among China Merchants Wealth Asset Management Co., Ltd. (招商财富资产管理有限公司), Holdco, Parent, and the Company
Exhibit 99.24 Equity Commitment Letter, dated December 18, 2015 among Huarong Ruize Investment Management Co., Ltd. (华融瑞泽投资管理有限公司), Holdco, Parent, and the Company
Exhibit 99.25 Equity Commitment Letter, dated December 18, 2015 among Beijing Sequoia Yi Yuan Equity Investment Center (Limited Partnership) (北京红杉懿远股权投资中心 (有限合伙) ), Holdco, Parent, and the Company
Exhibit 99.26 Equity Commitment Letter, dated December 18, 2015 among Golden Brick Silk Road Investment (Shenzhen) LLP (金砖丝路 (深圳) 股权投资合伙企业 (有限合伙) ), Holdco, Parent, and the Company
Exhibit 99.27 Equity Commitment Letter, dated December 18, 2015 among CICC Jiatai (Tianjin) Equity Investment Fund, L.P. (中金佳泰 (天津) 股权投资基金合伙企业 (有限合伙) ), Holdco, Parent, and the Company
Exhibit 99.28 Equity Commitment Letter, dated December 18, 2015 among Shanghai Huasheng Lingfei Equity Investment (Limited Partnership) (上海华晟领飞股权投资合伙企业 (有限合伙) ), Holdco, Parent, and the Company
Exhibit 99.29 Equity Commitment Letter, dated December 18, 2015 among BR Wiston Capital (宁波博睿维森股权投资合伙企业 (有限合伙) ), Holdco, Parent, and the Company
Exhibit 99.30 Equity Commitment Letter, dated December 18, 2015 among Yi Capital Qiyuan Fund, L.P. (宁波执一奇元股权投资中心 (有限合伙) ), Holdco, Parent, and the Company
Exhibit 99.31 Equity Commitment Letter, dated December 18, 2015 among Jiaxingyingfei Investment Center (Limited Partnership) (嘉兴英飞投资中心 (有限合伙) ), Holdco, Parent, and the Company
Exhibit 99.32 Equity Commitment Letter, dated December 18, 2015 among Jiaxing Yun Qi Internet Plus Venture Partners LLP (嘉兴云启网加创业投资合伙企业 (有限合伙) ), Holdco, Parent, and the Company
Exhibit 99.33 Equity Commitment Letter, dated December 18, 2015 among Ruipu Wenhua (Tianjin) Investment Center (Limited Partnership) (锐普文华 (天津) 投资中心 (有限合伙) ), Holdco, Parent, and the Company
Exhibit 99.34 Equity Commitment Letter, dated December 18, 2015 among Shanghai Trust Bridge Partners Investment Management LLC (上海挚信投资管理有限公司), Holdco, Parent, and the Company
Exhibit 99.35 Equity Commitment Letter, dated December 18, 2015 among LTW Chuanfu Investment (Shenzhen) LLP (朗泰传富投资 (深圳) 合伙企业 (有限合伙) ), Holdco, Parent, and the Company
Exhibit 99.36 Equity Commitment Letter, dated December 18, 2015 among Zhejiang Puhua Tianqin Equity Investment Management Co., Ltd. (浙江普华天勤股权投资管理有限公司), Holdco, Parent, and the Company
| CUSIP No. 74734M109 | 13D | Page 11 of 16 Pages |
Exhibit 99.37 Equity Commitment Letter, dated December 18, 2015 among Tianjin Xinxin Qiyuan Investment Limited Partnership (天津信心奇缘股权投资合伙企业 (有限合伙) ), Holdco, Parent, and the Company
Exhibit 99.38 Equity Commitment Letter, dated December 18, 2015 among Tianjin Xinxinsheng Investment Limited Partnership (天津欣新盛股权投资合伙企业 (有限合伙) ), Holdco, Parent, and the Company
Exhibit 99.39 Escrow Agreement, dated December 18, 2015 among CITIC Guoan Information Industry Co., Ltd. (中信国安信息产业股份有限公司), Parent, and the Company
Exhibit 99.40 Escrow Agreement, dated December 18, 2015 among Shen Zhen Ping An Real Estate Investment Co., Ltd. (深圳市平安置业投资有限公司), Parent, and the Company
Exhibit 99.41 Escrow Agreement, dated December 18, 2015 among Sunshine Life Insurance Company Ltd. (阳光人寿保险股份有限公司), Parent, and the Company
Exhibit 99.42 Escrow Agreement, dated December 18, 2015 among Taikang Life Insurance Co., Ltd. (泰康人寿保险股份有限公司), Parent, and the Company
Exhibit 99.43 Escrow Agreement, dated December 18, 2015 among New China Capital International Management Limited (新华资本国际管理有限公司), Parent, and the Company
Exhibit 99.44 Escrow Agreement, dated December 18, 2015 among Tai Ping Asset Management Co., Ltd. (太平资产管理有限公司), Parent, and the Company
Exhibit 99.45 Escrow Agreement, dated December 18, 2015 among Jiangsu Huatai Ruilian M&A Fund (LLP) (江苏华泰瑞联并购基金 (有限合伙) ), Parent, and the Company
Exhibit 99.46 Escrow Agreement, dated December 18, 2015 among Greenland Financial Holdings Group Co., Ltd. (绿地金融投资控股集团有限公司), Parent, and the Company
Exhibit 99.47 Escrow Agreement, dated December 18, 2015 among SIP Oriza Chongyuan M&A Fund Partnership (Limited Partnership) (苏州工业园区元禾重元并购股权投资基金合伙企业(有限合伙)), Parent, and the Company
Exhibit 99.48 Escrow Agreement, dated December 18, 2015 among Shanghai Sailing Merger and Acquisition Investment Fund Partnership (Limited Partnership) (上海赛领并购投资基金合伙企业 (有限合伙) ), Parent, and the Company
Exhibit 99.49 Escrow Agreement, dated December 18, 2015 among Shanghai Sailing Boda Equity Investment Fund Partnership (Limited Partnership) (上海赛领博达股权投资基金合伙企业 (有限合伙) ), Parent, and the Company
Exhibit 99.50 Escrow Agreement, dated December 18, 2015 among Fortune Fountain (Beijing) Holding Group Co., Ltd. (沣沅弘 (北京) 控股集团有限公司), Parent, and the Company
Exhibit 99.51 Escrow Agreement, dated December 18, 2015 among Beijing ZGC Trinitas Venture Capital Investment Center (Limited Partnership) (北京中关村国盛创业投资中心 (有限合伙) ), Parent, and the Company
Exhibit 99.52 Escrow Agreement, dated December 18, 2015 among Shanghai Mango Creative Equity Investment Fund (芒果文创 (上海) 股权投资基金合伙企业 (有限合伙) ), Parent, and the Company
Exhibit 99.53 Escrow Agreement, dated December 18, 2015 among Qiancai NO.1 Equity Investment Limited Partnership Enterprise (千采壹号 (象山) 股权投资合伙企业 (有限合伙) ), Parent, and the Company
| CUSIP No. 74734M109 | 13D | Page 12 of 16 Pages |
Exhibit 99.54 Escrow Agreement, dated December 18, 2015 among Pearl River Life Insurance Co., Ltd. (珠江人寿保险股份有限公司), Parent, and the Company
Exhibit 99.55 Escrow Agreement, dated December 18, 2015 among Hengdian Group Holdings Limited (横店集团控股有限公司), Parent, and the Company
Exhibit 99.56 Escrow Agreement, dated December 18, 2015 among Jiangsu Gaoli Group (江苏高力集团有限公司), Parent, and the Company
Exhibit 99.57 Escrow Agreement, dated December 18, 2015 among Minsheng Royal Asset Management Co., Ltd. (民生加银基金管理有限公司), Parent, and the Company
Exhibit 99.58 Escrow Agreement, dated December 18, 2015 among CCB International Capital Management (Tianjin) Ltd. (建银国际资本管理 (天津) 有限公司), Parent, and the Company
Exhibit 99.59 Escrow Agreement, dated December 18, 2015 among China Merchants Wealth Asset Management Co., Ltd. (招商财富资产管理有限公司), Parent, and the Company
Exhibit 99.60 Escrow Agreement, dated December 18, 2015 among Huarong Ruize Investment Management Co., Ltd. (华融瑞泽投资管理有限公司), Parent, and the Company
Exhibit 99.61 Escrow Agreement, dated December 18, 2015 among Beijing Sequoia Yi Yuan Equity Investment Center (Limited Partnership) (北京红杉懿远股权投资中心 (有限合伙) ), Parent, and the Company
Exhibit 99.62 Escrow Agreement, dated December 18, 2015 among Golden Brick Silk Road Investment (Shenzhen) LLP (金砖丝路 (深圳) 股权投资合伙企业 (有限合伙) ), Parent, and the Company
Exhibit 99.63 Escrow Agreement, dated December 18, 2015 among CICC Jiatai (Tianjin) Equity Investment Fund, L.P. (中金佳泰 (天津) 股权投资基金合伙企业 (有限合伙) ), Parent, and the Company
Exhibit 99.64 Escrow Agreement, dated December 18, 2015 among Shanghai Huasheng Lingfei Equity Investment (Limited Partnership) (上海华晟领飞股权投资合伙企业 (有限合伙) ), Parent, and the Company
Exhibit 99.65 Escrow Agreement, dated December 18, 2015 among BR Wiston Capital (宁波博睿维森股权投资合伙企业 (有限合伙) ), Parent, and the Company
Exhibit 99.66 Escrow Agreement, dated December 18, 2015 among Yi Capital Qiyuan Fund, L.P. (宁波执一奇元股权投资中心 (有限合伙) ), Parent, and the Company
Exhibit 99.67 Escrow Agreement, dated December 18, 2015 among Jiaxingyingfei Investment Center (Limited Partnership) (嘉兴英飞投资中心 (有限合伙) ), Parent, and the Company
Exhibit 99.68 Escrow Agreement, dated December 18, 2015 among Jiaxing Yun Qi Internet Plus Venture Partners LLP (嘉兴云启网加创业投资合伙企业 (有限合伙) ), Parent, and the Company
Exhibit 99.69 Escrow Agreement, dated December 18, 2015 among Ruipu Wenhua (Tianjin) Investment Center (Limited Partnership) (锐普文华 (天津) 投资中心 (有限合伙) ), Parent, and the Company
Exhibit 99.70 Escrow Agreement, dated December 18, 2015 among Shanghai Trust Bridge Partners Investment Management LLC (上海挚信投资管理有限公司), Parent, and the Company
Exhibit 99.71 Escrow Agreement, dated December 18, 2015 among LTW Chuanfu Investment (Shenzhen) LLP (朗泰传富投资 (深圳) 合伙企业 (有限合伙) ), Parent, and the Company
| CUSIP No. 74734M109 | 13D | Page 13 of 16 Pages |
Exhibit 99.72 Escrow Agreement, dated December 18, 2015 among Zhejiang Puhua Tianqin Equity Investment Management Co., Ltd. (浙江普华天勤股权投资管理有限公司), Parent, and the Company
Exhibit 99.73 Escrow Agreement, dated December 18, 2015 among Tianjin Xinxin Qiyuan Investment Limited Partnership (天津信心奇缘股权投资合伙企业 (有限合伙) ), Parent, and the Company
Exhibit 99.74 Escrow Agreement, dated December 18, 2015 among Tianjin Xinxinsheng Investment Limited Partnership (天津欣新盛股权投资合伙企业 (有限合伙) ), Parent, and the Company
Exhibit 99.75 Interim Investors Agreement
Exhibit 99.76 Limited Guarantee, dated December 18, 2015 between CITIC Guoan Information Industry Co., Ltd. (中信国安信息产业股份有限公司) and the Company
Exhibit 99.77 Limited Guarantee, dated December 18, 2015 between Shen Zhen Ping An Real Estate Investment Co., Ltd. (深圳市平安置业投资有限公司) and the Company
Exhibit 99.78 Limited Guarantee, dated December 18, 2015 between Sunshine Life Insurance Company Ltd. (阳光人寿保险股份有限公司) and the Company
Exhibit 99.79 Limited Guarantee, dated December 18, 2015 between Taikang Life Insurance Co., Ltd. (泰康人寿保险股份有限公司) and the Company
Exhibit 99.80 Limited Guarantee, dated December 18, 2015 between New China Capital International Management Limited (新华资本国际管理有限公司) and the Company
Exhibit 99.81 Limited Guarantee, dated December 18, 2015 between Tai Ping Asset Management Co., Ltd. (太平资产管理有限公司) and the Company
Exhibit 99.82 Limited Guarantee, dated December 18, 2015 between Jiangsu Huatai Ruilian M&A Fund (LLP) (江苏华泰瑞联并购基金 (有限合伙) ) and the Company
Exhibit 99.83 Limited Guarantee, dated December 18, 2015 between Greenland Financial Holdings Group Co., Ltd. (绿地金融投资控股集团有限公司) and the Company
Exhibit 99.84 Limited Guarantee, dated December 18, 2015 between SIP Oriza Chongyuan M&A Fund Partnership (Limited Partnership) (苏州工业园区元禾重元并购股权投资基金合伙企业(有限合伙)) and the Company
Exhibit 99.85 Limited Guarantee, dated December 18, 2015 between Shanghai Sailing Merger and Acquisition Investment Fund Partnership (Limited Partnership) (上海赛领并购投资基金合伙企业 (有限合伙) ) and the Company
Exhibit 99.86 Limited Guarantee, dated December 18, 2015 between Shanghai Sailing Boda Equity Investment Fund Partnership (Limited Partnership) (上海赛领博达股权投资基金合伙企业 (有限合伙) ) and the Company
Exhibit 99.87 Limited Guarantee, dated December 18, 2015 between Fortune Fountain (Beijing) Holding Group Co., Ltd. (沣沅弘 (北京) 控股集团有限公司) and the Company
Exhibit 99.88 Limited Guarantee, dated December 18, 2015 between Beijing ZGC Trinitas Venture Capital Investment Center (Limited Partnership) (北京中关村国盛创业投资中心 (有限合伙) ) and the Company
Exhibit 99.89 Limited Guarantee, dated December 18, 2015 between Shanghai Mango Creative Equity Investment Fund (芒果文创 (上海) 股权投资基金合伙企业 (有限合伙) ) and the Company
| CUSIP No. 74734M109 | 13D | Page 14 of 16 Pages |
Exhibit 99.90 Limited Guarantee, dated December 18, 2015 between Qiancai NO.1 Equity Investment Limited Partnership Enterprise (千采壹号 (象山) 股权投资合伙企业 (有限合伙) ) and the Company
Exhibit 99.91 Limited Guarantee, dated December 18, 2015 between Pearl River Life Insurance Co., Ltd. (珠江人寿保险股份有限公司) and the Company
Exhibit 99.92 Limited Guarantee, dated December 18, 2015 between Hengdian Group Holdings Limited (横店集团控股有限公司) and the Company
Exhibit 99.93 Limited Guarantee, dated December 18, 2015 between Jiangsu Gaoli Group (江苏高力集团有限公司) and the Company
Exhibit 99.94 Limited Guarantee, dated December 18, 2015 between Minsheng Royal Asset Management Co., Ltd. (民生加银基金管理有限公司) and the Company
Exhibit 99.95 Limited Guarantee, dated December 18, 2015 between CCB International Capital Management (Tianjin) Ltd. (建银国际资本管理 (天津) 有限公司) and the Company
Exhibit 99.96 Limited Guarantee, dated December 18, 2015 between China Merchants Wealth Asset Management Co., Ltd. (招商财富资产管理有限公司) and the Company
Exhibit 99.97 Limited Guarantee, dated December 18, 2015 between Huarong Ruize Investment Management Co., Ltd. (华融瑞泽投资管理有限公司) and the Company
Exhibit 99.98 Limited Guarantee, dated December 18, 2015 between Beijing Sequoia Yi Yuan Equity Investment Center (Limited Partnership) (北京红杉懿远股权投资中心 (有限合伙) ) and the Company
Exhibit 99.99 Limited Guarantee, dated December 18, 2015 between Golden Brick Silk Road Investment (Shenzhen) LLP (金砖丝路 (深圳) 股权投资合伙企业 (有限合伙) ) and the Company
Exhibit 99.100 Limited Guarantee, dated December 18, 2015 between CICC Jiatai (Tianjin) Equity Investment Fund, L.P. (中金佳泰 (天津) 股权投资基金合伙企业 (有限合伙) ) and the Company
Exhibit 99.101 Limited Guarantee, dated December 18, 2015 between Shanghai Huasheng Lingfei Equity Investment (Limited Partnership) (上海华晟领飞股权投资合伙企业 (有限合伙) ) and the Company
Exhibit 99.102 Limited Guarantee, dated December 18, 2015 between BR Wiston Capital (宁波博睿维森股权投资合伙企业 (有限合伙) ) and the Company
Exhibit 99.103 Limited Guarantee, dated December 18, 2015 between Yi Capital Qiyuan Fund, L.P. (宁波执一奇元股权投资中心 (有限合伙) ) and the Company
Exhibit 99.104 Limited Guarantee, dated December 18, 2015 between Jiaxingyingfei Investment Center (Limited Partnership) (嘉兴英飞投资中心 (有限合伙) ) and the Company
Exhibit 99.105 Limited Guarantee, dated December 18, 2015 between Jiaxing Yun Qi Internet Plus Venture Partners LLP (嘉兴云启网加创业投资合伙企业 (有限合伙) ) and the Company
Exhibit 99.106 Limited Guarantee, dated December 18, 2015 between Ruipu Wenhua (Tianjin) Investment Center (Limited Partnership) (锐普文华 (天津) 投资中心 (有限合伙) ) and the Company
Exhibit 99.107 Limited Guarantee, dated December 18, 2015 between Shanghai Trust Bridge Partners Investment Management LLC (上海挚信投资管理有限公司) and the Company
Exhibit 99.108 Limited Guarantee, dated December 18, 2015 between LTW Chuanfu Investment (Shenzhen) LLP (朗泰传富投资 (深圳) 合伙企业 (有限合伙) ) and the Company
| CUSIP No. 74734M109 | 13D | Page 15 of 16 Pages |
Exhibit 99.109 Limited Guarantee, dated December 18, 2015 between Zhejiang Puhua Tianqin Equity Investment Management Co., Ltd. (浙江普华天勤股权投资管理有限公司) and the Company
Exhibit 99.110 Limited Guarantee, dated December 18, 2015 between Tianjin Xinxin Qiyuan Investment Limited Partnership (天津信心奇缘股权投资合伙企业 (有限合伙) ) and the Company
Exhibit 99.111 Limited Guarantee, dated December 18, 2015 between Tianjin Xinxinsheng Investment Limited Partnership (天津欣新盛股权投资合伙企业 (有限合伙) ) and the Company
Exhibit 99.112 Limited Guarantee, dated December 18, 2015 between Global Village and the Company
Exhibit 99.113 Limited Guarantee, dated December 18, 2015 between Young Vision and the Company
Exhibit 99.114 Global Village Guarantee
Exhibit 99.115 Debt Commitment Letter, dated December 18, 2015 among China Merchants Bank Co., Ltd. (招商银行股份有限公司) , as Mandated Lead Arranger, China Merchants Bank Co., Ltd. (招商银行股份有限公司) , as Underwriter, and Holdco
Exhibit 99.116 Debt Commitment Letter, dated December 18, 2015 among China Merchants Bank Co., Ltd. (招商银行股份有限公司) , as Mandated Lead Arranger, China Merchants Bank Co., Ltd. (招商银行股份有限公司) , as Underwriter, and Parent
| CUSIP No. 74734M109 | 13D | Page 16 of 16 Pages |
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.
Dated: December 28, 2015
| Hongyi Zhou | |
| /s/ Hongyi Zhou | |
| Global Village Associates limited |
| By: | /s/ Huan Hu | |
| Name: Huan Hu | ||
| Title: Director |
| Fair point international Limited |
| By: | /s/ Hongyi Zhou | |
| Name: Hongyi Zhou | ||
| Title: Director |
[Signature Page to 13D]
Exhibit 99.1
Joint Filing Agreement
In accordance with Rule 13d-1(k)(1) under the Securities Exchange Act of 1934, as amended, each of the undersigned parties hereby agrees to file jointly the statement on Schedule 13D (including any amendments thereto) with respect to the ordinary shares, par value $0.001 per share, of Qihoo 360 Technology Co. Ltd., a Cayman Islands company.
It is understood and agreed that each of the parties hereto is responsible for the timely filing of such statement and any amendments thereto, and for the completeness and accuracy of information concerning such party contained therein, but such party is not responsible for the completeness and accuracy of information concerning another party unless such party knows or has reason to believe such information is inaccurate. It is understood and agreed that a copy of this agreement shall be attached as an exhibit to the statement on Schedule 13D, and any amendments thereto, filed on behalf of the parties hereto.
This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument.
[Remainder of this page has been left intentionally blank.]
Signature Page
IN WITNESS WHEREOF, the undersigned hereby execute this Agreement as of December 28, 2015.
| Hongyi Zhou | |
| /s/ Hongyi Zhou | |
| Global Village Associates limited |
| By: | /s/ Huan Hu | |
| Name: Huan Hu | ||
| Title: Director |
| Fair point international Limited |
| By: | /s/ Hongyi Zhou | |
| Name: Hongyi Zhou | ||
| Title: Director |
[Signature Page to 13D Joint Filing Agreement]
Exhibit 99.3
Execution Version
CITIC Guoan Information Industry Co., Ltd.
(中信国安信息产业股份有限公司)
Room 208-1, Winland International Finance center,
No. 7, Financial Street,
Xicheng District, Beijing 100033 China.
December 18, 2015
Tianjin Qixin Zhicheng Technology Co., Ltd.
(天津奇信志成科技有限公司)
Room 9-3-401
No. 39 Gaoxin 6th Road
Binhai Science and Technology Area
Binhai Hi-tech District
Tianjin, China
Tianjin Qixin Tongda Technology Co., Ltd.
(天津奇信通达科技有限公司)
No. 4-B-32, 4F, Building 3
No. 188 Rixin Avenue
Binhai Hi-Tech Zone
Binhai New District
Tianjin, P.R. China 300301
Solely for the purposes of Section 4 and Section 7 hereto,
Qihoo 360 Technology Co. Ltd.
Tower A, Building 2
No.6 Jiuxianqiao Road
Chaoyang District
Beijing, P.R. China 100015
Re: Equity Commitment Letter
Ladies and Gentlemen:
CITIC Guoan Information Industry Co., Ltd. (including its successors or permitted assigns, the "Investor") is pleased to offer this commitment, subject to the terms and conditions contained herein, to purchase, directly or indirectly, equity interests in (i) Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), and (ii) Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"). It is contemplated that pursuant to the terms of that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Company"), Holdco, Parent, True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), Merger Sub will merge with and into the Company, with the Company being the surviving company (the "Merger"). Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Merger Agreement.
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1. Commitment. The Investor hereby agrees to contribute, or cause to be contributed, within three (3) Business Days after the conditions in Section 2 of this letter agreement are satisfied, as an equity contribution to (i) Holdco, an aggregate amount of RMB equivalent to US$ 197,340,800 (the "Holdco Contribution") and (ii) Parent, an aggregate amount of RMB equivalent to US$ 202,659,200 (the "Parent Contribution", and collectively with the Holdco Contribution, the "Contribution"),subject to the terms and conditions hereof. For purposes of this letter agreement, the RMB equivalents of U.S. dollars shall be determined using the prevailing exchange rate notified by Parent to the Investor at least three (3) Business Days prior to funding. The proceeds of the Holdco Contribution, along with the amounts to be paid by all other Investors (the "Other Investors") to Holdco under their respective Equity Commitment Letters, shall promptly upon receipt be further contributed by Holdco, as an equity contribution to Parent (collectively, the "Holdco to Parent Contribution"). The proceeds of the Parent Contribution, along with the Holdco to Parent Contribution and amounts to be paid by the Other Investors to Parent under their respective Equity Commitment Letters (such aggregate amount, the "Commitments"), shall be used by Parent, to the extent necessary, to (i) fund (or cause to be funded through Midco or Merger Sub) a portion of the Exchange Fund and any other amounts required to be paid pursuant to the Merger Agreement (including any applicable consideration to the holders of Company Convertible Notes or repurchase of any Company Convertible Notes) and (ii) pay (or cause to be paid through Midco or Merger Sub) related fees and expenses (which, for the avoidance of doubt, shall not include any Parent Termination Fee or any Guaranteed Obligations with respect to a Parent Termination Fee under the Limited Guarantee given by the Investor), in each case, pursuant to and in accordance with the terms of, and subject to the conditions of, the Merger Agreement. Notwithstanding anything else to the contrary in this letter agreement, the aggregate amount of liability of the Investor under this letter agreement shall at no time exceed the aggregate amount of the Contribution less any portion of the Contribution that has been funded in accordance with the terms hereof or the terms of that certain Escrow Agreement, dated of even date herewith, between the Investor and Parent (the "Escrow Agreement").
2. Closing Conditions. The Investor's obligation to make the Contribution pursuant to this letter agreement is subject to the satisfaction in full (or waiver, if permissible) of all conditions precedent to the obligations of the Parent Parties to consummate the transactions contemplated by the Merger Agreement set forth in Article VII thereof other than (i) conditions that by their nature are to be satisfied on the Closing Date and (ii) any PRC Regulatory Approval that is applicable to the Parent Parties only after the Equity Financing and/or the Debt Financing has been funded. The Investor shall make its Contribution pursuant to the terms of the forms of subscription agreement(s) attached hereto as Exhibit A, which do not contain any conditions to which the Investor's obligation to make the Contribution pursuant to this letter agreement is subject other than those referenced in the foregoing sentence.
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3. Limited Guarantee. Concurrently with the execution and delivery of this letter agreement, the Investor is executing and delivering to the Company a Limited Guarantee (the "Limited Guarantee"). The Company's (i) remedies against the Investor and the Other Investors under their respective Limited Guarantees, (ii) rights set forth in Section 4 of this letter agreement and (iii) remedies against the Parent Parties under the Merger Agreement shall be, and are intended to be, the sole and exclusive direct or indirect remedies available to the Company against the Investor, any former, current or future director, officer, employee, agent or affiliate of the Investor, any former, current or future, direct or indirect holder of any equity interests or securities of the Investor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, affiliate, controlling person or representative of any of the foregoing (each such person or entity, a "Related Person") in respect of any liabilities or obligations arising under, or in connection with, this letter agreement, the Merger Agreement or the transactions contemplated thereby, including without limitation in the event any of the Parent Parties breaches its obligations under the Merger Agreement, whether or not such breach is caused by the Investor's breach of its obligations under this letter agreement; provided that, in the event the Company successfully compels specific performance of the obligations of the Parent Parties to consummate the Merger in accordance with, and subject to the terms and conditions set forth in, Section 9.6(b) of the Merger Agreement, and the Investor shall have made the Contribution (and all Other Investors have funded their Commitments in full and the Effective Time occurred), then neither the Company nor any other Person (including, without limitation, the Company's equityholders, Affiliates and Subsidiaries) shall have any remedy against the Investor or any Related Person, including under the Limited Guarantee.
4. Enforcement. This letter agreement may only be enforced (i) by Holdco or Parent, (ii) by the Company to seek specific performance of the Investor's obligations to fund the Contribution, (iii) by the Company to seek specific performance of Holdco's obligations under Section 1 of this letter agreement to fund the Holdco to Parent Contribution, in the case of each of clause (ii) and clause (iii), in accordance with the Merger Agreement or (iv) by the Company, as set forth in Section 7 of this letter agreement.
5. No Recourse. Notwithstanding anything that may be expressed or implied in this letter agreement, by their acceptance hereof, each of Holdco and Parent acknowledges and agrees that (a) notwithstanding that the Investor may be a limited liability entity, no recourse hereunder or under any documents or instruments delivered in connection herewith may be had against any Related Person, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding or by virtue of any statute, regulation or other applicable law, and (b) no personal liability whatsoever will attach to, be imposed on or otherwise be incurred by Related Persons in connection with this letter agreement or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations or by their creation.
6. Expiration. All obligations under this letter agreement shall expire and terminate automatically and immediately upon the earliest to occur of (a) the valid termination of the Merger Agreement in accordance with its terms, (b) the Closing (at which time the Contribution shall be discharged), (c) the making of the Contribution by the Investor or its permitted assigns, (d) the Company or any of its Affiliates asserting a claim that would make the Limited Guarantee become terminable in accordance with the terms thereof, and (e) ten (10) months after the date hereof; provided that, in the event a claim by the Company or any of its Affiliates under Section 4 of this letter agreement or any claim seeking an injunction, specific performance or other equitable remedy against any Parent Party under Section 9.6(b) of the Merger Agreement is then pending, this letter agreement shall only terminate upon the final, non-appealable resolution of such action and satisfaction by the Investor of any obligations finally determined by a court of competent jurisdiction or agreed to be owed by the Investor in connection with this letter agreement.
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7. No Assignment. The Investor's obligation to fund the Contribution may not be assigned or delegated (whether by operation of law, merger, consolidation or otherwise). Neither this letter agreement nor any of the rights, interests or obligations hereunder shall be assignable by Holdco or Parent without the Investor's and the Company's prior written consent, and the granting of such consent in any given instance shall be solely in the discretion of the Investor and the Company and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment. Any purported transfer, assignment or delegation in violation of this Section 7 shall be null and void and of no force and effect.
8. No Other Beneficiaries. Except for the rights provided to the Company under Section 4 and Section 7 of this letter agreement, this letter agreement shall be binding on the Investor solely for the benefit of Holdco and Parent, and nothing set forth in this letter agreement is intended to or shall confer upon or give to any Person other than Holdco and Parent any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Holdco or Parent to enforce, the Contribution or any provisions of this letter agreement; provided that, notwithstanding anything to the contrary in this letter agreement, any Related Person shall be a third party beneficiary of the provisions set forth herein that are for the benefit of any Related Person (including the provisions of Sections 3, 8, 11, 12 and 14), and all such provisions shall survive any termination of this letter agreement indefinitely. Without limiting the foregoing, neither Holdco's, Parent's, Midco's, Merger Sub's nor the Company's creditors shall have the right to enforce this letter agreement or to cause Holdco or Parent or the Company to enforce this letter agreement.
9. Representations and Warranties. The Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this letter agreement; (b) the execution, delivery and performance of this letter agreement by the Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Investor are necessary therefor; (c) this letter agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by the Investor of this letter agreement do not and will not violate the organizational documents of the Investor or any applicable Law or conflict with any material agreement binding on the Investor; (e) the Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by the Investor.
10. Severability. Any term or provision of this letter agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this letter agreement in any jurisdiction and, if any provision of this letter agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this letter agreement may not be enforced without giving effect to the provisions of Sections 2 through 8, 11 and 12 hereof. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this letter agreement or any part hereof is invalid, illegal or unenforceable.
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11. Jurisdiction; Dispute Resolution.
In the event of any dispute, controversy, or claim between the Investor and Holdco arising out of or relating to the breach, termination or validity of this letter agreement ("Dispute"), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission ("CIETAC") under the arbitration rules of CIETAC (the "Rule") in force when the notice of arbitration is submitted by a party.
The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule.
The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 11. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party.
The awards rendered by the arbitrators pursuant to this Section 11 shall be non-appealable, final, binding and conclusive on the parties to such Dispute.
The Investor, Holdco and Parent understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision.
12. Headings. Headings of the Sections of this letter agreement are for convenience of the parties only and shall be given no substantive or interpretive effect whatsoever.
13. Governing Law. This letter agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People's Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
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14. Entire Agreement; Amendment; Counterparts. This letter agreement, the Escrow Agreement, the Limited Guarantee and the Merger Agreement constitute the entire agreement with respect to the subject matter hereof and thereof, and supersede all other prior agreements, understandings and statements, both written and oral, between or among Holdco, Parent or any of their respective Affiliates, on the one hand, and the Investor or any of its Affiliates, on the other hand. Any provision of this letter agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed by the Investor, Holdco and Parent; provided that any amendment, waiver or modification that would be expected to be adverse to the Company's rights set forth in Section 4 and/or Section 7 of this letter agreement shall require the prior written consent of the Company. This letter agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
[Remainder of page intentionally left blank]
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| Very truly yours, | ||
| CITIC Guoan Information Industry Co., Ltd. | ||
| (中信国安信息产业股份有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Sun Lu | |
| Name: | Sun Lu | |
| Title: | General Manager | |
| Agreed to and accepted as of the date first | ||
| written above: | ||
| Tianjin Qixin Zhicheng Technology Co., Ltd. | ||
| (天津奇信志成科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: | Eric X. Chen | |
| Title: | Director | |
[Signature Page to Equity Commitment Letter]
Exhibit A
Subscription Agreement(s)
Exhibit 99.4
Execution Version
Shen Zhen Ping An Real Estate Investment Co., Ltd.
(深圳市平安置业投资有限公司)
December 18, 2015
Tianjin Qixin Zhicheng Technology Co., Ltd.
(天津奇信志成科技有限公司)
Room 9-3-401
No. 39 Gaoxin 6th Road
Binhai Science and Technology Area
Binhai Hi-tech District
Tianjin, China
Tianjin Qixin Tongda Technology Co., Ltd.
(天津奇信通达科技有限公司)
No. 4-B-32, 4F, Building 3
No. 188 Rixin Avenue
Binhai Hi-Tech Zone
Binhai New District
Tianjin, P.R. China 300301
Solely for the purposes of Section 4 and Section 7 hereto,
Qihoo 360 Technology Co. Ltd.
Tower A, Building 2
No.6 Jiuxianqiao Road
Chaoyang District
Beijing, P.R. China 100015
Re: Equity Commitment Letter
Ladies and Gentlemen:
Shen Zhen Ping An Real Estate Investment Co., Ltd. (including its successors or permitted assigns, the "Investor") is pleased to offer this commitment, subject to the terms and conditions contained herein, to purchase, directly or indirectly, equity interests in (i) Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), and (ii) Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"). It is contemplated that pursuant to the terms of that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Company"), Holdco, Parent, True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), Merger Sub will merge with and into the Company, with the Company being the surviving company (the "Merger"). Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Merger Agreement.
1. Commitment. The Investor hereby agrees to contribute, or cause to be contributed, within three (3) Business Days after the conditions in Section 2 of this letter agreement are satisfied, as an equity contribution to (i) Holdco, an aggregate amount of RMB equivalent to US$ 157,872,640 (the "Holdco Contribution") and (ii) Parent, an aggregate amount of RMB equivalent to US$ 162,127,360 (the "Parent Contribution", and collectively with the Holdco Contribution, the "Contribution"),subject to the terms and conditions hereof. For purposes of this letter agreement, the RMB equivalents of U.S. dollars shall be determined using the prevailing exchange rate notified by Parent to the Investor at least three (3) Business Days prior to funding. The proceeds of the Holdco Contribution, along with the amounts to be paid by all other Investors (the "Other Investors") to Holdco under their respective Equity Commitment Letters, shall promptly upon receipt be further contributed by Holdco, as an equity contribution to Parent (collectively, the "Holdco to Parent Contribution"). The proceeds of the Parent Contribution, along with the Holdco to Parent Contribution and amounts to be paid by the Other Investors to Parent under their respective Equity Commitment Letters (such aggregate amount, the "Commitments"), shall be used by Parent, to the extent necessary, to (i) fund (or cause to be funded through Midco or Merger Sub) a portion of the Exchange Fund and any other amounts required to be paid pursuant to the Merger Agreement (including any applicable consideration to the holders of Company Convertible Notes or repurchase of any Company Convertible Notes) and (ii) pay (or cause to be paid through Midco or Merger Sub) related fees and expenses (which, for the avoidance of doubt, shall not include any Parent Termination Fee or any Guaranteed Obligations with respect to a Parent Termination Fee under the Limited Guarantee given by the Investor), in each case, pursuant to and in accordance with the terms of, and subject to the conditions of, the Merger Agreement. Notwithstanding anything else to the contrary in this letter agreement, the aggregate amount of liability of the Investor under this letter agreement shall at no time exceed the aggregate amount of the Contribution less any portion of the Contribution that has been funded in accordance with the terms hereof or the terms of that certain Escrow Agreement, dated of even date herewith, between the Investor and Parent (the "Escrow Agreement").
2. Closing Conditions. The Investor's obligation to make the Contribution pursuant to this letter agreement is subject to the satisfaction in full (or waiver, if permissible) of all conditions precedent to the obligations of the Parent Parties to consummate the transactions contemplated by the Merger Agreement set forth in Article VII thereof other than (i) conditions that by their nature are to be satisfied on the Closing Date and (ii) any PRC Regulatory Approval that is applicable to the Parent Parties only after the Equity Financing and/or the Debt Financing has been funded. The Investor shall make its Contribution pursuant to the terms of the forms of subscription agreement(s) attached hereto as Exhibit A, which do not contain any conditions to which the Investor's obligation to make the Contribution pursuant to this letter agreement is subject other than those referenced in the foregoing sentence.
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3. Limited Guarantee. Concurrently with the execution and delivery of this letter agreement, the Investor is executing and delivering to the Company a Limited Guarantee (the "Limited Guarantee"). The Company's (i) remedies against the Investor and the Other Investors under their respective Limited Guarantees, (ii) rights set forth in Section 4 of this letter agreement and (iii) remedies against the Parent Parties under the Merger Agreement shall be, and are intended to be, the sole and exclusive direct or indirect remedies available to the Company against the Investor, any former, current or future director, officer, employee, agent or affiliate of the Investor, any former, current or future, direct or indirect holder of any equity interests or securities of the Investor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, affiliate, controlling person or representative of any of the foregoing (each such person or entity, a "Related Person") in respect of any liabilities or obligations arising under, or in connection with, this letter agreement, the Merger Agreement or the transactions contemplated thereby, including without limitation in the event any of the Parent Parties breaches its obligations under the Merger Agreement, whether or not such breach is caused by the Investor's breach of its obligations under this letter agreement; provided that, in the event the Company successfully compels specific performance of the obligations of the Parent Parties to consummate the Merger in accordance with, and subject to the terms and conditions set forth in, Section 9.6(b) of the Merger Agreement, and the Investor shall have made the Contribution (and all Other Investors have funded their Commitments in full and the Effective Time occurred), then neither the Company nor any other Person (including, without limitation, the Company's equityholders, Affiliates and Subsidiaries) shall have any remedy against the Investor or any Related Person, including under the Limited Guarantee.
4. Enforcement. This letter agreement may only be enforced (i) by Holdco or Parent, (ii) by the Company to seek specific performance of the Investor's obligations to fund the Contribution, (iii) by the Company to seek specific performance of Holdco's obligations under Section 1 of this letter agreement to fund the Holdco to Parent Contribution, in the case of each of clause (ii) and clause (iii), in accordance with the Merger Agreement or (iv) by the Company, as set forth in Section 7 of this letter agreement.
5. No Recourse. Notwithstanding anything that may be expressed or implied in this letter agreement, by their acceptance hereof, each of Holdco and Parent acknowledges and agrees that (a) notwithstanding that the Investor may be a limited liability entity, no recourse hereunder or under any documents or instruments delivered in connection herewith may be had against any Related Person, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding or by virtue of any statute, regulation or other applicable law, and (b) no personal liability whatsoever will attach to, be imposed on or otherwise be incurred by Related Persons in connection with this letter agreement or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations or by their creation.
6. Expiration. All obligations under this letter agreement shall expire and terminate automatically and immediately upon the earliest to occur of (a) the valid termination of the Merger Agreement in accordance with its terms, (b) the Closing (at which time the Contribution shall be discharged), (c) the making of the Contribution by the Investor or its permitted assigns, (d) the Company or any of its Affiliates asserting a claim that would make the Limited Guarantee become terminable in accordance with the terms thereof, and (e) ten (10) months after the date hereof; provided that, in the event a claim by the Company or any of its Affiliates under Section 4 of this letter agreement or any claim seeking an injunction, specific performance or other equitable remedy against any Parent Party under Section 9.6(b) of the Merger Agreement is then pending, this letter agreement shall only terminate upon the final, non-appealable resolution of such action and satisfaction by the Investor of any obligations finally determined by a court of competent jurisdiction or agreed to be owed by the Investor in connection with this letter agreement.
7. No Assignment. The Investor's obligation to fund the Contribution may not be assigned or delegated (whether by operation of law, merger, consolidation or otherwise). Neither this letter agreement nor any of the rights, interests or obligations hereunder shall be assignable by Holdco or Parent without the Investor's and the Company's prior written consent, and the granting of such consent in any given instance shall be solely in the discretion of the Investor and the Company and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment. Any purported transfer, assignment or delegation in violation of this Section 7 shall be null and void and of no force and effect.
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8. No Other Beneficiaries. Except for the rights provided to the Company under Section 4 and Section 7 of this letter agreement, this letter agreement shall be binding on the Investor solely for the benefit of Holdco and Parent, and nothing set forth in this letter agreement is intended to or shall confer upon or give to any Person other than Holdco and Parent any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Holdco or Parent to enforce, the Contribution or any provisions of this letter agreement; provided that, notwithstanding anything to the contrary in this letter agreement, any Related Person shall be a third party beneficiary of the provisions set forth herein that are for the benefit of any Related Person (including the provisions of Sections 3, 8, 11, 12 and 14), and all such provisions shall survive any termination of this letter agreement indefinitely. Without limiting the foregoing, neither Holdco's, Parent's, Midco's, Merger Sub's nor the Company's creditors shall have the right to enforce this letter agreement or to cause Holdco or Parent or the Company to enforce this letter agreement.
9. Representations and Warranties. The Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this letter agreement; (b) the execution, delivery and performance of this letter agreement by the Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Investor are necessary therefor; (c) this letter agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by the Investor of this letter agreement do not and will not violate the organizational documents of the Investor or any applicable Law or conflict with any material agreement binding on the Investor; (e) the Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by the Investor.
10. Severability. Any term or provision of this letter agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this letter agreement in any jurisdiction and, if any provision of this letter agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this letter agreement may not be enforced without giving effect to the provisions of Sections 2 through 8, 11 and 12 hereof. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this letter agreement or any part hereof is invalid, illegal or unenforceable.
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11. Jurisdiction; Dispute Resolution.
In the event of any dispute, controversy, or claim between the Investor and Holdco arising out of or relating to the breach, termination or validity of this letter agreement ("Dispute"), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission ("CIETAC") under the arbitration rules of CIETAC (the "Rule") in force when the notice of arbitration is submitted by a party.
The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule.
The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 11. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party.
The awards rendered by the arbitrators pursuant to this Section 11 shall be non-appealable, final, binding and conclusive on the parties to such Dispute.
The Investor, Holdco and Parent understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision.
12. Headings. Headings of the Sections of this letter agreement are for convenience of the parties only and shall be given no substantive or interpretive effect whatsoever.
13. Governing Law. This letter agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People's Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
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14. Entire Agreement; Amendment; Counterparts. This letter agreement, the Escrow Agreement, the Limited Guarantee and the Merger Agreement constitute the entire agreement with respect to the subject matter hereof and thereof, and supersede all other prior agreements, understandings and statements, both written and oral, between or among Holdco, Parent or any of their respective Affiliates, on the one hand, and the Investor or any of its Affiliates, on the other hand. Any provision of this letter agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed by the Investor, Holdco and Parent; provided that any amendment, waiver or modification that would be expected to be adverse to the Company's rights set forth in Section 4 and/or Section 7 of this letter agreement shall require the prior written consent of the Company. This letter agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
[Remainder of page intentionally left blank]
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| Very truly yours, | ||
| Shen Zhen Ping An Real Estate Investment Co., Ltd. | ||
| (深圳市平安置业投资有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ MENG Shen | |
| Name: | MENG Shen (孟甡) | |
| Title: | Corporate Representative | |
| Agreed to and accepted as of the date first | ||
| written above: | ||
| Tianjin Qixin Zhicheng Technology Co., Ltd. | ||
| (天津奇信志成科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: | Eric X. Chen | |
| Title: | Director | |
[Signature Page to Equity Commitment Letter]
Exhibit A
Subscription Agreement(s)
Exhibit 99.5
Execution Version
Sunshine Life Insurance Company Ltd.
(阳光人寿保险股份有限公司)
3F North tower World Fortune Center,
No. 1 Dongsanhua Zhonglu, Chaoyang District, Beijing
December 18, 2015
Tianjin Qixin Zhicheng Technology Co., Ltd.
(天津奇信志成科技有限公司)
Room 9-3-401
No. 39 Gaoxin 6th Road
Binhai Science and Technology Area
Binhai Hi-tech District
Tianjin, China
Tianjin Qixin Tongda Technology Co., Ltd.
(天津奇信通达科技有限公司)
No. 4-B-32, 4F, Building 3
No. 188 Rixin Avenue
Binhai Hi-Tech Zone
Binhai New District
Tianjin, P.R. China 300301
Solely for the purposes of Section 4 and Section 7 hereto,
Qihoo 360 Technology Co. Ltd.
Tower A, Building 2
No.6 Jiuxianqiao Road
Chaoyang District
Beijing, P.R. China 100015
Re: Equity Commitment Letter
Ladies and Gentlemen:
Sunshine Life Insurance Company Ltd. (including its successors or permitted assigns, the "Investor") is pleased to offer this commitment, subject to the terms and conditions contained herein, to purchase, directly or indirectly, equity interests in (i) Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), and (ii) Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"). It is contemplated that pursuant to the terms of that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Company"), Holdco, Parent, True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), Merger Sub will merge with and into the Company, with the Company being the surviving company (the "Merger"). Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Merger Agreement.
1. Commitment. The Investor hereby agrees to contribute, or cause to be contributed, within three (3) Business Days after the conditions in Section 2 of this letter agreement are satisfied, as an equity contribution to (i) Holdco, an aggregate amount of RMB equivalent to US$ 157,872,640 (the "Holdco Contribution") and (ii) Parent, an aggregate amount of RMB equivalent to US$ 162,127,360 (the "Parent Contribution", and collectively with the Holdco Contribution, the "Contribution"),subject to the terms and conditions hereof. For purposes of this letter agreement, the RMB equivalents of U.S. dollars shall be determined using the prevailing exchange rate notified by Parent to the Investor at least three (3) Business Days prior to funding. The proceeds of the Holdco Contribution, along with the amounts to be paid by all other Investors (the "Other Investors") to Holdco under their respective Equity Commitment Letters, shall promptly upon receipt be further contributed by Holdco, as an equity contribution to Parent (collectively, the "Holdco to Parent Contribution"). The proceeds of the Parent Contribution, along with the Holdco to Parent Contribution and amounts to be paid by the Other Investors to Parent under their respective Equity Commitment Letters (such aggregate amount, the "Commitments"), shall be used by Parent, to the extent necessary, to (i) fund (or cause to be funded through Midco or Merger Sub) a portion of the Exchange Fund and any other amounts required to be paid pursuant to the Merger Agreement (including any applicable consideration to the holders of Company Convertible Notes or repurchase of any Company Convertible Notes) and (ii) pay (or cause to be paid through Midco or Merger Sub) related fees and expenses (which, for the avoidance of doubt, shall not include any Parent Termination Fee or any Guaranteed Obligations with respect to a Parent Termination Fee under the Limited Guarantee given by the Investor), in each case, pursuant to and in accordance with the terms of, and subject to the conditions of, the Merger Agreement. Notwithstanding anything else to the contrary in this letter agreement, the aggregate amount of liability of the Investor under this letter agreement shall at no time exceed the aggregate amount of the Contribution less any portion of the Contribution that has been funded in accordance with the terms hereof or the terms of that certain Escrow Agreement, dated of even date herewith, between the Investor and Parent (the "Escrow Agreement").
2. Closing Conditions. The Investor's obligation to make the Contribution pursuant to this letter agreement is subject to the satisfaction in full (or waiver, if permissible) of all conditions precedent to the obligations of the Parent Parties to consummate the transactions contemplated by the Merger Agreement set forth in Article VII thereof other than (i) conditions that by their nature are to be satisfied on the Closing Date and (ii) any PRC Regulatory Approval that is applicable to the Parent Parties only after the Equity Financing and/or the Debt Financing has been funded. The Investor shall make its Contribution pursuant to the terms of the forms of subscription agreement(s) attached hereto as Exhibit A, which do not contain any conditions to which the Investor's obligation to make the Contribution pursuant to this letter agreement is subject other than those referenced in the foregoing sentence.
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3. Limited Guarantee. Concurrently with the execution and delivery of this letter agreement, the Investor is executing and delivering to the Company a Limited Guarantee (the "Limited Guarantee"). The Company's (i) remedies against the Investor and the Other Investors under their respective Limited Guarantees, (ii) rights set forth in Section 4 of this letter agreement and (iii) remedies against the Parent Parties under the Merger Agreement shall be, and are intended to be, the sole and exclusive direct or indirect remedies available to the Company against the Investor, any former, current or future director, officer, employee, agent or affiliate of the Investor, any former, current or future, direct or indirect holder of any equity interests or securities of the Investor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, affiliate, controlling person or representative of any of the foregoing (each such person or entity, a "Related Person") in respect of any liabilities or obligations arising under, or in connection with, this letter agreement, the Merger Agreement or the transactions contemplated thereby, including without limitation in the event any of the Parent Parties breaches its obligations under the Merger Agreement, whether or not such breach is caused by the Investor's breach of its obligations under this letter agreement; provided that, in the event the Company successfully compels specific performance of the obligations of the Parent Parties to consummate the Merger in accordance with, and subject to the terms and conditions set forth in, Section 9.6(b) of the Merger Agreement, and the Investor shall have made the Contribution (and all Other Investors have funded their Commitments in full and the Effective Time occurred), then neither the Company nor any other Person (including, without limitation, the Company's equityholders, Affiliates and Subsidiaries) shall have any remedy against the Investor or any Related Person, including under the Limited Guarantee.
4. Enforcement. This letter agreement may only be enforced (i) by Holdco or Parent, (ii) by the Company to seek specific performance of the Investor's obligations to fund the Contribution, (iii) by the Company to seek specific performance of Holdco's obligations under Section 1 of this letter agreement to fund the Holdco to Parent Contribution, in the case of each of clause (ii) and clause (iii), in accordance with the Merger Agreement or (iv) by the Company, as set forth in Section 7 of this letter agreement.
5. No Recourse. Notwithstanding anything that may be expressed or implied in this letter agreement, by their acceptance hereof, each of Holdco and Parent acknowledges and agrees that (a) notwithstanding that the Investor may be a limited liability entity, no recourse hereunder or under any documents or instruments delivered in connection herewith may be had against any Related Person, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding or by virtue of any statute, regulation or other applicable law, and (b) no personal liability whatsoever will attach to, be imposed on or otherwise be incurred by Related Persons in connection with this letter agreement or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations or by their creation.
6. Expiration. All obligations under this letter agreement shall expire and terminate automatically and immediately upon the earliest to occur of (a) the valid termination of the Merger Agreement in accordance with its terms, (b) the Closing (at which time the Contribution shall be discharged), (c) the making of the Contribution by the Investor or its permitted assigns, (d) the Company or any of its Affiliates asserting a claim that would make the Limited Guarantee become terminable in accordance with the terms thereof, and (e) ten (10) months after the date hereof; provided that, in the event a claim by the Company or any of its Affiliates under Section 4 of this letter agreement or any claim seeking an injunction, specific performance or other equitable remedy against any Parent Party under Section 9.6(b) of the Merger Agreement is then pending, this letter agreement shall only terminate upon the final, non-appealable resolution of such action and satisfaction by the Investor of any obligations finally determined by a court of competent jurisdiction or agreed to be owed by the Investor in connection with this letter agreement.
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7. No Assignment. The Investor's obligation to fund the Contribution may not be assigned or delegated (whether by operation of law, merger, consolidation or otherwise). Neither this letter agreement nor any of the rights, interests or obligations hereunder shall be assignable by Holdco or Parent without the Investor's and the Company's prior written consent, and the granting of such consent in any given instance shall be solely in the discretion of the Investor and the Company and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment. Any purported transfer, assignment or delegation in violation of this Section 7 shall be null and void and of no force and effect.
8. No Other Beneficiaries. Except for the rights provided to the Company under Section 4 and Section 7 of this letter agreement, this letter agreement shall be binding on the Investor solely for the benefit of Holdco and Parent, and nothing set forth in this letter agreement is intended to or shall confer upon or give to any Person other than Holdco and Parent any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Holdco or Parent to enforce, the Contribution or any provisions of this letter agreement; provided that, notwithstanding anything to the contrary in this letter agreement, any Related Person shall be a third party beneficiary of the provisions set forth herein that are for the benefit of any Related Person (including the provisions of Sections 3, 8, 11, 12 and 14), and all such provisions shall survive any termination of this letter agreement indefinitely. Without limiting the foregoing, neither Holdco's, Parent's, Midco's, Merger Sub's nor the Company's creditors shall have the right to enforce this letter agreement or to cause Holdco or Parent or the Company to enforce this letter agreement.
9. Representations and Warranties. The Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this letter agreement; (b) the execution, delivery and performance of this letter agreement by the Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Investor are necessary therefor; (c) this letter agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by the Investor of this letter agreement do not and will not violate the organizational documents of the Investor or any applicable Law or conflict with any material agreement binding on the Investor; (e) the Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by the Investor.
10. Severability. Any term or provision of this letter agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this letter agreement in any jurisdiction and, if any provision of this letter agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this letter agreement may not be enforced without giving effect to the provisions of Sections 2 through 8, 11 and 12 hereof. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this letter agreement or any part hereof is invalid, illegal or unenforceable.
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11. Jurisdiction; Dispute Resolution.
In the event of any dispute, controversy, or claim between the Investor and Holdco arising out of or relating to the breach, termination or validity of this letter agreement ("Dispute"), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission ("CIETAC") under the arbitration rules of CIETAC (the "Rule") in force when the notice of arbitration is submitted by a party.
The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule.
The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 11. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party.
The awards rendered by the arbitrators pursuant to this Section 11 shall be non-appealable, final, binding and conclusive on the parties to such Dispute.
The Investor, Holdco and Parent understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision.
12. Headings. Headings of the Sections of this letter agreement are for convenience of the parties only and shall be given no substantive or interpretive effect whatsoever.
13. Governing Law. This letter agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People's Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
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14. Entire Agreement; Amendment; Counterparts. This letter agreement, the Escrow Agreement, the Limited Guarantee and the Merger Agreement constitute the entire agreement with respect to the subject matter hereof and thereof, and supersede all other prior agreements, understandings and statements, both written and oral, between or among Holdco, Parent or any of their respective Affiliates, on the one hand, and the Investor or any of its Affiliates, on the other hand. Any provision of this letter agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed by the Investor, Holdco and Parent; provided that any amendment, waiver or modification that would be expected to be adverse to the Company's rights set forth in Section 4 and/or Section 7 of this letter agreement shall require the prior written consent of the Company. This letter agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
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| Very truly yours, | ||
| Sunshine Life Insurance Company Ltd. | ||
| (阳光人寿保险股份有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Ke Li | |
| Name: | Ke Li | |
| Title: | Legal Representative | |
| Agreed to and accepted as of the date first | ||
| written above: | ||
| Tianjin Qixin Zhicheng Technology Co., Ltd. | ||
| (天津奇信志成科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: | Eric X. Chen | |
| Title: | Director | |
[Signature Page to Equity Commitment Letter]
Exhibit A
Subscription Agreement(s)
Exhibit 99.6
Execution Version
Taikang Life Insurance Co., Ltd.
(泰康人寿保险股份有限公司)
Floor 5, Excel Center, 6 Wudinghou Street, Beijing
December 18, 2015
Tianjin Qixin Zhicheng Technology Co., Ltd.
(天津奇信志成科技有限公司)
Room 9-3-401
No. 39 Gaoxin 6th Road
Binhai Science and Technology Area
Binhai Hi-tech District
Tianjin, China
Tianjin Qixin Tongda Technology Co., Ltd.
(天津奇信通达科技有限公司)
No. 4-B-32, 4F, Building 3
No. 188 Rixin Avenue
Binhai Hi-Tech Zone
Binhai New District
Tianjin, P.R. China 300301
Solely for the purposes of Section 4 and Section 7 hereto,
Qihoo 360 Technology Co. Ltd.
Tower A, Building 2
No.6 Jiuxianqiao Road
Chaoyang District
Beijing, P.R. China 100015
Re: Equity Commitment Letter
Ladies and Gentlemen:
Taikang Life Insurance Co., Ltd. (including its successors or permitted assigns, the "Investor") is pleased to offer this commitment, subject to the terms and conditions contained herein, to purchase, directly or indirectly, equity interests in (i) Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), and (ii) Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"). It is contemplated that pursuant to the terms of that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Company"), Holdco, Parent, True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), Merger Sub will merge with and into the Company, with the Company being the surviving company (the "Merger"). Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Merger Agreement.
1. Commitment. The Investor hereby agrees to contribute, or cause to be contributed, within three (3) Business Days after the conditions in Section 2 of this letter agreement are satisfied, as an equity contribution to (i) Holdco, an aggregate amount of RMB equivalent to US$ 157,872,640 (the "Holdco Contribution") and (ii) Parent, an aggregate amount of RMB equivalent to US$ 162,127,360 (the "Parent Contribution", and collectively with the Holdco Contribution, the "Contribution"),subject to the terms and conditions hereof. For purposes of this letter agreement, the RMB equivalents of U.S. dollars shall be determined using the prevailing exchange rate notified by Parent to the Investor at least three (3) Business Days prior to funding. The proceeds of the Holdco Contribution, along with the amounts to be paid by all other Investors (the "Other Investors") to Holdco under their respective Equity Commitment Letters, shall promptly upon receipt be further contributed by Holdco, as an equity contribution to Parent (collectively, the "Holdco to Parent Contribution"). The proceeds of the Parent Contribution, along with the Holdco to Parent Contribution and amounts to be paid by the Other Investors to Parent under their respective Equity Commitment Letters (such aggregate amount, the "Commitments"), shall be used by Parent, to the extent necessary, to (i) fund (or cause to be funded through Midco or Merger Sub) a portion of the Exchange Fund and any other amounts required to be paid pursuant to the Merger Agreement (including any applicable consideration to the holders of Company Convertible Notes or repurchase of any Company Convertible Notes) and (ii) pay (or cause to be paid through Midco or Merger Sub) related fees and expenses (which, for the avoidance of doubt, shall not include any Parent Termination Fee or any Guaranteed Obligations with respect to a Parent Termination Fee under the Limited Guarantee given by the Investor), in each case, pursuant to and in accordance with the terms of, and subject to the conditions of, the Merger Agreement. Notwithstanding anything else to the contrary in this letter agreement, the aggregate amount of liability of the Investor under this letter agreement shall at no time exceed the aggregate amount of the Contribution less any portion of the Contribution that has been funded in accordance with the terms hereof or the terms of that certain Escrow Agreement, dated of even date herewith, between the Investor and Parent (the "Escrow Agreement").
2. Closing Conditions. The Investor's obligation to make the Contribution pursuant to this letter agreement is subject to the satisfaction in full (or waiver, if permissible) of all conditions precedent to the obligations of the Parent Parties to consummate the transactions contemplated by the Merger Agreement set forth in Article VII thereof other than (i) conditions that by their nature are to be satisfied on the Closing Date and (ii) any PRC Regulatory Approval that is applicable to the Parent Parties only after the Equity Financing and/or the Debt Financing has been funded. The Investor shall make its Contribution pursuant to the terms of the forms of subscription agreement(s) attached hereto as Exhibit A, which do not contain any conditions to which the Investor's obligation to make the Contribution pursuant to this letter agreement is subject other than those referenced in the foregoing sentence.
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3. Limited Guarantee. Concurrently with the execution and delivery of this letter agreement, the Investor is executing and delivering to the Company a Limited Guarantee (the "Limited Guarantee"). The Company's (i) remedies against the Investor and the Other Investors under their respective Limited Guarantees, (ii) rights set forth in Section 4 of this letter agreement and (iii) remedies against the Parent Parties under the Merger Agreement shall be, and are intended to be, the sole and exclusive direct or indirect remedies available to the Company against the Investor, any former, current or future director, officer, employee, agent or affiliate of the Investor, any former, current or future, direct or indirect holder of any equity interests or securities of the Investor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, affiliate, controlling person or representative of any of the foregoing (each such person or entity, a "Related Person") in respect of any liabilities or obligations arising under, or in connection with, this letter agreement, the Merger Agreement or the transactions contemplated thereby, including without limitation in the event any of the Parent Parties breaches its obligations under the Merger Agreement, whether or not such breach is caused by the Investor's breach of its obligations under this letter agreement; provided that, in the event the Company successfully compels specific performance of the obligations of the Parent Parties to consummate the Merger in accordance with, and subject to the terms and conditions set forth in, Section 9.6(b) of the Merger Agreement, and the Investor shall have made the Contribution (and all Other Investors have funded their Commitments in full and the Effective Time occurred), then neither the Company nor any other Person (including, without limitation, the Company's equityholders, Affiliates and Subsidiaries) shall have any remedy against the Investor or any Related Person, including under the Limited Guarantee.
4. Enforcement. This letter agreement may only be enforced (i) by Holdco or Parent, (ii) by the Company to seek specific performance of the Investor's obligations to fund the Contribution, (iii) by the Company to seek specific performance of Holdco's obligations under Section 1 of this letter agreement to fund the Holdco to Parent Contribution, in the case of each of clause (ii) and clause (iii), in accordance with the Merger Agreement or (iv) by the Company, as set forth in Section 7 of this letter agreement.
5. No Recourse. Notwithstanding anything that may be expressed or implied in this letter agreement, by their acceptance hereof, each of Holdco and Parent acknowledges and agrees that (a) notwithstanding that the Investor may be a limited liability entity, no recourse hereunder or under any documents or instruments delivered in connection herewith may be had against any Related Person, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding or by virtue of any statute, regulation or other applicable law, and (b) no personal liability whatsoever will attach to, be imposed on or otherwise be incurred by Related Persons in connection with this letter agreement or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations or by their creation.
6. Expiration. All obligations under this letter agreement shall expire and terminate automatically and immediately upon the earliest to occur of (a) the valid termination of the Merger Agreement in accordance with its terms, (b) the Closing (at which time the Contribution shall be discharged), (c) the making of the Contribution by the Investor or its permitted assigns, (d) the Company or any of its Affiliates asserting a claim that would make the Limited Guarantee become terminable in accordance with the terms thereof, and (e) ten (10) months after the date hereof; provided that, in the event a claim by the Company or any of its Affiliates under Section 4 of this letter agreement or any claim seeking an injunction, specific performance or other equitable remedy against any Parent Party under Section 9.6(b) of the Merger Agreement is then pending, this letter agreement shall only terminate upon the final, non-appealable resolution of such action and satisfaction by the Investor of any obligations finally determined by a court of competent jurisdiction or agreed to be owed by the Investor in connection with this letter agreement.
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7. No Assignment. The Investor's obligation to fund the Contribution may not be assigned or delegated (whether by operation of law, merger, consolidation or otherwise). Neither this letter agreement nor any of the rights, interests or obligations hereunder shall be assignable by Holdco or Parent without the Investor's and the Company's prior written consent, and the granting of such consent in any given instance shall be solely in the discretion of the Investor and the Company and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment. Any purported transfer, assignment or delegation in violation of this Section 7 shall be null and void and of no force and effect.
8. No Other Beneficiaries. Except for the rights provided to the Company under Section 4 and Section 7 of this letter agreement, this letter agreement shall be binding on the Investor solely for the benefit of Holdco and Parent, and nothing set forth in this letter agreement is intended to or shall confer upon or give to any Person other than Holdco and Parent any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Holdco or Parent to enforce, the Contribution or any provisions of this letter agreement; provided that, notwithstanding anything to the contrary in this letter agreement, any Related Person shall be a third party beneficiary of the provisions set forth herein that are for the benefit of any Related Person (including the provisions of Sections 3, 8, 11, 12 and 14), and all such provisions shall survive any termination of this letter agreement indefinitely. Without limiting the foregoing, neither Holdco's, Parent's, Midco's, Merger Sub's nor the Company's creditors shall have the right to enforce this letter agreement or to cause Holdco or Parent or the Company to enforce this letter agreement.
9. Representations and Warranties. The Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this letter agreement; (b) the execution, delivery and performance of this letter agreement by the Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Investor are necessary therefor; (c) this letter agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by the Investor of this letter agreement do not and will not violate the organizational documents of the Investor or any applicable Law or conflict with any material agreement binding on the Investor; (e) the Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by the Investor.
10. Severability. Any term or provision of this letter agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this letter agreement in any jurisdiction and, if any provision of this letter agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this letter agreement may not be enforced without giving effect to the provisions of Sections 2 through 8, 11 and 12 hereof. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this letter agreement or any part hereof is invalid, illegal or unenforceable.
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11. Jurisdiction; Dispute Resolution.
In the event of any dispute, controversy, or claim between the Investor and Holdco arising out of or relating to the breach, termination or validity of this letter agreement ("Dispute"), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission ("CIETAC") under the arbitration rules of CIETAC (the "Rule") in force when the notice of arbitration is submitted by a party.
The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule.
The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 11. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party.
The awards rendered by the arbitrators pursuant to this Section 11 shall be non-appealable, final, binding and conclusive on the parties to such Dispute.
The Investor, Holdco and Parent understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision.
12. Headings. Headings of the Sections of this letter agreement are for convenience of the parties only and shall be given no substantive or interpretive effect whatsoever.
13. Governing Law. This letter agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People's Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
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14. Entire Agreement; Amendment; Counterparts. This letter agreement, the Escrow Agreement, the Limited Guarantee and the Merger Agreement constitute the entire agreement with respect to the subject matter hereof and thereof, and supersede all other prior agreements, understandings and statements, both written and oral, between or among Holdco, Parent or any of their respective Affiliates, on the one hand, and the Investor or any of its Affiliates, on the other hand. Any provision of this letter agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed by the Investor, Holdco and Parent; provided that any amendment, waiver or modification that would be expected to be adverse to the Company's rights set forth in Section 4 and/or Section 7 of this letter agreement shall require the prior written consent of the Company. This letter agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
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| Very truly yours, | ||
| Taikang Life Insurance Co., Ltd. | ||
| (泰康人寿保险股份有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Chen Dongsheng | |
| Name: | Dongsheng Chen | |
| Title: | Chairman | |
| Agreed to and accepted as of the date first | ||
| written above: | ||
| Tianjin Qixin Zhicheng Technology Co., Ltd. | ||
| (天津奇信志成科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: | Eric X. Chen | |
| Title: | Director | |
[Signature Page to Equity Commitment Letter]
Exhibit A
Subscription Agreement(s)
Exhibit 99.7
Execution Version
New China Capital International Management Limited
(新华资本国际管理有限公司)
19 Floor NCI Tower, A12 Jianguomenwai Avenue,
Chaoyang District, Beijing, China (100022)
December 18, 2015
Tianjin Qixin Zhicheng Technology Co., Ltd.
(天津奇信志成科技有限公司)
Room 9-3-401
No. 39 Gaoxin 6th Road
Binhai Science and Technology Area
Binhai Hi-tech District
Tianjin, China
Tianjin Qixin Tongda Technology Co., Ltd.
(天津奇信通达科技有限公司)
No. 4-B-32, 4F, Building 3
No. 188 Rixin Avenue
Binhai Hi-Tech Zone
Binhai New District
Tianjin, P.R. China 300301
Solely for the purposes of Section 4 and Section 7 hereto,
Qihoo 360 Technology Co. Ltd.
Tower A, Building 2
No.6 Jiuxianqiao Road
Chaoyang District
Beijing, P.R. China 100015
Re: Equity Commitment Letter
Ladies and Gentlemen:
New China Capital International Management Limited (including its successors or permitted assigns, the "Investor") is pleased to offer this commitment, subject to the terms and conditions contained herein, to purchase, directly or indirectly, equity interests in (i) Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), and (ii) Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"). It is contemplated that pursuant to the terms of that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Company"), Holdco, Parent, True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), Merger Sub will merge with and into the Company, with the Company being the surviving company (the "Merger"). Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Merger Agreement.
1. Commitment. The Investor hereby agrees to contribute, or cause to be contributed, within three (3) Business Days after the conditions in Section 2 of this letter agreement are satisfied, as an equity contribution to (i) Holdco, an aggregate amount of RMB equivalent to US$ 98,670,400 (the "Holdco Contribution") and (ii) Parent, an aggregate amount of RMB equivalent to US$ 101,329,600 (the "Parent Contribution", and collectively with the Holdco Contribution, the "Contribution"),subject to the terms and conditions hereof. For purposes of this letter agreement, the RMB equivalents of U.S. dollars shall be determined using the prevailing exchange rate notified by Parent to the Investor at least three (3) Business Days prior to funding. The proceeds of the Holdco Contribution, along with the amounts to be paid by all other Investors (the "Other Investors") to Holdco under their respective Equity Commitment Letters, shall promptly upon receipt be further contributed by Holdco, as an equity contribution to Parent (collectively, the "Holdco to Parent Contribution"). The proceeds of the Parent Contribution, along with the Holdco to Parent Contribution and amounts to be paid by the Other Investors to Parent under their respective Equity Commitment Letters (such aggregate amount, the "Commitments"), shall be used by Parent, to the extent necessary, to (i) fund (or cause to be funded through Midco or Merger Sub) a portion of the Exchange Fund and any other amounts required to be paid pursuant to the Merger Agreement (including any applicable consideration to the holders of Company Convertible Notes or repurchase of any Company Convertible Notes) and (ii) pay (or cause to be paid through Midco or Merger Sub) related fees and expenses (which, for the avoidance of doubt, shall not include any Parent Termination Fee or any Guaranteed Obligations with respect to a Parent Termination Fee under the Limited Guarantee given by the Investor), in each case, pursuant to and in accordance with the terms of, and subject to the conditions of, the Merger Agreement. Notwithstanding anything else to the contrary in this letter agreement, the aggregate amount of liability of the Investor under this letter agreement shall at no time exceed the aggregate amount of the Contribution less any portion of the Contribution that has been funded in accordance with the terms hereof or the terms of that certain Escrow Agreement, dated of even date herewith, between the Investor and Parent (the "Escrow Agreement").
2. Closing Conditions. The Investor's obligation to make the Contribution pursuant to this letter agreement is subject to the satisfaction in full (or waiver, if permissible) of all conditions precedent to the obligations of the Parent Parties to consummate the transactions contemplated by the Merger Agreement set forth in Article VII thereof other than (i) conditions that by their nature are to be satisfied on the Closing Date and (ii) any PRC Regulatory Approval that is applicable to the Parent Parties only after the Equity Financing and/or the Debt Financing has been funded. The Investor shall make its Contribution pursuant to the terms of the forms of subscription agreement(s) attached hereto as Exhibit A, which do not contain any conditions to which the Investor's obligation to make the Contribution pursuant to this letter agreement is subject other than those referenced in the foregoing sentence.
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3. Limited Guarantee. Concurrently with the execution and delivery of this letter agreement, the Investor is executing and delivering to the Company a Limited Guarantee (the "Limited Guarantee"). The Company's (i) remedies against the Investor and the Other Investors under their respective Limited Guarantees, (ii) rights set forth in Section 4 of this letter agreement and (iii) remedies against the Parent Parties under the Merger Agreement shall be, and are intended to be, the sole and exclusive direct or indirect remedies available to the Company against the Investor, any former, current or future director, officer, employee, agent or affiliate of the Investor, any former, current or future, direct or indirect holder of any equity interests or securities of the Investor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, affiliate, controlling person or representative of any of the foregoing (each such person or entity, a "Related Person") in respect of any liabilities or obligations arising under, or in connection with, this letter agreement, the Merger Agreement or the transactions contemplated thereby, including without limitation in the event any of the Parent Parties breaches its obligations under the Merger Agreement, whether or not such breach is caused by the Investor's breach of its obligations under this letter agreement; provided that, in the event the Company successfully compels specific performance of the obligations of the Parent Parties to consummate the Merger in accordance with, and subject to the terms and conditions set forth in, Section 9.6(b) of the Merger Agreement, and the Investor shall have made the Contribution (and all Other Investors have funded their Commitments in full and the Effective Time occurred), then neither the Company nor any other Person (including, without limitation, the Company's equityholders, Affiliates and Subsidiaries) shall have any remedy against the Investor or any Related Person, including under the Limited Guarantee.
4. Enforcement. This letter agreement may only be enforced (i) by Holdco or Parent, (ii) by the Company to seek specific performance of the Investor's obligations to fund the Contribution, (iii) by the Company to seek specific performance of Holdco's obligations under Section 1 of this letter agreement to fund the Holdco to Parent Contribution, in the case of each of clause (ii) and clause (iii), in accordance with the Merger Agreement or (iv) by the Company, as set forth in Section 7 of this letter agreement.
5. No Recourse. Notwithstanding anything that may be expressed or implied in this letter agreement, by their acceptance hereof, each of Holdco and Parent acknowledges and agrees that (a) notwithstanding that the Investor may be a limited liability entity, no recourse hereunder or under any documents or instruments delivered in connection herewith may be had against any Related Person, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding or by virtue of any statute, regulation or other applicable law, and (b) no personal liability whatsoever will attach to, be imposed on or otherwise be incurred by Related Persons in connection with this letter agreement or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations or by their creation.
6. Expiration. All obligations under this letter agreement shall expire and terminate automatically and immediately upon the earliest to occur of (a) the valid termination of the Merger Agreement in accordance with its terms, (b) the Closing (at which time the Contribution shall be discharged), (c) the making of the Contribution by the Investor or its permitted assigns, (d) the Company or any of its Affiliates asserting a claim that would make the Limited Guarantee become terminable in accordance with the terms thereof, and (e) ten (10) months after the date hereof; provided that, in the event a claim by the Company or any of its Affiliates under Section 4 of this letter agreement or any claim seeking an injunction, specific performance or other equitable remedy against any Parent Party under Section 9.6(b) of the Merger Agreement is then pending, this letter agreement shall only terminate upon the final, non-appealable resolution of such action and satisfaction by the Investor of any obligations finally determined by a court of competent jurisdiction or agreed to be owed by the Investor in connection with this letter agreement.
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7. No Assignment. The Investor's obligation to fund the Contribution may not be assigned or delegated (whether by operation of law, merger, consolidation or otherwise). Neither this letter agreement nor any of the rights, interests or obligations hereunder shall be assignable by Holdco or Parent without the Investor's and the Company's prior written consent, and the granting of such consent in any given instance shall be solely in the discretion of the Investor and the Company and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment. Any purported transfer, assignment or delegation in violation of this Section 7 shall be null and void and of no force and effect.
8. No Other Beneficiaries. Except for the rights provided to the Company under Section 4 and Section 7 of this letter agreement, this letter agreement shall be binding on the Investor solely for the benefit of Holdco and Parent, and nothing set forth in this letter agreement is intended to or shall confer upon or give to any Person other than Holdco and Parent any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Holdco or Parent to enforce, the Contribution or any provisions of this letter agreement; provided that, notwithstanding anything to the contrary in this letter agreement, any Related Person shall be a third party beneficiary of the provisions set forth herein that are for the benefit of any Related Person (including the provisions of Sections 3, 8, 11, 12 and 14), and all such provisions shall survive any termination of this letter agreement indefinitely. Without limiting the foregoing, neither Holdco's, Parent's, Midco's, Merger Sub's nor the Company's creditors shall have the right to enforce this letter agreement or to cause Holdco or Parent or the Company to enforce this letter agreement.
9. Representations and Warranties. The Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this letter agreement; (b) the execution, delivery and performance of this letter agreement by the Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Investor are necessary therefor; (c) this letter agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by the Investor of this letter agreement do not and will not violate the organizational documents of the Investor or any applicable Law or conflict with any material agreement binding on the Investor; (e) the Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by the Investor.
10. Severability. Any term or provision of this letter agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this letter agreement in any jurisdiction and, if any provision of this letter agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this letter agreement may not be enforced without giving effect to the provisions of Sections 2 through 8, 11 and 12 hereof. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this letter agreement or any part hereof is invalid, illegal or unenforceable.
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11. Jurisdiction; Dispute Resolution.
In the event of any dispute, controversy, or claim between the Investor and Holdco arising out of or relating to the breach, termination or validity of this letter agreement ("Dispute"), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission ("CIETAC") under the arbitration rules of CIETAC (the "Rule") in force when the notice of arbitration is submitted by a party.
The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule.
The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 11. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party.
The awards rendered by the arbitrators pursuant to this Section 11 shall be non-appealable, final, binding and conclusive on the parties to such Dispute.
The Investor, Holdco and Parent understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision.
12. Headings. Headings of the Sections of this letter agreement are for convenience of the parties only and shall be given no substantive or interpretive effect whatsoever.
13. Governing Law. This letter agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People's Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
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14. Entire Agreement; Amendment; Counterparts. This letter agreement, the Escrow Agreement, the Limited Guarantee and the Merger Agreement constitute the entire agreement with respect to the subject matter hereof and thereof, and supersede all other prior agreements, understandings and statements, both written and oral, between or among Holdco, Parent or any of their respective Affiliates, on the one hand, and the Investor or any of its Affiliates, on the other hand. Any provision of this letter agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed by the Investor, Holdco and Parent; provided that any amendment, waiver or modification that would be expected to be adverse to the Company's rights set forth in Section 4 and/or Section 7 of this letter agreement shall require the prior written consent of the Company. This letter agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
[Remainder of page intentionally left blank]
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| Very truly yours, | ||
| New China Capital International Management Limited | ||
| (新华资本国际管理有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ AN HONGJUN | |
| Name: | AN HONGJUN | |
| Title: | Director | |
| Agreed to and accepted as of the date first | ||
| written above: | ||
| Tianjin Qixin Zhicheng Technology Co., Ltd. | ||
| (天津奇信志成科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: | Eric X. Chen | |
| Title: | Director | |
[Signature Page to Equity Commitment Letter]
Exhibit A
Subscription Agreement(s)
Exhibit 99.8
Execution Version
Tai Ping Asset Management Co., Ltd.
(太平资产管理有限公司)
43/F Taiping Finance Tower,
488 Middle Yincheng Road,
Pudong, Shanghai, PRC
December 18, 2015
Tianjin Qixin Zhicheng Technology Co., Ltd.
(天津奇信志成科技有限公司)
Room 9-3-401
No. 39 Gaoxin 6th Road
Binhai Science and Technology Area
Binhai Hi-tech District
Tianjin, China
Tianjin Qixin Tongda Technology Co., Ltd.
(天津奇信通达科技有限公司)
No. 4-B-32, 4F, Building 3
No. 188 Rixin Avenue
Binhai Hi-Tech Zone
Binhai New District
Tianjin, P.R. China 300301
Solely for the purposes of Section 4 and Section 7 hereto,
Qihoo 360 Technology Co. Ltd.
Tower A, Building 2
No.6 Jiuxianqiao Road
Chaoyang District
Beijing, P.R. China 100015
Re: Equity Commitment Letter
Ladies and Gentlemen:
Tai Ping Asset Management Co., Ltd. (including its successors or permitted assigns, the "Investor") is pleased to offer this commitment, subject to the terms and conditions contained herein, to purchase, directly or indirectly, equity interests in (i) Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), and (ii) Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"). It is contemplated that pursuant to the terms of that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Company"), Holdco, Parent, True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), Merger Sub will merge with and into the Company, with the Company being the surviving company (the "Merger"). Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Merger Agreement.
1. Commitment. The Investor hereby agrees to contribute, or cause to be contributed, within three (3) Business Days after the conditions in Section 2 of this letter agreement are satisfied, as an equity contribution to (i) Holdco, an aggregate amount of RMB equivalent to US$ 49,335,200 (the "Holdco Contribution") and (ii) Parent, an aggregate amount of RMB equivalent to US$ 50,664,800 (the "Parent Contribution", and collectively with the Holdco Contribution, the "Contribution"), subject to the terms and conditions hereof. For purposes of this letter agreement, the RMB equivalents of U.S. dollars shall be determined using the prevailing exchange rate notified by Parent to the Investor at least three (3) Business Days prior to funding. The proceeds of the Holdco Contribution, along with the amounts to be paid by all other Investors (the "Other Investors") to Holdco under their respective Equity Commitment Letters, shall promptly upon receipt be further contributed by Holdco, as an equity contribution to Parent (collectively, the "Holdco to Parent Contribution"). The proceeds of the Parent Contribution, along with the Holdco to Parent Contribution and amounts to be paid by the Other Investors to Parent under their respective Equity Commitment Letters (such aggregate amount, the "Commitments"), shall be used by Parent, to the extent necessary, to (i) fund (or cause to be funded through Midco or Merger Sub) a portion of the Exchange Fund and any other amounts required to be paid pursuant to the Merger Agreement (including any applicable consideration to the holders of Company Convertible Notes or repurchase of any Company Convertible Notes) and (ii) pay (or cause to be paid through Midco or Merger Sub) related fees and expenses (which, for the avoidance of doubt, shall not include any Parent Termination Fee or any Guaranteed Obligations with respect to a Parent Termination Fee under the Limited Guarantee given by the Investor), in each case, pursuant to and in accordance with the terms of, and subject to the conditions of, the Merger Agreement. Notwithstanding anything else to the contrary in this letter agreement, the aggregate amount of liability of the Investor under this letter agreement shall at no time exceed the aggregate amount of the Contribution less any portion of the Contribution that has been funded in accordance with the terms hereof or the terms of that certain Escrow Agreement, dated of even date herewith, between the Investor and Parent (the "Escrow Agreement").
2. Closing Conditions. The Investor's obligation to make the Contribution pursuant to this letter agreement is subject to the satisfaction in full (or waiver, if permissible) of all conditions precedent to the obligations of the Parent Parties to consummate the transactions contemplated by the Merger Agreement set forth in Article VII thereof other than (i) conditions that by their nature are to be satisfied on the Closing Date and (ii) any PRC Regulatory Approval that is applicable to the Parent Parties only after the Equity Financing and/or the Debt Financing has been funded. The Investor shall make its Contribution pursuant to the terms of the forms of subscription agreement(s) attached hereto as Exhibit A, which do not contain any conditions to which the Investor's obligation to make the Contribution pursuant to this letter agreement is subject other than those referenced in the foregoing sentence.
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3. Limited Guarantee. Concurrently with the execution and delivery of this letter agreement, the Investor is executing and delivering to the Company a Limited Guarantee (the "Limited Guarantee"). The Company's (i) remedies against the Investor and the Other Investors under their respective Limited Guarantees, (ii) rights set forth in Section 4 of this letter agreement and (iii) remedies against the Parent Parties under the Merger Agreement shall be, and are intended to be, the sole and exclusive direct or indirect remedies available to the Company against the Investor, any former, current or future director, officer, employee, agent or affiliate of the Investor, any former, current or future, direct or indirect holder of any equity interests or securities of the Investor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, affiliate, controlling person or representative of any of the foregoing (each such person or entity, a "Related Person") in respect of any liabilities or obligations arising under, or in connection with, this letter agreement, the Merger Agreement or the transactions contemplated thereby, including without limitation in the event any of the Parent Parties breaches its obligations under the Merger Agreement, whether or not such breach is caused by the Investor's breach of its obligations under this letter agreement; provided that, in the event the Company successfully compels specific performance of the obligations of the Parent Parties to consummate the Merger in accordance with, and subject to the terms and conditions set forth in, Section 9.6(b) of the Merger Agreement, and the Investor shall have made the Contribution (and all Other Investors have funded their Commitments in full and the Effective Time occurred), then neither the Company nor any other Person (including, without limitation, the Company's equityholders, Affiliates and Subsidiaries) shall have any remedy against the Investor or any Related Person, including under the Limited Guarantee.
4. Enforcement. This letter agreement may only be enforced (i) by Holdco or Parent, (ii) by the Company to seek specific performance of the Investor's obligations to fund the Contribution, (iii) by the Company to seek specific performance of Holdco's obligations under Section 1 of this letter agreement to fund the Holdco to Parent Contribution, in the case of each of clause (ii) and clause (iii), in accordance with the Merger Agreement or (iv) by the Company, as set forth in Section 7 of this letter agreement.
5. No Recourse. Notwithstanding anything that may be expressed or implied in this letter agreement, by their acceptance hereof, each of Holdco and Parent acknowledges and agrees that (a) notwithstanding that the Investor may be a limited liability entity, no recourse hereunder or under any documents or instruments delivered in connection herewith may be had against any Related Person, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding or by virtue of any statute, regulation or other applicable law, and (b) no personal liability whatsoever will attach to, be imposed on or otherwise be incurred by Related Persons in connection with this letter agreement or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations or by their creation.
6. Expiration. All obligations under this letter agreement shall expire and terminate automatically and immediately upon the earliest to occur of (a) the valid termination of the Merger Agreement in accordance with its terms, (b) the Closing (at which time the Contribution shall be discharged), (c) the making of the Contribution by the Investor or its permitted assigns, (d) the Company or any of its Affiliates asserting a claim that would make the Limited Guarantee become terminable in accordance with the terms thereof, and (e) ten (10) months after the date hereof; provided that, in the event a claim by the Company or any of its Affiliates under Section 4 of this letter agreement or any claim seeking an injunction, specific performance or other equitable remedy against any Parent Party under Section 9.6(b) of the Merger Agreement is then pending, this letter agreement shall only terminate upon the final, non-appealable resolution of such action and satisfaction by the Investor of any obligations finally determined by a court of competent jurisdiction or agreed to be owed by the Investor in connection with this letter agreement.
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7. No Assignment. The Investor's obligation to fund the Contribution may not be assigned or delegated (whether by operation of law, merger, consolidation or otherwise). Neither this letter agreement nor any of the rights, interests or obligations hereunder shall be assignable by Holdco or Parent without the Investor's and the Company's prior written consent, and the granting of such consent in any given instance shall be solely in the discretion of the Investor and the Company and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment. Any purported transfer, assignment or delegation in violation of this Section 7 shall be null and void and of no force and effect.
8. No Other Beneficiaries. Except for the rights provided to the Company under Section 4 and Section 7 of this letter agreement, this letter agreement shall be binding on the Investor solely for the benefit of Holdco and Parent, and nothing set forth in this letter agreement is intended to or shall confer upon or give to any Person other than Holdco and Parent any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Holdco or Parent to enforce, the Contribution or any provisions of this letter agreement; provided that, notwithstanding anything to the contrary in this letter agreement, any Related Person shall be a third party beneficiary of the provisions set forth herein that are for the benefit of any Related Person (including the provisions of Sections 3, 8, 11, 12 and 14), and all such provisions shall survive any termination of this letter agreement indefinitely. Without limiting the foregoing, neither Holdco's, Parent's, Midco's, Merger Sub's nor the Company's creditors shall have the right to enforce this letter agreement or to cause Holdco or Parent or the Company to enforce this letter agreement.
9. Representations and Warranties. The Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this letter agreement; (b) the execution, delivery and performance of this letter agreement by the Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Investor are necessary therefor; (c) this letter agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by the Investor of this letter agreement do not and will not violate the organizational documents of the Investor or any applicable Law or conflict with any material agreement binding on the Investor; (e) the Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by the Investor.
10. Severability. Any term or provision of this letter agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this letter agreement in any jurisdiction and, if any provision of this letter agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this letter agreement may not be enforced without giving effect to the provisions of Sections 2 through 8, 11 and 12 hereof. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this letter agreement or any part hereof is invalid, illegal or unenforceable.
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11. Jurisdiction; Dispute Resolution.
In the event of any dispute, controversy, or claim between the Investor and Holdco arising out of or relating to the breach, termination or validity of this letter agreement ("Dispute"), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission ("CIETAC") under the arbitration rules of CIETAC (the "Rule") in force when the notice of arbitration is submitted by a party.
The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule.
The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 11. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party.
The awards rendered by the arbitrators pursuant to this Section 11 shall be non-appealable, final, binding and conclusive on the parties to such Dispute.
The Investor, Holdco and Parent understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision.
12. Headings. Headings of the Sections of this letter agreement are for convenience of the parties only and shall be given no substantive or interpretive effect whatsoever.
13. Governing Law. This letter agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People's Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
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14. Entire Agreement; Amendment; Counterparts. This letter agreement, the Escrow Agreement, the Limited Guarantee and the Merger Agreement constitute the entire agreement with respect to the subject matter hereof and thereof, and supersede all other prior agreements, understandings and statements, both written and oral, between or among Holdco, Parent or any of their respective Affiliates, on the one hand, and the Investor or any of its Affiliates, on the other hand. Any provision of this letter agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed by the Investor, Holdco and Parent; provided that any amendment, waiver or modification that would be expected to be adverse to the Company's rights set forth in Section 4 and/or Section 7 of this letter agreement shall require the prior written consent of the Company. This letter agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
[Remainder of page intentionally left blank]
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| Very truly yours, | ||
| TAI PING ASSET MANAGEMENT CO., LTD. | ||
| (太平资产管理有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Xiao Xing | |
| Name: | Xiao Xing | |
| Title: | General Manager | |
| Agreed to and accepted as of the date first | ||
| written above: | ||
| Tianjin Qixin Zhicheng Technology Co., Ltd. | ||
| (天津奇信志成科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: | Eric X. Chen | |
| Title: | Director | |
[Signature Page to Equity Commitment Letter]
Exhibit A
Subscription Agreement(s)
Exhibit 99. 9
Execution Version
Jiangsu Huatai Ruilian M&A Fund (LLP)
(江苏华泰瑞联并购基金 (有限合伙) )
18/F,28 Fengshenghutong, Taipingqiao Street,
Xicheng District, Beijing 100032 China
December 18, 2015
Tianjin Qixin Zhicheng Technology Co., Ltd.
(天津奇信志成科技有限公司)
Room 9-3-401
No. 39 Gaoxin 6th Road
Binhai Science and Technology Area
Binhai Hi-tech District
Tianjin, China
Tianjin Qixin Tongda Technology Co., Ltd.
(天津奇信通达科技有限公司)
No. 4-B-32, 4F, Building 3
No. 188 Rixin Avenue
Binhai Hi-Tech Zone
Binhai New District
Tianjin, P.R. China 300301
Solely for the purposes of Section 4 and Section 7 hereto,
Qihoo 360 Technology Co. Ltd.
Tower A, Building 2
No.6 Jiuxianqiao Road
Chaoyang District
Beijing, P.R. China 100015
Re: Equity Commitment Letter
Ladies and Gentlemen:
Jiangsu Huatai Ruilian M&A Fund (LLP) (including its successors or permitted assigns, the "Investor") is pleased to offer this commitment, subject to the terms and conditions contained herein, to purchase, directly or indirectly, equity interests in (i) Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), and (ii) Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"). It is contemplated that pursuant to the terms of that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Company"), Holdco, Parent, True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), Merger Sub will merge with and into the Company, with the Company being the surviving company (the "Merger"). Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Merger Agreement.
1. Commitment. The Investor hereby agrees to contribute, or cause to be contributed, within three (3) Business Days after the conditions in Section 2 of this letter agreement are satisfied, as an equity contribution to (i) Holdco, an aggregate amount of RMB equivalent to US$ 123,338,000 (the "Holdco Contribution") and (ii) Parent, an aggregate amount of RMB equivalent to US$ 126,662,000 (the "Parent Contribution", and collectively with the Holdco Contribution, the "Contribution"), subject to the terms and conditions hereof. For purposes of this letter agreement, the RMB equivalents of U.S. dollars shall be determined using the prevailing exchange rate notified by Parent to the Investor at least three (3) Business Days prior to funding. The proceeds of the Holdco Contribution, along with the amounts to be paid by all other Investors (the "Other Investors") to Holdco under their respective Equity Commitment Letters, shall promptly upon receipt be further contributed by Holdco, as an equity contribution to Parent (collectively, the "Holdco to Parent Contribution"). The proceeds of the Parent Contribution, along with the Holdco to Parent Contribution and amounts to be paid by the Other Investors to Parent under their respective Equity Commitment Letters (such aggregate amount, the "Commitments"), shall be used by Parent, to the extent necessary, to (i) fund (or cause to be funded through Midco or Merger Sub) a portion of the Exchange Fund and any other amounts required to be paid pursuant to the Merger Agreement (including any applicable consideration to the holders of Company Convertible Notes or repurchase of any Company Convertible Notes) and (ii) pay (or cause to be paid through Midco or Merger Sub) related fees and expenses (which, for the avoidance of doubt, shall not include any Parent Termination Fee or any Guaranteed Obligations with respect to a Parent Termination Fee under the Limited Guarantee given by the Investor), in each case, pursuant to and in accordance with the terms of, and subject to the conditions of, the Merger Agreement. Notwithstanding anything else to the contrary in this letter agreement, the aggregate amount of liability of the Investor under this letter agreement shall at no time exceed the aggregate amount of the Contribution less any portion of the Contribution that has been funded in accordance with the terms hereof or the terms of that certain Escrow Agreement, dated of even date herewith, between the Investor and Parent (the "Escrow Agreement").
2. Closing Conditions. The Investor's obligation to make the Contribution pursuant to this letter agreement is subject to the satisfaction in full (or waiver, if permissible) of all conditions precedent to the obligations of the Parent Parties to consummate the transactions contemplated by the Merger Agreement set forth in Article VII thereof other than (i) conditions that by their nature are to be satisfied on the Closing Date and (ii) any PRC Regulatory Approval that is applicable to the Parent Parties only after the Equity Financing and/or the Debt Financing has been funded. The Investor shall make its Contribution pursuant to the terms of the forms of subscription agreement(s) attached hereto as Exhibit A, which do not contain any conditions to which the Investor's obligation to make the Contribution pursuant to this letter agreement is subject other than those referenced in the foregoing sentence.
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3. Limited Guarantee. Concurrently with the execution and delivery of this letter agreement, the Investor is executing and delivering to the Company a Limited Guarantee (the "Limited Guarantee"). The Company's (i) remedies against the Investor and the Other Investors under their respective Limited Guarantees, (ii) rights set forth in Section 4 of this letter agreement and (iii) remedies against the Parent Parties under the Merger Agreement shall be, and are intended to be, the sole and exclusive direct or indirect remedies available to the Company against the Investor, any former, current or future director, officer, employee, agent or affiliate of the Investor, any former, current or future, direct or indirect holder of any equity interests or securities of the Investor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, affiliate, controlling person or representative of any of the foregoing (each such person or entity, a "Related Person") in respect of any liabilities or obligations arising under, or in connection with, this letter agreement, the Merger Agreement or the transactions contemplated thereby, including without limitation in the event any of the Parent Parties breaches its obligations under the Merger Agreement, whether or not such breach is caused by the Investor's breach of its obligations under this letter agreement; provided that, in the event the Company successfully compels specific performance of the obligations of the Parent Parties to consummate the Merger in accordance with, and subject to the terms and conditions set forth in, Section 9.6(b) of the Merger Agreement, and the Investor shall have made the Contribution (and all Other Investors have funded their Commitments in full and the Effective Time occurred), then neither the Company nor any other Person (including, without limitation, the Company's equityholders, Affiliates and Subsidiaries) shall have any remedy against the Investor or any Related Person, including under the Limited Guarantee.
4. Enforcement. This letter agreement may only be enforced (i) by Holdco or Parent, (ii) by the Company to seek specific performance of the Investor's obligations to fund the Contribution, (iii) by the Company to seek specific performance of Holdco's obligations under Section 1 of this letter agreement to fund the Holdco to Parent Contribution, in the case of each of clause (ii) and clause (iii), in accordance with the Merger Agreement or (iv) by the Company, as set forth in Section 7 of this letter agreement.
5. No Recourse. Notwithstanding anything that may be expressed or implied in this letter agreement, by their acceptance hereof, each of Holdco and Parent acknowledges and agrees that (a) notwithstanding that the Investor may be a limited liability entity, no recourse hereunder or under any documents or instruments delivered in connection herewith may be had against any Related Person, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding or by virtue of any statute, regulation or other applicable law, and (b) no personal liability whatsoever will attach to, be imposed on or otherwise be incurred by Related Persons in connection with this letter agreement or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations or by their creation.
6. Expiration. All obligations under this letter agreement shall expire and terminate automatically and immediately upon the earliest to occur of (a) the valid termination of the Merger Agreement in accordance with its terms, (b) the Closing (at which time the Contribution shall be discharged), (c) the making of the Contribution by the Investor or its permitted assigns, (d) the Company or any of its Affiliates asserting a claim that would make the Limited Guarantee become terminable in accordance with the terms thereof, and (e) ten (10) months after the date hereof; provided that, in the event a claim by the Company or any of its Affiliates under Section 4 of this letter agreement or any claim seeking an injunction, specific performance or other equitable remedy against any Parent Party under Section 9.6(b) of the Merger Agreement is then pending, this letter agreement shall only terminate upon the final, non-appealable resolution of such action and satisfaction by the Investor of any obligations finally determined by a court of competent jurisdiction or agreed to be owed by the Investor in connection with this letter agreement.
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7. No Assignment. The Investor's obligation to fund the Contribution may not be assigned or delegated (whether by operation of law, merger, consolidation or otherwise). Neither this letter agreement nor any of the rights, interests or obligations hereunder shall be assignable by Holdco or Parent without the Investor's and the Company's prior written consent, and the granting of such consent in any given instance shall be solely in the discretion of the Investor and the Company and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment. Any purported transfer, assignment or delegation in violation of this Section 7 shall be null and void and of no force and effect.
8. No Other Beneficiaries. Except for the rights provided to the Company under Section 4 and Section 7 of this letter agreement, this letter agreement shall be binding on the Investor solely for the benefit of Holdco and Parent, and nothing set forth in this letter agreement is intended to or shall confer upon or give to any Person other than Holdco and Parent any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Holdco or Parent to enforce, the Contribution or any provisions of this letter agreement; provided that, notwithstanding anything to the contrary in this letter agreement, any Related Person shall be a third party beneficiary of the provisions set forth herein that are for the benefit of any Related Person (including the provisions of Sections 3, 8, 11, 12 and 14), and all such provisions shall survive any termination of this letter agreement indefinitely. Without limiting the foregoing, neither Holdco's, Parent's, Midco's, Merger Sub's nor the Company's creditors shall have the right to enforce this letter agreement or to cause Holdco or Parent or the Company to enforce this letter agreement.
9. Representations and Warranties. The Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this letter agreement; (b) the execution, delivery and performance of this letter agreement by the Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Investor are necessary therefor; (c) this letter agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by the Investor of this letter agreement do not and will not violate the organizational documents of the Investor or any applicable Law or conflict with any material agreement binding on the Investor; (e) the Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by the Investor.
10. Severability. Any term or provision of this letter agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this letter agreement in any jurisdiction and, if any provision of this letter agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this letter agreement may not be enforced without giving effect to the provisions of Sections 2 through 8, 11 and 12 hereof. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this letter agreement or any part hereof is invalid, illegal or unenforceable.
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11. Jurisdiction; Dispute Resolution.
In the event of any dispute, controversy, or claim between the Investor and Holdco arising out of or relating to the breach, termination or validity of this letter agreement ("Dispute"), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission ("CIETAC") under the arbitration rules of CIETAC (the "Rule") in force when the notice of arbitration is submitted by a party.
The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule.
The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 11. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party.
The awards rendered by the arbitrators pursuant to this Section 11 shall be non-appealable, final, binding and conclusive on the parties to such Dispute.
The Investor, Holdco and Parent understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision.
12. Headings. Headings of the Sections of this letter agreement are for convenience of the parties only and shall be given no substantive or interpretive effect whatsoever.
13. Governing Law. This letter agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People's Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
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14. Entire Agreement; Amendment; Counterparts. This letter agreement, the Escrow Agreement, the Limited Guarantee and the Merger Agreement constitute the entire agreement with respect to the subject matter hereof and thereof, and supersede all other prior agreements, understandings and statements, both written and oral, between or among Holdco, Parent or any of their respective Affiliates, on the one hand, and the Investor or any of its Affiliates, on the other hand. Any provision of this letter agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed by the Investor, Holdco and Parent; provided that any amendment, waiver or modification that would be expected to be adverse to the Company's rights set forth in Section 4 and/or Section 7 of this letter agreement shall require the prior written consent of the Company. This letter agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
[Remainder of page intentionally left blank]
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| Very truly yours, | ||
| Jiangsu Huatai Ruilian M&A Fund (LLP) | ||
| (江苏华泰瑞联并购基金 (有限合伙) ) | ||
| [Company chop is affixed] | ||
| By: | /s/ Zhijie Chen | |
| Name: | Zhijie Chen | |
| Title: | Authorized Representative | |
| Agreed to and accepted as of the date first | ||
| written above: | ||
| Tianjin Qixin Zhicheng Technology Co., Ltd. | ||
| (天津奇信志成科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: | Eric X. Chen | |
| Title: | Director | |
[Signature Page to Equity Commitment Letter]
Exhibit A
Subscription Agreement(s)
Exhibit 99.10
Execution Version
Greenland Financial Holdings Group Co., Ltd.
(绿地金融投资控股集团有限公司)
Floor 9, No 917, East Longhua Road,
Shanghai, China
December 18, 2015
Tianjin Qixin Zhicheng Technology Co., Ltd.
(天津奇信志成科技有限公司)
Room 9-3-401
No. 39 Gaoxin 6th Road
Binhai Science and Technology Area
Binhai Hi-tech District
Tianjin, China
Tianjin Qixin Tongda Technology Co., Ltd.
(天津奇信通达科技有限公司)
No. 4-B-32, 4F, Building 3
No. 188 Rixin Avenue
Binhai Hi-Tech Zone
Binhai New District
Tianjin, P.R. China 300301
Solely for the purposes of Section 4 and Section 7 hereto,
Qihoo 360 Technology Co. Ltd.
Tower A, Building 2
No.6 Jiuxianqiao Road
Chaoyang District
Beijing, P.R. China 100015
Re: Equity Commitment Letter
Ladies and Gentlemen:
Greenland Financial Holdings Group Co., Ltd. (including its successors or permitted assigns, the "Investor") is pleased to offer this commitment, subject to the terms and conditions contained herein, to purchase, directly or indirectly, equity interests in (i) Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), and (ii) Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"). It is contemplated that pursuant to the terms of that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Company"), Holdco, Parent, True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), Merger Sub will merge with and into the Company, with the Company being the surviving company (the "Merger"). Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Merger Agreement.
1. Commitment. The Investor hereby agrees to contribute, or cause to be contributed, within three (3) Business Days after the conditions in Section 2 of this letter agreement are satisfied, as an equity contribution to (i) Holdco, an aggregate amount of RMB equivalent to US$ 49,335,200 (the "Holdco Contribution") and (ii) Parent, an aggregate amount of RMB equivalent to US$ 50,664,800 (the "Parent Contribution", and collectively with the Holdco Contribution, the "Contribution"), subject to the terms and conditions hereof. For purposes of this letter agreement, the RMB equivalents of U.S. dollars shall be determined using the prevailing exchange rate notified by Parent to the Investor at least three (3) Business Days prior to funding. The proceeds of the Holdco Contribution, along with the amounts to be paid by all other Investors (the "Other Investors") to Holdco under their respective Equity Commitment Letters, shall promptly upon receipt be further contributed by Holdco, as an equity contribution to Parent (collectively, the "Holdco to Parent Contribution"). The proceeds of the Parent Contribution, along with the Holdco to Parent Contribution and amounts to be paid by the Other Investors to Parent under their respective Equity Commitment Letters (such aggregate amount, the "Commitments"), shall be used by Parent, to the extent necessary, to (i) fund (or cause to be funded through Midco or Merger Sub) a portion of the Exchange Fund and any other amounts required to be paid pursuant to the Merger Agreement (including any applicable consideration to the holders of Company Convertible Notes or repurchase of any Company Convertible Notes) and (ii) pay (or cause to be paid through Midco or Merger Sub) related fees and expenses (which, for the avoidance of doubt, shall not include any Parent Termination Fee or any Guaranteed Obligations with respect to a Parent Termination Fee under the Limited Guarantee given by the Investor), in each case, pursuant to and in accordance with the terms of, and subject to the conditions of, the Merger Agreement. Notwithstanding anything else to the contrary in this letter agreement, the aggregate amount of liability of the Investor under this letter agreement shall at no time exceed the aggregate amount of the Contribution less any portion of the Contribution that has been funded in accordance with the terms hereof or the terms of that certain Escrow Agreement, dated of even date herewith, between the Investor and Parent (the "Escrow Agreement").
2. Closing Conditions. The Investor's obligation to make the Contribution pursuant to this letter agreement is subject to the satisfaction in full (or waiver, if permissible) of all conditions precedent to the obligations of the Parent Parties to consummate the transactions contemplated by the Merger Agreement set forth in Article VII thereof other than (i) conditions that by their nature are to be satisfied on the Closing Date and (ii) any PRC Regulatory Approval that is applicable to the Parent Parties only after the Equity Financing and/or the Debt Financing has been funded. The Investor shall make its Contribution pursuant to the terms of the forms of subscription agreement(s) attached hereto as Exhibit A, which do not contain any conditions to which the Investor's obligation to make the Contribution pursuant to this letter agreement is subject other than those referenced in the foregoing sentence.
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3. Limited Guarantee. Concurrently with the execution and delivery of this letter agreement, the Investor is executing and delivering to the Company a Limited Guarantee (the "Limited Guarantee"). The Company's (i) remedies against the Investor and the Other Investors under their respective Limited Guarantees, (ii) rights set forth in Section 4 of this letter agreement and (iii) remedies against the Parent Parties under the Merger Agreement shall be, and are intended to be, the sole and exclusive direct or indirect remedies available to the Company against the Investor, any former, current or future director, officer, employee, agent or affiliate of the Investor, any former, current or future, direct or indirect holder of any equity interests or securities of the Investor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, affiliate, controlling person or representative of any of the foregoing (each such person or entity, a "Related Person") in respect of any liabilities or obligations arising under, or in connection with, this letter agreement, the Merger Agreement or the transactions contemplated thereby, including without limitation in the event any of the Parent Parties breaches its obligations under the Merger Agreement, whether or not such breach is caused by the Investor's breach of its obligations under this letter agreement; provided that, in the event the Company successfully compels specific performance of the obligations of the Parent Parties to consummate the Merger in accordance with, and subject to the terms and conditions set forth in, Section 9.6(b) of the Merger Agreement, and the Investor shall have made the Contribution (and all Other Investors have funded their Commitments in full and the Effective Time occurred), then neither the Company nor any other Person (including, without limitation, the Company's equityholders, Affiliates and Subsidiaries) shall have any remedy against the Investor or any Related Person, including under the Limited Guarantee.
4. Enforcement. This letter agreement may only be enforced (i) by Holdco or Parent, (ii) by the Company to seek specific performance of the Investor's obligations to fund the Contribution, (iii) by the Company to seek specific performance of Holdco's obligations under Section 1 of this letter agreement to fund the Holdco to Parent Contribution, in the case of each of clause (ii) and clause (iii), in accordance with the Merger Agreement or (iv) by the Company, as set forth in Section 7 of this letter agreement.
5. No Recourse. Notwithstanding anything that may be expressed or implied in this letter agreement, by their acceptance hereof, each of Holdco and Parent acknowledges and agrees that (a) notwithstanding that the Investor may be a limited liability entity, no recourse hereunder or under any documents or instruments delivered in connection herewith may be had against any Related Person, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding or by virtue of any statute, regulation or other applicable law, and (b) no personal liability whatsoever will attach to, be imposed on or otherwise be incurred by Related Persons in connection with this letter agreement or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations or by their creation.
6. Expiration. All obligations under this letter agreement shall expire and terminate automatically and immediately upon the earliest to occur of (a) the valid termination of the Merger Agreement in accordance with its terms, (b) the Closing (at which time the Contribution shall be discharged), (c) the making of the Contribution by the Investor or its permitted assigns, (d) the Company or any of its Affiliates asserting a claim that would make the Limited Guarantee become terminable in accordance with the terms thereof, and (e) ten (10) months after the date hereof; provided that, in the event a claim by the Company or any of its Affiliates under Section 4 of this letter agreement or any claim seeking an injunction, specific performance or other equitable remedy against any Parent Party under Section 9.6(b) of the Merger Agreement is then pending, this letter agreement shall only terminate upon the final, non-appealable resolution of such action and satisfaction by the Investor of any obligations finally determined by a court of competent jurisdiction or agreed to be owed by the Investor in connection with this letter agreement.
- 3 -
7. No Assignment. The Investor's obligation to fund the Contribution may not be assigned or delegated (whether by operation of law, merger, consolidation or otherwise). Neither this letter agreement nor any of the rights, interests or obligations hereunder shall be assignable by Holdco or Parent without the Investor's and the Company's prior written consent, and the granting of such consent in any given instance shall be solely in the discretion of the Investor and the Company and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment. Any purported transfer, assignment or delegation in violation of this Section 7 shall be null and void and of no force and effect.
8. No Other Beneficiaries. Except for the rights provided to the Company under Section 4 and Section 7 of this letter agreement, this letter agreement shall be binding on the Investor solely for the benefit of Holdco and Parent, and nothing set forth in this letter agreement is intended to or shall confer upon or give to any Person other than Holdco and Parent any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Holdco or Parent to enforce, the Contribution or any provisions of this letter agreement; provided that, notwithstanding anything to the contrary in this letter agreement, any Related Person shall be a third party beneficiary of the provisions set forth herein that are for the benefit of any Related Person (including the provisions of Sections 3, 8, 11, 12 and 14), and all such provisions shall survive any termination of this letter agreement indefinitely. Without limiting the foregoing, neither Holdco's, Parent's, Midco's, Merger Sub's nor the Company's creditors shall have the right to enforce this letter agreement or to cause Holdco or Parent or the Company to enforce this letter agreement.
9. Representations and Warranties. The Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this letter agreement; (b) the execution, delivery and performance of this letter agreement by the Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Investor are necessary therefor; (c) this letter agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by the Investor of this letter agreement do not and will not violate the organizational documents of the Investor or any applicable Law or conflict with any material agreement binding on the Investor; (e) the Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by the Investor.
10. Severability. Any term or provision of this letter agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this letter agreement in any jurisdiction and, if any provision of this letter agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this letter agreement may not be enforced without giving effect to the provisions of Sections 2 through 8, 11 and 12 hereof. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this letter agreement or any part hereof is invalid, illegal or unenforceable.
- 4 -
11. Jurisdiction; Dispute Resolution.
In the event of any dispute, controversy, or claim between the Investor and Holdco arising out of or relating to the breach, termination or validity of this letter agreement ("Dispute"), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission ("CIETAC") under the arbitration rules of CIETAC (the "Rule") in force when the notice of arbitration is submitted by a party.
The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule.
The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 11. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party.
The awards rendered by the arbitrators pursuant to this Section 11 shall be non-appealable, final, binding and conclusive on the parties to such Dispute.
The Investor, Holdco and Parent understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision.
12. Headings. Headings of the Sections of this letter agreement are for convenience of the parties only and shall be given no substantive or interpretive effect whatsoever.
13. Governing Law. This letter agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People's Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
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14. Entire Agreement; Amendment; Counterparts. This letter agreement, the Escrow Agreement, the Limited Guarantee and the Merger Agreement constitute the entire agreement with respect to the subject matter hereof and thereof, and supersede all other prior agreements, understandings and statements, both written and oral, between or among Holdco, Parent or any of their respective Affiliates, on the one hand, and the Investor or any of its Affiliates, on the other hand. Any provision of this letter agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed by the Investor, Holdco and Parent; provided that any amendment, waiver or modification that would be expected to be adverse to the Company's rights set forth in Section 4 and/or Section 7 of this letter agreement shall require the prior written consent of the Company. This letter agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
[Remainder of page intentionally left blank]
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| Very truly yours, | ||
| Greenland Financial Holdings Group Co., Ltd. | ||
| (绿地金融投资控股集团有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ GENG Jing | |
| Name: | GENG Jing | |
| Title: | Chairman of the Board & President | |
| Agreed to and accepted as of the date first | ||
| written above: | ||
| Tianjin Qixin Zhicheng Technology Co., Ltd. | ||
| (天津奇信志成科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
[Company chop is affixed] |
||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: | Eric X. Chen | |
| Title: | Director | |
[Signature Page to Equity Commitment Letter]
Exhibit A
Subscription Agreement(s)
Exhibit 99.11
Execution Version
SIP Oriza Chongyuan M&A Fund Partnership (Limited Partnership)
(苏州工业园区元禾重元并购股权投资基金合伙企业 (有限合伙) )
Building 18, Sandlake VC/PE Community,
No. 183 Suhong East Rd., Suzhou Industrial Park, China
December 18, 2015
Tianjin Qixin Zhicheng Technology Co., Ltd.
(天津奇信志成科技有限公司)
Room 9-3-401
No. 39 Gaoxin 6th Road
Binhai Science and Technology Area
Binhai Hi-tech District
Tianjin, China
Tianjin Qixin Tongda Technology Co., Ltd.
(天津奇信通达科技有限公司)
No. 4-B-32, 4F, Building 3
No. 188 Rixin Avenue
Binhai Hi-Tech Zone
Binhai New District
Tianjin, P.R. China 300301
Solely for the purposes of Section 4 and Section 7 hereto,
Qihoo 360 Technology Co. Ltd.
Tower A, Building 2
No.6 Jiuxianqiao Road
Chaoyang District
Beijing, P.R. China 100015
Re: Equity Commitment Letter
Ladies and Gentlemen:
SIP Oriza Chongyuan M&A Fund Partnership (Limited Partnership) (including its successors or permitted assigns, the "Investor") is pleased to offer this commitment, subject to the terms and conditions contained herein, to purchase, directly or indirectly, equity interests in (i) Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), and (ii) Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"). It is contemplated that pursuant to the terms of that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Company"), Holdco, Parent, True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), Merger Sub will merge with and into the Company, with the Company being the surviving company (the "Merger"). Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Merger Agreement.
1. Commitment. The Investor hereby agrees to contribute, or cause to be contributed, within three (3) Business Days after the conditions in Section 2 of this letter agreement are satisfied, as an equity contribution to (i) Holdco, an aggregate amount of RMB equivalent to US$ 24,667,600 (the "Holdco Contribution") and (ii) Parent, an aggregate amount of RMB equivalent to US$ 25,332,400 (the "Parent Contribution", and collectively with the Holdco Contribution, the "Contribution"), subject to the terms and conditions hereof. For purposes of this letter agreement, the RMB equivalents of U.S. dollars shall be determined using the prevailing exchange rate notified by Parent to the Investor at least three (3) Business Days prior to funding. The proceeds of the Holdco Contribution, along with the amounts to be paid by all other Investors (the "Other Investors") to Holdco under their respective Equity Commitment Letters, shall promptly upon receipt be further contributed by Holdco, as an equity contribution to Parent (collectively, the "Holdco to Parent Contribution"). The proceeds of the Parent Contribution, along with the Holdco to Parent Contribution and amounts to be paid by the Other Investors to Parent under their respective Equity Commitment Letters (such aggregate amount, the "Commitments"), shall be used by Parent, to the extent necessary, to (i) fund (or cause to be funded through Midco or Merger Sub) a portion of the Exchange Fund and any other amounts required to be paid pursuant to the Merger Agreement (including any applicable consideration to the holders of Company Convertible Notes or repurchase of any Company Convertible Notes) and (ii) pay (or cause to be paid through Midco or Merger Sub) related fees and expenses (which, for the avoidance of doubt, shall not include any Parent Termination Fee or any Guaranteed Obligations with respect to a Parent Termination Fee under the Limited Guarantee given by the Investor), in each case, pursuant to and in accordance with the terms of, and subject to the conditions of, the Merger Agreement. Notwithstanding anything else to the contrary in this letter agreement, the aggregate amount of liability of the Investor under this letter agreement shall at no time exceed the aggregate amount of the Contribution less any portion of the Contribution that has been funded in accordance with the terms hereof or the terms of that certain Escrow Agreement, dated of even date herewith, between the Investor and Parent (the "Escrow Agreement").
2. Closing Conditions. The Investor's obligation to make the Contribution pursuant to this letter agreement is subject to the satisfaction in full (or waiver, if permissible) of all conditions precedent to the obligations of the Parent Parties to consummate the transactions contemplated by the Merger Agreement set forth in Article VII thereof other than (i) conditions that by their nature are to be satisfied on the Closing Date and (ii) any PRC Regulatory Approval that is applicable to the Parent Parties only after the Equity Financing and/or the Debt Financing has been funded. The Investor shall make its Contribution pursuant to the terms of the forms of subscription agreement(s) attached hereto as Exhibit A, which do not contain any conditions to which the Investor's obligation to make the Contribution pursuant to this letter agreement is subject other than those referenced in the foregoing sentence.
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3. Limited Guarantee. Concurrently with the execution and delivery of this letter agreement, the Investor is executing and delivering to the Company a Limited Guarantee (the "Limited Guarantee"). The Company's (i) remedies against the Investor and the Other Investors under their respective Limited Guarantees, (ii) rights set forth in Section 4 of this letter agreement and (iii) remedies against the Parent Parties under the Merger Agreement shall be, and are intended to be, the sole and exclusive direct or indirect remedies available to the Company against the Investor, any former, current or future director, officer, employee, agent or affiliate of the Investor, any former, current or future, direct or indirect holder of any equity interests or securities of the Investor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, affiliate, controlling person or representative of any of the foregoing (each such person or entity, a "Related Person") in respect of any liabilities or obligations arising under, or in connection with, this letter agreement, the Merger Agreement or the transactions contemplated thereby, including without limitation in the event any of the Parent Parties breaches its obligations under the Merger Agreement, whether or not such breach is caused by the Investor's breach of its obligations under this letter agreement; provided that, in the event the Company successfully compels specific performance of the obligations of the Parent Parties to consummate the Merger in accordance with, and subject to the terms and conditions set forth in, Section 9.6(b) of the Merger Agreement, and the Investor shall have made the Contribution (and all Other Investors have funded their Commitments in full and the Effective Time occurred), then neither the Company nor any other Person (including, without limitation, the Company's equityholders, Affiliates and Subsidiaries) shall have any remedy against the Investor or any Related Person, including under the Limited Guarantee.
4. Enforcement. This letter agreement may only be enforced (i) by Holdco or Parent, (ii) by the Company to seek specific performance of the Investor's obligations to fund the Contribution, (iii) by the Company to seek specific performance of Holdco's obligations under Section 1 of this letter agreement to fund the Holdco to Parent Contribution, in the case of each of clause (ii) and clause (iii), in accordance with the Merger Agreement or (iv) by the Company, as set forth in Section 7 of this letter agreement.
5. No Recourse. Notwithstanding anything that may be expressed or implied in this letter agreement, by their acceptance hereof, each of Holdco and Parent acknowledges and agrees that (a) notwithstanding that the Investor may be a limited liability entity, no recourse hereunder or under any documents or instruments delivered in connection herewith may be had against any Related Person, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding or by virtue of any statute, regulation or other applicable law, and (b) no personal liability whatsoever will attach to, be imposed on or otherwise be incurred by Related Persons in connection with this letter agreement or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations or by their creation.
6. Expiration. All obligations under this letter agreement shall expire and terminate automatically and immediately upon the earliest to occur of (a) the valid termination of the Merger Agreement in accordance with its terms, (b) the Closing (at which time the Contribution shall be discharged), (c) the making of the Contribution by the Investor or its permitted assigns, (d) the Company or any of its Affiliates asserting a claim that would make the Limited Guarantee become terminable in accordance with the terms thereof, and (e) ten (10) months after the date hereof; provided that, in the event a claim by the Company or any of its Affiliates under Section 4 of this letter agreement or any claim seeking an injunction, specific performance or other equitable remedy against any Parent Party under Section 9.6(b) of the Merger Agreement is then pending, this letter agreement shall only terminate upon the final, non-appealable resolution of such action and satisfaction by the Investor of any obligations finally determined by a court of competent jurisdiction or agreed to be owed by the Investor in connection with this letter agreement.
| - 3 - |
7. No Assignment. The Investor's obligation to fund the Contribution may not be assigned or delegated (whether by operation of law, merger, consolidation or otherwise). Neither this letter agreement nor any of the rights, interests or obligations hereunder shall be assignable by Holdco or Parent without the Investor's and the Company's prior written consent, and the granting of such consent in any given instance shall be solely in the discretion of the Investor and the Company and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment. Any purported transfer, assignment or delegation in violation of this Section 7 shall be null and void and of no force and effect.
8. No Other Beneficiaries. Except for the rights provided to the Company under Section 4 and Section 7 of this letter agreement, this letter agreement shall be binding on the Investor solely for the benefit of Holdco and Parent, and nothing set forth in this letter agreement is intended to or shall confer upon or give to any Person other than Holdco and Parent any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Holdco or Parent to enforce, the Contribution or any provisions of this letter agreement; provided that, notwithstanding anything to the contrary in this letter agreement, any Related Person shall be a third party beneficiary of the provisions set forth herein that are for the benefit of any Related Person (including the provisions of Sections 3, 8, 11, 12 and 14), and all such provisions shall survive any termination of this letter agreement indefinitely. Without limiting the foregoing, neither Holdco's, Parent's, Midco's, Merger Sub's nor the Company's creditors shall have the right to enforce this letter agreement or to cause Holdco or Parent or the Company to enforce this letter agreement.
9. Representations and Warranties. The Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this letter agreement; (b) the execution, delivery and performance of this letter agreement by the Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Investor are necessary therefor; (c) this letter agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by the Investor of this letter agreement do not and will not violate the organizational documents of the Investor or any applicable Law or conflict with any material agreement binding on the Investor; (e) the Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by the Investor.
10. Severability. Any term or provision of this letter agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this letter agreement in any jurisdiction and, if any provision of this letter agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this letter agreement may not be enforced without giving effect to the provisions of Sections 2 through 8, 11 and 12 hereof. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this letter agreement or any part hereof is invalid, illegal or unenforceable.
| - 4 - |
11. Jurisdiction; Dispute Resolution.
In the event of any dispute, controversy, or claim between the Investor and Holdco arising out of or relating to the breach, termination or validity of this letter agreement ("Dispute"), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission ("CIETAC") under the arbitration rules of CIETAC (the "Rule") in force when the notice of arbitration is submitted by a party.
The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule.
The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 11. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party.
The awards rendered by the arbitrators pursuant to this Section 11 shall be non-appealable, final, binding and conclusive on the parties to such Dispute.
The Investor, Holdco and Parent understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision.
12. Headings. Headings of the Sections of this letter agreement are for convenience of the parties only and shall be given no substantive or interpretive effect whatsoever.
13. Governing Law. This letter agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People's Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
| - 5 - |
14. Entire Agreement; Amendment; Counterparts. This letter agreement, the Escrow Agreement, the Limited Guarantee and the Merger Agreement constitute the entire agreement with respect to the subject matter hereof and thereof, and supersede all other prior agreements, understandings and statements, both written and oral, between or among Holdco, Parent or any of their respective Affiliates, on the one hand, and the Investor or any of its Affiliates, on the other hand. Any provision of this letter agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed by the Investor, Holdco and Parent; provided that any amendment, waiver or modification that would be expected to be adverse to the Company's rights set forth in Section 4 and/or Section 7 of this letter agreement shall require the prior written consent of the Company. This letter agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
[Remainder of page intentionally left blank]
| - 6 - |
| Very truly yours, | ||
| SIP Oriza Chongyuan M&A Fund Partnership (Limited Partnership) | ||
| (苏州工业园区元禾重元并购股权投资基金合伙企业 (有限合伙) ) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hua Yao | |
| Name: | Hua Yao | |
| Title: | Authorized Representative of Executive Partner | |
| Agreed to and accepted as of the date first | ||
| written above: | ||
| Tianjin Qixin Zhicheng Technology Co., Ltd. | ||
| (天津奇信志成科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: | Eric X. Chen | |
| Title: | Director | |
[Signature Page to Equity Commitment Letter]
Exhibit A
Subscription Agreement(s)
Exhibit 99.12
Execution Version
Shanghai Sailing Merger and Acquisition
Investment Fund Partnership (Limited Partnership)
(上海赛领并购投资基金合伙企业 (有限合伙) )
36/F CITIC PLAZA, No. 859 North Sichuan Road,
Shanghai China
December 18, 2015
Tianjin Qixin Zhicheng Technology Co., Ltd.
(天津奇信志成科技有限公司)
Room 9-3-401
No. 39 Gaoxin 6th Road
Binhai Science and Technology Area
Binhai Hi-tech District
Tianjin, China
Tianjin Qixin Tongda Technology Co., Ltd.
(天津奇信通达科技有限公司)
No. 4-B-32, 4F, Building 3
No. 188 Rixin Avenue
Binhai Hi-Tech Zone
Binhai New District
Tianjin, P.R. China 300301
Solely for the purposes of Section 4 and Section 7 hereto,
Qihoo 360 Technology Co. Ltd.
Tower A, Building 2
No.6 Jiuxianqiao Road
Chaoyang District
Beijing, P.R. China 100015
Re: Equity Commitment Letter
Ladies and Gentlemen:
Shanghai Sailing Merger and Acquisition Investment Fund Partnership (Limited Partnership) (including its successors or permitted assigns, the "Investor") is pleased to offer this commitment, subject to the terms and conditions contained herein, to purchase, directly or indirectly, equity interests in (i) Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), and (ii) Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"). It is contemplated that pursuant to the terms of that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Company"), Holdco, Parent, True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), Merger Sub will merge with and into the Company, with the Company being the surviving company (the "Merger"). Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Merger Agreement.
1. Commitment. The Investor hereby agrees to contribute, or cause to be contributed, within three (3) Business Days after the conditions in Section 2 of this letter agreement are satisfied, as an equity contribution to (i) Holdco, an aggregate amount of RMB equivalent to US$ 24,667,600 (the "Holdco Contribution") and (ii) Parent, an aggregate amount of RMB equivalent to US$ 25,332,400 (the "Parent Contribution", and collectively with the Holdco Contribution, the "Contribution"), subject to the terms and conditions hereof. For purposes of this letter agreement, the RMB equivalents of U.S. dollars shall be determined using the prevailing exchange rate notified by Parent to the Investor at least three (3) Business Days prior to funding. The proceeds of the Holdco Contribution, along with the amounts to be paid by all other Investors (the "Other Investors") to Holdco under their respective Equity Commitment Letters, shall promptly upon receipt be further contributed by Holdco, as an equity contribution to Parent (collectively, the "Holdco to Parent Contribution"). The proceeds of the Parent Contribution, along with the Holdco to Parent Contribution and amounts to be paid by the Other Investors to Parent under their respective Equity Commitment Letters (such aggregate amount, the "Commitments"), shall be used by Parent, to the extent necessary, to (i) fund (or cause to be funded through Midco or Merger Sub) a portion of the Exchange Fund and any other amounts required to be paid pursuant to the Merger Agreement (including any applicable consideration to the holders of Company Convertible Notes or repurchase of any Company Convertible Notes) and (ii) pay (or cause to be paid through Midco or Merger Sub) related fees and expenses (which, for the avoidance of doubt, shall not include any Parent Termination Fee or any Guaranteed Obligations with respect to a Parent Termination Fee under the Limited Guarantee given by the Investor), in each case, pursuant to and in accordance with the terms of, and subject to the conditions of, the Merger Agreement. Notwithstanding anything else to the contrary in this letter agreement, the aggregate amount of liability of the Investor under this letter agreement shall at no time exceed the aggregate amount of the Contribution less any portion of the Contribution that has been funded in accordance with the terms hereof or the terms of that certain Escrow Agreement, dated of even date herewith, between the Investor and Parent (the "Escrow Agreement").
2. Closing Conditions. The Investor's obligation to make the Contribution pursuant to this letter agreement is subject to the satisfaction in full (or waiver, if permissible) of all conditions precedent to the obligations of the Parent Parties to consummate the transactions contemplated by the Merger Agreement set forth in Article VII thereof other than (i) conditions that by their nature are to be satisfied on the Closing Date and (ii) any PRC Regulatory Approval that is applicable to the Parent Parties only after the Equity Financing and/or the Debt Financing has been funded. The Investor shall make its Contribution pursuant to the terms of the forms of subscription agreement(s) attached hereto as Exhibit A, which do not contain any conditions to which the Investor's obligation to make the Contribution pursuant to this letter agreement is subject other than those referenced in the foregoing sentence.
| - 2 - |
3. Limited Guarantee. Concurrently with the execution and delivery of this letter agreement, the Investor is executing and delivering to the Company a Limited Guarantee (the "Limited Guarantee"). The Company's (i) remedies against the Investor and the Other Investors under their respective Limited Guarantees, (ii) rights set forth in Section 4 of this letter agreement and (iii) remedies against the Parent Parties under the Merger Agreement shall be, and are intended to be, the sole and exclusive direct or indirect remedies available to the Company against the Investor, any former, current or future director, officer, employee, agent or affiliate of the Investor, any former, current or future, direct or indirect holder of any equity interests or securities of the Investor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, affiliate, controlling person or representative of any of the foregoing (each such person or entity, a "Related Person") in respect of any liabilities or obligations arising under, or in connection with, this letter agreement, the Merger Agreement or the transactions contemplated thereby, including without limitation in the event any of the Parent Parties breaches its obligations under the Merger Agreement, whether or not such breach is caused by the Investor's breach of its obligations under this letter agreement; provided that, in the event the Company successfully compels specific performance of the obligations of the Parent Parties to consummate the Merger in accordance with, and subject to the terms and conditions set forth in, Section 9.6(b) of the Merger Agreement, and the Investor shall have made the Contribution (and all Other Investors have funded their Commitments in full and the Effective Time occurred), then neither the Company nor any other Person (including, without limitation, the Company's equityholders, Affiliates and Subsidiaries) shall have any remedy against the Investor or any Related Person, including under the Limited Guarantee.
4. Enforcement. This letter agreement may only be enforced (i) by Holdco or Parent, (ii) by the Company to seek specific performance of the Investor's obligations to fund the Contribution, (iii) by the Company to seek specific performance of Holdco's obligations under Section 1 of this letter agreement to fund the Holdco to Parent Contribution, in the case of each of clause (ii) and clause (iii), in accordance with the Merger Agreement or (iv) by the Company, as set forth in Section 7 of this letter agreement.
5. No Recourse. Notwithstanding anything that may be expressed or implied in this letter agreement, by their acceptance hereof, each of Holdco and Parent acknowledges and agrees that (a) notwithstanding that the Investor may be a limited liability entity, no recourse hereunder or under any documents or instruments delivered in connection herewith may be had against any Related Person, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding or by virtue of any statute, regulation or other applicable law, and (b) no personal liability whatsoever will attach to, be imposed on or otherwise be incurred by Related Persons in connection with this letter agreement or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations or by their creation.
6. Expiration. All obligations under this letter agreement shall expire and terminate automatically and immediately upon the earliest to occur of (a) the valid termination of the Merger Agreement in accordance with its terms, (b) the Closing (at which time the Contribution shall be discharged), (c) the making of the Contribution by the Investor or its permitted assigns, (d) the Company or any of its Affiliates asserting a claim that would make the Limited Guarantee become terminable in accordance with the terms thereof, and (e) ten (10) months after the date hereof; provided that, in the event a claim by the Company or any of its Affiliates under Section 4 of this letter agreement or any claim seeking an injunction, specific performance or other equitable remedy against any Parent Party under Section 9.6(b) of the Merger Agreement is then pending, this letter agreement shall only terminate upon the final, non-appealable resolution of such action and satisfaction by the Investor of any obligations finally determined by a court of competent jurisdiction or agreed to be owed by the Investor in connection with this letter agreement.
| - 3 - |
7. No Assignment. The Investor's obligation to fund the Contribution may not be assigned or delegated (whether by operation of law, merger, consolidation or otherwise). Neither this letter agreement nor any of the rights, interests or obligations hereunder shall be assignable by Holdco or Parent without the Investor's and the Company's prior written consent, and the granting of such consent in any given instance shall be solely in the discretion of the Investor and the Company and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment. Any purported transfer, assignment or delegation in violation of this Section 7 shall be null and void and of no force and effect.
8. No Other Beneficiaries. Except for the rights provided to the Company under Section 4 and Section 7 of this letter agreement, this letter agreement shall be binding on the Investor solely for the benefit of Holdco and Parent, and nothing set forth in this letter agreement is intended to or shall confer upon or give to any Person other than Holdco and Parent any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Holdco or Parent to enforce, the Contribution or any provisions of this letter agreement; provided that, notwithstanding anything to the contrary in this letter agreement, any Related Person shall be a third party beneficiary of the provisions set forth herein that are for the benefit of any Related Person (including the provisions of Sections 3, 8, 11, 12 and 14), and all such provisions shall survive any termination of this letter agreement indefinitely. Without limiting the foregoing, neither Holdco's, Parent's, Midco's, Merger Sub's nor the Company's creditors shall have the right to enforce this letter agreement or to cause Holdco or Parent or the Company to enforce this letter agreement.
9. Representations and Warranties. The Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this letter agreement; (b) the execution, delivery and performance of this letter agreement by the Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Investor are necessary therefor; (c) this letter agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by the Investor of this letter agreement do not and will not violate the organizational documents of the Investor or any applicable Law or conflict with any material agreement binding on the Investor; (e) the Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by the Investor.
10. Severability. Any term or provision of this letter agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this letter agreement in any jurisdiction and, if any provision of this letter agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this letter agreement may not be enforced without giving effect to the provisions of Sections 2 through 8, 11 and 12 hereof. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this letter agreement or any part hereof is invalid, illegal or unenforceable.
| - 4 - |
11. Jurisdiction; Dispute Resolution.
In the event of any dispute, controversy, or claim between the Investor and Holdco arising out of or relating to the breach, termination or validity of this letter agreement ("Dispute"), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission ("CIETAC") under the arbitration rules of CIETAC (the "Rule") in force when the notice of arbitration is submitted by a party.
The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule.
The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 11. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party.
The awards rendered by the arbitrators pursuant to this Section 11 shall be non-appealable, final, binding and conclusive on the parties to such Dispute.
The Investor, Holdco and Parent understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision.
12. Headings. Headings of the Sections of this letter agreement are for convenience of the parties only and shall be given no substantive or interpretive effect whatsoever.
13. Governing Law. This letter agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People's Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
| - 5 - |
14. Entire Agreement; Amendment; Counterparts. This letter agreement, the Escrow Agreement, the Limited Guarantee and the Merger Agreement constitute the entire agreement with respect to the subject matter hereof and thereof, and supersede all other prior agreements, understandings and statements, both written and oral, between or among Holdco, Parent or any of their respective Affiliates, on the one hand, and the Investor or any of its Affiliates, on the other hand. Any provision of this letter agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed by the Investor, Holdco and Parent; provided that any amendment, waiver or modification that would be expected to be adverse to the Company's rights set forth in Section 4 and/or Section 7 of this letter agreement shall require the prior written consent of the Company. This letter agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
[Remainder of page intentionally left blank]
| - 6 - |
| Very truly yours, | ||
| Shanghai Sailing Merger and Acquisition Investment Fund Partnership (Limited Partnership) | ||
| (上海赛领并购投资基金合伙企业 (有限合伙) ) | ||
| By: | /s/ Tao Fu | |
| Name: | Tao Fu | |
| Title: | Authorized Representative of Managing Partner | |
| Agreed to and accepted as of the date first | ||
| written above: | ||
| Tianjin Qixin Zhicheng Technology Co., Ltd. | ||
| (天津奇信志成科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: | Eric X. Chen | |
| Title: | Director | |
[Signature Page to Equity Commitment Letter]
Exhibit A
Subscription Agreement(s)
Exhibit 99.13
Execution Version
Shanghai Sailing Boda Equity Investment Fund Partnership (Limited Partnership)
( 上海赛领博达股权投资基金合伙企业 (有限合伙) )
36/F CITIC PLAZA, No. 859 North Sichuan Road
Shanghai 200000 China
December 18, 2015
Tianjin Qixin Zhicheng Technology Co., Ltd.
(天津奇信志成科技有限公司)
Room 9-3-401
No. 39 Gaoxin 6th Road
Binhai Science and Technology Area
Binhai Hi-tech District
Tianjin, China
Tianjin Qixin Tongda Technology Co., Ltd.
(天津奇信通达科技有限公司)
No. 4-B-32, 4F, Building 3
No. 188 Rixin Avenue
Binhai Hi-Tech Zone
Binhai New District
Tianjin, P.R. China 300301
Solely for the purposes of Section 4 and Section 7 hereto,
Qihoo 360 Technology Co. Ltd.
Tower A, Building 2
No.6 Jiuxianqiao Road
Chaoyang District
Beijing, P.R. China 100015
Re: Equity Commitment Letter
Ladies and Gentlemen:
Shanghai Sailing Boda Equity Investment Fund Partnership (Limited Partnership) (including its successors or permitted assigns, the "Investor") is pleased to offer this commitment, subject to the terms and conditions contained herein, to purchase, directly or indirectly, equity interests in (i) Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), and (ii) Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"). It is contemplated that pursuant to the terms of that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Company"), Holdco, Parent, True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), Merger Sub will merge with and into the Company, with the Company being the surviving company (the "Merger"). Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Merger Agreement.
1. Commitment. The Investor hereby agrees to contribute, or cause to be contributed, within three (3) Business Days after the conditions in Section 2 of this letter agreement are satisfied, as an equity contribution to (i) Holdco, an aggregate amount of RMB equivalent to US$24,667,600 (the "Holdco Contribution") and (ii) Parent, an aggregate amount of RMB equivalent to US$25,332,400 (the "Parent Contribution", and collectively with the Holdco Contribution, the "Contribution"), subject to the terms and conditions hereof. For purposes of this letter agreement, the RMB equivalents of U.S. dollars shall be determined using the prevailing exchange rate notified by Parent to the Investor at least three (3) Business Days prior to funding. The proceeds of the Holdco Contribution, along with the amounts to be paid by all other Investors (the "Other Investors") to Holdco under their respective Equity Commitment Letters, shall promptly upon receipt be further contributed by Holdco, as an equity contribution to Parent (collectively, the "Holdco to Parent Contribution"). The proceeds of the Parent Contribution, along with the Holdco to Parent Contribution and amounts to be paid by the Other Investors to Parent under their respective Equity Commitment Letters (such aggregate amount, the "Commitments"), shall be used by Parent, to the extent necessary, to (i) fund (or cause to be funded through Midco or Merger Sub) a portion of the Exchange Fund and any other amounts required to be paid pursuant to the Merger Agreement (including any applicable consideration to the holders of Company Convertible Notes or repurchase of any Company Convertible Notes) and (ii) pay (or cause to be paid through Midco or Merger Sub) related fees and expenses (which, for the avoidance of doubt, shall not include any Parent Termination Fee or any Guaranteed Obligations with respect to a Parent Termination Fee under the Limited Guarantee given by the Investor), in each case, pursuant to and in accordance with the terms of, and subject to the conditions of, the Merger Agreement. Notwithstanding anything else to the contrary in this letter agreement, the aggregate amount of liability of the Investor under this letter agreement shall at no time exceed the aggregate amount of the Contribution less any portion of the Contribution that has been funded in accordance with the terms hereof or the terms of that certain Escrow Agreement, dated of even date herewith, between the Investor and Parent (the "Escrow Agreement").
2. Closing Conditions. The Investor's obligation to make the Contribution pursuant to this letter agreement is subject to the satisfaction in full (or waiver, if permissible) of all conditions precedent to the obligations of the Parent Parties to consummate the transactions contemplated by the Merger Agreement set forth in Article VII thereof other than (i) conditions that by their nature are to be satisfied on the Closing Date and (ii) any PRC Regulatory Approval that is applicable to the Parent Parties only after the Equity Financing and/or the Debt Financing has been funded. The Investor shall make its Contribution pursuant to the terms of the forms of subscription agreement(s) attached hereto as Exhibit A, which do not contain any conditions to which the Investor's obligation to make the Contribution pursuant to this letter agreement is subject other than those referenced in the foregoing sentence.
| - 2 - |
3. Limited Guarantee. Concurrently with the execution and delivery of this letter agreement, the Investor is executing and delivering to the Company a Limited Guarantee (the "Limited Guarantee"). The Company's (i) remedies against the Investor and the Other Investors under their respective Limited Guarantees, (ii) rights set forth in Section 4 of this letter agreement and (iii) remedies against the Parent Parties under the Merger Agreement shall be, and are intended to be, the sole and exclusive direct or indirect remedies available to the Company against the Investor, any former, current or future director, officer, employee, agent or affiliate of the Investor, any former, current or future, direct or indirect holder of any equity interests or securities of the Investor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, affiliate, controlling person or representative of any of the foregoing (each such person or entity, a "Related Person") in respect of any liabilities or obligations arising under, or in connection with, this letter agreement, the Merger Agreement or the transactions contemplated thereby, including without limitation in the event any of the Parent Parties breaches its obligations under the Merger Agreement, whether or not such breach is caused by the Investor's breach of its obligations under this letter agreement; provided that, in the event the Company successfully compels specific performance of the obligations of the Parent Parties to consummate the Merger in accordance with, and subject to the terms and conditions set forth in, Section 9.6(b) of the Merger Agreement, and the Investor shall have made the Contribution (and all Other Investors have funded their Commitments in full and the Effective Time occurred), then neither the Company nor any other Person (including, without limitation, the Company's equityholders, Affiliates and Subsidiaries) shall have any remedy against the Investor or any Related Person, including under the Limited Guarantee.
4. Enforcement. This letter agreement may only be enforced (i) by Holdco or Parent, (ii) by the Company to seek specific performance of the Investor's obligations to fund the Contribution, (iii) by the Company to seek specific performance of Holdco's obligations under Section 1 of this letter agreement to fund the Holdco to Parent Contribution, in the case of each of clause (ii) and clause (iii), in accordance with the Merger Agreement or (iv) by the Company, as set forth in Section 7 of this letter agreement.
5. No Recourse. Notwithstanding anything that may be expressed or implied in this letter agreement, by their acceptance hereof, each of Holdco and Parent acknowledges and agrees that (a) notwithstanding that the Investor may be a limited liability entity, no recourse hereunder or under any documents or instruments delivered in connection herewith may be had against any Related Person, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding or by virtue of any statute, regulation or other applicable law, and (b) no personal liability whatsoever will attach to, be imposed on or otherwise be incurred by Related Persons in connection with this letter agreement or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations or by their creation.
6. Expiration. All obligations under this letter agreement shall expire and terminate automatically and immediately upon the earliest to occur of (a) the valid termination of the Merger Agreement in accordance with its terms, (b) the Closing (at which time the Contribution shall be discharged), (c) the making of the Contribution by the Investor or its permitted assigns, (d) the Company or any of its Affiliates asserting a claim that would make the Limited Guarantee become terminable in accordance with the terms thereof, and (e) ten (10) months after the date hereof; provided that, in the event a claim by the Company or any of its Affiliates under Section 4 of this letter agreement or any claim seeking an injunction, specific performance or other equitable remedy against any Parent Party under Section 9.6(b) of the Merger Agreement is then pending, this letter agreement shall only terminate upon the final, non-appealable resolution of such action and satisfaction by the Investor of any obligations finally determined by a court of competent jurisdiction or agreed to be owed by the Investor in connection with this letter agreement.
| - 3 - |
7. No Assignment. The Investor's obligation to fund the Contribution may not be assigned or delegated (whether by operation of law, merger, consolidation or otherwise). Neither this letter agreement nor any of the rights, interests or obligations hereunder shall be assignable by Holdco or Parent without the Investor's and the Company's prior written consent, and the granting of such consent in any given instance shall be solely in the discretion of the Investor and the Company and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment. Any purported transfer, assignment or delegation in violation of this Section 7 shall be null and void and of no force and effect.
8. No Other Beneficiaries. Except for the rights provided to the Company under Section 4 and Section 7 of this letter agreement, this letter agreement shall be binding on the Investor solely for the benefit of Holdco and Parent, and nothing set forth in this letter agreement is intended to or shall confer upon or give to any Person other than Holdco and Parent any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Holdco or Parent to enforce, the Contribution or any provisions of this letter agreement; provided that, notwithstanding anything to the contrary in this letter agreement, any Related Person shall be a third party beneficiary of the provisions set forth herein that are for the benefit of any Related Person (including the provisions of Sections 3, 8, 11, 12 and 14), and all such provisions shall survive any termination of this letter agreement indefinitely. Without limiting the foregoing, neither Holdco's, Parent's, Midco's, Merger Sub's nor the Company's creditors shall have the right to enforce this letter agreement or to cause Holdco or Parent or the Company to enforce this letter agreement.
9. Representations and Warranties. The Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this letter agreement; (b) the execution, delivery and performance of this letter agreement by the Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Investor are necessary therefor; (c) this letter agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by the Investor of this letter agreement do not and will not violate the organizational documents of the Investor or any applicable Law or conflict with any material agreement binding on the Investor; (e) the Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by the Investor.
10. Severability. Any term or provision of this letter agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this letter agreement in any jurisdiction and, if any provision of this letter agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this letter agreement may not be enforced without giving effect to the provisions of Sections 2 through 8, 11 and 12 hereof. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this letter agreement or any part hereof is invalid, illegal or unenforceable.
| - 4 - |
11. Jurisdiction; Dispute Resolution.
In the event of any dispute, controversy, or claim between the Investor and Holdco arising out of or relating to the breach, termination or validity of this letter agreement ("Dispute"), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission ("CIETAC") under the arbitration rules of CIETAC (the "Rule") in force when the notice of arbitration is submitted by a party.
The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule.
The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 11. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party.
The awards rendered by the arbitrators pursuant to this Section 11 shall be non-appealable, final, binding and conclusive on the parties to such Dispute.
The Investor, Holdco and Parent understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision.
12. Headings. Headings of the Sections of this letter agreement are for convenience of the parties only and shall be given no substantive or interpretive effect whatsoever.
13. Governing Law. This letter agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People's Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
| - 5 - |
14. Entire Agreement; Amendment; Counterparts. This letter agreement, the Escrow Agreement, the Limited Guarantee and the Merger Agreement constitute the entire agreement with respect to the subject matter hereof and thereof, and supersede all other prior agreements, understandings and statements, both written and oral, between or among Holdco, Parent or any of their respective Affiliates, on the one hand, and the Investor or any of its Affiliates, on the other hand. Any provision of this letter agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed by the Investor, Holdco and Parent; provided that any amendment, waiver or modification that would be expected to be adverse to the Company's rights set forth in Section 4 and/or Section 7 of this letter agreement shall require the prior written consent of the Company. This letter agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
[Remainder of page intentionally left blank]
| - 6 - |
| Very truly yours, | ||
| Shanghai Sailing Boda Equity Investment Fund Partnership (Limited Partnership) | ||
| ( 上海赛领博达股权投资基金合伙企业 (有限合伙) ) | ||
| [Company chop is affixed] | ||
| By: | /s/ Fu, Tao | |
| Name: | Fu, Tao | |
| Title: | Authorized Representative of Managing Partner | |
| Agreed to and accepted as of the date first | ||
| written above: | ||
| Tianjin Qixin Zhicheng Technology Co., Ltd. | ||
| (天津奇信志成科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: | Eric X. Chen | |
| Title: | Director | |
[Signature Page to Equity Commitment Letter]
Exhibit A
Subscription Agreement(s)
Exhibit 99.14
Execution Version
Fortune Fountain (Beijing) Holding Group Co., Ltd.
沣沅弘 (北京) 控股集团有限公司
Floor 33, Nanyin Building, East Third Ring North Road No. 2
Chaoyang District, Beijing
December 18, 2015
Tianjin Qixin Zhicheng Technology Co., Ltd.
(天津奇信志成科技有限公司)
Room 9-3-401
No. 39 Gaoxin 6th Road
Binhai Science and Technology Area
Binhai Hi-tech District
Tianjin, China
Tianjin Qixin Tongda Technology Co., Ltd.
(天津奇信通达科技有限公司)
No. 4-B-32, 4F, Building 3
No. 188 Rixin Avenue
Binhai Hi-Tech Zone
Binhai New District
Tianjin, P.R. China 300301
Solely for the purposes of Section 4 and Section 7 hereto,
Qihoo 360 Technology Co. Ltd.
Tower A, Building 2
No.6 Jiuxianqiao Road
Chaoyang District
Beijing, P.R. China 100015
Re: Equity Commitment Letter
Ladies and Gentlemen:
Fortune Fountain (Beijing) Holding Group Co., Ltd. (including its successors or permitted assigns, the "Investor") is pleased to offer this commitment, subject to the terms and conditions contained herein, to purchase, directly or indirectly, equity interests in (i) Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), and (ii) Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"). It is contemplated that pursuant to the terms of that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Company"), Holdco, Parent, True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), Merger Sub will merge with and into the Company, with the Company being the surviving company (the "Merger"). Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Merger Agreement.
1. Commitment. The Investor hereby agrees to contribute, or cause to be contributed, within three (3) Business Days after the conditions in Section 2 of this letter agreement are satisfied, as an equity contribution to (i) Holdco, an aggregate amount of RMB equivalent to US$ 39,468,160 (the "Holdco Contribution") and (ii) Parent, an aggregate amount of RMB equivalent to US$ 40,531,840 (the "Parent Contribution", and collectively with the Holdco Contribution, the "Contribution"), subject to the terms and conditions hereof. For purposes of this letter agreement, the RMB equivalents of U.S. dollars shall be determined using the prevailing exchange rate notified by Parent to the Investor at least three (3) Business Days prior to funding. The proceeds of the Holdco Contribution, along with the amounts to be paid by all other Investors (the "Other Investors") to Holdco under their respective Equity Commitment Letters, shall promptly upon receipt be further contributed by Holdco, as an equity contribution to Parent (collectively, the "Holdco to Parent Contribution"). The proceeds of the Parent Contribution, along with the Holdco to Parent Contribution and amounts to be paid by the Other Investors to Parent under their respective Equity Commitment Letters (such aggregate amount, the "Commitments"), shall be used by Parent, to the extent necessary, to (i) fund (or cause to be funded through Midco or Merger Sub) a portion of the Exchange Fund and any other amounts required to be paid pursuant to the Merger Agreement (including any applicable consideration to the holders of Company Convertible Notes or repurchase of any Company Convertible Notes) and (ii) pay (or cause to be paid through Midco or Merger Sub) related fees and expenses (which, for the avoidance of doubt, shall not include any Parent Termination Fee or any Guaranteed Obligations with respect to a Parent Termination Fee under the Limited Guarantee given by the Investor), in each case, pursuant to and in accordance with the terms of, and subject to the conditions of, the Merger Agreement. Notwithstanding anything else to the contrary in this letter agreement, the aggregate amount of liability of the Investor under this letter agreement shall at no time exceed the aggregate amount of the Contribution less any portion of the Contribution that has been funded in accordance with the terms hereof or the terms of that certain Escrow Agreement, dated of even date herewith, between the Investor and Parent (the "Escrow Agreement").
2. Closing Conditions. The Investor's obligation to make the Contribution pursuant to this letter agreement is subject to the satisfaction in full (or waiver, if permissible) of all conditions precedent to the obligations of the Parent Parties to consummate the transactions contemplated by the Merger Agreement set forth in Article VII thereof other than (i) conditions that by their nature are to be satisfied on the Closing Date and (ii) any PRC Regulatory Approval that is applicable to the Parent Parties only after the Equity Financing and/or the Debt Financing has been funded. The Investor shall make its Contribution pursuant to the terms of the forms of subscription agreement(s) attached hereto as Exhibit A, which do not contain any conditions to which the Investor's obligation to make the Contribution pursuant to this letter agreement is subject other than those referenced in the foregoing sentence.
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3. Limited Guarantee. Concurrently with the execution and delivery of this letter agreement, the Investor is executing and delivering to the Company a Limited Guarantee (the "Limited Guarantee"). The Company's (i) remedies against the Investor and the Other Investors under their respective Limited Guarantees, (ii) rights set forth in Section 4 of this letter agreement and (iii) remedies against the Parent Parties under the Merger Agreement shall be, and are intended to be, the sole and exclusive direct or indirect remedies available to the Company against the Investor, any former, current or future director, officer, employee, agent or affiliate of the Investor, any former, current or future, direct or indirect holder of any equity interests or securities of the Investor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, affiliate, controlling person or representative of any of the foregoing (each such person or entity, a "Related Person") in respect of any liabilities or obligations arising under, or in connection with, this letter agreement, the Merger Agreement or the transactions contemplated thereby, including without limitation in the event any of the Parent Parties breaches its obligations under the Merger Agreement, whether or not such breach is caused by the Investor's breach of its obligations under this letter agreement; provided that, in the event the Company successfully compels specific performance of the obligations of the Parent Parties to consummate the Merger in accordance with, and subject to the terms and conditions set forth in, Section 9.6(b) of the Merger Agreement, and the Investor shall have made the Contribution (and all Other Investors have funded their Commitments in full and the Effective Time occurred), then neither the Company nor any other Person (including, without limitation, the Company's equityholders, Affiliates and Subsidiaries) shall have any remedy against the Investor or any Related Person, including under the Limited Guarantee.
4. Enforcement. This letter agreement may only be enforced (i) by Holdco or Parent, (ii) by the Company to seek specific performance of the Investor's obligations to fund the Contribution, (iii) by the Company to seek specific performance of Holdco's obligations under Section 1 of this letter agreement to fund the Holdco to Parent Contribution, in the case of each of clause (ii) and clause (iii), in accordance with the Merger Agreement or (iv) by the Company, as set forth in Section 7 of this letter agreement.
5. No Recourse. Notwithstanding anything that may be expressed or implied in this letter agreement, by their acceptance hereof, each of Holdco and Parent acknowledges and agrees that (a) notwithstanding that the Investor may be a limited liability entity, no recourse hereunder or under any documents or instruments delivered in connection herewith may be had against any Related Person, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding or by virtue of any statute, regulation or other applicable law, and (b) no personal liability whatsoever will attach to, be imposed on or otherwise be incurred by Related Persons in connection with this letter agreement or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations or by their creation.
6. Expiration. All obligations under this letter agreement shall expire and terminate automatically and immediately upon the earliest to occur of (a) the valid termination of the Merger Agreement in accordance with its terms, (b) the Closing (at which time the Contribution shall be discharged), (c) the making of the Contribution by the Investor or its permitted assigns, (d) the Company or any of its Affiliates asserting a claim that would make the Limited Guarantee become terminable in accordance with the terms thereof, and (e) ten (10) months after the date hereof; provided that, in the event a claim by the Company or any of its Affiliates under Section 4 of this letter agreement or any claim seeking an injunction, specific performance or other equitable remedy against any Parent Party under Section 9.6(b) of the Merger Agreement is then pending, this letter agreement shall only terminate upon the final, non-appealable resolution of such action and satisfaction by the Investor of any obligations finally determined by a court of competent jurisdiction or agreed to be owed by the Investor in connection with this letter agreement.
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7. No Assignment. The Investor's obligation to fund the Contribution may not be assigned or delegated (whether by operation of law, merger, consolidation or otherwise). Neither this letter agreement nor any of the rights, interests or obligations hereunder shall be assignable by Holdco or Parent without the Investor's and the Company's prior written consent, and the granting of such consent in any given instance shall be solely in the discretion of the Investor and the Company and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment. Any purported transfer, assignment or delegation in violation of this Section 7 shall be null and void and of no force and effect.
8. No Other Beneficiaries. Except for the rights provided to the Company under Section 4 and Section 7 of this letter agreement, this letter agreement shall be binding on the Investor solely for the benefit of Holdco and Parent, and nothing set forth in this letter agreement is intended to or shall confer upon or give to any Person other than Holdco and Parent any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Holdco or Parent to enforce, the Contribution or any provisions of this letter agreement; provided that, notwithstanding anything to the contrary in this letter agreement, any Related Person shall be a third party beneficiary of the provisions set forth herein that are for the benefit of any Related Person (including the provisions of Sections 3, 8, 11, 12 and 14), and all such provisions shall survive any termination of this letter agreement indefinitely. Without limiting the foregoing, neither Holdco's, Parent's, Midco's, Merger Sub's nor the Company's creditors shall have the right to enforce this letter agreement or to cause Holdco or Parent or the Company to enforce this letter agreement.
9. Representations and Warranties. The Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this letter agreement; (b) the execution, delivery and performance of this letter agreement by the Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Investor are necessary therefor; (c) this letter agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by the Investor of this letter agreement do not and will not violate the organizational documents of the Investor or any applicable Law or conflict with any material agreement binding on the Investor; (e) the Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by the Investor.
10. Severability. Any term or provision of this letter agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this letter agreement in any jurisdiction and, if any provision of this letter agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this letter agreement may not be enforced without giving effect to the provisions of Sections 2 through 8, 11 and 12 hereof. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this letter agreement or any part hereof is invalid, illegal or unenforceable.
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11. Jurisdiction; Dispute Resolution.
In the event of any dispute, controversy, or claim between the Investor and Holdco arising out of or relating to the breach, termination or validity of this letter agreement ("Dispute"), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission ("CIETAC") under the arbitration rules of CIETAC (the "Rule") in force when the notice of arbitration is submitted by a party.
The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule.
The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 11. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party.
The awards rendered by the arbitrators pursuant to this Section 11 shall be non-appealable, final, binding and conclusive on the parties to such Dispute.
The Investor, Holdco and Parent understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision.
12. Headings. Headings of the Sections of this letter agreement are for convenience of the parties only and shall be given no substantive or interpretive effect whatsoever.
13. Governing Law. This letter agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People's Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
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14. Entire Agreement; Amendment; Counterparts. This letter agreement, the Escrow Agreement, the Limited Guarantee and the Merger Agreement constitute the entire agreement with respect to the subject matter hereof and thereof, and supersede all other prior agreements, understandings and statements, both written and oral, between or among Holdco, Parent or any of their respective Affiliates, on the one hand, and the Investor or any of its Affiliates, on the other hand. Any provision of this letter agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed by the Investor, Holdco and Parent; provided that any amendment, waiver or modification that would be expected to be adverse to the Company's rights set forth in Section 4 and/or Section 7 of this letter agreement shall require the prior written consent of the Company. This letter agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
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| Very truly yours, | ||
| Fortune Fountain (Beijing) Holding Group Co., Ltd. | ||
| 沣沅弘 (北京) 控股集团有限公司 | ||
| [Company chop is affixed] | ||
| By: | /s/ Wong Ning Nick | |
| Name: | Wong Ning Nick | |
| Title: | Managing Director | |
| Agreed to and accepted as of the date first | ||
| written above: | ||
| Tianjin Qixin Zhicheng Technology Co., Ltd. | ||
| (天津奇信志成科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: | Eric X. Chen | |
| Title: | Director | |
[Signature Page to Equity Commitment Letter]
Exhibit A
Subscription Agreement(s)
Exhibit 99.15
Execution Version
Beijing ZGC Trinitas Venture Capital Investment Center (Limited Partnership)
(北京中关村国盛创业投资中心 (有限合伙) )
710-133, 6/F NO. 8 North 2nd Street, Haidian District
Beijing China
December 18, 2015
Tianjin Qixin Zhicheng Technology Co., Ltd.
(天津奇信志成科技有限公司)
Room 9-3-401
No. 39 Gaoxin 6th Road
Binhai Science and Technology Area
Binhai Hi-tech District
Tianjin, China
Tianjin Qixin Tongda Technology Co., Ltd.
(天津奇信通达科技有限公司)
No. 4-B-32, 4F, Building 3
No. 188 Rixin Avenue
Binhai Hi-Tech Zone
Binhai New District
Tianjin, P.R. China 300301
Solely for the purposes of Section 4 and Section 7 hereto,
Qihoo 360 Technology Co. Ltd.
Tower A, Building 2
No.6 Jiuxianqiao Road
Chaoyang District
Beijing, P.R. China 100015
Re: Equity Commitment Letter
Ladies and Gentlemen:
Beijing ZGC Trinitas Venture Capital Investment Center (Limited Partnership) (including its successors or permitted assigns, the "Investor") is pleased to offer this commitment, subject to the terms and conditions contained herein, to purchase, directly or indirectly, equity interests in (i) Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), and (ii) Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"). It is contemplated that pursuant to the terms of that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Company"), Holdco, Parent, True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), Merger Sub will merge with and into the Company, with the Company being the surviving company (the "Merger"). Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Merger Agreement.
1. Commitment. The Investor hereby agrees to contribute, or cause to be contributed, within three (3) Business Days after the conditions in Section 2 of this letter agreement are satisfied, as an equity contribution to (i) Holdco, an aggregate amount of RMB equivalent to US$ 64,135,760 (the "Holdco Contribution") and (ii) Parent, an aggregate amount of RMB equivalent to US$ 65,864,240 (the "Parent Contribution", and collectively with the Holdco Contribution, the "Contribution"), subject to the terms and conditions hereof. For purposes of this letter agreement, the RMB equivalents of U.S. dollars shall be determined using the prevailing exchange rate notified by Parent to the Investor at least three (3) Business Days prior to funding. The proceeds of the Holdco Contribution, along with the amounts to be paid by all other Investors (the "Other Investors") to Holdco under their respective Equity Commitment Letters, shall promptly upon receipt be further contributed by Holdco, as an equity contribution to Parent (collectively, the "Holdco to Parent Contribution"). The proceeds of the Parent Contribution, along with the Holdco to Parent Contribution and amounts to be paid by the Other Investors to Parent under their respective Equity Commitment Letters (such aggregate amount, the "Commitments"), shall be used by Parent, to the extent necessary, to (i) fund (or cause to be funded through Midco or Merger Sub) a portion of the Exchange Fund and any other amounts required to be paid pursuant to the Merger Agreement (including any applicable consideration to the holders of Company Convertible Notes or repurchase of any Company Convertible Notes) and (ii) pay (or cause to be paid through Midco or Merger Sub) related fees and expenses (which, for the avoidance of doubt, shall not include any Parent Termination Fee or any Guaranteed Obligations with respect to a Parent Termination Fee under the Limited Guarantee given by the Investor), in each case, pursuant to and in accordance with the terms of, and subject to the conditions of, the Merger Agreement. Notwithstanding anything else to the contrary in this letter agreement, the aggregate amount of liability of the Investor under this letter agreement shall at no time exceed the aggregate amount of the Contribution less any portion of the Contribution that has been funded in accordance with the terms hereof or the terms of that certain Escrow Agreement, dated of even date herewith, between the Investor and Parent (the "Escrow Agreement").
2. Closing Conditions. The Investor's obligation to make the Contribution pursuant to this letter agreement is subject to the satisfaction in full (or waiver, if permissible) of all conditions precedent to the obligations of the Parent Parties to consummate the transactions contemplated by the Merger Agreement set forth in Article VII thereof other than (i) conditions that by their nature are to be satisfied on the Closing Date and (ii) any PRC Regulatory Approval that is applicable to the Parent Parties only after the Equity Financing and/or the Debt Financing has been funded. The Investor shall make its Contribution pursuant to the terms of the forms of subscription agreement(s) attached hereto as Exhibit A, which do not contain any conditions to which the Investor's obligation to make the Contribution pursuant to this letter agreement is subject other than those referenced in the foregoing sentence.
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3. Limited Guarantee. Concurrently with the execution and delivery of this letter agreement, the Investor is executing and delivering to the Company a Limited Guarantee (the "Limited Guarantee"). The Company's (i) remedies against the Investor and the Other Investors under their respective Limited Guarantees, (ii) rights set forth in Section 4 of this letter agreement and (iii) remedies against the Parent Parties under the Merger Agreement shall be, and are intended to be, the sole and exclusive direct or indirect remedies available to the Company against the Investor, any former, current or future director, officer, employee, agent or affiliate of the Investor, any former, current or future, direct or indirect holder of any equity interests or securities of the Investor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, affiliate, controlling person or representative of any of the foregoing (each such person or entity, a "Related Person") in respect of any liabilities or obligations arising under, or in connection with, this letter agreement, the Merger Agreement or the transactions contemplated thereby, including without limitation in the event any of the Parent Parties breaches its obligations under the Merger Agreement, whether or not such breach is caused by the Investor's breach of its obligations under this letter agreement; provided that, in the event the Company successfully compels specific performance of the obligations of the Parent Parties to consummate the Merger in accordance with, and subject to the terms and conditions set forth in, Section 9.6(b) of the Merger Agreement, and the Investor shall have made the Contribution (and all Other Investors have funded their Commitments in full and the Effective Time occurred), then neither the Company nor any other Person (including, without limitation, the Company's equityholders, Affiliates and Subsidiaries) shall have any remedy against the Investor or any Related Person, including under the Limited Guarantee.
4. Enforcement. This letter agreement may only be enforced (i) by Holdco or Parent, (ii) by the Company to seek specific performance of the Investor's obligations to fund the Contribution, (iii) by the Company to seek specific performance of Holdco's obligations under Section 1 of this letter agreement to fund the Holdco to Parent Contribution, in the case of each of clause (ii) and clause (iii), in accordance with the Merger Agreement or (iv) by the Company, as set forth in Section 7 of this letter agreement.
5. No Recourse. Notwithstanding anything that may be expressed or implied in this letter agreement, by their acceptance hereof, each of Holdco and Parent acknowledges and agrees that (a) notwithstanding that the Investor may be a limited liability entity, no recourse hereunder or under any documents or instruments delivered in connection herewith may be had against any Related Person, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding or by virtue of any statute, regulation or other applicable law, and (b) no personal liability whatsoever will attach to, be imposed on or otherwise be incurred by Related Persons in connection with this letter agreement or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations or by their creation.
6. Expiration. All obligations under this letter agreement shall expire and terminate automatically and immediately upon the earliest to occur of (a) the valid termination of the Merger Agreement in accordance with its terms, (b) the Closing (at which time the Contribution shall be discharged), (c) the making of the Contribution by the Investor or its permitted assigns, (d) the Company or any of its Affiliates asserting a claim that would make the Limited Guarantee become terminable in accordance with the terms thereof, and (e) ten (10) months after the date hereof; provided that, in the event a claim by the Company or any of its Affiliates under Section 4 of this letter agreement or any claim seeking an injunction, specific performance or other equitable remedy against any Parent Party under Section 9.6(b) of the Merger Agreement is then pending, this letter agreement shall only terminate upon the final, non-appealable resolution of such action and satisfaction by the Investor of any obligations finally determined by a court of competent jurisdiction or agreed to be owed by the Investor in connection with this letter agreement.
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7. No Assignment. The Investor's obligation to fund the Contribution may not be assigned or delegated (whether by operation of law, merger, consolidation or otherwise). Neither this letter agreement nor any of the rights, interests or obligations hereunder shall be assignable by Holdco or Parent without the Investor's and the Company's prior written consent, and the granting of such consent in any given instance shall be solely in the discretion of the Investor and the Company and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment. Any purported transfer, assignment or delegation in violation of this Section 7 shall be null and void and of no force and effect.
8. No Other Beneficiaries. Except for the rights provided to the Company under Section 4 and Section 7 of this letter agreement, this letter agreement shall be binding on the Investor solely for the benefit of Holdco and Parent, and nothing set forth in this letter agreement is intended to or shall confer upon or give to any Person other than Holdco and Parent any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Holdco or Parent to enforce, the Contribution or any provisions of this letter agreement; provided that, notwithstanding anything to the contrary in this letter agreement, any Related Person shall be a third party beneficiary of the provisions set forth herein that are for the benefit of any Related Person (including the provisions of Sections 3, 8, 11, 12 and 14), and all such provisions shall survive any termination of this letter agreement indefinitely. Without limiting the foregoing, neither Holdco's, Parent's, Midco's, Merger Sub's nor the Company's creditors shall have the right to enforce this letter agreement or to cause Holdco or Parent or the Company to enforce this letter agreement.
9. Representations and Warranties. The Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this letter agreement; (b) the execution, delivery and performance of this letter agreement by the Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Investor are necessary therefor; (c) this letter agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by the Investor of this letter agreement do not and will not violate the organizational documents of the Investor or any applicable Law or conflict with any material agreement binding on the Investor; (e) the Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by the Investor.
10. Severability. Any term or provision of this letter agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this letter agreement in any jurisdiction and, if any provision of this letter agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this letter agreement may not be enforced without giving effect to the provisions of Sections 2 through 8, 11 and 12 hereof. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this letter agreement or any part hereof is invalid, illegal or unenforceable.
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11. Jurisdiction; Dispute Resolution.
In the event of any dispute, controversy, or claim between the Investor and Holdco arising out of or relating to the breach, termination or validity of this letter agreement ("Dispute"), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission ("CIETAC") under the arbitration rules of CIETAC (the "Rule") in force when the notice of arbitration is submitted by a party.
The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule.
The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 11. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party.
The awards rendered by the arbitrators pursuant to this Section 11 shall be non-appealable, final, binding and conclusive on the parties to such Dispute.
The Investor, Holdco and Parent understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision.
12. Headings. Headings of the Sections of this letter agreement are for convenience of the parties only and shall be given no substantive or interpretive effect whatsoever.
13. Governing Law. This letter agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People's Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
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14. Entire Agreement; Amendment; Counterparts. This letter agreement, the Escrow Agreement, the Limited Guarantee and the Merger Agreement constitute the entire agreement with respect to the subject matter hereof and thereof, and supersede all other prior agreements, understandings and statements, both written and oral, between or among Holdco, Parent or any of their respective Affiliates, on the one hand, and the Investor or any of its Affiliates, on the other hand. Any provision of this letter agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed by the Investor, Holdco and Parent; provided that any amendment, waiver or modification that would be expected to be adverse to the Company's rights set forth in Section 4 and/or Section 7 of this letter agreement shall require the prior written consent of the Company. This letter agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
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| - 6 - |
| Very truly yours, | ||
| Beijing ZGC Trinitas Venture Capital Investment Center (Limited Partnership) | ||
| (北京中关村国盛创业投资中心 (有限合伙) ) | ||
| [Company chop is affixed] | ||
| By: | /s/ ZHOU, CHENG | |
| Name: | ZHOU, CHENG (周骋) | |
| Title: | Founding Partner | |
| Agreed to and accepted as of the date first | ||
| written above: | ||
| Tianjin Qixin Zhicheng Technology Co., Ltd. | ||
| (天津奇信志成科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: | Eric X. Chen | |
| Title: | Director | |
[Signature Page to Equity Commitment Letter]
Exhibit A
Subscription Agreement(s)
Exhibit 99.16
Execution Version
Shanghai Mango Creative Equity Investment Fund
芒果文创 (上海) 股权投资基金合伙企业 (有限合伙)
Hunan People's Radio Station, Av. Sany,
Changsha Hunan
December 18, 2015
Tianjin Qixin Zhicheng Technology Co., Ltd.
(天津奇信志成科技有限公司)
Room 9-3-401
No. 39 Gaoxin 6th Road
Binhai Science and Technology Area
Binhai Hi-tech District
Tianjin, China
Tianjin Qixin Tongda Technology Co., Ltd.
(天津奇信通达科技有限公司)
No. 4-B-32, 4F, Building 3
No. 188 Rixin Avenue
Binhai Hi-Tech Zone
Binhai New District
Tianjin, P.R. China 300301
Solely for the purposes of Section 4 and Section 7 hereto,
Qihoo 360 Technology Co. Ltd.
Tower A, Building 2
No.6 Jiuxianqiao Road
Chaoyang District
Beijing, P.R. China 100015
Re: Equity Commitment Letter
Ladies and Gentlemen:
Shanghai Mango Creative Equity Investment Fund (including its successors or permitted assigns, the "Investor") is pleased to offer this commitment, subject to the terms and conditions contained herein, to purchase, directly or indirectly, equity interests in (i) Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), and (ii) Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"). It is contemplated that pursuant to the terms of that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Company"), Holdco, Parent, True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), Merger Sub will merge with and into the Company, with the Company being the surviving company (the "Merger"). Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Merger Agreement.
1. Commitment. The Investor hereby agrees to contribute, or cause to be contributed, within three (3) Business Days after the conditions in Section 2 of this letter agreement are satisfied, as an equity contribution to (i) Holdco, an aggregate amount of RMB equivalent to US$ 49,335,200 (the "Holdco Contribution") and (ii) Parent, an aggregate amount of RMB equivalent to US$ 50,664,800 (the "Parent Contribution", and collectively with the Holdco Contribution, the "Contribution"), subject to the terms and conditions hereof. For purposes of this letter agreement, the RMB equivalents of U.S. dollars shall be determined using the prevailing exchange rate notified by Parent to the Investor at least three (3) Business Days prior to funding. The proceeds of the Holdco Contribution, along with the amounts to be paid by all other Investors (the "Other Investors") to Holdco under their respective Equity Commitment Letters, shall promptly upon receipt be further contributed by Holdco, as an equity contribution to Parent (collectively, the "Holdco to Parent Contribution"). The proceeds of the Parent Contribution, along with the Holdco to Parent Contribution and amounts to be paid by the Other Investors to Parent under their respective Equity Commitment Letters (such aggregate amount, the "Commitments"), shall be used by Parent, to the extent necessary, to (i) fund (or cause to be funded through Midco or Merger Sub) a portion of the Exchange Fund and any other amounts required to be paid pursuant to the Merger Agreement (including any applicable consideration to the holders of Company Convertible Notes or repurchase of any Company Convertible Notes) and (ii) pay (or cause to be paid through Midco or Merger Sub) related fees and expenses (which, for the avoidance of doubt, shall not include any Parent Termination Fee or any Guaranteed Obligations with respect to a Parent Termination Fee under the Limited Guarantee given by the Investor), in each case, pursuant to and in accordance with the terms of, and subject to the conditions of, the Merger Agreement. Notwithstanding anything else to the contrary in this letter agreement, the aggregate amount of liability of the Investor under this letter agreement shall at no time exceed the aggregate amount of the Contribution less any portion of the Contribution that has been funded in accordance with the terms hereof or the terms of that certain Escrow Agreement, dated of even date herewith, between the Investor and Parent (the "Escrow Agreement").
2. Closing Conditions. The Investor's obligation to make the Contribution pursuant to this letter agreement is subject to the satisfaction in full (or waiver, if permissible) of all conditions precedent to the obligations of the Parent Parties to consummate the transactions contemplated by the Merger Agreement set forth in Article VII thereof other than (i) conditions that by their nature are to be satisfied on the Closing Date and (ii) any PRC Regulatory Approval that is applicable to the Parent Parties only after the Equity Financing and/or the Debt Financing has been funded. The Investor shall make its Contribution pursuant to the terms of the forms of subscription agreement(s) attached hereto as Exhibit A, which do not contain any conditions to which the Investor's obligation to make the Contribution pursuant to this letter agreement is subject other than those referenced in the foregoing sentence.
| - 2 - |
3. Limited Guarantee. Concurrently with the execution and delivery of this letter agreement, the Investor is executing and delivering to the Company a Limited Guarantee (the "Limited Guarantee"). The Company's (i) remedies against the Investor and the Other Investors under their respective Limited Guarantees, (ii) rights set forth in Section 4 of this letter agreement and (iii) remedies against the Parent Parties under the Merger Agreement shall be, and are intended to be, the sole and exclusive direct or indirect remedies available to the Company against the Investor, any former, current or future director, officer, employee, agent or affiliate of the Investor, any former, current or future, direct or indirect holder of any equity interests or securities of the Investor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, affiliate, controlling person or representative of any of the foregoing (each such person or entity, a "Related Person") in respect of any liabilities or obligations arising under, or in connection with, this letter agreement, the Merger Agreement or the transactions contemplated thereby, including without limitation in the event any of the Parent Parties breaches its obligations under the Merger Agreement, whether or not such breach is caused by the Investor's breach of its obligations under this letter agreement; provided that, in the event the Company successfully compels specific performance of the obligations of the Parent Parties to consummate the Merger in accordance with, and subject to the terms and conditions set forth in, Section 9.6(b) of the Merger Agreement, and the Investor shall have made the Contribution (and all Other Investors have funded their Commitments in full and the Effective Time occurred), then neither the Company nor any other Person (including, without limitation, the Company's equityholders, Affiliates and Subsidiaries) shall have any remedy against the Investor or any Related Person, including under the Limited Guarantee.
4. Enforcement. This letter agreement may only be enforced (i) by Holdco or Parent, (ii) by the Company to seek specific performance of the Investor's obligations to fund the Contribution, (iii) by the Company to seek specific performance of Holdco's obligations under Section 1 of this letter agreement to fund the Holdco to Parent Contribution, in the case of each of clause (ii) and clause (iii), in accordance with the Merger Agreement or (iv) by the Company, as set forth in Section 7 of this letter agreement.
5. No Recourse. Notwithstanding anything that may be expressed or implied in this letter agreement, by their acceptance hereof, each of Holdco and Parent acknowledges and agrees that (a) notwithstanding that the Investor may be a limited liability entity, no recourse hereunder or under any documents or instruments delivered in connection herewith may be had against any Related Person, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding or by virtue of any statute, regulation or other applicable law, and (b) no personal liability whatsoever will attach to, be imposed on or otherwise be incurred by Related Persons in connection with this letter agreement or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations or by their creation.
6. Expiration. All obligations under this letter agreement shall expire and terminate automatically and immediately upon the earliest to occur of (a) the valid termination of the Merger Agreement in accordance with its terms, (b) the Closing (at which time the Contribution shall be discharged), (c) the making of the Contribution by the Investor or its permitted assigns, (d) the Company or any of its Affiliates asserting a claim that would make the Limited Guarantee become terminable in accordance with the terms thereof, and (e) ten (10) months after the date hereof; provided that, in the event a claim by the Company or any of its Affiliates under Section 4 of this letter agreement or any claim seeking an injunction, specific performance or other equitable remedy against any Parent Party under Section 9.6(b) of the Merger Agreement is then pending, this letter agreement shall only terminate upon the final, non-appealable resolution of such action and satisfaction by the Investor of any obligations finally determined by a court of competent jurisdiction or agreed to be owed by the Investor in connection with this letter agreement.
| - 3 - |
7. No Assignment. The Investor's obligation to fund the Contribution may not be assigned or delegated (whether by operation of law, merger, consolidation or otherwise). Neither this letter agreement nor any of the rights, interests or obligations hereunder shall be assignable by Holdco or Parent without the Investor's and the Company's prior written consent, and the granting of such consent in any given instance shall be solely in the discretion of the Investor and the Company and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment. Any purported transfer, assignment or delegation in violation of this Section 7 shall be null and void and of no force and effect.
8. No Other Beneficiaries. Except for the rights provided to the Company under Section 4 and Section 7 of this letter agreement, this letter agreement shall be binding on the Investor solely for the benefit of Holdco and Parent, and nothing set forth in this letter agreement is intended to or shall confer upon or give to any Person other than Holdco and Parent any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Holdco or Parent to enforce, the Contribution or any provisions of this letter agreement; provided that, notwithstanding anything to the contrary in this letter agreement, any Related Person shall be a third party beneficiary of the provisions set forth herein that are for the benefit of any Related Person (including the provisions of Sections 3, 8, 11, 12 and 14), and all such provisions shall survive any termination of this letter agreement indefinitely. Without limiting the foregoing, neither Holdco's, Parent's, Midco's, Merger Sub's nor the Company's creditors shall have the right to enforce this letter agreement or to cause Holdco or Parent or the Company to enforce this letter agreement.
9. Representations and Warranties. The Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this letter agreement; (b) the execution, delivery and performance of this letter agreement by the Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Investor are necessary therefor; (c) this letter agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by the Investor of this letter agreement do not and will not violate the organizational documents of the Investor or any applicable Law or conflict with any material agreement binding on the Investor; (e) the Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by the Investor.
10. Severability. Any term or provision of this letter agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this letter agreement in any jurisdiction and, if any provision of this letter agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this letter agreement may not be enforced without giving effect to the provisions of Sections 2 through 8, 11 and 12 hereof. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this letter agreement or any part hereof is invalid, illegal or unenforceable.
| - 4 - |
11. Jurisdiction; Dispute Resolution.
In the event of any dispute, controversy, or claim between the Investor and Holdco arising out of or relating to the breach, termination or validity of this letter agreement ("Dispute"), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission ("CIETAC") under the arbitration rules of CIETAC (the "Rule") in force when the notice of arbitration is submitted by a party.
The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule.
The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 11. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party.
The awards rendered by the arbitrators pursuant to this Section 11 shall be non-appealable, final, binding and conclusive on the parties to such Dispute.
The Investor, Holdco and Parent understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision.
12. Headings. Headings of the Sections of this letter agreement are for convenience of the parties only and shall be given no substantive or interpretive effect whatsoever.
13. Governing Law. This letter agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People's Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
| - 5 - |
14. Entire Agreement; Amendment; Counterparts. This letter agreement, the Escrow Agreement, the Limited Guarantee and the Merger Agreement constitute the entire agreement with respect to the subject matter hereof and thereof, and supersede all other prior agreements, understandings and statements, both written and oral, between or among Holdco, Parent or any of their respective Affiliates, on the one hand, and the Investor or any of its Affiliates, on the other hand. Any provision of this letter agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed by the Investor, Holdco and Parent; provided that any amendment, waiver or modification that would be expected to be adverse to the Company's rights set forth in Section 4 and/or Section 7 of this letter agreement shall require the prior written consent of the Company. This letter agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
[Remainder of page intentionally left blank]
| - 6 - |
| Very truly yours, | ||
| Shanghai Mango Creative Equity Investment Fund | ||
| 芒果文创 (上海) 股权投资基金合伙企业 (有限合伙) | ||
| [Company chop is affixed] | ||
| By: | /s/ Cai Huaijun | |
| Name: | Cai Huaijun (蔡怀军) | |
| Title: | Representative | |
| Agreed to and accepted as of the date first | ||
| written above: | ||
| Tianjin Qixin Zhicheng Technology Co., Ltd. | ||
| (天津奇信志成科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: | Eric X. Chen | |
| Title: | Director | |
[Signature Page to Equity Commitment Letter]
Exhibit A
Subscription Agreement(s)
Exhibit 99.17
Execution Version
Qiancai NO.1 Equity Investment Limited Partnership Enterprise
千采壹号(象山)股权投资合伙企业 (有限合伙 )
NO. 69, Chengxing Road
Hangzhou China
December 18, 2015
Tianjin Qixin Zhicheng Technology Co., Ltd.
(天津奇信志成科技有限公司)
Room 9-3-401
No. 39 Gaoxin 6th Road
Binhai Science and Technology Area
Binhai Hi-tech District
Tianjin, China
Tianjin Qixin Tongda Technology Co., Ltd.
(天津奇信通达科技有限公司)
No. 4-B-32, 4F, Building 3
No. 188 Rixin Avenue
Binhai Hi-Tech Zone
Binhai New District
Tianjin, P.R. China 300301
Solely for the purposes of Section 4 and Section 7 hereto,
Qihoo 360 Technology Co. Ltd.
Tower A, Building 2
No.6 Jiuxianqiao Road
Chaoyang District
Beijing, P.R. China 100015
Re: Equity Commitment Letter
Ladies and Gentlemen:
Qiancai NO.1 Equity Investment Limited Partnership Enterprise (including its successors or permitted assigns, the "Investor") is pleased to offer this commitment, subject to the terms and conditions contained herein, to purchase, directly or indirectly, equity interests in (i) Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), and (ii) Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"). It is contemplated that pursuant to the terms of that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Company"), Holdco, Parent, True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), Merger Sub will merge with and into the Company, with the Company being the surviving company (the "Merger"). Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Merger Agreement.
1. Commitment. The Investor hereby agrees to contribute, or cause to be contributed, within three (3) Business Days after the conditions in Section 2 of this letter agreement are satisfied, as an equity contribution to (i) Holdco, an aggregate amount of RMB equivalent to US$ 14,800,560 (the "Holdco Contribution") and (ii) Parent, an aggregate amount of RMB equivalent to US$ 15,199,440 (the "Parent Contribution", and collectively with the Holdco Contribution, the "Contribution"), subject to the terms and conditions hereof. For purposes of this letter agreement, the RMB equivalents of U.S. dollars shall be determined using the prevailing exchange rate notified by Parent to the Investor at least three (3) Business Days prior to funding. The proceeds of the Holdco Contribution, along with the amounts to be paid by all other Investors (the "Other Investors") to Holdco under their respective Equity Commitment Letters, shall promptly upon receipt be further contributed by Holdco, as an equity contribution to Parent (collectively, the "Holdco to Parent Contribution"). The proceeds of the Parent Contribution, along with the Holdco to Parent Contribution and amounts to be paid by the Other Investors to Parent under their respective Equity Commitment Letters (such aggregate amount, the "Commitments"), shall be used by Parent, to the extent necessary, to (i) fund (or cause to be funded through Midco or Merger Sub) a portion of the Exchange Fund and any other amounts required to be paid pursuant to the Merger Agreement (including any applicable consideration to the holders of Company Convertible Notes or repurchase of any Company Convertible Notes) and (ii) pay (or cause to be paid through Midco or Merger Sub) related fees and expenses (which, for the avoidance of doubt, shall not include any Parent Termination Fee or any Guaranteed Obligations with respect to a Parent Termination Fee under the Limited Guarantee given by the Investor), in each case, pursuant to and in accordance with the terms of, and subject to the conditions of, the Merger Agreement. Notwithstanding anything else to the contrary in this letter agreement, the aggregate amount of liability of the Investor under this letter agreement shall at no time exceed the aggregate amount of the Contribution less any portion of the Contribution that has been funded in accordance with the terms hereof or the terms of that certain Escrow Agreement, dated of even date herewith, between the Investor and Parent (the "Escrow Agreement").
2. Closing Conditions. The Investor's obligation to make the Contribution pursuant to this letter agreement is subject to the satisfaction in full (or waiver, if permissible) of all conditions precedent to the obligations of the Parent Parties to consummate the transactions contemplated by the Merger Agreement set forth in Article VII thereof other than (i) conditions that by their nature are to be satisfied on the Closing Date and (ii) any PRC Regulatory Approval that is applicable to the Parent Parties only after the Equity Financing and/or the Debt Financing has been funded. The Investor shall make its Contribution pursuant to the terms of the forms of subscription agreement(s) attached hereto as Exhibit A, which do not contain any conditions to which the Investor's obligation to make the Contribution pursuant to this letter agreement is subject other than those referenced in the foregoing sentence.
| - 2 - |
3. Limited Guarantee. Concurrently with the execution and delivery of this letter agreement, the Investor is executing and delivering to the Company a Limited Guarantee (the "Limited Guarantee"). The Company's (i) remedies against the Investor and the Other Investors under their respective Limited Guarantees, (ii) rights set forth in Section 4 of this letter agreement and (iii) remedies against the Parent Parties under the Merger Agreement shall be, and are intended to be, the sole and exclusive direct or indirect remedies available to the Company against the Investor, any former, current or future director, officer, employee, agent or affiliate of the Investor, any former, current or future, direct or indirect holder of any equity interests or securities of the Investor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, affiliate, controlling person or representative of any of the foregoing (each such person or entity, a "Related Person") in respect of any liabilities or obligations arising under, or in connection with, this letter agreement, the Merger Agreement or the transactions contemplated thereby, including without limitation in the event any of the Parent Parties breaches its obligations under the Merger Agreement, whether or not such breach is caused by the Investor's breach of its obligations under this letter agreement; provided that, in the event the Company successfully compels specific performance of the obligations of the Parent Parties to consummate the Merger in accordance with, and subject to the terms and conditions set forth in, Section 9.6(b) of the Merger Agreement, and the Investor shall have made the Contribution (and all Other Investors have funded their Commitments in full and the Effective Time occurred), then neither the Company nor any other Person (including, without limitation, the Company's equityholders, Affiliates and Subsidiaries) shall have any remedy against the Investor or any Related Person, including under the Limited Guarantee.
4. Enforcement. This letter agreement may only be enforced (i) by Holdco or Parent, (ii) by the Company to seek specific performance of the Investor's obligations to fund the Contribution, (iii) by the Company to seek specific performance of Holdco's obligations under Section 1 of this letter agreement to fund the Holdco to Parent Contribution, in the case of each of clause (ii) and clause (iii), in accordance with the Merger Agreement or (iv) by the Company, as set forth in Section 7 of this letter agreement.
5. No Recourse. Notwithstanding anything that may be expressed or implied in this letter agreement, by their acceptance hereof, each of Holdco and Parent acknowledges and agrees that (a) notwithstanding that the Investor may be a limited liability entity, no recourse hereunder or under any documents or instruments delivered in connection herewith may be had against any Related Person, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding or by virtue of any statute, regulation or other applicable law, and (b) no personal liability whatsoever will attach to, be imposed on or otherwise be incurred by Related Persons in connection with this letter agreement or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations or by their creation.
6. Expiration. All obligations under this letter agreement shall expire and terminate automatically and immediately upon the earliest to occur of (a) the valid termination of the Merger Agreement in accordance with its terms, (b) the Closing (at which time the Contribution shall be discharged), (c) the making of the Contribution by the Investor or its permitted assigns, (d) the Company or any of its Affiliates asserting a claim that would make the Limited Guarantee become terminable in accordance with the terms thereof, and (e) ten (10) months after the date hereof; provided that, in the event a claim by the Company or any of its Affiliates under Section 4 of this letter agreement or any claim seeking an injunction, specific performance or other equitable remedy against any Parent Party under Section 9.6(b) of the Merger Agreement is then pending, this letter agreement shall only terminate upon the final, non-appealable resolution of such action and satisfaction by the Investor of any obligations finally determined by a court of competent jurisdiction or agreed to be owed by the Investor in connection with this letter agreement.
| - 3 - |
7. No Assignment. The Investor's obligation to fund the Contribution may not be assigned or delegated (whether by operation of law, merger, consolidation or otherwise). Neither this letter agreement nor any of the rights, interests or obligations hereunder shall be assignable by Holdco or Parent without the Investor's and the Company's prior written consent, and the granting of such consent in any given instance shall be solely in the discretion of the Investor and the Company and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment. Any purported transfer, assignment or delegation in violation of this Section 7 shall be null and void and of no force and effect.
8. No Other Beneficiaries. Except for the rights provided to the Company under Section 4 and Section 7 of this letter agreement, this letter agreement shall be binding on the Investor solely for the benefit of Holdco and Parent, and nothing set forth in this letter agreement is intended to or shall confer upon or give to any Person other than Holdco and Parent any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Holdco or Parent to enforce, the Contribution or any provisions of this letter agreement; provided that, notwithstanding anything to the contrary in this letter agreement, any Related Person shall be a third party beneficiary of the provisions set forth herein that are for the benefit of any Related Person (including the provisions of Sections 3, 8, 11, 12 and 14), and all such provisions shall survive any termination of this letter agreement indefinitely. Without limiting the foregoing, neither Holdco's, Parent's, Midco's, Merger Sub's nor the Company's creditors shall have the right to enforce this letter agreement or to cause Holdco or Parent or the Company to enforce this letter agreement.
9. Representations and Warranties. The Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this letter agreement; (b) the execution, delivery and performance of this letter agreement by the Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Investor are necessary therefor; (c) this letter agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by the Investor of this letter agreement do not and will not violate the organizational documents of the Investor or any applicable Law or conflict with any material agreement binding on the Investor; (e) the Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by the Investor.
10. Severability. Any term or provision of this letter agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this letter agreement in any jurisdiction and, if any provision of this letter agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this letter agreement may not be enforced without giving effect to the provisions of Sections 2 through 8, 11 and 12 hereof. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this letter agreement or any part hereof is invalid, illegal or unenforceable.
| - 4 - |
11. Jurisdiction; Dispute Resolution.
In the event of any dispute, controversy, or claim between the Investor and Holdco arising out of or relating to the breach, termination or validity of this letter agreement ("Dispute"), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission ("CIETAC") under the arbitration rules of CIETAC (the "Rule") in force when the notice of arbitration is submitted by a party.
The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule.
The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 11. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party.
The awards rendered by the arbitrators pursuant to this Section 11 shall be non-appealable, final, binding and conclusive on the parties to such Dispute.
The Investor, Holdco and Parent understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision.
12. Headings. Headings of the Sections of this letter agreement are for convenience of the parties only and shall be given no substantive or interpretive effect whatsoever.
13. Governing Law. This letter agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People's Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
| - 5 - |
14. Entire Agreement; Amendment; Counterparts. This letter agreement, the Escrow Agreement, the Limited Guarantee and the Merger Agreement constitute the entire agreement with respect to the subject matter hereof and thereof, and supersede all other prior agreements, understandings and statements, both written and oral, between or among Holdco, Parent or any of their respective Affiliates, on the one hand, and the Investor or any of its Affiliates, on the other hand. Any provision of this letter agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed by the Investor, Holdco and Parent; provided that any amendment, waiver or modification that would be expected to be adverse to the Company's rights set forth in Section 4 and/or Section 7 of this letter agreement shall require the prior written consent of the Company. This letter agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
[Remainder of page intentionally left blank]
| - 6 - |
| Very truly yours, | ||
| Qiancai NO.1 Equity Investment Limited Partnership Enterprise | ||
| 千采壹号(象山)股权投资合伙企业 (有限合伙) | ||
| [Company chop is affixed] | ||
| By: | /s/ Dayong Yang | |
| Name: | Dayong Yang | |
| Title: | Representative of The General Manager of Qiancai NO.1 Equity Investment Limited Partnership Enterprise (执行事务合伙人委托代表) | |
| Agreed to and accepted as of the date first | ||
| written above: | ||
| Tianjin Qixin Zhicheng Technology Co., Ltd. | ||
| (天津奇信志成科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: | Eric X. Chen | |
| Title: | Director | |
[Signature Page to Equity Commitment Letter]
Exhibit A
Subscription Agreement(s)
Exhibit 99.18
Execution Version
Pearl River Life Insurance Co., Ltd.
(珠江人寿保险股份有限公司)
Floor 4, Pearl River Investment Building, 421, Zhujiang Road East
Zhujiang New Town, Guangzhou
December 18, 2015
Tianjin Qixin Zhicheng Technology Co., Ltd.
(天津奇信志成科技有限公司)
Room 9-3-401
No. 39 Gaoxin 6th Road
Binhai Science and Technology Area
Binhai Hi-tech District
Tianjin, China
Tianjin Qixin Tongda Technology Co., Ltd.
(天津奇信通达科技有限公司)
No. 4-B-32, 4F, Building 3
No. 188 Rixin Avenue
Binhai Hi-Tech Zone
Binhai New District
Tianjin, P.R. China 300301
Solely for the purposes of Section 4 and Section 7 hereto,
Qihoo 360 Technology Co. Ltd.
Tower A, Building 2
No.6 Jiuxianqiao Road
Chaoyang District
Beijing, P.R. China 100015
Re: Equity Commitment Letter
Ladies and Gentlemen:
Pearl River Life Insurance Co., Ltd. (including its successors or permitted assigns, the "Investor") is pleased to offer this commitment, subject to the terms and conditions contained herein, to purchase, directly or indirectly, equity interests in (i) Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), and (ii) Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"). It is contemplated that pursuant to the terms of that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Company"), Holdco, Parent, True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), Merger Sub will merge with and into the Company, with the Company being the surviving company (the "Merger"). Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Merger Agreement.
1. Commitment. The Investor hereby agrees to contribute, or cause to be contributed, within three (3) Business Days after the conditions in Section 2 of this letter agreement are satisfied, as an equity contribution to (i) Holdco, an aggregate amount of RMB equivalent to US$ 49,335,200 (the "Holdco Contribution") and (ii) Parent, an aggregate amount of RMB equivalent to US$ 50,664,800 (the "Parent Contribution", and collectively with the Holdco Contribution, the "Contribution"), subject to the terms and conditions hereof. For purposes of this letter agreement, the RMB equivalents of U.S. dollars shall be determined using the prevailing exchange rate notified by Parent to the Investor at least three (3) Business Days prior to funding. The proceeds of the Holdco Contribution, along with the amounts to be paid by all other Investors (the "Other Investors") to Holdco under their respective Equity Commitment Letters, shall promptly upon receipt be further contributed by Holdco, as an equity contribution to Parent (collectively, the "Holdco to Parent Contribution"). The proceeds of the Parent Contribution, along with the Holdco to Parent Contribution and amounts to be paid by the Other Investors to Parent under their respective Equity Commitment Letters (such aggregate amount, the "Commitments"), shall be used by Parent, to the extent necessary, to (i) fund (or cause to be funded through Midco or Merger Sub) a portion of the Exchange Fund and any other amounts required to be paid pursuant to the Merger Agreement (including any applicable consideration to the holders of Company Convertible Notes or repurchase of any Company Convertible Notes) and (ii) pay (or cause to be paid through Midco or Merger Sub) related fees and expenses (which, for the avoidance of doubt, shall not include any Parent Termination Fee or any Guaranteed Obligations with respect to a Parent Termination Fee under the Limited Guarantee given by the Investor), in each case, pursuant to and in accordance with the terms of, and subject to the conditions of, the Merger Agreement. Notwithstanding anything else to the contrary in this letter agreement, the aggregate amount of liability of the Investor under this letter agreement shall at no time exceed the aggregate amount of the Contribution less any portion of the Contribution that has been funded in accordance with the terms hereof or the terms of that certain Escrow Agreement, dated of even date herewith, between the Investor and Parent (the "Escrow Agreement").
2. Closing Conditions. The Investor's obligation to make the Contribution pursuant to this letter agreement is subject to the satisfaction in full (or waiver, if permissible) of all conditions precedent to the obligations of the Parent Parties to consummate the transactions contemplated by the Merger Agreement set forth in Article VII thereof other than (i) conditions that by their nature are to be satisfied on the Closing Date and (ii) any PRC Regulatory Approval that is applicable to the Parent Parties only after the Equity Financing and/or the Debt Financing has been funded. The Investor shall make its Contribution pursuant to the terms of the forms of subscription agreement(s) attached hereto as Exhibit A, which do not contain any conditions to which the Investor's obligation to make the Contribution pursuant to this letter agreement is subject other than those referenced in the foregoing sentence.
| - 2 - |
3. Limited Guarantee. Concurrently with the execution and delivery of this letter agreement, the Investor is executing and delivering to the Company a Limited Guarantee (the "Limited Guarantee"). The Company's (i) remedies against the Investor and the Other Investors under their respective Limited Guarantees, (ii) rights set forth in Section 4 of this letter agreement and (iii) remedies against the Parent Parties under the Merger Agreement shall be, and are intended to be, the sole and exclusive direct or indirect remedies available to the Company against the Investor, any former, current or future director, officer, employee, agent or affiliate of the Investor, any former, current or future, direct or indirect holder of any equity interests or securities of the Investor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, affiliate, controlling person or representative of any of the foregoing (each such person or entity, a "Related Person") in respect of any liabilities or obligations arising under, or in connection with, this letter agreement, the Merger Agreement or the transactions contemplated thereby, including without limitation in the event any of the Parent Parties breaches its obligations under the Merger Agreement, whether or not such breach is caused by the Investor's breach of its obligations under this letter agreement; provided that, in the event the Company successfully compels specific performance of the obligations of the Parent Parties to consummate the Merger in accordance with, and subject to the terms and conditions set forth in, Section 9.6(b) of the Merger Agreement, and the Investor shall have made the Contribution (and all Other Investors have funded their Commitments in full and the Effective Time occurred), then neither the Company nor any other Person (including, without limitation, the Company's equityholders, Affiliates and Subsidiaries) shall have any remedy against the Investor or any Related Person, including under the Limited Guarantee.
4. Enforcement. This letter agreement may only be enforced (i) by Holdco or Parent, (ii) by the Company to seek specific performance of the Investor's obligations to fund the Contribution, (iii) by the Company to seek specific performance of Holdco's obligations under Section 1 of this letter agreement to fund the Holdco to Parent Contribution, in the case of each of clause (ii) and clause (iii), in accordance with the Merger Agreement or (iv) by the Company, as set forth in Section 7 of this letter agreement.
5. No Recourse. Notwithstanding anything that may be expressed or implied in this letter agreement, by their acceptance hereof, each of Holdco and Parent acknowledges and agrees that (a) notwithstanding that the Investor may be a limited liability entity, no recourse hereunder or under any documents or instruments delivered in connection herewith may be had against any Related Person, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding or by virtue of any statute, regulation or other applicable law, and (b) no personal liability whatsoever will attach to, be imposed on or otherwise be incurred by Related Persons in connection with this letter agreement or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations or by their creation.
6. Expiration. All obligations under this letter agreement shall expire and terminate automatically and immediately upon the earliest to occur of (a) the valid termination of the Merger Agreement in accordance with its terms, (b) the Closing (at which time the Contribution shall be discharged), (c) the making of the Contribution by the Investor or its permitted assigns, (d) the Company or any of its Affiliates asserting a claim that would make the Limited Guarantee become terminable in accordance with the terms thereof, and (e) ten (10) months after the date hereof; provided that, in the event a claim by the Company or any of its Affiliates under Section 4 of this letter agreement or any claim seeking an injunction, specific performance or other equitable remedy against any Parent Party under Section 9.6(b) of the Merger Agreement is then pending, this letter agreement shall only terminate upon the final, non-appealable resolution of such action and satisfaction by the Investor of any obligations finally determined by a court of competent jurisdiction or agreed to be owed by the Investor in connection with this letter agreement.
| - 3 - |
7. No Assignment. The Investor's obligation to fund the Contribution may not be assigned or delegated (whether by operation of law, merger, consolidation or otherwise). Neither this letter agreement nor any of the rights, interests or obligations hereunder shall be assignable by Holdco or Parent without the Investor's and the Company's prior written consent, and the granting of such consent in any given instance shall be solely in the discretion of the Investor and the Company and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment. Any purported transfer, assignment or delegation in violation of this Section 7 shall be null and void and of no force and effect.
8. No Other Beneficiaries. Except for the rights provided to the Company under Section 4 and Section 7 of this letter agreement, this letter agreement shall be binding on the Investor solely for the benefit of Holdco and Parent, and nothing set forth in this letter agreement is intended to or shall confer upon or give to any Person other than Holdco and Parent any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Holdco or Parent to enforce, the Contribution or any provisions of this letter agreement; provided that, notwithstanding anything to the contrary in this letter agreement, any Related Person shall be a third party beneficiary of the provisions set forth herein that are for the benefit of any Related Person (including the provisions of Sections 3, 8, 11, 12 and 14), and all such provisions shall survive any termination of this letter agreement indefinitely. Without limiting the foregoing, neither Holdco's, Parent's, Midco's, Merger Sub's nor the Company's creditors shall have the right to enforce this letter agreement or to cause Holdco or Parent or the Company to enforce this letter agreement.
9. Representations and Warranties. The Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this letter agreement; (b) the execution, delivery and performance of this letter agreement by the Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Investor are necessary therefor; (c) this letter agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by the Investor of this letter agreement do not and will not violate the organizational documents of the Investor or any applicable Law or conflict with any material agreement binding on the Investor; (e) the Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by the Investor.
10. Severability. Any term or provision of this letter agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this letter agreement in any jurisdiction and, if any provision of this letter agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this letter agreement may not be enforced without giving effect to the provisions of Sections 2 through 8, 11 and 12 hereof. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this letter agreement or any part hereof is invalid, illegal or unenforceable.
| - 4 - |
11. Jurisdiction; Dispute Resolution.
In the event of any dispute, controversy, or claim between the Investor and Holdco arising out of or relating to the breach, termination or validity of this letter agreement ("Dispute"), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission ("CIETAC") under the arbitration rules of CIETAC (the "Rule") in force when the notice of arbitration is submitted by a party.
The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule.
The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 11. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party.
The awards rendered by the arbitrators pursuant to this Section 11 shall be non-appealable, final, binding and conclusive on the parties to such Dispute.
The Investor, Holdco and Parent understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision.
12. Headings. Headings of the Sections of this letter agreement are for convenience of the parties only and shall be given no substantive or interpretive effect whatsoever.
13. Governing Law. This letter agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People's Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
| - 5 - |
14. Entire Agreement; Amendment; Counterparts. This letter agreement, the Escrow Agreement, the Limited Guarantee and the Merger Agreement constitute the entire agreement with respect to the subject matter hereof and thereof, and supersede all other prior agreements, understandings and statements, both written and oral, between or among Holdco, Parent or any of their respective Affiliates, on the one hand, and the Investor or any of its Affiliates, on the other hand. Any provision of this letter agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed by the Investor, Holdco and Parent; provided that any amendment, waiver or modification that would be expected to be adverse to the Company's rights set forth in Section 4 and/or Section 7 of this letter agreement shall require the prior written consent of the Company. This letter agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
[Remainder of page intentionally left blank]
| - 6 - |
| Very truly yours, | ||
| Pearl River Life Insurance Co., Ltd. | ||
| (珠江人寿保险股份有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Guoping Hu | |
| Name: | Guoping Hu | |
| Title: | President | |
| Agreed to and accepted as of the date first | ||
| written above: | ||
| Tianjin Qixin Zhicheng Technology Co., Ltd. | ||
| (天津奇信志成科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: | Eric X. Chen | |
| Title: | Director | |
[Signature Page to Equity Commitment Letter]
Exhibit A
Subscription Agreement(s)
Exhibit 99.19
Execution Version
Hengdian Group Holdings Limited
(横店集团控股有限公司)
No. 42 Wansheng Street,
Hengdian, Dongyang, Zhejiang
December 18, 2015
Tianjin Qixin Zhicheng Technology Co., Ltd.
(天津奇信志成科技有限公司)
Room 9-3-401
No. 39 Gaoxin 6th Road
Binhai Science and Technology Area
Binhai Hi-tech District
Tianjin, China
Tianjin Qixin Tongda Technology Co., Ltd.
(天津奇信通达科技有限公司)
No. 4-B-32, 4F, Building 3
No. 188 Rixin Avenue
Binhai Hi-Tech Zone
Binhai New District
Tianjin, P.R. China 300301
Solely for the purposes of Section 4 and Section 7 hereto,
Qihoo 360 Technology Co. Ltd.
Tower A, Building 2
No.6 Jiuxianqiao Road
Chaoyang District
Beijing, P.R. China 100015
Re: Equity Commitment Letter
Ladies and Gentlemen:
Hendian Group Holdings Limited (including its successors or permitted assigns, the "Investor") is pleased to offer this commitment, subject to the terms and conditions contained herein, to purchase, directly or indirectly, equity interests in (i) Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), and (ii) Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"). It is contemplated that pursuant to the terms of that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Company"), Holdco, Parent, True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), Merger Sub will merge with and into the Company, with the Company being the surviving company (the "Merger"). Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Merger Agreement.
1. Commitment. The Investor hereby agrees to contribute, or cause to be contributed, within three (3) Business Days after the conditions in Section 2 of this letter agreement are satisfied, as an equity contribution to (i) Holdco, an aggregate amount of RMB equivalent to US$ 49,335,200 (the "Holdco Contribution") and (ii) Parent, an aggregate amount of RMB equivalent to US$ 50,664,800 (the "Parent Contribution", and collectively with the Holdco Contribution, the "Contribution"), subject to the terms and conditions hereof. For purposes of this letter agreement, the RMB equivalents of U.S. dollars shall be determined using the prevailing exchange rate notified by Parent to the Investor at least three (3) Business Days prior to funding. The proceeds of the Holdco Contribution, along with the amounts to be paid by all other Investors (the "Other Investors") to Holdco under their respective Equity Commitment Letters, shall promptly upon receipt be further contributed by Holdco, as an equity contribution to Parent (collectively, the "Holdco to Parent Contribution"). The proceeds of the Parent Contribution, along with the Holdco to Parent Contribution and amounts to be paid by the Other Investors to Parent under their respective Equity Commitment Letters (such aggregate amount, the "Commitments"), shall be used by Parent, to the extent necessary, to (i) fund (or cause to be funded through Midco or Merger Sub) a portion of the Exchange Fund and any other amounts required to be paid pursuant to the Merger Agreement (including any applicable consideration to the holders of Company Convertible Notes or repurchase of any Company Convertible Notes) and (ii) pay (or cause to be paid through Midco or Merger Sub) related fees and expenses (which, for the avoidance of doubt, shall not include any Parent Termination Fee or any Guaranteed Obligations with respect to a Parent Termination Fee under the Limited Guarantee given by the Investor), in each case, pursuant to and in accordance with the terms of, and subject to the conditions of, the Merger Agreement. Notwithstanding anything else to the contrary in this letter agreement, the aggregate amount of liability of the Investor under this letter agreement shall at no time exceed the aggregate amount of the Contribution less any portion of the Contribution that has been funded in accordance with the terms hereof or the terms of that certain Escrow Agreement, dated of even date herewith, between the Investor and Parent (the "Escrow Agreement").
2. Closing Conditions. The Investor's obligation to make the Contribution pursuant to this letter agreement is subject to the satisfaction in full (or waiver, if permissible) of all conditions precedent to the obligations of the Parent Parties to consummate the transactions contemplated by the Merger Agreement set forth in Article VII thereof other than (i) conditions that by their nature are to be satisfied on the Closing Date and (ii) any PRC Regulatory Approval that is applicable to the Parent Parties only after the Equity Financing and/or the Debt Financing has been funded. The Investor shall make its Contribution pursuant to the terms of the forms of subscription agreement(s) attached hereto as Exhibit A, which do not contain any conditions to which the Investor's obligation to make the Contribution pursuant to this letter agreement is subject other than those referenced in the foregoing sentence.
| - 2 - |
3. Limited Guarantee. Concurrently with the execution and delivery of this letter agreement, the Investor is executing and delivering to the Company a Limited Guarantee (the "Limited Guarantee"). The Company's (i) remedies against the Investor and the Other Investors under their respective Limited Guarantees, (ii) rights set forth in Section 4 of this letter agreement and (iii) remedies against the Parent Parties under the Merger Agreement shall be, and are intended to be, the sole and exclusive direct or indirect remedies available to the Company against the Investor, any former, current or future director, officer, employee, agent or affiliate of the Investor, any former, current or future, direct or indirect holder of any equity interests or securities of the Investor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, affiliate, controlling person or representative of any of the foregoing (each such person or entity, a "Related Person") in respect of any liabilities or obligations arising under, or in connection with, this letter agreement, the Merger Agreement or the transactions contemplated thereby, including without limitation in the event any of the Parent Parties breaches its obligations under the Merger Agreement, whether or not such breach is caused by the Investor's breach of its obligations under this letter agreement; provided that, in the event the Company successfully compels specific performance of the obligations of the Parent Parties to consummate the Merger in accordance with, and subject to the terms and conditions set forth in, Section 9.6(b) of the Merger Agreement, and the Investor shall have made the Contribution (and all Other Investors have funded their Commitments in full and the Effective Time occurred), then neither the Company nor any other Person (including, without limitation, the Company's equityholders, Affiliates and Subsidiaries) shall have any remedy against the Investor or any Related Person, including under the Limited Guarantee.
4. Enforcement. This letter agreement may only be enforced (i) by Holdco or Parent, (ii) by the Company to seek specific performance of the Investor's obligations to fund the Contribution, (iii) by the Company to seek specific performance of Holdco's obligations under Section 1 of this letter agreement to fund the Holdco to Parent Contribution, in the case of each of clause (ii) and clause (iii), in accordance with the Merger Agreement or (iv) by the Company, as set forth in Section 7 of this letter agreement.
5. No Recourse. Notwithstanding anything that may be expressed or implied in this letter agreement, by their acceptance hereof, each of Holdco and Parent acknowledges and agrees that (a) notwithstanding that the Investor may be a limited liability entity, no recourse hereunder or under any documents or instruments delivered in connection herewith may be had against any Related Person, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding or by virtue of any statute, regulation or other applicable law, and (b) no personal liability whatsoever will attach to, be imposed on or otherwise be incurred by Related Persons in connection with this letter agreement or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations or by their creation.
6. Expiration. All obligations under this letter agreement shall expire and terminate automatically and immediately upon the earliest to occur of (a) the valid termination of the Merger Agreement in accordance with its terms, (b) the Closing (at which time the Contribution shall be discharged), (c) the making of the Contribution by the Investor or its permitted assigns, (d) the Company or any of its Affiliates asserting a claim that would make the Limited Guarantee become terminable in accordance with the terms thereof, and (e) ten (10) months after the date hereof; provided that, in the event a claim by the Company or any of its Affiliates under Section 4 of this letter agreement or any claim seeking an injunction, specific performance or other equitable remedy against any Parent Party under Section 9.6(b) of the Merger Agreement is then pending, this letter agreement shall only terminate upon the final, non-appealable resolution of such action and satisfaction by the Investor of any obligations finally determined by a court of competent jurisdiction or agreed to be owed by the Investor in connection with this letter agreement.
| - 3 - |
7. No Assignment. The Investor's obligation to fund the Contribution may not be assigned or delegated (whether by operation of law, merger, consolidation or otherwise). Neither this letter agreement nor any of the rights, interests or obligations hereunder shall be assignable by Holdco or Parent without the Investor's and the Company's prior written consent, and the granting of such consent in any given instance shall be solely in the discretion of the Investor and the Company and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment. Any purported transfer, assignment or delegation in violation of this Section 7 shall be null and void and of no force and effect.
8. No Other Beneficiaries. Except for the rights provided to the Company under Section 4 and Section 7 of this letter agreement, this letter agreement shall be binding on the Investor solely for the benefit of Holdco and Parent, and nothing set forth in this letter agreement is intended to or shall confer upon or give to any Person other than Holdco and Parent any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Holdco or Parent to enforce, the Contribution or any provisions of this letter agreement; provided that, notwithstanding anything to the contrary in this letter agreement, any Related Person shall be a third party beneficiary of the provisions set forth herein that are for the benefit of any Related Person (including the provisions of Sections 3, 8, 11, 12 and 14), and all such provisions shall survive any termination of this letter agreement indefinitely. Without limiting the foregoing, neither Holdco's, Parent's, Midco's, Merger Sub's nor the Company's creditors shall have the right to enforce this letter agreement or to cause Holdco or Parent or the Company to enforce this letter agreement.
9. Representations and Warranties. The Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this letter agreement; (b) the execution, delivery and performance of this letter agreement by the Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Investor are necessary therefor; (c) this letter agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by the Investor of this letter agreement do not and will not violate the organizational documents of the Investor or any applicable Law or conflict with any material agreement binding on the Investor; (e) the Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by the Investor.
10. Severability. Any term or provision of this letter agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this letter agreement in any jurisdiction and, if any provision of this letter agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this letter agreement may not be enforced without giving effect to the provisions of Sections 2 through 8, 11 and 12 hereof. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this letter agreement or any part hereof is invalid, illegal or unenforceable.
| - 4 - |
11. Jurisdiction; Dispute Resolution.
In the event of any dispute, controversy, or claim between the Investor and Holdco arising out of or relating to the breach, termination or validity of this letter agreement ("Dispute"), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission ("CIETAC") under the arbitration rules of CIETAC (the "Rule") in force when the notice of arbitration is submitted by a party.
The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule.
The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 11. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party.
The awards rendered by the arbitrators pursuant to this Section 11 shall be non-appealable, final, binding and conclusive on the parties to such Dispute.
The Investor, Holdco and Parent understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision.
12. Headings. Headings of the Sections of this letter agreement are for convenience of the parties only and shall be given no substantive or interpretive effect whatsoever.
13. Governing Law. This letter agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People's Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
| - 5 - |
14. Entire Agreement; Amendment; Counterparts. This letter agreement, the Escrow Agreement, the Limited Guarantee and the Merger Agreement constitute the entire agreement with respect to the subject matter hereof and thereof, and supersede all other prior agreements, understandings and statements, both written and oral, between or among Holdco, Parent or any of their respective Affiliates, on the one hand, and the Investor or any of its Affiliates, on the other hand. Any provision of this letter agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed by the Investor, Holdco and Parent; provided that any amendment, waiver or modification that would be expected to be adverse to the Company's rights set forth in Section 4 and/or Section 7 of this letter agreement shall require the prior written consent of the Company. This letter agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
[Remainder of page intentionally left blank]
| - 6 - |
| Very truly yours, | ||
| Hendian Group Holdings Limited | ||
| (横店集团控股有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Yong’an Xu | |
| Name: | Yong’an Xu | |
| Title: | Chairman & President | |
| Agreed to and accepted as of the date first written above: | ||
| Tianjin Qixin Zhicheng Technology Co., Ltd. | ||
| (天津奇信志成科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: | Eric X. Chen | |
| Title: | Director | |
[Signature Page to Equity Commitment Letter]
Exhibit A
Subscription Agreement(s)
Exhibit 99.20
Execution Version
Jiangsu Gaoli Group
(江苏高力集团有限公司)
8 Xixia Street, Nanjing, Jiangsu
December 18, 2015
Tianjin Qixin Zhicheng Technology Co., Ltd.
(天津奇信志成科技有限公司)
Room 9-3-401
No. 39 Gaoxin 6th Road
Binhai Science and Technology Area
Binhai Hi-tech District
Tianjin, China
Tianjin Qixin Tongda Technology Co., Ltd.
(天津奇信通达科技有限公司)
No. 4-B-32, 4F, Building 3
No. 188 Rixin Avenue
Binhai Hi-Tech Zone
Binhai New District
Tianjin, P.R. China 300301
Solely for the purposes of Section 4 and Section 7 hereto,
Qihoo 360 Technology Co. Ltd.
Tower A, Building 2
No.6 Jiuxianqiao Road
Chaoyang District
Beijing, P.R. China 100015
Re: Equity Commitment Letter
Ladies and Gentlemen:
Jiangsu Gaoli Group (including its successors or permitted assigns, the "Investor") is pleased to offer this commitment, subject to the terms and conditions contained herein, to purchase, directly or indirectly, equity interests in (i) Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), and (ii) Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"). It is contemplated that pursuant to the terms of that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Company"), Holdco, Parent, True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), Merger Sub will merge with and into the Company, with the Company being the surviving company (the "Merger"). Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Merger Agreement.
1. Commitment. The Investor hereby agrees to contribute, or cause to be contributed, within three (3) Business Days after the conditions in Section 2 of this letter agreement are satisfied, as an equity contribution to (i) Holdco, an aggregate amount of RMB equivalent to US$ 24,667,600 (the "Holdco Contribution") and (ii) Parent, an aggregate amount of RMB equivalent to US$ 25,332,400 (the "Parent Contribution", and collectively with the Holdco Contribution, the "Contribution"), subject to the terms and conditions hereof. For purposes of this letter agreement, the RMB equivalents of U.S. dollars shall be determined using the prevailing exchange rate notified by Parent to the Investor at least three (3) Business Days prior to funding. The proceeds of the Holdco Contribution, along with the amounts to be paid by all other Investors (the "Other Investors") to Holdco under their respective Equity Commitment Letters, shall promptly upon receipt be further contributed by Holdco, as an equity contribution to Parent (collectively, the "Holdco to Parent Contribution"). The proceeds of the Parent Contribution, along with the Holdco to Parent Contribution and amounts to be paid by the Other Investors to Parent under their respective Equity Commitment Letters (such aggregate amount, the "Commitments"), shall be used by Parent, to the extent necessary, to (i) fund (or cause to be funded through Midco or Merger Sub) a portion of the Exchange Fund and any other amounts required to be paid pursuant to the Merger Agreement (including any applicable consideration to the holders of Company Convertible Notes or repurchase of any Company Convertible Notes) and (ii) pay (or cause to be paid through Midco or Merger Sub) related fees and expenses (which, for the avoidance of doubt, shall not include any Parent Termination Fee or any Guaranteed Obligations with respect to a Parent Termination Fee under the Limited Guarantee given by the Investor), in each case, pursuant to and in accordance with the terms of, and subject to the conditions of, the Merger Agreement. Notwithstanding anything else to the contrary in this letter agreement, the aggregate amount of liability of the Investor under this letter agreement shall at no time exceed the aggregate amount of the Contribution less any portion of the Contribution that has been funded in accordance with the terms hereof or the terms of that certain Escrow Agreement, dated of even date herewith, between the Investor and Parent (the "Escrow Agreement").
2. Closing Conditions. The Investor's obligation to make the Contribution pursuant to this letter agreement is subject to the satisfaction in full (or waiver, if permissible) of all conditions precedent to the obligations of the Parent Parties to consummate the transactions contemplated by the Merger Agreement set forth in Article VII thereof other than (i) conditions that by their nature are to be satisfied on the Closing Date and (ii) any PRC Regulatory Approval that is applicable to the Parent Parties only after the Equity Financing and/or the Debt Financing has been funded. The Investor shall make its Contribution pursuant to the terms of the forms of subscription agreement(s) attached hereto as Exhibit A, which do not contain any conditions to which the Investor's obligation to make the Contribution pursuant to this letter agreement is subject other than those referenced in the foregoing sentence.
| - 2 - |
3. Limited Guarantee. Concurrently with the execution and delivery of this letter agreement, the Investor is executing and delivering to the Company a Limited Guarantee (the "Limited Guarantee"). The Company's (i) remedies against the Investor and the Other Investors under their respective Limited Guarantees, (ii) rights set forth in Section 4 of this letter agreement and (iii) remedies against the Parent Parties under the Merger Agreement shall be, and are intended to be, the sole and exclusive direct or indirect remedies available to the Company against the Investor, any former, current or future director, officer, employee, agent or affiliate of the Investor, any former, current or future, direct or indirect holder of any equity interests or securities of the Investor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, affiliate, controlling person or representative of any of the foregoing (each such person or entity, a "Related Person") in respect of any liabilities or obligations arising under, or in connection with, this letter agreement, the Merger Agreement or the transactions contemplated thereby, including without limitation in the event any of the Parent Parties breaches its obligations under the Merger Agreement, whether or not such breach is caused by the Investor's breach of its obligations under this letter agreement; provided that, in the event the Company successfully compels specific performance of the obligations of the Parent Parties to consummate the Merger in accordance with, and subject to the terms and conditions set forth in, Section 9.6(b) of the Merger Agreement, and the Investor shall have made the Contribution (and all Other Investors have funded their Commitments in full and the Effective Time occurred), then neither the Company nor any other Person (including, without limitation, the Company's equityholders, Affiliates and Subsidiaries) shall have any remedy against the Investor or any Related Person, including under the Limited Guarantee.
4. Enforcement. This letter agreement may only be enforced (i) by Holdco or Parent, (ii) by the Company to seek specific performance of the Investor's obligations to fund the Contribution, (iii) by the Company to seek specific performance of Holdco's obligations under Section 1 of this letter agreement to fund the Holdco to Parent Contribution, in the case of each of clause (ii) and clause (iii), in accordance with the Merger Agreement or (iv) by the Company, as set forth in Section 7 of this letter agreement.
5. No Recourse. Notwithstanding anything that may be expressed or implied in this letter agreement, by their acceptance hereof, each of Holdco and Parent acknowledges and agrees that (a) notwithstanding that the Investor may be a limited liability entity, no recourse hereunder or under any documents or instruments delivered in connection herewith may be had against any Related Person, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding or by virtue of any statute, regulation or other applicable law, and (b) no personal liability whatsoever will attach to, be imposed on or otherwise be incurred by Related Persons in connection with this letter agreement or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations or by their creation.
6. Expiration. All obligations under this letter agreement shall expire and terminate automatically and immediately upon the earliest to occur of (a) the valid termination of the Merger Agreement in accordance with its terms, (b) the Closing (at which time the Contribution shall be discharged), (c) the making of the Contribution by the Investor or its permitted assigns, (d) the Company or any of its Affiliates asserting a claim that would make the Limited Guarantee become terminable in accordance with the terms thereof, and (e) ten (10) months after the date hereof; provided that, in the event a claim by the Company or any of its Affiliates under Section 4 of this letter agreement or any claim seeking an injunction, specific performance or other equitable remedy against any Parent Party under Section 9.6(b) of the Merger Agreement is then pending, this letter agreement shall only terminate upon the final, non-appealable resolution of such action and satisfaction by the Investor of any obligations finally determined by a court of competent jurisdiction or agreed to be owed by the Investor in connection with this letter agreement.
| - 3 - |
7. No Assignment. The Investor's obligation to fund the Contribution may not be assigned or delegated (whether by operation of law, merger, consolidation or otherwise). Neither this letter agreement nor any of the rights, interests or obligations hereunder shall be assignable by Holdco or Parent without the Investor's and the Company's prior written consent, and the granting of such consent in any given instance shall be solely in the discretion of the Investor and the Company and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment. Any purported transfer, assignment or delegation in violation of this Section 7 shall be null and void and of no force and effect.
8. No Other Beneficiaries. Except for the rights provided to the Company under Section 4 and Section 7 of this letter agreement, this letter agreement shall be binding on the Investor solely for the benefit of Holdco and Parent, and nothing set forth in this letter agreement is intended to or shall confer upon or give to any Person other than Holdco and Parent any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Holdco or Parent to enforce, the Contribution or any provisions of this letter agreement; provided that, notwithstanding anything to the contrary in this letter agreement, any Related Person shall be a third party beneficiary of the provisions set forth herein that are for the benefit of any Related Person (including the provisions of Sections 3, 8, 11, 12 and 14), and all such provisions shall survive any termination of this letter agreement indefinitely. Without limiting the foregoing, neither Holdco's, Parent's, Midco's, Merger Sub's nor the Company's creditors shall have the right to enforce this letter agreement or to cause Holdco or Parent or the Company to enforce this letter agreement.
9. Representations and Warranties. The Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this letter agreement; (b) the execution, delivery and performance of this letter agreement by the Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Investor are necessary therefor; (c) this letter agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by the Investor of this letter agreement do not and will not violate the organizational documents of the Investor or any applicable Law or conflict with any material agreement binding on the Investor; (e) the Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by the Investor.
10. Severability. Any term or provision of this letter agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this letter agreement in any jurisdiction and, if any provision of this letter agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this letter agreement may not be enforced without giving effect to the provisions of Sections 2 through 8, 11 and 12 hereof. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this letter agreement or any part hereof is invalid, illegal or unenforceable.
| - 4 - |
11. Jurisdiction; Dispute Resolution.
In the event of any dispute, controversy, or claim between the Investor and Holdco arising out of or relating to the breach, termination or validity of this letter agreement ("Dispute"), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission ("CIETAC") under the arbitration rules of CIETAC (the "Rule") in force when the notice of arbitration is submitted by a party.
The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule.
The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 11. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party.
The awards rendered by the arbitrators pursuant to this Section 11 shall be non-appealable, final, binding and conclusive on the parties to such Dispute.
The Investor, Holdco and Parent understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision.
12. Headings. Headings of the Sections of this letter agreement are for convenience of the parties only and shall be given no substantive or interpretive effect whatsoever.
13. Governing Law. This letter agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People's Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
| - 5 - |
14. Entire Agreement; Amendment; Counterparts. This letter agreement, the Escrow Agreement, the Limited Guarantee and the Merger Agreement constitute the entire agreement with respect to the subject matter hereof and thereof, and supersede all other prior agreements, understandings and statements, both written and oral, between or among Holdco, Parent or any of their respective Affiliates, on the one hand, and the Investor or any of its Affiliates, on the other hand. Any provision of this letter agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed by the Investor, Holdco and Parent; provided that any amendment, waiver or modification that would be expected to be adverse to the Company's rights set forth in Section 4 and/or Section 7 of this letter agreement shall require the prior written consent of the Company. This letter agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
[Remainder of page intentionally left blank]
| - 6 - |
| Very truly yours, | ||
JIANGSU GAOLI GROUP | ||
| (江苏高力集团有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Shijun Gao | |
| Name: | Shijun Gao (高仕军) | |
| Title: | President | |
| Agreed to and accepted as of the date first written above: | ||
| Tianjin Qixin Zhicheng Technology Co., Ltd. | ||
| (天津奇信志成科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: | Eric X. Chen | |
| Title: | Director | |
[Signature Page to Equity Commitment Letter]
Exhibit A
Subscription Agreement(s)
Exhibit 99.21
Execution Version
Minsheng Royal Asset Management Co., Ltd.
( 民生加银资产管理有限公司 )
Floor 8, Dacheng Plaza, No. A127 Xuanwumen West Street
Xicheng District, Beijing, China
December 18, 2015
Tianjin Qixin Zhicheng Technology Co., Ltd.
(天津奇信志成科技有限公司)
Room 9-3-401
No. 39 Gaoxin 6th Road
Binhai Science and Technology Area
Binhai Hi-tech District
Tianjin, China
Tianjin Qixin Tongda Technology Co., Ltd.
(天津奇信通达科技有限公司)
No. 4-B-32, 4F, Building 3
No. 188 Rixin Avenue
Binhai Hi-Tech Zone
Binhai New District
Tianjin, P.R. China 300301
Solely for the purposes of Section 4 and Section 7 hereto,
Qihoo 360 Technology Co. Ltd.
Tower A, Building 2
No.6 Jiuxianqiao Road
Chaoyang District
Beijing, P.R. China 100015
Re: Equity Commitment Letter
Ladies and Gentlemen:
Minsheng Royal Asset Management Co., Ltd. (including its successors or permitted assigns, the "Investor") is pleased to offer this commitment, subject to the terms and conditions contained herein, to purchase, directly or indirectly, equity interests in (i) Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), and (ii) Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"). It is contemplated that pursuant to the terms of that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Company"), Holdco, Parent, True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), Merger Sub will merge with and into the Company, with the Company being the surviving company (the "Merger"). Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Merger Agreement.
1. Commitment. The Investor hereby agrees to contribute, or cause to be contributed, within three (3) Business Days after the conditions in Section 2 of this letter agreement are satisfied, as an equity contribution to (i) Holdco, an aggregate amount of RMB equivalent to US$ 49,335,200 (the "Holdco Contribution") and (ii) Parent, an aggregate amount of RMB equivalent to US$ 50,664,800 (the "Parent Contribution", and collectively with the Holdco Contribution, the "Contribution"), subject to the terms and conditions hereof. For purposes of this letter agreement, the RMB equivalents of U.S. dollars shall be determined using the prevailing exchange rate notified by Parent to the Investor at least three (3) Business Days prior to funding. The proceeds of the Holdco Contribution, along with the amounts to be paid by all other Investors (the "Other Investors") to Holdco under their respective Equity Commitment Letters, shall promptly upon receipt be further contributed by Holdco, as an equity contribution to Parent (collectively, the "Holdco to Parent Contribution"). The proceeds of the Parent Contribution, along with the Holdco to Parent Contribution and amounts to be paid by the Other Investors to Parent under their respective Equity Commitment Letters (such aggregate amount, the "Commitments"), shall be used by Parent, to the extent necessary, to (i) fund (or cause to be funded through Midco or Merger Sub) a portion of the Exchange Fund and any other amounts required to be paid pursuant to the Merger Agreement (including any applicable consideration to the holders of Company Convertible Notes or repurchase of any Company Convertible Notes) and (ii) pay (or cause to be paid through Midco or Merger Sub) related fees and expenses (which, for the avoidance of doubt, shall not include any Parent Termination Fee or any Guaranteed Obligations with respect to a Parent Termination Fee under the Limited Guarantee given by the Investor), in each case, pursuant to and in accordance with the terms of, and subject to the conditions of, the Merger Agreement. Notwithstanding anything else to the contrary in this letter agreement, the aggregate amount of liability of the Investor under this letter agreement shall at no time exceed the aggregate amount of the Contribution less any portion of the Contribution that has been funded in accordance with the terms hereof or the terms of that certain Escrow Agreement, dated of even date herewith, between the Investor and Parent (the "Escrow Agreement").
2. Closing Conditions. The Investor's obligation to make the Contribution pursuant to this letter agreement is subject to the satisfaction in full (or waiver, if permissible) of all conditions precedent to the obligations of the Parent Parties to consummate the transactions contemplated by the Merger Agreement set forth in Article VII thereof other than (i) conditions that by their nature are to be satisfied on the Closing Date and (ii) any PRC Regulatory Approval that is applicable to the Parent Parties only after the Equity Financing and/or the Debt Financing has been funded. The Investor shall make its Contribution pursuant to the terms of the forms of subscription agreement(s) attached hereto as Exhibit A, which do not contain any conditions to which the Investor's obligation to make the Contribution pursuant to this letter agreement is subject other than those referenced in the foregoing sentence.
| - 2 - |
3. Limited Guarantee. Concurrently with the execution and delivery of this letter agreement, the Investor is executing and delivering to the Company a Limited Guarantee (the "Limited Guarantee"). The Company's (i) remedies against the Investor and the Other Investors under their respective Limited Guarantees, (ii) rights set forth in Section 4 of this letter agreement and (iii) remedies against the Parent Parties under the Merger Agreement shall be, and are intended to be, the sole and exclusive direct or indirect remedies available to the Company against the Investor, any former, current or future director, officer, employee, agent or affiliate of the Investor, any former, current or future, direct or indirect holder of any equity interests or securities of the Investor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, affiliate, controlling person or representative of any of the foregoing (each such person or entity, a "Related Person") in respect of any liabilities or obligations arising under, or in connection with, this letter agreement, the Merger Agreement or the transactions contemplated thereby, including without limitation in the event any of the Parent Parties breaches its obligations under the Merger Agreement, whether or not such breach is caused by the Investor's breach of its obligations under this letter agreement; provided that, in the event the Company successfully compels specific performance of the obligations of the Parent Parties to consummate the Merger in accordance with, and subject to the terms and conditions set forth in, Section 9.6(b) of the Merger Agreement, and the Investor shall have made the Contribution (and all Other Investors have funded their Commitments in full and the Effective Time occurred), then neither the Company nor any other Person (including, without limitation, the Company's equityholders, Affiliates and Subsidiaries) shall have any remedy against the Investor or any Related Person, including under the Limited Guarantee.
4. Enforcement. This letter agreement may only be enforced (i) by Holdco or Parent, (ii) by the Company to seek specific performance of the Investor's obligations to fund the Contribution, (iii) by the Company to seek specific performance of Holdco's obligations under Section 1 of this letter agreement to fund the Holdco to Parent Contribution, in the case of each of clause (ii) and clause (iii), in accordance with the Merger Agreement or (iv) by the Company, as set forth in Section 7 of this letter agreement.
5. No Recourse. Notwithstanding anything that may be expressed or implied in this letter agreement, by their acceptance hereof, each of Holdco and Parent acknowledges and agrees that (a) notwithstanding that the Investor may be a limited liability entity, no recourse hereunder or under any documents or instruments delivered in connection herewith may be had against any Related Person, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding or by virtue of any statute, regulation or other applicable law, and (b) no personal liability whatsoever will attach to, be imposed on or otherwise be incurred by Related Persons in connection with this letter agreement or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations or by their creation.
6. Expiration. All obligations under this letter agreement shall expire and terminate automatically and immediately upon the earliest to occur of (a) the valid termination of the Merger Agreement in accordance with its terms, (b) the Closing (at which time the Contribution shall be discharged), (c) the making of the Contribution by the Investor or its permitted assigns, (d) the Company or any of its Affiliates asserting a claim that would make the Limited Guarantee become terminable in accordance with the terms thereof, and (e) ten (10) months after the date hereof; provided that, in the event a claim by the Company or any of its Affiliates under Section 4 of this letter agreement or any claim seeking an injunction, specific performance or other equitable remedy against any Parent Party under Section 9.6(b) of the Merger Agreement is then pending, this letter agreement shall only terminate upon the final, non-appealable resolution of such action and satisfaction by the Investor of any obligations finally determined by a court of competent jurisdiction or agreed to be owed by the Investor in connection with this letter agreement.
| - 3 - |
7. No Assignment. The Investor's obligation to fund the Contribution may not be assigned or delegated (whether by operation of law, merger, consolidation or otherwise). Neither this letter agreement nor any of the rights, interests or obligations hereunder shall be assignable by Holdco or Parent without the Investor's and the Company's prior written consent, and the granting of such consent in any given instance shall be solely in the discretion of the Investor and the Company and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment. Any purported transfer, assignment or delegation in violation of this Section 7 shall be null and void and of no force and effect.
8. No Other Beneficiaries. Except for the rights provided to the Company under Section 4 and Section 7 of this letter agreement, this letter agreement shall be binding on the Investor solely for the benefit of Holdco and Parent, and nothing set forth in this letter agreement is intended to or shall confer upon or give to any Person other than Holdco and Parent any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Holdco or Parent to enforce, the Contribution or any provisions of this letter agreement; provided that, notwithstanding anything to the contrary in this letter agreement, any Related Person shall be a third party beneficiary of the provisions set forth herein that are for the benefit of any Related Person (including the provisions of Sections 3, 8, 11, 12 and 14), and all such provisions shall survive any termination of this letter agreement indefinitely. Without limiting the foregoing, neither Holdco's, Parent's, Midco's, Merger Sub's nor the Company's creditors shall have the right to enforce this letter agreement or to cause Holdco or Parent or the Company to enforce this letter agreement.
9. Representations and Warranties. The Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this letter agreement; (b) the execution, delivery and performance of this letter agreement by the Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Investor are necessary therefor; (c) this letter agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by the Investor of this letter agreement do not and will not violate the organizational documents of the Investor or any applicable Law or conflict with any material agreement binding on the Investor; (e) the Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by the Investor.
10. Severability. Any term or provision of this letter agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this letter agreement in any jurisdiction and, if any provision of this letter agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this letter agreement may not be enforced without giving effect to the provisions of Sections 2 through 8, 11 and 12 hereof. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this letter agreement or any part hereof is invalid, illegal or unenforceable.
| - 4 - |
11. Jurisdiction; Dispute Resolution.
In the event of any dispute, controversy, or claim between the Investor and Holdco arising out of or relating to the breach, termination or validity of this letter agreement ("Dispute"), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission ("CIETAC") under the arbitration rules of CIETAC (the "Rule") in force when the notice of arbitration is submitted by a party.
The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule.
The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 11. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party.
The awards rendered by the arbitrators pursuant to this Section 11 shall be non-appealable, final, binding and conclusive on the parties to such Dispute.
The Investor, Holdco and Parent understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision.
12. Headings. Headings of the Sections of this letter agreement are for convenience of the parties only and shall be given no substantive or interpretive effect whatsoever.
13. Governing Law. This letter agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People's Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
| - 5 - |
14. Entire Agreement; Amendment; Counterparts. This letter agreement, the Escrow Agreement, the Limited Guarantee and the Merger Agreement constitute the entire agreement with respect to the subject matter hereof and thereof, and supersede all other prior agreements, understandings and statements, both written and oral, between or among Holdco, Parent or any of their respective Affiliates, on the one hand, and the Investor or any of its Affiliates, on the other hand. Any provision of this letter agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed by the Investor, Holdco and Parent; provided that any amendment, waiver or modification that would be expected to be adverse to the Company's rights set forth in Section 4 and/or Section 7 of this letter agreement shall require the prior written consent of the Company. This letter agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
[Remainder of page intentionally left blank]
| - 6 - |
| Very truly yours, | ||
| Minsheng Royal Asset Management Co., Ltd. | ||
| (民生加银资产管理有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Zhixiang Jiang | |
| Name: | Zhixiang Jiang | |
| Title: | General Manager | |
| Agreed to and accepted as of the date first written above: | ||
| Tianjin Qixin Zhicheng Technology Co., Ltd. | ||
| (天津奇信志成科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: | Eric X. Chen | |
| Title: | Director | |
[Signature Page to Equity Commitment Letter]
Exhibit A
Subscription Agreement(s)
Exhibit 99.22
Execution Version
CCB International Capital Management (Tianjin) Ltd.
(建银国际资本管理 ( 天津 ) 有限公司 )
F8, TowerB, Fortune Capital International Center, No. 20, Fengsheng Hutong,
Xicheng District, Beijing, China
December 18, 2015
Tianjin Qixin Zhicheng Technology Co., Ltd.
(天津奇信志成科技有限公司)
Room 9-3-401
No. 39 Gaoxin 6th Road
Binhai Science and Technology Area
Binhai Hi-tech District
Tianjin, China
Tianjin Qixin Tongda Technology Co., Ltd.
(天津奇信通达科技有限公司)
No. 4-B-32, 4F, Building 3
No. 188 Rixin Avenue
Binhai Hi-Tech Zone
Binhai New District
Tianjin, P.R. China 300301
Solely for the purposes of Section 4 and Section 7 hereto,
Qihoo 360 Technology Co. Ltd.
Tower A, Building 2
No.6 Jiuxianqiao Road
Chaoyang District
Beijing, P.R. China 100015
Re: Equity Commitment Letter
Ladies and Gentlemen:
CCB International Capital Management (Tianjin) Ltd. (including its successors or permitted assigns, the "Investor") is pleased to offer this commitment, subject to the terms and conditions contained herein, to purchase, directly or indirectly, equity interests in (i) Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), and (ii) Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"). It is contemplated that pursuant to the terms of that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Company"), Holdco, Parent, True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), Merger Sub will merge with and into the Company, with the Company being the surviving company (the "Merger"). Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Merger Agreement.
1. Commitment. The Investor hereby agrees to contribute, or cause to be contributed, within three (3) Business Days after the conditions in Section 2 of this letter agreement are satisfied, as an equity contribution to (i) Holdco, an aggregate amount of RMB equivalent to US$ 49,335,200 (the "Holdco Contribution") and (ii) Parent, an aggregate amount of RMB equivalent to US$ 50,664,800 (the "Parent Contribution", and collectively with the Holdco Contribution, the "Contribution"), subject to the terms and conditions hereof. For purposes of this letter agreement, the RMB equivalents of U.S. dollars shall be determined using the prevailing exchange rate notified by Parent to the Investor at least three (3) Business Days prior to funding. The proceeds of the Holdco Contribution, along with the amounts to be paid by all other Investors (the "Other Investors") to Holdco under their respective Equity Commitment Letters, shall promptly upon receipt be further contributed by Holdco, as an equity contribution to Parent (collectively, the "Holdco to Parent Contribution"). The proceeds of the Parent Contribution, along with the Holdco to Parent Contribution and amounts to be paid by the Other Investors to Parent under their respective Equity Commitment Letters (such aggregate amount, the "Commitments"), shall be used by Parent, to the extent necessary, to (i) fund (or cause to be funded through Midco or Merger Sub) a portion of the Exchange Fund and any other amounts required to be paid pursuant to the Merger Agreement (including any applicable consideration to the holders of Company Convertible Notes or repurchase of any Company Convertible Notes) and (ii) pay (or cause to be paid through Midco or Merger Sub) related fees and expenses (which, for the avoidance of doubt, shall not include any Parent Termination Fee or any Guaranteed Obligations with respect to a Parent Termination Fee under the Limited Guarantee given by the Investor), in each case, pursuant to and in accordance with the terms of, and subject to the conditions of, the Merger Agreement. Notwithstanding anything else to the contrary in this letter agreement, the aggregate amount of liability of the Investor under this letter agreement shall at no time exceed the aggregate amount of the Contribution less any portion of the Contribution that has been funded in accordance with the terms hereof or the terms of that certain Escrow Agreement, dated of even date herewith, between the Investor and Parent (the "Escrow Agreement").
2. Closing Conditions. The Investor's obligation to make the Contribution pursuant to this letter agreement is subject to the satisfaction in full (or waiver, if permissible) of all conditions precedent to the obligations of the Parent Parties to consummate the transactions contemplated by the Merger Agreement set forth in Article VII thereof other than (i) conditions that by their nature are to be satisfied on the Closing Date and (ii) any PRC Regulatory Approval that is applicable to the Parent Parties only after the Equity Financing and/or the Debt Financing has been funded. The Investor shall make its Contribution pursuant to the terms of the forms of subscription agreement(s) attached hereto as Exhibit A, which do not contain any conditions to which the Investor's obligation to make the Contribution pursuant to this letter agreement is subject other than those referenced in the foregoing sentence.
| - 2 - |
3. Limited Guarantee. Concurrently with the execution and delivery of this letter agreement, the Investor is executing and delivering to the Company a Limited Guarantee (the "Limited Guarantee"). The Company's (i) remedies against the Investor and the Other Investors under their respective Limited Guarantees, (ii) rights set forth in Section 4 of this letter agreement and (iii) remedies against the Parent Parties under the Merger Agreement shall be, and are intended to be, the sole and exclusive direct or indirect remedies available to the Company against the Investor, any former, current or future director, officer, employee, agent or affiliate of the Investor, any former, current or future, direct or indirect holder of any equity interests or securities of the Investor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, affiliate, controlling person or representative of any of the foregoing (each such person or entity, a "Related Person") in respect of any liabilities or obligations arising under, or in connection with, this letter agreement, the Merger Agreement or the transactions contemplated thereby, including without limitation in the event any of the Parent Parties breaches its obligations under the Merger Agreement, whether or not such breach is caused by the Investor's breach of its obligations under this letter agreement; provided that, in the event the Company successfully compels specific performance of the obligations of the Parent Parties to consummate the Merger in accordance with, and subject to the terms and conditions set forth in, Section 9.6(b) of the Merger Agreement, and the Investor shall have made the Contribution (and all Other Investors have funded their Commitments in full and the Effective Time occurred), then neither the Company nor any other Person (including, without limitation, the Company's equityholders, Affiliates and Subsidiaries) shall have any remedy against the Investor or any Related Person, including under the Limited Guarantee.
4. Enforcement. This letter agreement may only be enforced (i) by Holdco or Parent, (ii) by the Company to seek specific performance of the Investor's obligations to fund the Contribution, (iii) by the Company to seek specific performance of Holdco's obligations under Section 1 of this letter agreement to fund the Holdco to Parent Contribution, in the case of each of clause (ii) and clause (iii), in accordance with the Merger Agreement or (iv) by the Company, as set forth in Section 7 of this letter agreement.
5. No Recourse. Notwithstanding anything that may be expressed or implied in this letter agreement, by their acceptance hereof, each of Holdco and Parent acknowledges and agrees that (a) notwithstanding that the Investor may be a limited liability entity, no recourse hereunder or under any documents or instruments delivered in connection herewith may be had against any Related Person, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding or by virtue of any statute, regulation or other applicable law, and (b) no personal liability whatsoever will attach to, be imposed on or otherwise be incurred by Related Persons in connection with this letter agreement or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations or by their creation.
6. Expiration. All obligations under this letter agreement shall expire and terminate automatically and immediately upon the earliest to occur of (a) the valid termination of the Merger Agreement in accordance with its terms, (b) the Closing (at which time the Contribution shall be discharged), (c) the making of the Contribution by the Investor or its permitted assigns, (d) the Company or any of its Affiliates asserting a claim that would make the Limited Guarantee become terminable in accordance with the terms thereof, and (e) ten (10) months after the date hereof; provided that, in the event a claim by the Company or any of its Affiliates under Section 4 of this letter agreement or any claim seeking an injunction, specific performance or other equitable remedy against any Parent Party under Section 9.6(b) of the Merger Agreement is then pending, this letter agreement shall only terminate upon the final, non-appealable resolution of such action and satisfaction by the Investor of any obligations finally determined by a court of competent jurisdiction or agreed to be owed by the Investor in connection with this letter agreement.
| - 3 - |
7. No Assignment. The Investor's obligation to fund the Contribution may not be assigned or delegated (whether by operation of law, merger, consolidation or otherwise). Neither this letter agreement nor any of the rights, interests or obligations hereunder shall be assignable by Holdco or Parent without the Investor's and the Company's prior written consent, and the granting of such consent in any given instance shall be solely in the discretion of the Investor and the Company and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment. Any purported transfer, assignment or delegation in violation of this Section 7 shall be null and void and of no force and effect.
8. No Other Beneficiaries. Except for the rights provided to the Company under Section 4 and Section 7 of this letter agreement, this letter agreement shall be binding on the Investor solely for the benefit of Holdco and Parent, and nothing set forth in this letter agreement is intended to or shall confer upon or give to any Person other than Holdco and Parent any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Holdco or Parent to enforce, the Contribution or any provisions of this letter agreement; provided that, notwithstanding anything to the contrary in this letter agreement, any Related Person shall be a third party beneficiary of the provisions set forth herein that are for the benefit of any Related Person (including the provisions of Sections 3, 8, 11, 12 and 14), and all such provisions shall survive any termination of this letter agreement indefinitely. Without limiting the foregoing, neither Holdco's, Parent's, Midco's, Merger Sub's nor the Company's creditors shall have the right to enforce this letter agreement or to cause Holdco or Parent or the Company to enforce this letter agreement.
9. Representations and Warranties. The Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this letter agreement; (b) the execution, delivery and performance of this letter agreement by the Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Investor are necessary therefor; (c) this letter agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by the Investor of this letter agreement do not and will not violate the organizational documents of the Investor or any applicable Law or conflict with any material agreement binding on the Investor; (e) the Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by the Investor.
10. Severability. Any term or provision of this letter agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this letter agreement in any jurisdiction and, if any provision of this letter agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this letter agreement may not be enforced without giving effect to the provisions of Sections 2 through 8, 11 and 12 hereof. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this letter agreement or any part hereof is invalid, illegal or unenforceable.
| - 4 - |
11. Jurisdiction; Dispute Resolution.
In the event of any dispute, controversy, or claim between the Investor and Holdco arising out of or relating to the breach, termination or validity of this letter agreement ("Dispute"), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission ("CIETAC") under the arbitration rules of CIETAC (the "Rule") in force when the notice of arbitration is submitted by a party.
The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule.
The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 11. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party.
The awards rendered by the arbitrators pursuant to this Section 11 shall be non-appealable, final, binding and conclusive on the parties to such Dispute.
The Investor, Holdco and Parent understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision.
12. Headings. Headings of the Sections of this letter agreement are for convenience of the parties only and shall be given no substantive or interpretive effect whatsoever.
13. Governing Law. This letter agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People's Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
| - 5 - |
14. Entire Agreement; Amendment; Counterparts. This letter agreement, the Escrow Agreement, the Limited Guarantee and the Merger Agreement constitute the entire agreement with respect to the subject matter hereof and thereof, and supersede all other prior agreements, understandings and statements, both written and oral, between or among Holdco, Parent or any of their respective Affiliates, on the one hand, and the Investor or any of its Affiliates, on the other hand. Any provision of this letter agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed by the Investor, Holdco and Parent; provided that any amendment, waiver or modification that would be expected to be adverse to the Company's rights set forth in Section 4 and/or Section 7 of this letter agreement shall require the prior written consent of the Company. This letter agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
[Remainder of page intentionally left blank]
| - 6 - |
| Very truly yours, | ||
| CCB International Capital Management (Tianjin) Ltd. | ||
| ( 建银国际资本管理 ( 天津 ) 有限公司 ) | ||
| [Company chop is affixed] | ||
| By: | /s/ Cheng Jingdong | |
| Name: | Cheng Jingdong | |
| Title: | General Manager | |
| Agreed to and accepted as of the date first written above: | ||
| Tianjin Qixin Zhicheng Technology Co., Ltd. | ||
| (天津奇信志成科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: | Eric X. Chen | |
| Title: | Director | |
[Signature Page to Equity Commitment Letter]
Exhibit A
Subscription Agreement(s)
Exhibit 99.23
Execution Version
China Merchants Wealth Asset Management Co., Ltd.
( 招商财富资产管理有限公司 )
3/F, Tower B, East Pacific International Center
7888 Shennan Road, Shenzhen, P.R.China
December 18, 2015
Tianjin Qixin Zhicheng Technology Co., Ltd.
(天津奇信志成科技有限公司)
Room 9-3-401
No. 39 Gaoxin 6th Road
Binhai Science and Technology Area
Binhai Hi-tech District
Tianjin, China
Tianjin Qixin Tongda Technology Co., Ltd.
(天津奇信通达科技有限公司)
No. 4-B-32, 4F, Building 3
No. 188 Rixin Avenue
Binhai Hi-Tech Zone
Binhai New District
Tianjin, P.R. China 300301
Solely for the purposes of Section 4 and Section 7 hereto,
Qihoo 360 Technology Co. Ltd.
Tower A, Building 2
No.6 Jiuxianqiao Road
Chaoyang District
Beijing, P.R. China 100015
Re: Equity Commitment Letter
Ladies and Gentlemen:
China Merchants Wealth Asset Management Co., Ltd. (including its successors or permitted assigns, the "Investor") is pleased to offer this commitment, subject to the terms and conditions contained herein, to purchase, directly or indirectly, equity interests in (i) Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), and (ii) Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"). It is contemplated that pursuant to the terms of that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Company"), Holdco, Parent, True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), Merger Sub will merge with and into the Company, with the Company being the surviving company (the "Merger"). Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Merger Agreement.
1. Commitment. The Investor hereby agrees to contribute, or cause to be contributed, within three (3) Business Days after the conditions in Section 2 of this letter agreement are satisfied, as an equity contribution to (i) Holdco, an aggregate amount of RMB equivalent to US$ 49,335,200 (the "Holdco Contribution") and (ii) Parent, an aggregate amount of RMB equivalent to US$ 50,664,800 (the "Parent Contribution", and collectively with the Holdco Contribution, the "Contribution"), subject to the terms and conditions hereof. For purposes of this letter agreement, the RMB equivalents of U.S. dollars shall be determined using the prevailing exchange rate notified by Parent to the Investor at least three (3) Business Days prior to funding. The proceeds of the Holdco Contribution, along with the amounts to be paid by all other Investors (the "Other Investors") to Holdco under their respective Equity Commitment Letters, shall promptly upon receipt be further contributed by Holdco, as an equity contribution to Parent (collectively, the "Holdco to Parent Contribution"). The proceeds of the Parent Contribution, along with the Holdco to Parent Contribution and amounts to be paid by the Other Investors to Parent under their respective Equity Commitment Letters (such aggregate amount, the "Commitments"), shall be used by Parent, to the extent necessary, to (i) fund (or cause to be funded through Midco or Merger Sub) a portion of the Exchange Fund and any other amounts required to be paid pursuant to the Merger Agreement (including any applicable consideration to the holders of Company Convertible Notes or repurchase of any Company Convertible Notes) and (ii) pay (or cause to be paid through Midco or Merger Sub) related fees and expenses (which, for the avoidance of doubt, shall not include any Parent Termination Fee or any Guaranteed Obligations with respect to a Parent Termination Fee under the Limited Guarantee given by the Investor), in each case, pursuant to and in accordance with the terms of, and subject to the conditions of, the Merger Agreement. Notwithstanding anything else to the contrary in this letter agreement, the aggregate amount of liability of the Investor under this letter agreement shall at no time exceed the aggregate amount of the Contribution less any portion of the Contribution that has been funded in accordance with the terms hereof or the terms of that certain Escrow Agreement, dated of even date herewith, between the Investor and Parent (the "Escrow Agreement").
2. Closing Conditions. The Investor's obligation to make the Contribution pursuant to this letter agreement is subject to the satisfaction in full (or waiver, if permissible) of all conditions precedent to the obligations of the Parent Parties to consummate the transactions contemplated by the Merger Agreement set forth in Article VII thereof other than (i) conditions that by their nature are to be satisfied on the Closing Date and (ii) any PRC Regulatory Approval that is applicable to the Parent Parties only after the Equity Financing and/or the Debt Financing has been funded. The Investor shall make its Contribution pursuant to the terms of the forms of subscription agreement(s) attached hereto as Exhibit A, which do not contain any conditions to which the Investor's obligation to make the Contribution pursuant to this letter agreement is subject other than those referenced in the foregoing sentence.
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3. Limited Guarantee. Concurrently with the execution and delivery of this letter agreement, the Investor is executing and delivering to the Company a Limited Guarantee (the "Limited Guarantee"). The Company's (i) remedies against the Investor and the Other Investors under their respective Limited Guarantees, (ii) rights set forth in Section 4 of this letter agreement and (iii) remedies against the Parent Parties under the Merger Agreement shall be, and are intended to be, the sole and exclusive direct or indirect remedies available to the Company against the Investor, any former, current or future director, officer, employee, agent or affiliate of the Investor, any former, current or future, direct or indirect holder of any equity interests or securities of the Investor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, affiliate, controlling person or representative of any of the foregoing (each such person or entity, a "Related Person") in respect of any liabilities or obligations arising under, or in connection with, this letter agreement, the Merger Agreement or the transactions contemplated thereby, including without limitation in the event any of the Parent Parties breaches its obligations under the Merger Agreement, whether or not such breach is caused by the Investor's breach of its obligations under this letter agreement; provided that, in the event the Company successfully compels specific performance of the obligations of the Parent Parties to consummate the Merger in accordance with, and subject to the terms and conditions set forth in, Section 9.6(b) of the Merger Agreement, and the Investor shall have made the Contribution (and all Other Investors have funded their Commitments in full and the Effective Time occurred), then neither the Company nor any other Person (including, without limitation, the Company's equityholders, Affiliates and Subsidiaries) shall have any remedy against the Investor or any Related Person, including under the Limited Guarantee.
4. Enforcement. This letter agreement may only be enforced (i) by Holdco or Parent, (ii) by the Company to seek specific performance of the Investor's obligations to fund the Contribution, (iii) by the Company to seek specific performance of Holdco's obligations under Section 1 of this letter agreement to fund the Holdco to Parent Contribution, in the case of each of clause (ii) and clause (iii), in accordance with the Merger Agreement or (iv) by the Company, as set forth in Section 7 of this letter agreement.
5. No Recourse. Notwithstanding anything that may be expressed or implied in this letter agreement, by their acceptance hereof, each of Holdco and Parent acknowledges and agrees that (a) notwithstanding that the Investor may be a limited liability entity, no recourse hereunder or under any documents or instruments delivered in connection herewith may be had against any Related Person, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding or by virtue of any statute, regulation or other applicable law, and (b) no personal liability whatsoever will attach to, be imposed on or otherwise be incurred by Related Persons in connection with this letter agreement or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations or by their creation.
6. Expiration. All obligations under this letter agreement shall expire and terminate automatically and immediately upon the earliest to occur of (a) the valid termination of the Merger Agreement in accordance with its terms, (b) the Closing (at which time the Contribution shall be discharged), (c) the making of the Contribution by the Investor or its permitted assigns, (d) the Company or any of its Affiliates asserting a claim that would make the Limited Guarantee become terminable in accordance with the terms thereof, and (e) ten (10) months after the date hereof; provided that, in the event a claim by the Company or any of its Affiliates under Section 4 of this letter agreement or any claim seeking an injunction, specific performance or other equitable remedy against any Parent Party under Section 9.6(b) of the Merger Agreement is then pending, this letter agreement shall only terminate upon the final, non-appealable resolution of such action and satisfaction by the Investor of any obligations finally determined by a court of competent jurisdiction or agreed to be owed by the Investor in connection with this letter agreement.
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7. No Assignment. The Investor's obligation to fund the Contribution may not be assigned or delegated (whether by operation of law, merger, consolidation or otherwise). Neither this letter agreement nor any of the rights, interests or obligations hereunder shall be assignable by Holdco or Parent without the Investor's and the Company's prior written consent, and the granting of such consent in any given instance shall be solely in the discretion of the Investor and the Company and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment. Any purported transfer, assignment or delegation in violation of this Section 7 shall be null and void and of no force and effect.
8. No Other Beneficiaries. Except for the rights provided to the Company under Section 4 and Section 7 of this letter agreement, this letter agreement shall be binding on the Investor solely for the benefit of Holdco and Parent, and nothing set forth in this letter agreement is intended to or shall confer upon or give to any Person other than Holdco and Parent any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Holdco or Parent to enforce, the Contribution or any provisions of this letter agreement; provided that, notwithstanding anything to the contrary in this letter agreement, any Related Person shall be a third party beneficiary of the provisions set forth herein that are for the benefit of any Related Person (including the provisions of Sections 3, 8, 11, 12 and 14), and all such provisions shall survive any termination of this letter agreement indefinitely. Without limiting the foregoing, neither Holdco's, Parent's, Midco's, Merger Sub's nor the Company's creditors shall have the right to enforce this letter agreement or to cause Holdco or Parent or the Company to enforce this letter agreement.
9. Representations and Warranties. The Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this letter agreement; (b) the execution, delivery and performance of this letter agreement by the Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Investor are necessary therefor; (c) this letter agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by the Investor of this letter agreement do not and will not violate the organizational documents of the Investor or any applicable Law or conflict with any material agreement binding on the Investor; (e) the Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by the Investor.
10. Severability. Any term or provision of this letter agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this letter agreement in any jurisdiction and, if any provision of this letter agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this letter agreement may not be enforced without giving effect to the provisions of Sections 2 through 8, 11 and 12 hereof. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this letter agreement or any part hereof is invalid, illegal or unenforceable.
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11. Jurisdiction; Dispute Resolution.
In the event of any dispute, controversy, or claim between the Investor and Holdco arising out of or relating to the breach, termination or validity of this letter agreement ("Dispute"), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission ("CIETAC") under the arbitration rules of CIETAC (the "Rule") in force when the notice of arbitration is submitted by a party.
The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule.
The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 11. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party.
The awards rendered by the arbitrators pursuant to this Section 11 shall be non-appealable, final, binding and conclusive on the parties to such Dispute.
The Investor, Holdco and Parent understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision.
12. Headings. Headings of the Sections of this letter agreement are for convenience of the parties only and shall be given no substantive or interpretive effect whatsoever.
13. Governing Law. This letter agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People's Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
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14. Entire Agreement; Amendment; Counterparts. This letter agreement, the Escrow Agreement, the Limited Guarantee and the Merger Agreement constitute the entire agreement with respect to the subject matter hereof and thereof, and supersede all other prior agreements, understandings and statements, both written and oral, between or among Holdco, Parent or any of their respective Affiliates, on the one hand, and the Investor or any of its Affiliates, on the other hand. Any provision of this letter agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed by the Investor, Holdco and Parent; provided that any amendment, waiver or modification that would be expected to be adverse to the Company's rights set forth in Section 4 and/or Section 7 of this letter agreement shall require the prior written consent of the Company. This letter agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
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| Very truly yours, | ||
| China Merchants Wealth Asset Management Co., Ltd. | ||
| (招商财富资产管理有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Shenzhang Zhao | |
| Name: | Shenzhang Zhao | |
| Title: | Legal Representative and General Manager | |
| Agreed to and accepted as of the date first written above: | ||
| Tianjin Qixin Zhicheng Technology Co., Ltd. | ||
| (天津奇信志成科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: | Eric X. Chen | |
| Title: | Director | |
[Signature Page to Equity Commitment Letter]
Exhibit A
Subscription Agreement(s)
Exhibit 99.24
Execution Version
Huarong Ruize Investment Management Co., Ltd.
( 华融瑞泽投资管理公司 )
16th floor, China PICC Life Insurance Building, 18 Chaoyang Gate North Street
Chaoyang District, Beijing
December 18, 2015
Tianjin Qixin Zhicheng Technology Co., Ltd.
(天津奇信志成科技有限公司)
Room 9-3-401
No. 39 Gaoxin 6th Road
Binhai Science and Technology Area
Binhai Hi-tech District
Tianjin, China
Tianjin Qixin Tongda Technology Co., Ltd.
(天津奇信通达科技有限公司)
No. 4-B-32, 4F, Building 3
No. 188 Rixin Avenue
Binhai Hi-Tech Zone
Binhai New District
Tianjin, P.R. China 300301
Solely for the purposes of Section 4 and Section 7 hereto,
Qihoo 360 Technology Co. Ltd.
Tower A, Building 2
No.6 Jiuxianqiao Road
Chaoyang District
Beijing, P.R. China 100015
Re: Equity Commitment Letter
Ladies and Gentlemen:
Huarong Ruize Investment Management Co., Ltd. (including its successors or permitted assigns, the "Investor") is pleased to offer this commitment, subject to the terms and conditions contained herein, to purchase, directly or indirectly, equity interests in (i) Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), and (ii) Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"). It is contemplated that pursuant to the terms of that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Company"), Holdco, Parent, True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), Merger Sub will merge with and into the Company, with the Company being the surviving company (the "Merger"). Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Merger Agreement.
1. Commitment. The Investor hereby agrees to contribute, or cause to be contributed, within three (3) Business Days after the conditions in Section 2 of this letter agreement are satisfied, as an equity contribution to (i) Holdco, an aggregate amount of RMB equivalent to US$ 64,135,760 (the "Holdco Contribution") and (ii) Parent, an aggregate amount of RMB equivalent to US$ 65,864,240 (the "Parent Contribution", and collectively with the Holdco Contribution, the "Contribution"), subject to the terms and conditions hereof. For purposes of this letter agreement, the RMB equivalents of U.S. dollars shall be determined using the prevailing exchange rate notified by Parent to the Investor at least three (3) Business Days prior to funding. The proceeds of the Holdco Contribution, along with the amounts to be paid by all other Investors (the "Other Investors") to Holdco under their respective Equity Commitment Letters, shall promptly upon receipt be further contributed by Holdco, as an equity contribution to Parent (collectively, the "Holdco to Parent Contribution"). The proceeds of the Parent Contribution, along with the Holdco to Parent Contribution and amounts to be paid by the Other Investors to Parent under their respective Equity Commitment Letters (such aggregate amount, the "Commitments"), shall be used by Parent, to the extent necessary, to (i) fund (or cause to be funded through Midco or Merger Sub) a portion of the Exchange Fund and any other amounts required to be paid pursuant to the Merger Agreement (including any applicable consideration to the holders of Company Convertible Notes or repurchase of any Company Convertible Notes) and (ii) pay (or cause to be paid through Midco or Merger Sub) related fees and expenses (which, for the avoidance of doubt, shall not include any Parent Termination Fee or any Guaranteed Obligations with respect to a Parent Termination Fee under the Limited Guarantee given by the Investor), in each case, pursuant to and in accordance with the terms of, and subject to the conditions of, the Merger Agreement. Notwithstanding anything else to the contrary in this letter agreement, the aggregate amount of liability of the Investor under this letter agreement shall at no time exceed the aggregate amount of the Contribution less any portion of the Contribution that has been funded in accordance with the terms hereof or the terms of that certain Escrow Agreement, dated of even date herewith, between the Investor and Parent (the "Escrow Agreement").
2. Closing Conditions. The Investor's obligation to make the Contribution pursuant to this letter agreement is subject to the satisfaction in full (or waiver, if permissible) of all conditions precedent to the obligations of the Parent Parties to consummate the transactions contemplated by the Merger Agreement set forth in Article VII thereof other than (i) conditions that by their nature are to be satisfied on the Closing Date and (ii) any PRC Regulatory Approval that is applicable to the Parent Parties only after the Equity Financing and/or the Debt Financing has been funded. The Investor shall make its Contribution pursuant to the terms of the forms of subscription agreement(s) attached hereto as Exhibit A, which do not contain any conditions to which the Investor's obligation to make the Contribution pursuant to this letter agreement is subject other than those referenced in the foregoing sentence.
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3. Limited Guarantee. Concurrently with the execution and delivery of this letter agreement, the Investor is executing and delivering to the Company a Limited Guarantee (the "Limited Guarantee"). The Company's (i) remedies against the Investor and the Other Investors under their respective Limited Guarantees, (ii) rights set forth in Section 4 of this letter agreement and (iii) remedies against the Parent Parties under the Merger Agreement shall be, and are intended to be, the sole and exclusive direct or indirect remedies available to the Company against the Investor, any former, current or future director, officer, employee, agent or affiliate of the Investor, any former, current or future, direct or indirect holder of any equity interests or securities of the Investor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, affiliate, controlling person or representative of any of the foregoing (each such person or entity, a "Related Person") in respect of any liabilities or obligations arising under, or in connection with, this letter agreement, the Merger Agreement or the transactions contemplated thereby, including without limitation in the event any of the Parent Parties breaches its obligations under the Merger Agreement, whether or not such breach is caused by the Investor's breach of its obligations under this letter agreement; provided that, in the event the Company successfully compels specific performance of the obligations of the Parent Parties to consummate the Merger in accordance with, and subject to the terms and conditions set forth in, Section 9.6(b) of the Merger Agreement, and the Investor shall have made the Contribution (and all Other Investors have funded their Commitments in full and the Effective Time occurred), then neither the Company nor any other Person (including, without limitation, the Company's equityholders, Affiliates and Subsidiaries) shall have any remedy against the Investor or any Related Person, including under the Limited Guarantee.
4. Enforcement. This letter agreement may only be enforced (i) by Holdco or Parent, (ii) by the Company to seek specific performance of the Investor's obligations to fund the Contribution, (iii) by the Company to seek specific performance of Holdco's obligations under Section 1 of this letter agreement to fund the Holdco to Parent Contribution, in the case of each of clause (ii) and clause (iii), in accordance with the Merger Agreement or (iv) by the Company, as set forth in Section 7 of this letter agreement.
5. No Recourse. Notwithstanding anything that may be expressed or implied in this letter agreement, by their acceptance hereof, each of Holdco and Parent acknowledges and agrees that (a) notwithstanding that the Investor may be a limited liability entity, no recourse hereunder or under any documents or instruments delivered in connection herewith may be had against any Related Person, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding or by virtue of any statute, regulation or other applicable law, and (b) no personal liability whatsoever will attach to, be imposed on or otherwise be incurred by Related Persons in connection with this letter agreement or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations or by their creation.
6. Expiration. All obligations under this letter agreement shall expire and terminate automatically and immediately upon the earliest to occur of (a) the valid termination of the Merger Agreement in accordance with its terms, (b) the Closing (at which time the Contribution shall be discharged), (c) the making of the Contribution by the Investor or its permitted assigns, (d) the Company or any of its Affiliates asserting a claim that would make the Limited Guarantee become terminable in accordance with the terms thereof, and (e) ten (10) months after the date hereof; provided that, in the event a claim by the Company or any of its Affiliates under Section 4 of this letter agreement or any claim seeking an injunction, specific performance or other equitable remedy against any Parent Party under Section 9.6(b) of the Merger Agreement is then pending, this letter agreement shall only terminate upon the final, non-appealable resolution of such action and satisfaction by the Investor of any obligations finally determined by a court of competent jurisdiction or agreed to be owed by the Investor in connection with this letter agreement.
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7. No Assignment. The Investor's obligation to fund the Contribution may not be assigned or delegated (whether by operation of law, merger, consolidation or otherwise). Neither this letter agreement nor any of the rights, interests or obligations hereunder shall be assignable by Holdco or Parent without the Investor's and the Company's prior written consent, and the granting of such consent in any given instance shall be solely in the discretion of the Investor and the Company and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment. Any purported transfer, assignment or delegation in violation of this Section 7 shall be null and void and of no force and effect.
8. No Other Beneficiaries. Except for the rights provided to the Company under Section 4 and Section 7 of this letter agreement, this letter agreement shall be binding on the Investor solely for the benefit of Holdco and Parent, and nothing set forth in this letter agreement is intended to or shall confer upon or give to any Person other than Holdco and Parent any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Holdco or Parent to enforce, the Contribution or any provisions of this letter agreement; provided that, notwithstanding anything to the contrary in this letter agreement, any Related Person shall be a third party beneficiary of the provisions set forth herein that are for the benefit of any Related Person (including the provisions of Sections 3, 8, 11, 12 and 14), and all such provisions shall survive any termination of this letter agreement indefinitely. Without limiting the foregoing, neither Holdco's, Parent's, Midco's, Merger Sub's nor the Company's creditors shall have the right to enforce this letter agreement or to cause Holdco or Parent or the Company to enforce this letter agreement.
9. Representations and Warranties. The Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this letter agreement; (b) the execution, delivery and performance of this letter agreement by the Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Investor are necessary therefor; (c) this letter agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by the Investor of this letter agreement do not and will not violate the organizational documents of the Investor or any applicable Law or conflict with any material agreement binding on the Investor; (e) the Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by the Investor.
10. Severability. Any term or provision of this letter agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this letter agreement in any jurisdiction and, if any provision of this letter agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this letter agreement may not be enforced without giving effect to the provisions of Sections 2 through 8, 11 and 12 hereof. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this letter agreement or any part hereof is invalid, illegal or unenforceable.
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11. Jurisdiction; Dispute Resolution.
In the event of any dispute, controversy, or claim between the Investor and Holdco arising out of or relating to the breach, termination or validity of this letter agreement ("Dispute"), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission ("CIETAC") under the arbitration rules of CIETAC (the "Rule") in force when the notice of arbitration is submitted by a party.
The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule.
The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 11. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party.
The awards rendered by the arbitrators pursuant to this Section 11 shall be non-appealable, final, binding and conclusive on the parties to such Dispute.
The Investor, Holdco and Parent understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision.
12. Headings. Headings of the Sections of this letter agreement are for convenience of the parties only and shall be given no substantive or interpretive effect whatsoever.
13. Governing Law. This letter agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People's Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
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14. Entire Agreement; Amendment; Counterparts. This letter agreement, the Escrow Agreement, the Limited Guarantee and the Merger Agreement constitute the entire agreement with respect to the subject matter hereof and thereof, and supersede all other prior agreements, understandings and statements, both written and oral, between or among Holdco, Parent or any of their respective Affiliates, on the one hand, and the Investor or any of its Affiliates, on the other hand. Any provision of this letter agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed by the Investor, Holdco and Parent; provided that any amendment, waiver or modification that would be expected to be adverse to the Company's rights set forth in Section 4 and/or Section 7 of this letter agreement shall require the prior written consent of the Company. This letter agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
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| Very truly yours, | ||
| Huarong Ruize Investment Management Co., Ltd. | ||
| (华融瑞泽投资管理公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Xiaomao Yuan | |
| Name: | Xiaomao Yuan | |
| Title: | General Manager | |
| Agreed to and accepted as of the date first written above: | ||
| Tianjin Qixin Zhicheng Technology Co., Ltd. | ||
| (天津奇信志成科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: | Eric X. Chen | |
| Title: | Director | |
[Signature Page to Equity Commitment Letter]
Exhibit A
Subscription Agreement(s)
Exhibit 99.25
Execution Version
Beijing Sequoia Yi Yuan Equity Investment Center (Limited Partnership)
( 北京红杉懿远股权投资中心 ( 有限合伙 ) )
Room 3606, China Central Place Tower 3, 77 Jianguo Road,
Beijing 100025, China
December 18, 2015
Tianjin Qixin Zhicheng Technology Co., Ltd.
(天津奇信志成科技有限公司)
Room 9-3-401
No. 39 Gaoxin 6th Road
Binhai Science and Technology Area
Binhai Hi-tech District
Tianjin, China
Tianjin Qixin Tongda Technology Co., Ltd.
(天津奇信通达科技有限公司)
No. 4-B-32, 4F, Building 3
No. 188 Rixin Avenue
Binhai Hi-Tech Zone
Binhai New District
Tianjin, P.R. China 300301
Solely for the purposes of Section 4 and Section 7 hereto,
Qihoo 360 Technology Co. Ltd.
Tower A, Building 2
No.6 Jiuxianqiao Road
Chaoyang District
Beijing, P.R. China 100015
Re: Equity Commitment Letter
Ladies and Gentlemen:
Beijing Sequoia Yi Yuan Equity Investment Center (Limited Partnership) (including its successors or permitted assigns, the "Investor") is pleased to offer this commitment, subject to the terms and conditions contained herein, to purchase, directly or indirectly, equity interests in (i) Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), and (ii) Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"). It is contemplated that pursuant to the terms of that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Company"), Holdco, Parent, True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), Merger Sub will merge with and into the Company, with the Company being the surviving company (the "Merger"). Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Merger Agreement.
1. Commitment. The Investor hereby agrees to contribute, or cause to be contributed, within three (3) Business Days after the conditions in Section 2 of this letter agreement are satisfied, as an equity contribution to (i) Holdco, an aggregate amount of RMB equivalent to US$ 172,673,200 (the "Holdco Contribution") and (ii) Parent, an aggregate amount of RMB equivalent to US$ 177,326,800 (the "Parent Contribution", and collectively with the Holdco Contribution, the "Contribution"), subject to the terms and conditions hereof. For purposes of this letter agreement, the RMB equivalents of U.S. dollars shall be determined using the prevailing exchange rate notified by Parent to the Investor at least three (3) Business Days prior to funding. The proceeds of the Holdco Contribution, along with the amounts to be paid by all other Investors (the "Other Investors") to Holdco under their respective Equity Commitment Letters, shall promptly upon receipt be further contributed by Holdco, as an equity contribution to Parent (collectively, the "Holdco to Parent Contribution"). The proceeds of the Parent Contribution, along with the Holdco to Parent Contribution and amounts to be paid by the Other Investors to Parent under their respective Equity Commitment Letters (such aggregate amount, the "Commitments"), shall be used by Parent, to the extent necessary, to (i) fund (or cause to be funded through Midco or Merger Sub) a portion of the Exchange Fund and any other amounts required to be paid pursuant to the Merger Agreement (including any applicable consideration to the holders of Company Convertible Notes or repurchase of any Company Convertible Notes) and (ii) pay (or cause to be paid through Midco or Merger Sub) related fees and expenses (which, for the avoidance of doubt, shall not include any Parent Termination Fee or any Guaranteed Obligations with respect to a Parent Termination Fee under the Limited Guarantee given by the Investor), in each case, pursuant to and in accordance with the terms of, and subject to the conditions of, the Merger Agreement. Notwithstanding anything else to the contrary in this letter agreement, the aggregate amount of liability of the Investor under this letter agreement shall at no time exceed the aggregate amount of the Contribution less any portion of the Contribution that has been funded in accordance with the terms hereof or the terms of that certain Escrow Agreement, dated of even date herewith, between the Investor and Parent (the "Escrow Agreement").
2. Closing Conditions. The Investor's obligation to make the Contribution pursuant to this letter agreement is subject to the satisfaction in full (or waiver, if permissible) of all conditions precedent to the obligations of the Parent Parties to consummate the transactions contemplated by the Merger Agreement set forth in Article VII thereof other than (i) conditions that by their nature are to be satisfied on the Closing Date and (ii) any PRC Regulatory Approval that is applicable to the Parent Parties only after the Equity Financing and/or the Debt Financing has been funded. The Investor shall make its Contribution pursuant to the terms of the forms of subscription agreement(s) attached hereto as Exhibit A, which do not contain any conditions to which the Investor's obligation to make the Contribution pursuant to this letter agreement is subject other than those referenced in the foregoing sentence.
| - 2 - |
3. Limited Guarantee. Concurrently with the execution and delivery of this letter agreement, the Investor is executing and delivering to the Company a Limited Guarantee (the "Limited Guarantee"). The Company's (i) remedies against the Investor and the Other Investors under their respective Limited Guarantees, (ii) rights set forth in Section 4 of this letter agreement and (iii) remedies against the Parent Parties under the Merger Agreement shall be, and are intended to be, the sole and exclusive direct or indirect remedies available to the Company against the Investor, any former, current or future director, officer, employee, agent or affiliate of the Investor, any former, current or future, direct or indirect holder of any equity interests or securities of the Investor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, affiliate, controlling person or representative of any of the foregoing (each such person or entity, a "Related Person") in respect of any liabilities or obligations arising under, or in connection with, this letter agreement, the Merger Agreement or the transactions contemplated thereby, including without limitation in the event any of the Parent Parties breaches its obligations under the Merger Agreement, whether or not such breach is caused by the Investor's breach of its obligations under this letter agreement; provided that, in the event the Company successfully compels specific performance of the obligations of the Parent Parties to consummate the Merger in accordance with, and subject to the terms and conditions set forth in, Section 9.6(b) of the Merger Agreement, and the Investor shall have made the Contribution (and all Other Investors have funded their Commitments in full and the Effective Time occurred), then neither the Company nor any other Person (including, without limitation, the Company's equityholders, Affiliates and Subsidiaries) shall have any remedy against the Investor or any Related Person, including under the Limited Guarantee.
4. Enforcement. This letter agreement may only be enforced (i) by Holdco or Parent, (ii) by the Company to seek specific performance of the Investor's obligations to fund the Contribution, (iii) by the Company to seek specific performance of Holdco's obligations under Section 1 of this letter agreement to fund the Holdco to Parent Contribution, in the case of each of clause (ii) and clause (iii), in accordance with the Merger Agreement or (iv) by the Company, as set forth in Section 7 of this letter agreement.
5. No Recourse. Notwithstanding anything that may be expressed or implied in this letter agreement, by their acceptance hereof, each of Holdco and Parent acknowledges and agrees that (a) notwithstanding that the Investor may be a limited liability entity, no recourse hereunder or under any documents or instruments delivered in connection herewith may be had against any Related Person, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding or by virtue of any statute, regulation or other applicable law, and (b) no personal liability whatsoever will attach to, be imposed on or otherwise be incurred by Related Persons in connection with this letter agreement or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations or by their creation.
6. Expiration. All obligations under this letter agreement shall expire and terminate automatically and immediately upon the earliest to occur of (a) the valid termination of the Merger Agreement in accordance with its terms, (b) the Closing (at which time the Contribution shall be discharged), (c) the making of the Contribution by the Investor or its permitted assigns, (d) the Company or any of its Affiliates asserting a claim that would make the Limited Guarantee become terminable in accordance with the terms thereof, and (e) ten (10) months after the date hereof; provided that, in the event a claim by the Company or any of its Affiliates under Section 4 of this letter agreement or any claim seeking an injunction, specific performance or other equitable remedy against any Parent Party under Section 9.6(b) of the Merger Agreement is then pending, this letter agreement shall only terminate upon the final, non-appealable resolution of such action and satisfaction by the Investor of any obligations finally determined by a court of competent jurisdiction or agreed to be owed by the Investor in connection with this letter agreement.
| - 3 - |
7. No Assignment. The Investor's obligation to fund the Contribution may not be assigned or delegated (whether by operation of law, merger, consolidation or otherwise). Neither this letter agreement nor any of the rights, interests or obligations hereunder shall be assignable by Holdco or Parent without the Investor's and the Company's prior written consent, and the granting of such consent in any given instance shall be solely in the discretion of the Investor and the Company and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment. Any purported transfer, assignment or delegation in violation of this Section 7 shall be null and void and of no force and effect.
8. No Other Beneficiaries. Except for the rights provided to the Company under Section 4 and Section 7 of this letter agreement, this letter agreement shall be binding on the Investor solely for the benefit of Holdco and Parent, and nothing set forth in this letter agreement is intended to or shall confer upon or give to any Person other than Holdco and Parent any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Holdco or Parent to enforce, the Contribution or any provisions of this letter agreement; provided that, notwithstanding anything to the contrary in this letter agreement, any Related Person shall be a third party beneficiary of the provisions set forth herein that are for the benefit of any Related Person (including the provisions of Sections 3, 8, 11, 12 and 14), and all such provisions shall survive any termination of this letter agreement indefinitely. Without limiting the foregoing, neither Holdco's, Parent's, Midco's, Merger Sub's nor the Company's creditors shall have the right to enforce this letter agreement or to cause Holdco or Parent or the Company to enforce this letter agreement.
9. Representations and Warranties. The Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this letter agreement; (b) the execution, delivery and performance of this letter agreement by the Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Investor are necessary therefor; (c) this letter agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by the Investor of this letter agreement do not and will not violate the organizational documents of the Investor or any applicable Law or conflict with any material agreement binding on the Investor; (e) the Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by the Investor.
10. Severability. Any term or provision of this letter agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this letter agreement in any jurisdiction and, if any provision of this letter agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this letter agreement may not be enforced without giving effect to the provisions of Sections 2 through 8, 11 and 12 hereof. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this letter agreement or any part hereof is invalid, illegal or unenforceable.
| - 4 - |
11. Jurisdiction; Dispute Resolution.
In the event of any dispute, controversy, or claim between the Investor and Holdco arising out of or relating to the breach, termination or validity of this letter agreement ("Dispute"), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission ("CIETAC") under the arbitration rules of CIETAC (the "Rule") in force when the notice of arbitration is submitted by a party.
The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule.
The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 11. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party.
The awards rendered by the arbitrators pursuant to this Section 11 shall be non-appealable, final, binding and conclusive on the parties to such Dispute.
The Investor, Holdco and Parent understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision.
12. Headings. Headings of the Sections of this letter agreement are for convenience of the parties only and shall be given no substantive or interpretive effect whatsoever.
13. Governing Law. This letter agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People's Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
| - 5 - |
14. Entire Agreement; Amendment; Counterparts. This letter agreement, the Escrow Agreement, the Limited Guarantee and the Merger Agreement constitute the entire agreement with respect to the subject matter hereof and thereof, and supersede all other prior agreements, understandings and statements, both written and oral, between or among Holdco, Parent or any of their respective Affiliates, on the one hand, and the Investor or any of its Affiliates, on the other hand. Any provision of this letter agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed by the Investor, Holdco and Parent; provided that any amendment, waiver or modification that would be expected to be adverse to the Company's rights set forth in Section 4 and/or Section 7 of this letter agreement shall require the prior written consent of the Company. This letter agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
[Remainder of page intentionally left blank]
| - 6 - |
| Very truly yours, | ||
| Beijing Sequoia Yi Yuan Equity Investment Center (Limited Partnership) | ||
| ( 北京红杉懿远股权投资中心 ( 有限合伙 ) ) | ||
| [Company chop is affixed] | ||
| By: | /s/ Kui Zhou | |
| Name: | Kui Zhou | |
| Title: | Authorized Representative of Executive Partner | |
| Agreed to and accepted as of the date first written above: | ||
| Tianjin Qixin Zhicheng Technology Co., Ltd. | ||
| (天津奇信志成科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: | Eric X. Chen | |
| Title: | Director | |
[Signature Page to Equity Commitment Letter]
Exhibit A
Subscription Agreement(s)
Exhibit 99.26
Execution Version
Golden Brick Silk Road Investment (Shenzhen) LLP
( 金砖丝路 ( 深圳 ) 股权投资合伙企业 ( 有限合伙 ) )
12/F, Tower A, Ping An International Finance Center, No. 1-3 Xinyuan Road South, Chaoyang District, Beijing
December 18, 2015
Tianjin Qixin Zhicheng Technology Co., Ltd.
(天津奇信志成科技有限公司)
Room 9-3-401
No. 39 Gaoxin 6th Road
Binhai Science and Technology Area
Binhai Hi-tech District
Tianjin, China
Tianjin Qixin Tongda Technology Co., Ltd.
(天津奇信通达科技有限公司)
No. 4-B-32, 4F, Building 3
No. 188 Rixin Avenue
Binhai Hi-Tech Zone
Binhai New District
Tianjin, P.R. China 300301
Solely for the purposes of Section 4 and Section 7 hereto,
Qihoo 360 Technology Co. Ltd.
Tower A, Building 2
No.6 Jiuxianqiao Road
Chaoyang District
Beijing, P.R. China 100015
Re: Equity Commitment Letter
Ladies and Gentlemen:
Golden Brick Silk Road Investment (Shenzhen) LLP (including its successors or permitted assigns, the "Investor") is pleased to offer this commitment, subject to the terms and conditions contained herein, to purchase, directly or indirectly, equity interests in (i) Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), and (ii) Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"). It is contemplated that pursuant to the terms of that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Company"), Holdco, Parent, True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), Merger Sub will merge with and into the Company, with the Company being the surviving company (the "Merger"). Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Merger Agreement.
1. Commitment. The Investor hereby agrees to contribute, or cause to be contributed, within three (3) Business Days after the conditions in Section 2 of this letter agreement are satisfied, as an equity contribution to (i) Holdco, an aggregate amount of RMB equivalent to US$ 172,673,200 (the "Holdco Contribution") and (ii) Parent, an aggregate amount of RMB equivalent to US$ 177,326,800 (the "Parent Contribution", and collectively with the Holdco Contribution, the "Contribution"), subject to the terms and conditions hereof. For purposes of this letter agreement, the RMB equivalents of U.S. dollars shall be determined using the prevailing exchange rate notified by Parent to the Investor at least three (3) Business Days prior to funding. The proceeds of the Holdco Contribution, along with the amounts to be paid by all other Investors (the "Other Investors") to Holdco under their respective Equity Commitment Letters, shall promptly upon receipt be further contributed by Holdco, as an equity contribution to Parent (collectively, the "Holdco to Parent Contribution"). The proceeds of the Parent Contribution, along with the Holdco to Parent Contribution and amounts to be paid by the Other Investors to Parent under their respective Equity Commitment Letters (such aggregate amount, the "Commitments"), shall be used by Parent, to the extent necessary, to (i) fund (or cause to be funded through Midco or Merger Sub) a portion of the Exchange Fund and any other amounts required to be paid pursuant to the Merger Agreement (including any applicable consideration to the holders of Company Convertible Notes or repurchase of any Company Convertible Notes) and (ii) pay (or cause to be paid through Midco or Merger Sub) related fees and expenses (which, for the avoidance of doubt, shall not include any Parent Termination Fee or any Guaranteed Obligations with respect to a Parent Termination Fee under the Limited Guarantee given by the Investor), in each case, pursuant to and in accordance with the terms of, and subject to the conditions of, the Merger Agreement. Notwithstanding anything else to the contrary in this letter agreement, the aggregate amount of liability of the Investor under this letter agreement shall at no time exceed the aggregate amount of the Contribution less any portion of the Contribution that has been funded in accordance with the terms hereof or the terms of that certain Escrow Agreement, dated of even date herewith, between the Investor and Parent (the "Escrow Agreement").
2. Closing Conditions. The Investor's obligation to make the Contribution pursuant to this letter agreement is subject to the satisfaction in full (or waiver, if permissible) of all conditions precedent to the obligations of the Parent Parties to consummate the transactions contemplated by the Merger Agreement set forth in Article VII thereof other than (i) conditions that by their nature are to be satisfied on the Closing Date and (ii) any PRC Regulatory Approval that is applicable to the Parent Parties only after the Equity Financing and/or the Debt Financing has been funded. The Investor shall make its Contribution pursuant to the terms of the forms of subscription agreement(s) attached hereto as Exhibit A, which do not contain any conditions to which the Investor's obligation to make the Contribution pursuant to this letter agreement is subject other than those referenced in the foregoing sentence.
| - 2 - |
3. Limited Guarantee. Concurrently with the execution and delivery of this letter agreement, the Investor is executing and delivering to the Company a Limited Guarantee (the "Limited Guarantee"). The Company's (i) remedies against the Investor and the Other Investors under their respective Limited Guarantees, (ii) rights set forth in Section 4 of this letter agreement and (iii) remedies against the Parent Parties under the Merger Agreement shall be, and are intended to be, the sole and exclusive direct or indirect remedies available to the Company against the Investor, any former, current or future director, officer, employee, agent or affiliate of the Investor, any former, current or future, direct or indirect holder of any equity interests or securities of the Investor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, affiliate, controlling person or representative of any of the foregoing (each such person or entity, a "Related Person") in respect of any liabilities or obligations arising under, or in connection with, this letter agreement, the Merger Agreement or the transactions contemplated thereby, including without limitation in the event any of the Parent Parties breaches its obligations under the Merger Agreement, whether or not such breach is caused by the Investor's breach of its obligations under this letter agreement; provided that, in the event the Company successfully compels specific performance of the obligations of the Parent Parties to consummate the Merger in accordance with, and subject to the terms and conditions set forth in, Section 9.6(b) of the Merger Agreement, and the Investor shall have made the Contribution (and all Other Investors have funded their Commitments in full and the Effective Time occurred), then neither the Company nor any other Person (including, without limitation, the Company's equityholders, Affiliates and Subsidiaries) shall have any remedy against the Investor or any Related Person, including under the Limited Guarantee.
4. Enforcement. This letter agreement may only be enforced (i) by Holdco or Parent, (ii) by the Company to seek specific performance of the Investor's obligations to fund the Contribution, (iii) by the Company to seek specific performance of Holdco's obligations under Section 1 of this letter agreement to fund the Holdco to Parent Contribution, in the case of each of clause (ii) and clause (iii), in accordance with the Merger Agreement or (iv) by the Company, as set forth in Section 7 of this letter agreement.
5. No Recourse. Notwithstanding anything that may be expressed or implied in this letter agreement, by their acceptance hereof, each of Holdco and Parent acknowledges and agrees that (a) notwithstanding that the Investor may be a limited liability entity, no recourse hereunder or under any documents or instruments delivered in connection herewith may be had against any Related Person, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding or by virtue of any statute, regulation or other applicable law, and (b) no personal liability whatsoever will attach to, be imposed on or otherwise be incurred by Related Persons in connection with this letter agreement or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations or by their creation.
6. Expiration. All obligations under this letter agreement shall expire and terminate automatically and immediately upon the earliest to occur of (a) the valid termination of the Merger Agreement in accordance with its terms, (b) the Closing (at which time the Contribution shall be discharged), (c) the making of the Contribution by the Investor or its permitted assigns, (d) the Company or any of its Affiliates asserting a claim that would make the Limited Guarantee become terminable in accordance with the terms thereof, and (e) ten (10) months after the date hereof; provided that, in the event a claim by the Company or any of its Affiliates under Section 4 of this letter agreement or any claim seeking an injunction, specific performance or other equitable remedy against any Parent Party under Section 9.6(b) of the Merger Agreement is then pending, this letter agreement shall only terminate upon the final, non-appealable resolution of such action and satisfaction by the Investor of any obligations finally determined by a court of competent jurisdiction or agreed to be owed by the Investor in connection with this letter agreement.
| - 3 - |
7. No Assignment. The Investor's obligation to fund the Contribution may not be assigned or delegated (whether by operation of law, merger, consolidation or otherwise). Neither this letter agreement nor any of the rights, interests or obligations hereunder shall be assignable by Holdco or Parent without the Investor's and the Company's prior written consent, and the granting of such consent in any given instance shall be solely in the discretion of the Investor and the Company and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment. Any purported transfer, assignment or delegation in violation of this Section 7 shall be null and void and of no force and effect.
8. No Other Beneficiaries. Except for the rights provided to the Company under Section 4 and Section 7 of this letter agreement, this letter agreement shall be binding on the Investor solely for the benefit of Holdco and Parent, and nothing set forth in this letter agreement is intended to or shall confer upon or give to any Person other than Holdco and Parent any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Holdco or Parent to enforce, the Contribution or any provisions of this letter agreement; provided that, notwithstanding anything to the contrary in this letter agreement, any Related Person shall be a third party beneficiary of the provisions set forth herein that are for the benefit of any Related Person (including the provisions of Sections 3, 8, 11, 12 and 14), and all such provisions shall survive any termination of this letter agreement indefinitely. Without limiting the foregoing, neither Holdco's, Parent's, Midco's, Merger Sub's nor the Company's creditors shall have the right to enforce this letter agreement or to cause Holdco or Parent or the Company to enforce this letter agreement.
9. Representations and Warranties. The Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this letter agreement; (b) the execution, delivery and performance of this letter agreement by the Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Investor are necessary therefor; (c) this letter agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by the Investor of this letter agreement do not and will not violate the organizational documents of the Investor or any applicable Law or conflict with any material agreement binding on the Investor; (e) the Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by the Investor.
10. Severability. Any term or provision of this letter agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this letter agreement in any jurisdiction and, if any provision of this letter agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this letter agreement may not be enforced without giving effect to the provisions of Sections 2 through 8, 11 and 12 hereof. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this letter agreement or any part hereof is invalid, illegal or unenforceable.
| - 4 - |
11. Jurisdiction; Dispute Resolution.
In the event of any dispute, controversy, or claim between the Investor and Holdco arising out of or relating to the breach, termination or validity of this letter agreement ("Dispute"), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission ("CIETAC") under the arbitration rules of CIETAC (the "Rule") in force when the notice of arbitration is submitted by a party.
The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule.
The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 11. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party.
The awards rendered by the arbitrators pursuant to this Section 11 shall be non-appealable, final, binding and conclusive on the parties to such Dispute.
The Investor, Holdco and Parent understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision.
12. Headings. Headings of the Sections of this letter agreement are for convenience of the parties only and shall be given no substantive or interpretive effect whatsoever.
13. Governing Law. This letter agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People's Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
| - 5 - |
14. Entire Agreement; Amendment; Counterparts. This letter agreement, the Escrow Agreement, the Limited Guarantee and the Merger Agreement constitute the entire agreement with respect to the subject matter hereof and thereof, and supersede all other prior agreements, understandings and statements, both written and oral, between or among Holdco, Parent or any of their respective Affiliates, on the one hand, and the Investor or any of its Affiliates, on the other hand. Any provision of this letter agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed by the Investor, Holdco and Parent; provided that any amendment, waiver or modification that would be expected to be adverse to the Company's rights set forth in Section 4 and/or Section 7 of this letter agreement shall require the prior written consent of the Company. This letter agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
[Remainder of page intentionally left blank]
| - 6 - |
| Very truly yours, | ||
| Golden Brick Silk Road Investment (Shenzhen) LLP | ||
| ( 金砖丝路 ( 深圳 ) 股权投资合伙企业 ( 有限合伙 ) ) | ||
| [Company chop is affixed] | ||
| By: | /s/ Yuping He | |
| Name: | Yuping He | |
| Title: | COO | |
| Very truly yours, | ||
Golden Brick Silk Road Capital (Shenzhen) Holding Limited | ||
(金砖资本控股有限公司（深圳）有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Shunxi Yue | |
| Name: | Shunxi Yue | |
| Agreed to and accepted as of the date first written above: | ||
| Tianjin Qixin Zhicheng Technology Co., Ltd. | ||
| (天津奇信志成科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory | |
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: | Eric X. Chen | |
| Title: | Director | |
[Signature Page to Equity Commitment Letter]
Exhibit A
Subscription Agreement(s)
Exhibit 99.27
Execution Version
CICC Jiatai (Tianjin) Equity Investment Fund, L.P.
( 中金佳泰 (天津) 股权投资基金合伙企业 (有限合伙) )
36th Floor, China World Office 2, No. 1 Jian Guo Men Wai Avenue,
Beijing, 100004, China
December 18, 2015
Tianjin Qixin Zhicheng Technology Co., Ltd.
(天津奇信志成科技有限公司)
Room 9-3-401
No. 39 Gaoxin 6th Road
Binhai Science and Technology Area
Binhai Hi-tech District
Tianjin, China
Tianjin Qixin Tongda Technology Co., Ltd.
(天津奇信通达科技有限公司)
No. 4-B-32, 4F, Building 3
No. 188 Rixin Avenue
Binhai Hi-Tech Zone
Binhai New District
Tianjin, P.R. China 300301
Solely for the purposes of Section 4 and Section 7 hereto,
Qihoo 360 Technology Co. Ltd.
Tower A, Building 2
No.6 Jiuxianqiao Road
Chaoyang District
Beijing, P.R. China 100015
Re: Equity Commitment Letter
Ladies and Gentlemen:
CICC Jiatai (Tianjin) Equity Investment Fund, L.P. (including its successors or permitted assigns, the "Investor") is pleased to offer this commitment, subject to the terms and conditions contained herein, to purchase, directly or indirectly, equity interests in (i) Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), and (ii) Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"). It is contemplated that pursuant to the terms of that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Company"), Holdco, Parent, True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), Merger Sub will merge with and into the Company, with the Company being the surviving company (the "Merger"). Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Merger Agreement.
1. Commitment. The Investor hereby agrees to contribute, or cause to be contributed, within three (3) Business Days after the conditions in Section 2 of this letter agreement are satisfied, as an equity contribution to (i) Holdco, an aggregate amount of RMB equivalent to US$ 24,667,600 (the "Holdco Contribution") and (ii) Parent, an aggregate amount of RMB equivalent to US$ 25,332,400 (the "Parent Contribution", and collectively with the Holdco Contribution, the "Contribution"), subject to the terms and conditions hereof. For purposes of this letter agreement, the RMB equivalents of U.S. dollars shall be determined using the prevailing exchange rate notified by Parent to the Investor at least three (3) Business Days prior to funding. The proceeds of the Holdco Contribution, along with the amounts to be paid by all other Investors (the "Other Investors") to Holdco under their respective Equity Commitment Letters, shall promptly upon receipt be further contributed by Holdco, as an equity contribution to Parent (collectively, the "Holdco to Parent Contribution"). The proceeds of the Parent Contribution, along with the Holdco to Parent Contribution and amounts to be paid by the Other Investors to Parent under their respective Equity Commitment Letters (such aggregate amount, the "Commitments"), shall be used by Parent, to the extent necessary, to (i) fund (or cause to be funded through Midco or Merger Sub) a portion of the Exchange Fund and any other amounts required to be paid pursuant to the Merger Agreement (including any applicable consideration to the holders of Company Convertible Notes or repurchase of any Company Convertible Notes) and (ii) pay (or cause to be paid through Midco or Merger Sub) related fees and expenses (which, for the avoidance of doubt, shall not include any Parent Termination Fee or any Guaranteed Obligations with respect to a Parent Termination Fee under the Limited Guarantee given by the Investor), in each case, pursuant to and in accordance with the terms of, and subject to the conditions of, the Merger Agreement. Notwithstanding anything else to the contrary in this letter agreement, the aggregate amount of liability of the Investor under this letter agreement shall at no time exceed the aggregate amount of the Contribution less any portion of the Contribution that has been funded in accordance with the terms hereof or the terms of that certain Escrow Agreement, dated of even date herewith, between the Investor and Parent (the "Escrow Agreement").
2. Closing Conditions. The Investor's obligation to make the Contribution pursuant to this letter agreement is subject to the satisfaction in full (or waiver, if permissible) of all conditions precedent to the obligations of the Parent Parties to consummate the transactions contemplated by the Merger Agreement set forth in Article VII thereof other than (i) conditions that by their nature are to be satisfied on the Closing Date and (ii) any PRC Regulatory Approval that is applicable to the Parent Parties only after the Equity Financing and/or the Debt Financing has been funded. The Investor shall make its Contribution pursuant to the terms of the forms of subscription agreement(s) attached hereto as Exhibit A, which do not contain any conditions to which the Investor's obligation to make the Contribution pursuant to this letter agreement is subject other than those referenced in the foregoing sentence.
| - 2 - |
3. Limited Guarantee. Concurrently with the execution and delivery of this letter agreement, the Investor is executing and delivering to the Company a Limited Guarantee (the "Limited Guarantee"). The Company's (i) remedies against the Investor and the Other Investors under their respective Limited Guarantees, (ii) rights set forth in Section 4 of this letter agreement and (iii) remedies against the Parent Parties under the Merger Agreement shall be, and are intended to be, the sole and exclusive direct or indirect remedies available to the Company against the Investor, any former, current or future director, officer, employee, agent or affiliate of the Investor, any former, current or future, direct or indirect holder of any equity interests or securities of the Investor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, affiliate, controlling person or representative of any of the foregoing (each such person or entity, a "Related Person") in respect of any liabilities or obligations arising under, or in connection with, this letter agreement, the Merger Agreement or the transactions contemplated thereby, including without limitation in the event any of the Parent Parties breaches its obligations under the Merger Agreement, whether or not such breach is caused by the Investor's breach of its obligations under this letter agreement; provided that, in the event the Company successfully compels specific performance of the obligations of the Parent Parties to consummate the Merger in accordance with, and subject to the terms and conditions set forth in, Section 9.6(b) of the Merger Agreement, and the Investor shall have made the Contribution (and all Other Investors have funded their Commitments in full and the Effective Time occurred), then neither the Company nor any other Person (including, without limitation, the Company's equityholders, Affiliates and Subsidiaries) shall have any remedy against the Investor or any Related Person, including under the Limited Guarantee.
4. Enforcement. This letter agreement may only be enforced (i) by Holdco or Parent, (ii) by the Company to seek specific performance of the Investor's obligations to fund the Contribution, (iii) by the Company to seek specific performance of Holdco's obligations under Section 1 of this letter agreement to fund the Holdco to Parent Contribution, in the case of each of clause (ii) and clause (iii), in accordance with the Merger Agreement or (iv) by the Company, as set forth in Section 7 of this letter agreement.
5. No Recourse. Notwithstanding anything that may be expressed or implied in this letter agreement, by their acceptance hereof, each of Holdco and Parent acknowledges and agrees that (a) notwithstanding that the Investor may be a limited liability entity, no recourse hereunder or under any documents or instruments delivered in connection herewith may be had against any Related Person, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding or by virtue of any statute, regulation or other applicable law, and (b) no personal liability whatsoever will attach to, be imposed on or otherwise be incurred by Related Persons in connection with this letter agreement or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations or by their creation.
6. Expiration. All obligations under this letter agreement shall expire and terminate automatically and immediately upon the earliest to occur of (a) the valid termination of the Merger Agreement in accordance with its terms, (b) the Closing (at which time the Contribution shall be discharged), (c) the making of the Contribution by the Investor or its permitted assigns, (d) the Company or any of its Affiliates asserting a claim that would make the Limited Guarantee become terminable in accordance with the terms thereof, and (e) ten (10) months after the date hereof; provided that, in the event a claim by the Company or any of its Affiliates under Section 4 of this letter agreement or any claim seeking an injunction, specific performance or other equitable remedy against any Parent Party under Section 9.6(b) of the Merger Agreement is then pending, this letter agreement shall only terminate upon the final, non-appealable resolution of such action and satisfaction by the Investor of any obligations finally determined by a court of competent jurisdiction or agreed to be owed by the Investor in connection with this letter agreement.
| - 3 - |
7. No Assignment. The Investor's obligation to fund the Contribution may not be assigned or delegated (whether by operation of law, merger, consolidation or otherwise). Neither this letter agreement nor any of the rights, interests or obligations hereunder shall be assignable by Holdco or Parent without the Investor's and the Company's prior written consent, and the granting of such consent in any given instance shall be solely in the discretion of the Investor and the Company and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment. Any purported transfer, assignment or delegation in violation of this Section 7 shall be null and void and of no force and effect.
8. No Other Beneficiaries. Except for the rights provided to the Company under Section 4 and Section 7 of this letter agreement, this letter agreement shall be binding on the Investor solely for the benefit of Holdco and Parent, and nothing set forth in this letter agreement is intended to or shall confer upon or give to any Person other than Holdco and Parent any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Holdco or Parent to enforce, the Contribution or any provisions of this letter agreement; provided that, notwithstanding anything to the contrary in this letter agreement, any Related Person shall be a third party beneficiary of the provisions set forth herein that are for the benefit of any Related Person (including the provisions of Sections 3, 8, 11, 12 and 14), and all such provisions shall survive any termination of this letter agreement indefinitely. Without limiting the foregoing, neither Holdco's, Parent's, Midco's, Merger Sub's nor the Company's creditors shall have the right to enforce this letter agreement or to cause Holdco or Parent or the Company to enforce this letter agreement.
9. Representations and Warranties. The Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this letter agreement; (b) the execution, delivery and performance of this letter agreement by the Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Investor are necessary therefor; (c) this letter agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by the Investor of this letter agreement do not and will not violate the organizational documents of the Investor or any applicable Law or conflict with any material agreement binding on the Investor; (e) the Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by the Investor.
10. Severability. Any term or provision of this letter agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this letter agreement in any jurisdiction and, if any provision of this letter agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this letter agreement may not be enforced without giving effect to the provisions of Sections 2 through 8, 11 and 12 hereof. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this letter agreement or any part hereof is invalid, illegal or unenforceable.
| - 4 - |
11. Jurisdiction; Dispute Resolution.
In the event of any dispute, controversy, or claim between the Investor and Holdco arising out of or relating to the breach, termination or validity of this letter agreement ("Dispute"), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission ("CIETAC") under the arbitration rules of CIETAC (the "Rule") in force when the notice of arbitration is submitted by a party.
The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule.
The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 11. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party.
The awards rendered by the arbitrators pursuant to this Section 11 shall be non-appealable, final, binding and conclusive on the parties to such Dispute.
The Investor, Holdco and Parent understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision.
12. Headings. Headings of the Sections of this letter agreement are for convenience of the parties only and shall be given no substantive or interpretive effect whatsoever.
13. Governing Law. This letter agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People's Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
| - 5 - |
14. Entire Agreement; Amendment; Counterparts. This letter agreement, the Escrow Agreement, the Limited Guarantee and the Merger Agreement constitute the entire agreement with respect to the subject matter hereof and thereof, and supersede all other prior agreements, understandings and statements, both written and oral, between or among Holdco, Parent or any of their respective Affiliates, on the one hand, and the Investor or any of its Affiliates, on the other hand. Any provision of this letter agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed by the Investor, Holdco and Parent; provided that any amendment, waiver or modification that would be expected to be adverse to the Company's rights set forth in Section 4 and/or Section 7 of this letter agreement shall require the prior written consent of the Company. This letter agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
[Remainder of page intentionally left blank]
| - 6 - |
| Very truly yours, | |
| CICC Jiatai (Tianjin) Equity Investment Fund, L.P. | |
| (中金佳泰 (天津) 股权投资基金合伙企业 (有限合伙) ) | |
| [Company chop is affixed] |
| By: | /s/ ZHANG QING | |
| Name: | 张清 ZHANG QING | |
| Title: | 委派代表 Authorized Representative |
| Agreed to and accepted as of the date first | |
| written above: | |
| Tianjin Qixin Zhicheng Technology Co., Ltd. | |
| (天津奇信志成科技有限公司) |
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory |
| Tianjin Qixin Tongda Technology Co., Ltd. | |
| (天津奇信通达科技有限公司) | |
| [Company chop is affixed] |
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory |
| Qihoo 360 Technology Co. Ltd. | |
| [Company chop is affixed] |
| By: | /s/ Eric X. Chen | |
| Name: | Eric X. Chen | |
| Title: | Director |
[Signature Page to Equity Commitment Letter]
Exhibit A
Subscription Agreement(s)
Exhibit 99.28
Execution Version
Shanghai Huasheng Lingfei Equity Investment (Limited Partnership)
( 上海华晟领飞股权投资合伙企业 (有限合伙) )
43th Floor, 1000 Lujiazui Ring Road, Pudong New Area,
Shanghai, 200120, China
December 18, 2015
Tianjin Qixin Zhicheng Technology Co., Ltd.
(天津奇信志成科技有限公司)
Room 9-3-401
No. 39 Gaoxin 6th Road
Binhai Science and Technology Area
Binhai Hi-tech District
Tianjin, China
Tianjin Qixin Tongda Technology Co., Ltd.
(天津奇信通达科技有限公司)
No. 4-B-32, 4F, Building 3
No. 188 Rixin Avenue
Binhai Hi-Tech Zone
Binhai New District
Tianjin, P.R. China 300301
Solely for the purposes of Section 4 and Section 7 hereto,
Qihoo 360 Technology Co. Ltd.
Tower A, Building 2
No.6 Jiuxianqiao Road
Chaoyang District
Beijing, P.R. China 100015
Re: Equity Commitment Letter
Ladies and Gentlemen:
Shanghai Huasheng Lingfei Equity Investment (Limited Partnership) (including its successors or permitted assigns, the "Investor") is pleased to offer this commitment, subject to the terms and conditions contained herein, to purchase, directly or indirectly, equity interests in (i) Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), and (ii) Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"). It is contemplated that pursuant to the terms of that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Company"), Holdco, Parent, True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), Merger Sub will merge with and into the Company, with the Company being the surviving company (the "Merger"). Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Merger Agreement.
1. Commitment. The Investor hereby agrees to contribute, or cause to be contributed, within three (3) Business Days after the conditions in Section 2 of this letter agreement are satisfied, as an equity contribution to (i) Holdco, an aggregate amount of RMB equivalent to US$ 88,803,360 (the "Holdco Contribution") and (ii) Parent, an aggregate amount of RMB equivalent to US$ 91,196,640 (the "Parent Contribution", and collectively with the Holdco Contribution, the "Contribution"), subject to the terms and conditions hereof. For purposes of this letter agreement, the RMB equivalents of U.S. dollars shall be determined using the prevailing exchange rate notified by Parent to the Investor at least three (3) Business Days prior to funding. The proceeds of the Holdco Contribution, along with the amounts to be paid by all other Investors (the "Other Investors") to Holdco under their respective Equity Commitment Letters, shall promptly upon receipt be further contributed by Holdco, as an equity contribution to Parent (collectively, the "Holdco to Parent Contribution"). The proceeds of the Parent Contribution, along with the Holdco to Parent Contribution and amounts to be paid by the Other Investors to Parent under their respective Equity Commitment Letters (such aggregate amount, the "Commitments"), shall be used by Parent, to the extent necessary, to (i) fund (or cause to be funded through Midco or Merger Sub) a portion of the Exchange Fund and any other amounts required to be paid pursuant to the Merger Agreement (including any applicable consideration to the holders of Company Convertible Notes or repurchase of any Company Convertible Notes) and (ii) pay (or cause to be paid through Midco or Merger Sub) related fees and expenses (which, for the avoidance of doubt, shall not include any Parent Termination Fee or any Guaranteed Obligations with respect to a Parent Termination Fee under the Limited Guarantee given by the Investor), in each case, pursuant to and in accordance with the terms of, and subject to the conditions of, the Merger Agreement. Notwithstanding anything else to the contrary in this letter agreement, the aggregate amount of liability of the Investor under this letter agreement shall at no time exceed the aggregate amount of the Contribution less any portion of the Contribution that has been funded in accordance with the terms hereof or the terms of that certain Escrow Agreement, dated of even date herewith, between the Investor and Parent (the "Escrow Agreement").
2. Closing Conditions. The Investor's obligation to make the Contribution pursuant to this letter agreement is subject to the satisfaction in full (or waiver, if permissible) of all conditions precedent to the obligations of the Parent Parties to consummate the transactions contemplated by the Merger Agreement set forth in Article VII thereof other than (i) conditions that by their nature are to be satisfied on the Closing Date and (ii) any PRC Regulatory Approval that is applicable to the Parent Parties only after the Equity Financing and/or the Debt Financing has been funded. The Investor shall make its Contribution pursuant to the terms of the forms of subscription agreement(s) attached hereto as Exhibit A, which do not contain any conditions to which the Investor's obligation to make the Contribution pursuant to this letter agreement is subject other than those referenced in the foregoing sentence.
| - 2 - |
3. Limited Guarantee. Concurrently with the execution and delivery of this letter agreement, the Investor is executing and delivering to the Company a Limited Guarantee (the "Limited Guarantee"). The Company's (i) remedies against the Investor and the Other Investors under their respective Limited Guarantees, (ii) rights set forth in Section 4 of this letter agreement and (iii) remedies against the Parent Parties under the Merger Agreement shall be, and are intended to be, the sole and exclusive direct or indirect remedies available to the Company against the Investor, any former, current or future director, officer, employee, agent or affiliate of the Investor, any former, current or future, direct or indirect holder of any equity interests or securities of the Investor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, affiliate, controlling person or representative of any of the foregoing (each such person or entity, a "Related Person") in respect of any liabilities or obligations arising under, or in connection with, this letter agreement, the Merger Agreement or the transactions contemplated thereby, including without limitation in the event any of the Parent Parties breaches its obligations under the Merger Agreement, whether or not such breach is caused by the Investor's breach of its obligations under this letter agreement; provided that, in the event the Company successfully compels specific performance of the obligations of the Parent Parties to consummate the Merger in accordance with, and subject to the terms and conditions set forth in, Section 9.6(b) of the Merger Agreement, and the Investor shall have made the Contribution (and all Other Investors have funded their Commitments in full and the Effective Time occurred), then neither the Company nor any other Person (including, without limitation, the Company's equityholders, Affiliates and Subsidiaries) shall have any remedy against the Investor or any Related Person, including under the Limited Guarantee.
4. Enforcement. This letter agreement may only be enforced (i) by Holdco or Parent, (ii) by the Company to seek specific performance of the Investor's obligations to fund the Contribution, (iii) by the Company to seek specific performance of Holdco's obligations under Section 1 of this letter agreement to fund the Holdco to Parent Contribution, in the case of each of clause (ii) and clause (iii), in accordance with the Merger Agreement or (iv) by the Company, as set forth in Section 7 of this letter agreement.
5. No Recourse. Notwithstanding anything that may be expressed or implied in this letter agreement, by their acceptance hereof, each of Holdco and Parent acknowledges and agrees that (a) notwithstanding that the Investor may be a limited liability entity, no recourse hereunder or under any documents or instruments delivered in connection herewith may be had against any Related Person, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding or by virtue of any statute, regulation or other applicable law, and (b) no personal liability whatsoever will attach to, be imposed on or otherwise be incurred by Related Persons in connection with this letter agreement or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations or by their creation.
6. Expiration. All obligations under this letter agreement shall expire and terminate automatically and immediately upon the earliest to occur of (a) the valid termination of the Merger Agreement in accordance with its terms, (b) the Closing (at which time the Contribution shall be discharged), (c) the making of the Contribution by the Investor or its permitted assigns, (d) the Company or any of its Affiliates asserting a claim that would make the Limited Guarantee become terminable in accordance with the terms thereof, and (e) ten (10) months after the date hereof; provided that, in the event a claim by the Company or any of its Affiliates under Section 4 of this letter agreement or any claim seeking an injunction, specific performance or other equitable remedy against any Parent Party under Section 9.6(b) of the Merger Agreement is then pending, this letter agreement shall only terminate upon the final, non-appealable resolution of such action and satisfaction by the Investor of any obligations finally determined by a court of competent jurisdiction or agreed to be owed by the Investor in connection with this letter agreement.
| - 3 - |
7. No Assignment. The Investor's obligation to fund the Contribution may not be assigned or delegated (whether by operation of law, merger, consolidation or otherwise). Neither this letter agreement nor any of the rights, interests or obligations hereunder shall be assignable by Holdco or Parent without the Investor's and the Company's prior written consent, and the granting of such consent in any given instance shall be solely in the discretion of the Investor and the Company and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment. Any purported transfer, assignment or delegation in violation of this Section 7 shall be null and void and of no force and effect.
8. No Other Beneficiaries. Except for the rights provided to the Company under Section 4 and Section 7 of this letter agreement, this letter agreement shall be binding on the Investor solely for the benefit of Holdco and Parent, and nothing set forth in this letter agreement is intended to or shall confer upon or give to any Person other than Holdco and Parent any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Holdco or Parent to enforce, the Contribution or any provisions of this letter agreement; provided that, notwithstanding anything to the contrary in this letter agreement, any Related Person shall be a third party beneficiary of the provisions set forth herein that are for the benefit of any Related Person (including the provisions of Sections 3, 8, 11, 12 and 14), and all such provisions shall survive any termination of this letter agreement indefinitely. Without limiting the foregoing, neither Holdco's, Parent's, Midco's, Merger Sub's nor the Company's creditors shall have the right to enforce this letter agreement or to cause Holdco or Parent or the Company to enforce this letter agreement.
9. Representations and Warranties. The Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this letter agreement; (b) the execution, delivery and performance of this letter agreement by the Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Investor are necessary therefor; (c) this letter agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by the Investor of this letter agreement do not and will not violate the organizational documents of the Investor or any applicable Law or conflict with any material agreement binding on the Investor; (e) the Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by the Investor.
10. Severability. Any term or provision of this letter agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this letter agreement in any jurisdiction and, if any provision of this letter agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this letter agreement may not be enforced without giving effect to the provisions of Sections 2 through 8, 11 and 12 hereof. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this letter agreement or any part hereof is invalid, illegal or unenforceable.
| - 4 - |
11. Jurisdiction; Dispute Resolution.
In the event of any dispute, controversy, or claim between the Investor and Holdco arising out of or relating to the breach, termination or validity of this letter agreement ("Dispute"), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission ("CIETAC") under the arbitration rules of CIETAC (the "Rule") in force when the notice of arbitration is submitted by a party.
The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule.
The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 11. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party.
The awards rendered by the arbitrators pursuant to this Section 11 shall be non-appealable, final, binding and conclusive on the parties to such Dispute.
The Investor, Holdco and Parent understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision.
12. Headings. Headings of the Sections of this letter agreement are for convenience of the parties only and shall be given no substantive or interpretive effect whatsoever.
13. Governing Law. This letter agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People's Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
| - 5 - |
14. Entire Agreement; Amendment; Counterparts. This letter agreement, the Escrow Agreement, the Limited Guarantee and the Merger Agreement constitute the entire agreement with respect to the subject matter hereof and thereof, and supersede all other prior agreements, understandings and statements, both written and oral, between or among Holdco, Parent or any of their respective Affiliates, on the one hand, and the Investor or any of its Affiliates, on the other hand. Any provision of this letter agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed by the Investor, Holdco and Parent; provided that any amendment, waiver or modification that would be expected to be adverse to the Company's rights set forth in Section 4 and/or Section 7 of this letter agreement shall require the prior written consent of the Company. This letter agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
[Remainder of page intentionally left blank]
| - 6 - |
| Very truly yours, | |
| Shanghai Huasheng Lingfei Equity Investment (Limited Partnership) | |
| (上海华晟领飞股权投资合伙企业 (有限合伙) ) | |
| [Company chop is affixed] |
| By: | /s/ Xinwei Wang | |
| Name: | Xinwei Wang | |
| Title: | Authorized Representative of Executive Partner |
| Agreed to and accepted as of the date first | |
| written above: |
| Tianjin Qixin Zhicheng Technology Co., Ltd. | |
| (天津奇信志成科技有限公司) |
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory |
| Tianjin Qixin Tongda Technology Co., Ltd. | |
| (天津奇信通达科技有限公司) | |
| [Company chop is affixed] |
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory |
| Qihoo 360 Technology Co. Ltd. |
| By: | /s/ Eric X. Chen | |
| Name: | Eric X. Chen | |
| Title: | Director |
[Signature Page to Equity Commitment Letter]
Exhibit A
Subscription Agreement(s)
Exhibit 99.29
Execution Version
BR Wiston Capital
(宁波博睿维森股权投资合伙企业 (有限合伙) )
Suite 906, Jin Bao Tower, 89 Jin Bao Street,
Beijing, 100005, China
December 18, 2015
Tianjin Qixin Zhicheng Technology Co., Ltd.
(天津奇信志成科技有限公司)
Room 9-3-401
No. 39 Gaoxin 6th Road
Binhai Science and Technology Area
Binhai Hi-tech District
Tianjin, China
Tianjin Qixin Tongda Technology Co., Ltd.
(天津奇信通达科技有限公司)
No. 4-B-32, 4F, Building 3
No. 188 Rixin Avenue
Binhai Hi-Tech Zone
Binhai New District
Tianjin, P.R. China 300301
Solely for the purposes of Section 4 and Section 7 hereto,
Qihoo 360 Technology Co. Ltd.
Tower A, Building 2
No.6 Jiuxianqiao Road
Chaoyang District
Beijing, P.R. China 100015
Re: Equity Commitment Letter
Ladies and Gentlemen:
BR Wiston Capital (including its successors or permitted assigns, the "Investor") is pleased to offer this commitment, subject to the terms and conditions contained herein, to purchase, directly or indirectly, equity interests in (i) Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), and (ii) Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"). It is contemplated that pursuant to the terms of that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Company"), Holdco, Parent, True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), Merger Sub will merge with and into the Company, with the Company being the surviving company (the "Merger"). Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Merger Agreement.
1. Commitment. The Investor hereby agrees to contribute, or cause to be contributed, within three (3) Business Days after the conditions in Section 2 of this letter agreement are satisfied, as an equity contribution to (i) Holdco, an aggregate amount of RMB equivalent to US$ 98,670,400 (the "Holdco Contribution") and (ii) Parent, an aggregate amount of RMB equivalent to US$ 101,329,600 (the "Parent Contribution", and collectively with the Holdco Contribution, the "Contribution"), subject to the terms and conditions hereof. For purposes of this letter agreement, the RMB equivalents of U.S. dollars shall be determined using the prevailing exchange rate notified by Parent to the Investor at least three (3) Business Days prior to funding. The proceeds of the Holdco Contribution, along with the amounts to be paid by all other Investors (the "Other Investors") to Holdco under their respective Equity Commitment Letters, shall promptly upon receipt be further contributed by Holdco, as an equity contribution to Parent (collectively, the "Holdco to Parent Contribution"). The proceeds of the Parent Contribution, along with the Holdco to Parent Contribution and amounts to be paid by the Other Investors to Parent under their respective Equity Commitment Letters (such aggregate amount, the "Commitments"), shall be used by Parent, to the extent necessary, to (i) fund (or cause to be funded through Midco or Merger Sub) a portion of the Exchange Fund and any other amounts required to be paid pursuant to the Merger Agreement (including any applicable consideration to the holders of Company Convertible Notes or repurchase of any Company Convertible Notes) and (ii) pay (or cause to be paid through Midco or Merger Sub) related fees and expenses (which, for the avoidance of doubt, shall not include any Parent Termination Fee or any Guaranteed Obligations with respect to a Parent Termination Fee under the Limited Guarantee given by the Investor), in each case, pursuant to and in accordance with the terms of, and subject to the conditions of, the Merger Agreement. Notwithstanding anything else to the contrary in this letter agreement, the aggregate amount of liability of the Investor under this letter agreement shall at no time exceed the aggregate amount of the Contribution less any portion of the Contribution that has been funded in accordance with the terms hereof or the terms of that certain Escrow Agreement, dated of even date herewith, between the Investor and Parent (the "Escrow Agreement").
2. Closing Conditions. The Investor's obligation to make the Contribution pursuant to this letter agreement is subject to the satisfaction in full (or waiver, if permissible) of all conditions precedent to the obligations of the Parent Parties to consummate the transactions contemplated by the Merger Agreement set forth in Article VII thereof other than (i) conditions that by their nature are to be satisfied on the Closing Date and (ii) any PRC Regulatory Approval that is applicable to the Parent Parties only after the Equity Financing and/or the Debt Financing has been funded. The Investor shall make its Contribution pursuant to the terms of the forms of subscription agreement(s) attached hereto as Exhibit A, which do not contain any conditions to which the Investor's obligation to make the Contribution pursuant to this letter agreement is subject other than those referenced in the foregoing sentence.
| - 2 - |
3. Limited Guarantee. Concurrently with the execution and delivery of this letter agreement, the Investor is executing and delivering to the Company a Limited Guarantee (the "Limited Guarantee"). The Company's (i) remedies against the Investor and the Other Investors under their respective Limited Guarantees, (ii) rights set forth in Section 4 of this letter agreement and (iii) remedies against the Parent Parties under the Merger Agreement shall be, and are intended to be, the sole and exclusive direct or indirect remedies available to the Company against the Investor, any former, current or future director, officer, employee, agent or affiliate of the Investor, any former, current or future, direct or indirect holder of any equity interests or securities of the Investor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, affiliate, controlling person or representative of any of the foregoing (each such person or entity, a "Related Person") in respect of any liabilities or obligations arising under, or in connection with, this letter agreement, the Merger Agreement or the transactions contemplated thereby, including without limitation in the event any of the Parent Parties breaches its obligations under the Merger Agreement, whether or not such breach is caused by the Investor's breach of its obligations under this letter agreement; provided that, in the event the Company successfully compels specific performance of the obligations of the Parent Parties to consummate the Merger in accordance with, and subject to the terms and conditions set forth in, Section 9.6(b) of the Merger Agreement, and the Investor shall have made the Contribution (and all Other Investors have funded their Commitments in full and the Effective Time occurred), then neither the Company nor any other Person (including, without limitation, the Company's equityholders, Affiliates and Subsidiaries) shall have any remedy against the Investor or any Related Person, including under the Limited Guarantee.
4. Enforcement. This letter agreement may only be enforced (i) by Holdco or Parent, (ii) by the Company to seek specific performance of the Investor's obligations to fund the Contribution, (iii) by the Company to seek specific performance of Holdco's obligations under Section 1 of this letter agreement to fund the Holdco to Parent Contribution, in the case of each of clause (ii) and clause (iii), in accordance with the Merger Agreement or (iv) by the Company, as set forth in Section 7 of this letter agreement.
5. No Recourse. Notwithstanding anything that may be expressed or implied in this letter agreement, by their acceptance hereof, each of Holdco and Parent acknowledges and agrees that (a) notwithstanding that the Investor may be a limited liability entity, no recourse hereunder or under any documents or instruments delivered in connection herewith may be had against any Related Person, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding or by virtue of any statute, regulation or other applicable law, and (b) no personal liability whatsoever will attach to, be imposed on or otherwise be incurred by Related Persons in connection with this letter agreement or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations or by their creation.
6. Expiration. All obligations under this letter agreement shall expire and terminate automatically and immediately upon the earliest to occur of (a) the valid termination of the Merger Agreement in accordance with its terms, (b) the Closing (at which time the Contribution shall be discharged), (c) the making of the Contribution by the Investor or its permitted assigns, (d) the Company or any of its Affiliates asserting a claim that would make the Limited Guarantee become terminable in accordance with the terms thereof, and (e) ten (10) months after the date hereof; provided that, in the event a claim by the Company or any of its Affiliates under Section 4 of this letter agreement or any claim seeking an injunction, specific performance or other equitable remedy against any Parent Party under Section 9.6(b) of the Merger Agreement is then pending, this letter agreement shall only terminate upon the final, non-appealable resolution of such action and satisfaction by the Investor of any obligations finally determined by a court of competent jurisdiction or agreed to be owed by the Investor in connection with this letter agreement.
| - 3 - |
7. No Assignment. The Investor's obligation to fund the Contribution may not be assigned or delegated (whether by operation of law, merger, consolidation or otherwise). Neither this letter agreement nor any of the rights, interests or obligations hereunder shall be assignable by Holdco or Parent without the Investor's and the Company's prior written consent, and the granting of such consent in any given instance shall be solely in the discretion of the Investor and the Company and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment. Any purported transfer, assignment or delegation in violation of this Section 7 shall be null and void and of no force and effect.
8. No Other Beneficiaries. Except for the rights provided to the Company under Section 4 and Section 7 of this letter agreement, this letter agreement shall be binding on the Investor solely for the benefit of Holdco and Parent, and nothing set forth in this letter agreement is intended to or shall confer upon or give to any Person other than Holdco and Parent any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Holdco or Parent to enforce, the Contribution or any provisions of this letter agreement; provided that, notwithstanding anything to the contrary in this letter agreement, any Related Person shall be a third party beneficiary of the provisions set forth herein that are for the benefit of any Related Person (including the provisions of Sections 3, 8, 11, 12 and 14), and all such provisions shall survive any termination of this letter agreement indefinitely. Without limiting the foregoing, neither Holdco's, Parent's, Midco's, Merger Sub's nor the Company's creditors shall have the right to enforce this letter agreement or to cause Holdco or Parent or the Company to enforce this letter agreement.
9. Representations and Warranties. The Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this letter agreement; (b) the execution, delivery and performance of this letter agreement by the Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Investor are necessary therefor; (c) this letter agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by the Investor of this letter agreement do not and will not violate the organizational documents of the Investor or any applicable Law or conflict with any material agreement binding on the Investor; (e) the Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by the Investor.
10. Severability. Any term or provision of this letter agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this letter agreement in any jurisdiction and, if any provision of this letter agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this letter agreement may not be enforced without giving effect to the provisions of Sections 2 through 8, 11 and 12 hereof. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this letter agreement or any part hereof is invalid, illegal or unenforceable.
| - 4 - |
11. Jurisdiction; Dispute Resolution.
In the event of any dispute, controversy, or claim between the Investor and Holdco arising out of or relating to the breach, termination or validity of this letter agreement ("Dispute"), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission ("CIETAC") under the arbitration rules of CIETAC (the "Rule") in force when the notice of arbitration is submitted by a party.
The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule.
The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 11. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party.
The awards rendered by the arbitrators pursuant to this Section 11 shall be non-appealable, final, binding and conclusive on the parties to such Dispute.
The Investor, Holdco and Parent understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision.
12. Headings. Headings of the Sections of this letter agreement are for convenience of the parties only and shall be given no substantive or interpretive effect whatsoever.
13. Governing Law. This letter agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People's Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
| - 5 - |
14. Entire Agreement; Amendment; Counterparts. This letter agreement, the Escrow Agreement, the Limited Guarantee and the Merger Agreement constitute the entire agreement with respect to the subject matter hereof and thereof, and supersede all other prior agreements, understandings and statements, both written and oral, between or among Holdco, Parent or any of their respective Affiliates, on the one hand, and the Investor or any of its Affiliates, on the other hand. Any provision of this letter agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed by the Investor, Holdco and Parent; provided that any amendment, waiver or modification that would be expected to be adverse to the Company's rights set forth in Section 4 and/or Section 7 of this letter agreement shall require the prior written consent of the Company. This letter agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
[Remainder of page intentionally left blank]
| - 6 - |
| Very truly yours, | |
| BR Wiston Capital | |
| (宁波博睿维森股权投资合伙企业 (有限合伙) ) | |
| [Company chop is affixed] |
| By: | /s/ Sun Peng | |
| Name: | Sun Peng 孙鹏 | |
| Title: | Authorized Representative of Managing Partner 执行事务合伙人委派代表 |
| Agreed to and accepted as of the date first | |
| written above: |
| Tianjin Qixin Zhicheng Technology Co., Ltd. | |
| (天津奇信志成科技有限公司) | |
| [Company chop is affixed] |
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory |
| Tianjin Qixin Tongda Technology Co., Ltd. | |
| (天津奇信通达科技有限公司) | |
| [Company chop is affixed] |
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory |
| Qihoo 360 Technology Co. Ltd. |
| By: | /s/ Eric X. Chen | |
| Name: | Eric X. Chen | |
| Title: | Director |
[Signature Page to Equity Commitment Letter]
Exhibit A
Subscription Agreement(s)
Exhibit 99.30
Execution Version
Yi Capital Qiyuan Fund, L.P.
(宁波执一奇元股权投资中心 (有限合伙) )
2105A, Tower A, Pingan International Financial Centre,
Xinyuan South Road, Beijing, 100027, China
December 18, 2015
Tianjin Qixin Zhicheng Technology Co., Ltd.
(天津奇信志成科技有限公司)
Room 9-3-401
No. 39 Gaoxin 6th Road
Binhai Science and Technology Area
Binhai Hi-tech District
Tianjin, China
Tianjin Qixin Tongda Technology Co., Ltd.
(天津奇信通达科技有限公司)
No. 4-B-32, 4F, Building 3
No. 188 Rixin Avenue
Binhai Hi-Tech Zone
Binhai New District
Tianjin, P.R. China 300301
Solely for the purposes of Section 4 and Section 7 hereto,
Qihoo 360 Technology Co. Ltd.
Tower A, Building 2
No.6 Jiuxianqiao Road
Chaoyang District
Beijing, P.R. China 100015
Re: Equity Commitment Letter
Ladies and Gentlemen:
Yi Capital Qiyuan Fund, L.P. (including its successors or permitted assigns, the "Investor") is pleased to offer this commitment, subject to the terms and conditions contained herein, to purchase, directly or indirectly, equity interests in (i) Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), and (ii) Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"). It is contemplated that pursuant to the terms of that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Company"), Holdco, Parent, True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), Merger Sub will merge with and into the Company, with the Company being the surviving company (the "Merger"). Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Merger Agreement.
1. Commitment. The Investor hereby agrees to contribute, or cause to be contributed, within three (3) Business Days after the conditions in Section 2 of this letter agreement are satisfied, as an equity contribution to (i) Holdco, an aggregate amount of RMB equivalent to US$ 49,335,200 (the "Holdco Contribution") and (ii) Parent, an aggregate amount of RMB equivalent to US$ 50,664,800 (the "Parent Contribution", and collectively with the Holdco Contribution, the "Contribution"), subject to the terms and conditions hereof. For purposes of this letter agreement, the RMB equivalents of U.S. dollars shall be determined using the prevailing exchange rate notified by Parent to the Investor at least three (3) Business Days prior to funding. The proceeds of the Holdco Contribution, along with the amounts to be paid by all other Investors (the "Other Investors") to Holdco under their respective Equity Commitment Letters, shall promptly upon receipt be further contributed by Holdco, as an equity contribution to Parent (collectively, the "Holdco to Parent Contribution"). The proceeds of the Parent Contribution, along with the Holdco to Parent Contribution and amounts to be paid by the Other Investors to Parent under their respective Equity Commitment Letters (such aggregate amount, the "Commitments"), shall be used by Parent, to the extent necessary, to (i) fund (or cause to be funded through Midco or Merger Sub) a portion of the Exchange Fund and any other amounts required to be paid pursuant to the Merger Agreement (including any applicable consideration to the holders of Company Convertible Notes or repurchase of any Company Convertible Notes) and (ii) pay (or cause to be paid through Midco or Merger Sub) related fees and expenses (which, for the avoidance of doubt, shall not include any Parent Termination Fee or any Guaranteed Obligations with respect to a Parent Termination Fee under the Limited Guarantee given by the Investor), in each case, pursuant to and in accordance with the terms of, and subject to the conditions of, the Merger Agreement. Notwithstanding anything else to the contrary in this letter agreement, the aggregate amount of liability of the Investor under this letter agreement shall at no time exceed the aggregate amount of the Contribution less any portion of the Contribution that has been funded in accordance with the terms hereof or the terms of that certain Escrow Agreement, dated of even date herewith, between the Investor and Parent (the "Escrow Agreement").
2. Closing Conditions. The Investor's obligation to make the Contribution pursuant to this letter agreement is subject to the satisfaction in full (or waiver, if permissible) of all conditions precedent to the obligations of the Parent Parties to consummate the transactions contemplated by the Merger Agreement set forth in Article VII thereof other than (i) conditions that by their nature are to be satisfied on the Closing Date and (ii) any PRC Regulatory Approval that is applicable to the Parent Parties only after the Equity Financing and/or the Debt Financing has been funded. The Investor shall make its Contribution pursuant to the terms of the forms of subscription agreement(s) attached hereto as Exhibit A, which do not contain any conditions to which the Investor's obligation to make the Contribution pursuant to this letter agreement is subject other than those referenced in the foregoing sentence.
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3. Limited Guarantee. Concurrently with the execution and delivery of this letter agreement, the Investor is executing and delivering to the Company a Limited Guarantee (the "Limited Guarantee"). The Company's (i) remedies against the Investor and the Other Investors under their respective Limited Guarantees, (ii) rights set forth in Section 4 of this letter agreement and (iii) remedies against the Parent Parties under the Merger Agreement shall be, and are intended to be, the sole and exclusive direct or indirect remedies available to the Company against the Investor, any former, current or future director, officer, employee, agent or affiliate of the Investor, any former, current or future, direct or indirect holder of any equity interests or securities of the Investor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, affiliate, controlling person or representative of any of the foregoing (each such person or entity, a "Related Person") in respect of any liabilities or obligations arising under, or in connection with, this letter agreement, the Merger Agreement or the transactions contemplated thereby, including without limitation in the event any of the Parent Parties breaches its obligations under the Merger Agreement, whether or not such breach is caused by the Investor's breach of its obligations under this letter agreement; provided that, in the event the Company successfully compels specific performance of the obligations of the Parent Parties to consummate the Merger in accordance with, and subject to the terms and conditions set forth in, Section 9.6(b) of the Merger Agreement, and the Investor shall have made the Contribution (and all Other Investors have funded their Commitments in full and the Effective Time occurred), then neither the Company nor any other Person (including, without limitation, the Company's equityholders, Affiliates and Subsidiaries) shall have any remedy against the Investor or any Related Person, including under the Limited Guarantee.
4. Enforcement. This letter agreement may only be enforced (i) by Holdco or Parent, (ii) by the Company to seek specific performance of the Investor's obligations to fund the Contribution, (iii) by the Company to seek specific performance of Holdco's obligations under Section 1 of this letter agreement to fund the Holdco to Parent Contribution, in the case of each of clause (ii) and clause (iii), in accordance with the Merger Agreement or (iv) by the Company, as set forth in Section 7 of this letter agreement.
5. No Recourse. Notwithstanding anything that may be expressed or implied in this letter agreement, by their acceptance hereof, each of Holdco and Parent acknowledges and agrees that (a) notwithstanding that the Investor may be a limited liability entity, no recourse hereunder or under any documents or instruments delivered in connection herewith may be had against any Related Person, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding or by virtue of any statute, regulation or other applicable law, and (b) no personal liability whatsoever will attach to, be imposed on or otherwise be incurred by Related Persons in connection with this letter agreement or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations or by their creation.
6. Expiration. All obligations under this letter agreement shall expire and terminate automatically and immediately upon the earliest to occur of (a) the valid termination of the Merger Agreement in accordance with its terms, (b) the Closing (at which time the Contribution shall be discharged), (c) the making of the Contribution by the Investor or its permitted assigns, (d) the Company or any of its Affiliates asserting a claim that would make the Limited Guarantee become terminable in accordance with the terms thereof, and (e) ten (10) months after the date hereof; provided that, in the event a claim by the Company or any of its Affiliates under Section 4 of this letter agreement or any claim seeking an injunction, specific performance or other equitable remedy against any Parent Party under Section 9.6(b) of the Merger Agreement is then pending, this letter agreement shall only terminate upon the final, non-appealable resolution of such action and satisfaction by the Investor of any obligations finally determined by a court of competent jurisdiction or agreed to be owed by the Investor in connection with this letter agreement.
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7. No Assignment. The Investor's obligation to fund the Contribution may not be assigned or delegated (whether by operation of law, merger, consolidation or otherwise). Neither this letter agreement nor any of the rights, interests or obligations hereunder shall be assignable by Holdco or Parent without the Investor's and the Company's prior written consent, and the granting of such consent in any given instance shall be solely in the discretion of the Investor and the Company and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment. Any purported transfer, assignment or delegation in violation of this Section 7 shall be null and void and of no force and effect.
8. No Other Beneficiaries. Except for the rights provided to the Company under Section 4 and Section 7 of this letter agreement, this letter agreement shall be binding on the Investor solely for the benefit of Holdco and Parent, and nothing set forth in this letter agreement is intended to or shall confer upon or give to any Person other than Holdco and Parent any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Holdco or Parent to enforce, the Contribution or any provisions of this letter agreement; provided that, notwithstanding anything to the contrary in this letter agreement, any Related Person shall be a third party beneficiary of the provisions set forth herein that are for the benefit of any Related Person (including the provisions of Sections 3, 8, 11, 12 and 14), and all such provisions shall survive any termination of this letter agreement indefinitely. Without limiting the foregoing, neither Holdco's, Parent's, Midco's, Merger Sub's nor the Company's creditors shall have the right to enforce this letter agreement or to cause Holdco or Parent or the Company to enforce this letter agreement.
9. Representations and Warranties. The Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this letter agreement; (b) the execution, delivery and performance of this letter agreement by the Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Investor are necessary therefor; (c) this letter agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by the Investor of this letter agreement do not and will not violate the organizational documents of the Investor or any applicable Law or conflict with any material agreement binding on the Investor; (e) the Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by the Investor.
10. Severability. Any term or provision of this letter agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this letter agreement in any jurisdiction and, if any provision of this letter agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this letter agreement may not be enforced without giving effect to the provisions of Sections 2 through 8, 11 and 12 hereof. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this letter agreement or any part hereof is invalid, illegal or unenforceable.
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11. Jurisdiction; Dispute Resolution.
In the event of any dispute, controversy, or claim between the Investor and Holdco arising out of or relating to the breach, termination or validity of this letter agreement ("Dispute"), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission ("CIETAC") under the arbitration rules of CIETAC (the "Rule") in force when the notice of arbitration is submitted by a party.
The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule.
The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 11. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party.
The awards rendered by the arbitrators pursuant to this Section 11 shall be non-appealable, final, binding and conclusive on the parties to such Dispute.
The Investor, Holdco and Parent understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision.
12. Headings. Headings of the Sections of this letter agreement are for convenience of the parties only and shall be given no substantive or interpretive effect whatsoever.
13. Governing Law. This letter agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People's Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
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14. Entire Agreement; Amendment; Counterparts. This letter agreement, the Escrow Agreement, the Limited Guarantee and the Merger Agreement constitute the entire agreement with respect to the subject matter hereof and thereof, and supersede all other prior agreements, understandings and statements, both written and oral, between or among Holdco, Parent or any of their respective Affiliates, on the one hand, and the Investor or any of its Affiliates, on the other hand. Any provision of this letter agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed by the Investor, Holdco and Parent; provided that any amendment, waiver or modification that would be expected to be adverse to the Company's rights set forth in Section 4 and/or Section 7 of this letter agreement shall require the prior written consent of the Company. This letter agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
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| Very truly yours, | |
| Yi Capital Qiyuan Fund, L.P. | |
| (宁波执一奇元股权投资中心 (有限合伙) ) | |
| [Company chop is affixed] |
| By: | /s/ Wenjiang Chen | |
| Name: | Wenjiang Chen (陈文江) | |
| Title: | Representative of General Partner of Yi Capital Qiyuan Fund L.P. (执行事务合伙人委派代表) |
| Agreed to and accepted as of the date first | |
| written above: |
| Tianjin Qixin Zhicheng Technology Co., Ltd. | |
| (天津奇信志成科技有限公司) | |
| [Company chop is affixed] |
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory |
| Tianjin Qixin Tongda Technology Co., Ltd. | |
| (天津奇信通达科技有限公司) | |
| [Company chop is affixed] |
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory |
| Qihoo 360 Technology Co. Ltd. |
| By: | /s/ Eric X. Chen | |
| Name: | Eric X. Chen | |
| Title: | Director |
[Signature Page to Equity Commitment Letter]
Exhibit A
Subscription Agreement(s)
Exhibit 99.31
Execution Version
Jiaxingyingfei Investment Center (Limited Partnership)
(嘉兴英飞投资中心 (有限合伙) )
A-2303, Jianwai SOHO, 39 East 3rd-Ring Road,
Chaoyang District, Beijing, 100022, P.R.C
December 18, 2015
Tianjin Qixin Zhicheng Technology Co., Ltd.
(天津奇信志成科技有限公司)
Room 9-3-401
No. 39 Gaoxin 6th Road
Binhai Science and Technology Area
Binhai Hi-tech District
Tianjin, China
Tianjin Qixin Tongda Technology Co., Ltd.
(天津奇信通达科技有限公司)
No. 4-B-32, 4F, Building 3
No. 188 Rixin Avenue
Binhai Hi-Tech Zone
Binhai New District
Tianjin, P.R. China 300301
Solely for the purposes of Section 4 and Section 7 hereto,
Qihoo 360 Technology Co. Ltd.
Tower A, Building 2
No.6 Jiuxianqiao Road
Chaoyang District
Beijing, P.R. China 100015
Re: Equity Commitment Letter
Ladies and Gentlemen:
Jiaxingyingfei Investment Center (Limited Partnership) (including its successors or permitted assigns, the "Investor") is pleased to offer this commitment, subject to the terms and conditions contained herein, to purchase, directly or indirectly, equity interests in (i) Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), and (ii) Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"). It is contemplated that pursuant to the terms of that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Company"), Holdco, Parent, True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), Merger Sub will merge with and into the Company, with the Company being the surviving company (the "Merger"). Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Merger Agreement.
1. Commitment. The Investor hereby agrees to contribute, or cause to be contributed, within three (3) Business Days after the conditions in Section 2 of this letter agreement are satisfied, as an equity contribution to (i) Holdco, an aggregate amount of RMB equivalent to US$ 22,200,840(the "Holdco Contribution") and (ii) Parent, an aggregate amount of RMB equivalent to US$ 22,799,160 (the "Parent Contribution", and collectively with the Holdco Contribution, the "Contribution"), subject to the terms and conditions hereof. For purposes of this letter agreement, the RMB equivalents of U.S. dollars shall be determined using the prevailing exchange rate notified by Parent to the Investor at least three (3) Business Days prior to funding. The proceeds of the Holdco Contribution, along with the amounts to be paid by all other Investors (the "Other Investors") to Holdco under their respective Equity Commitment Letters, shall promptly upon receipt be further contributed by Holdco, as an equity contribution to Parent (collectively, the "Holdco to Parent Contribution"). The proceeds of the Parent Contribution, along with the Holdco to Parent Contribution and amounts to be paid by the Other Investors to Parent under their respective Equity Commitment Letters (such aggregate amount, the "Commitments"), shall be used by Parent, to the extent necessary, to (i) fund (or cause to be funded through Midco or Merger Sub) a portion of the Exchange Fund and any other amounts required to be paid pursuant to the Merger Agreement (including any applicable consideration to the holders of Company Convertible Notes or repurchase of any Company Convertible Notes) and (ii) pay (or cause to be paid through Midco or Merger Sub) related fees and expenses (which, for the avoidance of doubt, shall not include any Parent Termination Fee or any Guaranteed Obligations with respect to a Parent Termination Fee under the Limited Guarantee given by the Investor), in each case, pursuant to and in accordance with the terms of, and subject to the conditions of, the Merger Agreement. Notwithstanding anything else to the contrary in this letter agreement, the aggregate amount of liability of the Investor under this letter agreement shall at no time exceed the aggregate amount of the Contribution less any portion of the Contribution that has been funded in accordance with the terms hereof or the terms of that certain Escrow Agreement, dated of even date herewith, between the Investor and Parent (the "Escrow Agreement").
2. Closing Conditions. The Investor's obligation to make the Contribution pursuant to this letter agreement is subject to the satisfaction in full (or waiver, if permissible) of all conditions precedent to the obligations of the Parent Parties to consummate the transactions contemplated by the Merger Agreement set forth in Article VII thereof other than (i) conditions that by their nature are to be satisfied on the Closing Date and (ii) any PRC Regulatory Approval that is applicable to the Parent Parties only after the Equity Financing and/or the Debt Financing has been funded. The Investor shall make its Contribution pursuant to the terms of the forms of subscription agreement(s) attached hereto as Exhibit A, which do not contain any conditions to which the Investor's obligation to make the Contribution pursuant to this letter agreement is subject other than those referenced in the foregoing sentence.
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3. Limited Guarantee. Concurrently with the execution and delivery of this letter agreement, the Investor is executing and delivering to the Company a Limited Guarantee (the "Limited Guarantee"). The Company's (i) remedies against the Investor and the Other Investors under their respective Limited Guarantees, (ii) rights set forth in Section 4 of this letter agreement and (iii) remedies against the Parent Parties under the Merger Agreement shall be, and are intended to be, the sole and exclusive direct or indirect remedies available to the Company against the Investor, any former, current or future director, officer, employee, agent or affiliate of the Investor, any former, current or future, direct or indirect holder of any equity interests or securities of the Investor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, affiliate, controlling person or representative of any of the foregoing (each such person or entity, a "Related Person") in respect of any liabilities or obligations arising under, or in connection with, this letter agreement, the Merger Agreement or the transactions contemplated thereby, including without limitation in the event any of the Parent Parties breaches its obligations under the Merger Agreement, whether or not such breach is caused by the Investor's breach of its obligations under this letter agreement; provided that, in the event the Company successfully compels specific performance of the obligations of the Parent Parties to consummate the Merger in accordance with, and subject to the terms and conditions set forth in, Section 9.6(b) of the Merger Agreement, and the Investor shall have made the Contribution (and all Other Investors have funded their Commitments in full and the Effective Time occurred), then neither the Company nor any other Person (including, without limitation, the Company's equityholders, Affiliates and Subsidiaries) shall have any remedy against the Investor or any Related Person, including under the Limited Guarantee.
4. Enforcement. This letter agreement may only be enforced (i) by Holdco or Parent, (ii) by the Company to seek specific performance of the Investor's obligations to fund the Contribution, (iii) by the Company to seek specific performance of Holdco's obligations under Section 1 of this letter agreement to fund the Holdco to Parent Contribution, in the case of each of clause (ii) and clause (iii), in accordance with the Merger Agreement or (iv) by the Company, as set forth in Section 7 of this letter agreement.
5. No Recourse. Notwithstanding anything that may be expressed or implied in this letter agreement, by their acceptance hereof, each of Holdco and Parent acknowledges and agrees that (a) notwithstanding that the Investor may be a limited liability entity, no recourse hereunder or under any documents or instruments delivered in connection herewith may be had against any Related Person, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding or by virtue of any statute, regulation or other applicable law, and (b) no personal liability whatsoever will attach to, be imposed on or otherwise be incurred by Related Persons in connection with this letter agreement or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations or by their creation.
6. Expiration. All obligations under this letter agreement shall expire and terminate automatically and immediately upon the earliest to occur of (a) the valid termination of the Merger Agreement in accordance with its terms, (b) the Closing (at which time the Contribution shall be discharged), (c) the making of the Contribution by the Investor or its permitted assigns, (d) the Company or any of its Affiliates asserting a claim that would make the Limited Guarantee become terminable in accordance with the terms thereof, and (e) ten (10) months after the date hereof; provided that, in the event a claim by the Company or any of its Affiliates under Section 4 of this letter agreement or any claim seeking an injunction, specific performance or other equitable remedy against any Parent Party under Section 9.6(b) of the Merger Agreement is then pending, this letter agreement shall only terminate upon the final, non-appealable resolution of such action and satisfaction by the Investor of any obligations finally determined by a court of competent jurisdiction or agreed to be owed by the Investor in connection with this letter agreement.
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7. No Assignment. The Investor's obligation to fund the Contribution may not be assigned or delegated (whether by operation of law, merger, consolidation or otherwise). Neither this letter agreement nor any of the rights, interests or obligations hereunder shall be assignable by Holdco or Parent without the Investor's and the Company's prior written consent, and the granting of such consent in any given instance shall be solely in the discretion of the Investor and the Company and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment. Any purported transfer, assignment or delegation in violation of this Section 7 shall be null and void and of no force and effect.
8. No Other Beneficiaries. Except for the rights provided to the Company under Section 4 and Section 7 of this letter agreement, this letter agreement shall be binding on the Investor solely for the benefit of Holdco and Parent, and nothing set forth in this letter agreement is intended to or shall confer upon or give to any Person other than Holdco and Parent any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Holdco or Parent to enforce, the Contribution or any provisions of this letter agreement; provided that, notwithstanding anything to the contrary in this letter agreement, any Related Person shall be a third party beneficiary of the provisions set forth herein that are for the benefit of any Related Person (including the provisions of Sections 3, 8, 11, 12 and 14), and all such provisions shall survive any termination of this letter agreement indefinitely. Without limiting the foregoing, neither Holdco's, Parent's, Midco's, Merger Sub's nor the Company's creditors shall have the right to enforce this letter agreement or to cause Holdco or Parent or the Company to enforce this letter agreement.
9. Representations and Warranties. The Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this letter agreement; (b) the execution, delivery and performance of this letter agreement by the Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Investor are necessary therefor; (c) this letter agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by the Investor of this letter agreement do not and will not violate the organizational documents of the Investor or any applicable Law or conflict with any material agreement binding on the Investor; (e) the Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by the Investor.
10. Severability. Any term or provision of this letter agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this letter agreement in any jurisdiction and, if any provision of this letter agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this letter agreement may not be enforced without giving effect to the provisions of Sections 2 through 8, 11 and 12 hereof. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this letter agreement or any part hereof is invalid, illegal or unenforceable.
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11. Jurisdiction; Dispute Resolution.
In the event of any dispute, controversy, or claim between the Investor and Holdco arising out of or relating to the breach, termination or validity of this letter agreement ("Dispute"), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission ("CIETAC") under the arbitration rules of CIETAC (the "Rule") in force when the notice of arbitration is submitted by a party.
The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule.
The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 11. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party.
The awards rendered by the arbitrators pursuant to this Section 11 shall be non-appealable, final, binding and conclusive on the parties to such Dispute.
The Investor, Holdco and Parent understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision.
12. Headings. Headings of the Sections of this letter agreement are for convenience of the parties only and shall be given no substantive or interpretive effect whatsoever.
13. Governing Law. This letter agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People's Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
| - 5 - |
14. Entire Agreement; Amendment; Counterparts. This letter agreement, the Escrow Agreement, the Limited Guarantee and the Merger Agreement constitute the entire agreement with respect to the subject matter hereof and thereof, and supersede all other prior agreements, understandings and statements, both written and oral, between or among Holdco, Parent or any of their respective Affiliates, on the one hand, and the Investor or any of its Affiliates, on the other hand. Any provision of this letter agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed by the Investor, Holdco and Parent; provided that any amendment, waiver or modification that would be expected to be adverse to the Company's rights set forth in Section 4 and/or Section 7 of this letter agreement shall require the prior written consent of the Company. This letter agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
[Remainder of page intentionally left blank]
| - 6 - |
| Very truly yours, | |
| Jiaxingyingfei Investment Center (Limited Partnership) | |
| (嘉兴英飞投资中心 (有限合伙) ) | |
| [Company chop is affixed] |
| By: | /s/ Xiuzhen Wang | |
| Name: | Managing partner (执行事务合伙人) | |
| Title: | Managing partner |
| Agreed to and accepted as of the date first | |
| written above: | |
| Tianjin Qixin Zhicheng Technology Co., Ltd. | |
| (天津奇信志成科技有限公司) | |
| [Company chop is affixed] |
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory |
| Tianjin Qixin Tongda Technology Co., Ltd. | |
| (天津奇信通达科技有限公司) | |
| [Company chop is affixed] |
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory |
| Qihoo 360 Technology Co. Ltd. |
| By: | /s/ Eric X. Chen | |
| Name: | Eric X. Chen | |
| Title: | Director |
[Signature Page to Equity Commitment Letter]
Exhibit A
Subscription Agreement(s)
Exhibit 99.32
Execution Version
Jiaxing Yun Qi Internet Plus Venture Partners LLP
嘉兴云启网加创业投资合伙企业 (有限合伙)
Lane 249, Anfu Road No. 5, Xuhui District,
Shanghai, 200031, China
December 18, 2015
Tianjin Qixin Zhicheng Technology Co., Ltd.
(天津奇信志成科技有限公司)
Room 9-3-401
No. 39 Gaoxin 6th Road
Binhai Science and Technology Area
Binhai Hi-tech District
Tianjin, China
Tianjin Qixin Tongda Technology Co., Ltd.
(天津奇信通达科技有限公司)
No. 4-B-32, 4F, Building 3
No. 188 Rixin Avenue
Binhai Hi-Tech Zone
Binhai New District
Tianjin, P.R. China 300301
Solely for the purposes of Section 4 and Section 7 hereto,
Qihoo 360 Technology Co. Ltd.
Tower A, Building 2
No.6 Jiuxianqiao Road
Chaoyang District
Beijing, P.R. China 100015
Re: Equity Commitment Letter
Ladies and Gentlemen:
Jiaxing Yun Qi Internet Plus Venture Partners LLP (including its successors or permitted assigns, the "Investor") is pleased to offer this commitment, subject to the terms and conditions contained herein, to purchase, directly or indirectly, equity interests in (i) Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), and (ii) Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"). It is contemplated that pursuant to the terms of that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Company"), Holdco, Parent, True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), Merger Sub will merge with and into the Company, with the Company being the surviving company (the "Merger"). Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Merger Agreement.
1. Commitment. The Investor hereby agrees to contribute, or cause to be contributed, within three (3) Business Days after the conditions in Section 2 of this letter agreement are satisfied, as an equity contribution to (i) Holdco, an aggregate amount of RMB equivalent to US$ 22,200,840(the "Holdco Contribution") and (ii) Parent, an aggregate amount of RMB equivalent to US$ 22,799,160 (the "Parent Contribution", and collectively with the Holdco Contribution, the "Contribution"), subject to the terms and conditions hereof. For purposes of this letter agreement, the RMB equivalents of U.S. dollars shall be determined using the prevailing exchange rate notified by Parent to the Investor at least three (3) Business Days prior to funding. The proceeds of the Holdco Contribution, along with the amounts to be paid by all other Investors (the "Other Investors") to Holdco under their respective Equity Commitment Letters, shall promptly upon receipt be further contributed by Holdco, as an equity contribution to Parent (collectively, the "Holdco to Parent Contribution"). The proceeds of the Parent Contribution, along with the Holdco to Parent Contribution and amounts to be paid by the Other Investors to Parent under their respective Equity Commitment Letters (such aggregate amount, the "Commitments"), shall be used by Parent, to the extent necessary, to (i) fund (or cause to be funded through Midco or Merger Sub) a portion of the Exchange Fund and any other amounts required to be paid pursuant to the Merger Agreement (including any applicable consideration to the holders of Company Convertible Notes or repurchase of any Company Convertible Notes) and (ii) pay (or cause to be paid through Midco or Merger Sub) related fees and expenses (which, for the avoidance of doubt, shall not include any Parent Termination Fee or any Guaranteed Obligations with respect to a Parent Termination Fee under the Limited Guarantee given by the Investor), in each case, pursuant to and in accordance with the terms of, and subject to the conditions of, the Merger Agreement. Notwithstanding anything else to the contrary in this letter agreement, the aggregate amount of liability of the Investor under this letter agreement shall at no time exceed the aggregate amount of the Contribution less any portion of the Contribution that has been funded in accordance with the terms hereof or the terms of that certain Escrow Agreement, dated of even date herewith, between the Investor and Parent (the "Escrow Agreement").
2. Closing Conditions. The Investor's obligation to make the Contribution pursuant to this letter agreement is subject to the satisfaction in full (or waiver, if permissible) of all conditions precedent to the obligations of the Parent Parties to consummate the transactions contemplated by the Merger Agreement set forth in Article VII thereof other than (i) conditions that by their nature are to be satisfied on the Closing Date and (ii) any PRC Regulatory Approval that is applicable to the Parent Parties only after the Equity Financing and/or the Debt Financing has been funded. The Investor shall make its Contribution pursuant to the terms of the forms of subscription agreement(s) attached hereto as Exhibit A, which do not contain any conditions to which the Investor's obligation to make the Contribution pursuant to this letter agreement is subject other than those referenced in the foregoing sentence.
| - 2 - |
3. Limited Guarantee. Concurrently with the execution and delivery of this letter agreement, the Investor is executing and delivering to the Company a Limited Guarantee (the "Limited Guarantee"). The Company's (i) remedies against the Investor and the Other Investors under their respective Limited Guarantees, (ii) rights set forth in Section 4 of this letter agreement and (iii) remedies against the Parent Parties under the Merger Agreement shall be, and are intended to be, the sole and exclusive direct or indirect remedies available to the Company against the Investor, any former, current or future director, officer, employee, agent or affiliate of the Investor, any former, current or future, direct or indirect holder of any equity interests or securities of the Investor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, affiliate, controlling person or representative of any of the foregoing (each such person or entity, a "Related Person") in respect of any liabilities or obligations arising under, or in connection with, this letter agreement, the Merger Agreement or the transactions contemplated thereby, including without limitation in the event any of the Parent Parties breaches its obligations under the Merger Agreement, whether or not such breach is caused by the Investor's breach of its obligations under this letter agreement; provided that, in the event the Company successfully compels specific performance of the obligations of the Parent Parties to consummate the Merger in accordance with, and subject to the terms and conditions set forth in, Section 9.6(b) of the Merger Agreement, and the Investor shall have made the Contribution (and all Other Investors have funded their Commitments in full and the Effective Time occurred), then neither the Company nor any other Person (including, without limitation, the Company's equityholders, Affiliates and Subsidiaries) shall have any remedy against the Investor or any Related Person, including under the Limited Guarantee.
4. Enforcement. This letter agreement may only be enforced (i) by Holdco or Parent, (ii) by the Company to seek specific performance of the Investor's obligations to fund the Contribution, (iii) by the Company to seek specific performance of Holdco's obligations under Section 1 of this letter agreement to fund the Holdco to Parent Contribution, in the case of each of clause (ii) and clause (iii), in accordance with the Merger Agreement or (iv) by the Company, as set forth in Section 7 of this letter agreement.
5. No Recourse. Notwithstanding anything that may be expressed or implied in this letter agreement, by their acceptance hereof, each of Holdco and Parent acknowledges and agrees that (a) notwithstanding that the Investor may be a limited liability entity, no recourse hereunder or under any documents or instruments delivered in connection herewith may be had against any Related Person, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding or by virtue of any statute, regulation or other applicable law, and (b) no personal liability whatsoever will attach to, be imposed on or otherwise be incurred by Related Persons in connection with this letter agreement or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations or by their creation.
6. Expiration. All obligations under this letter agreement shall expire and terminate automatically and immediately upon the earliest to occur of (a) the valid termination of the Merger Agreement in accordance with its terms, (b) the Closing (at which time the Contribution shall be discharged), (c) the making of the Contribution by the Investor or its permitted assigns, (d) the Company or any of its Affiliates asserting a claim that would make the Limited Guarantee become terminable in accordance with the terms thereof, and (e) ten (10) months after the date hereof; provided that, in the event a claim by the Company or any of its Affiliates under Section 4 of this letter agreement or any claim seeking an injunction, specific performance or other equitable remedy against any Parent Party under Section 9.6(b) of the Merger Agreement is then pending, this letter agreement shall only terminate upon the final, non-appealable resolution of such action and satisfaction by the Investor of any obligations finally determined by a court of competent jurisdiction or agreed to be owed by the Investor in connection with this letter agreement.
| - 3 - |
7. No Assignment. The Investor's obligation to fund the Contribution may not be assigned or delegated (whether by operation of law, merger, consolidation or otherwise). Neither this letter agreement nor any of the rights, interests or obligations hereunder shall be assignable by Holdco or Parent without the Investor's and the Company's prior written consent, and the granting of such consent in any given instance shall be solely in the discretion of the Investor and the Company and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment. Any purported transfer, assignment or delegation in violation of this Section 7 shall be null and void and of no force and effect.
8. No Other Beneficiaries. Except for the rights provided to the Company under Section 4 and Section 7 of this letter agreement, this letter agreement shall be binding on the Investor solely for the benefit of Holdco and Parent, and nothing set forth in this letter agreement is intended to or shall confer upon or give to any Person other than Holdco and Parent any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Holdco or Parent to enforce, the Contribution or any provisions of this letter agreement; provided that, notwithstanding anything to the contrary in this letter agreement, any Related Person shall be a third party beneficiary of the provisions set forth herein that are for the benefit of any Related Person (including the provisions of Sections 3, 8, 11, 12 and 14), and all such provisions shall survive any termination of this letter agreement indefinitely. Without limiting the foregoing, neither Holdco's, Parent's, Midco's, Merger Sub's nor the Company's creditors shall have the right to enforce this letter agreement or to cause Holdco or Parent or the Company to enforce this letter agreement.
9. Representations and Warranties. The Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this letter agreement; (b) the execution, delivery and performance of this letter agreement by the Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Investor are necessary therefor; (c) this letter agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by the Investor of this letter agreement do not and will not violate the organizational documents of the Investor or any applicable Law or conflict with any material agreement binding on the Investor; (e) the Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by the Investor.
10. Severability. Any term or provision of this letter agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this letter agreement in any jurisdiction and, if any provision of this letter agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this letter agreement may not be enforced without giving effect to the provisions of Sections 2 through 8, 11 and 12 hereof. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this letter agreement or any part hereof is invalid, illegal or unenforceable.
| - 4 - |
11. Jurisdiction; Dispute Resolution.
In the event of any dispute, controversy, or claim between the Investor and Holdco arising out of or relating to the breach, termination or validity of this letter agreement ("Dispute"), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission ("CIETAC") under the arbitration rules of CIETAC (the "Rule") in force when the notice of arbitration is submitted by a party.
The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule.
The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 11. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party.
The awards rendered by the arbitrators pursuant to this Section 11 shall be non-appealable, final, binding and conclusive on the parties to such Dispute.
The Investor, Holdco and Parent understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision.
12. Headings. Headings of the Sections of this letter agreement are for convenience of the parties only and shall be given no substantive or interpretive effect whatsoever.
13. Governing Law. This letter agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People's Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
| - 5 - |
14. Entire Agreement; Amendment; Counterparts. This letter agreement, the Escrow Agreement, the Limited Guarantee and the Merger Agreement constitute the entire agreement with respect to the subject matter hereof and thereof, and supersede all other prior agreements, understandings and statements, both written and oral, between or among Holdco, Parent or any of their respective Affiliates, on the one hand, and the Investor or any of its Affiliates, on the other hand. Any provision of this letter agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed by the Investor, Holdco and Parent; provided that any amendment, waiver or modification that would be expected to be adverse to the Company's rights set forth in Section 4 and/or Section 7 of this letter agreement shall require the prior written consent of the Company. This letter agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
[Remainder of page intentionally left blank]
| - 6 - |
| Very truly yours, | |
| Jiaxing Yun Qi Internet Plus Venture Partners LLP | |
| (嘉兴云启网加创业投资合伙企业 (有限合伙) ) | |
| [Company chop is affixed] |
| By: | /s/ MAO Chengyu | |
| Name: | MAO Chengyu (毛丞宇) | |
| Title: | Authorized Signatory |
| Agreed to and accepted as of the date first | |
| written above: | |
| Tianjin Qixin Zhicheng Technology Co., Ltd. | |
| (天津奇信志成科技有限公司) | |
| [Company chop is affixed] |
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory |
| Tianjin Qixin Tongda Technology Co., Ltd. | |
| (天津奇信通达科技有限公司) | |
| [Company chop is affixed] |
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory |
| Qihoo 360 Technology Co. Ltd. |
| By: | /s/ Eric X. Chen | |
| Name: | Eric X. Chen | |
| Title: | Director |
[Signature Page to Equity Commitment Letter]
Exhibit A
Subscription Agreement(s)
Exhibit 99.33
Execution Version
Ruipu Wenhua (Tianjin) Investment Center (Limited Partnership)
锐普文华 (天津) 投资中心 (有限合伙)
Suite 1801, Tower 2, Kerry Center,
1539 Nanjing Road West,
Shanghai, China, 200040
December 18, 2015
Tianjin Qixin Zhicheng Technology Co., Ltd.
(天津奇信志成科技有限公司)
Room 9-3-401
No. 39 Gaoxin 6th Road
Binhai Science and Technology Area
Binhai Hi-tech District
Tianjin, China
Tianjin Qixin Tongda Technology Co., Ltd.
(天津奇信通达科技有限公司)
No. 4-B-32, 4F, Building 3
No. 188 Rixin Avenue
Binhai Hi-Tech Zone
Binhai New District
Tianjin, P.R. China 300301
Solely for the purposes of Section 4 and Section 7 hereto,
Qihoo 360 Technology Co. Ltd.
Tower A, Building 2
No.6 Jiuxianqiao Road
Chaoyang District
Beijing, P.R. China 100015
Re: Equity Commitment Letter
Ladies and Gentlemen:
Ruipu Wenhua (Tianjin) Investment Center (Limited Partnership) (including its successors or permitted assigns, the "Investor") is pleased to offer this commitment, subject to the terms and conditions contained herein, to purchase, directly or indirectly, equity interests in (i) Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), and (ii) Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"). It is contemplated that pursuant to the terms of that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Company"), Holdco, Parent, True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), Merger Sub will merge with and into the Company, with the Company being the surviving company (the "Merger"). Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Merger Agreement.
1. Commitment. The Investor hereby agrees to contribute, or cause to be contributed, within three (3) Business Days after the conditions in Section 2 of this letter agreement are satisfied, as an equity contribution to (i) Holdco, an aggregate amount of RMB equivalent to US$ 39,468,160 (the "Holdco Contribution") and (ii) Parent, an aggregate amount of RMB equivalent to US$ 40,531,840 million (the "Parent Contribution", and collectively with the Holdco Contribution, the "Contribution"), subject to the terms and conditions hereof. For purposes of this letter agreement, the RMB equivalents of U.S. dollars shall be determined using the prevailing exchange rate notified by Parent to the Investor at least three (3) Business Days prior to funding. The proceeds of the Holdco Contribution, along with the amounts to be paid by all other Investors (the "Other Investors") to Holdco under their respective Equity Commitment Letters, shall promptly upon receipt be further contributed by Holdco, as an equity contribution to Parent (collectively, the "Holdco to Parent Contribution"). The proceeds of the Parent Contribution, along with the Holdco to Parent Contribution and amounts to be paid by the Other Investors to Parent under their respective Equity Commitment Letters (such aggregate amount, the "Commitments"), shall be used by Parent, to the extent necessary, to (i) fund (or cause to be funded through Midco or Merger Sub) a portion of the Exchange Fund and any other amounts required to be paid pursuant to the Merger Agreement (including any applicable consideration to the holders of Company Convertible Notes or repurchase of any Company Convertible Notes) and (ii) pay (or cause to be paid through Midco or Merger Sub) related fees and expenses (which, for the avoidance of doubt, shall not include any Parent Termination Fee or any Guaranteed Obligations with respect to a Parent Termination Fee under the Limited Guarantee given by the Investor), in each case, pursuant to and in accordance with the terms of, and subject to the conditions of, the Merger Agreement. Notwithstanding anything else to the contrary in this letter agreement, the aggregate amount of liability of the Investor under this letter agreement shall at no time exceed the aggregate amount of the Contribution less any portion of the Contribution that has been funded in accordance with the terms hereof or the terms of that certain Escrow Agreement, dated of even date herewith, between the Investor and Parent (the "Escrow Agreement").
2. Closing Conditions. The Investor's obligation to make the Contribution pursuant to this letter agreement is subject to the satisfaction in full (or waiver, if permissible) of all conditions precedent to the obligations of the Parent Parties to consummate the transactions contemplated by the Merger Agreement set forth in Article VII thereof other than (i) conditions that by their nature are to be satisfied on the Closing Date and (ii) any PRC Regulatory Approval that is applicable to the Parent Parties only after the Equity Financing and/or the Debt Financing has been funded. The Investor shall make its Contribution pursuant to the terms of the forms of subscription agreement(s) attached hereto as Exhibit A, which do not contain any conditions to which the Investor's obligation to make the Contribution pursuant to this letter agreement is subject other than those referenced in the foregoing sentence.
| - 2 - |
3. Limited Guarantee. Concurrently with the execution and delivery of this letter agreement, the Investor is executing and delivering to the Company a Limited Guarantee (the "Limited Guarantee"). The Company's (i) remedies against the Investor and the Other Investors under their respective Limited Guarantees, (ii) rights set forth in Section 4 of this letter agreement and (iii) remedies against the Parent Parties under the Merger Agreement shall be, and are intended to be, the sole and exclusive direct or indirect remedies available to the Company against the Investor, any former, current or future director, officer, employee, agent or affiliate of the Investor, any former, current or future, direct or indirect holder of any equity interests or securities of the Investor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, affiliate, controlling person or representative of any of the foregoing (each such person or entity, a "Related Person") in respect of any liabilities or obligations arising under, or in connection with, this letter agreement, the Merger Agreement or the transactions contemplated thereby, including without limitation in the event any of the Parent Parties breaches its obligations under the Merger Agreement, whether or not such breach is caused by the Investor's breach of its obligations under this letter agreement; provided that, in the event the Company successfully compels specific performance of the obligations of the Parent Parties to consummate the Merger in accordance with, and subject to the terms and conditions set forth in, Section 9.6(b) of the Merger Agreement, and the Investor shall have made the Contribution (and all Other Investors have funded their Commitments in full and the Effective Time occurred), then neither the Company nor any other Person (including, without limitation, the Company's equityholders, Affiliates and Subsidiaries) shall have any remedy against the Investor or any Related Person, including under the Limited Guarantee.
4. Enforcement. This letter agreement may only be enforced (i) by Holdco or Parent, (ii) by the Company to seek specific performance of the Investor's obligations to fund the Contribution, (iii) by the Company to seek specific performance of Holdco's obligations under Section 1 of this letter agreement to fund the Holdco to Parent Contribution, in the case of each of clause (ii) and clause (iii), in accordance with the Merger Agreement or (iv) by the Company, as set forth in Section 7 of this letter agreement.
5. No Recourse. Notwithstanding anything that may be expressed or implied in this letter agreement, by their acceptance hereof, each of Holdco and Parent acknowledges and agrees that (a) notwithstanding that the Investor may be a limited liability entity, no recourse hereunder or under any documents or instruments delivered in connection herewith may be had against any Related Person, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding or by virtue of any statute, regulation or other applicable law, and (b) no personal liability whatsoever will attach to, be imposed on or otherwise be incurred by Related Persons in connection with this letter agreement or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations or by their creation.
6. Expiration. All obligations under this letter agreement shall expire and terminate automatically and immediately upon the earliest to occur of (a) the valid termination of the Merger Agreement in accordance with its terms, (b) the Closing (at which time the Contribution shall be discharged), (c) the making of the Contribution by the Investor or its permitted assigns, (d) the Company or any of its Affiliates asserting a claim that would make the Limited Guarantee become terminable in accordance with the terms thereof, and (e) ten (10) months after the date hereof; provided that, in the event a claim by the Company or any of its Affiliates under Section 4 of this letter agreement or any claim seeking an injunction, specific performance or other equitable remedy against any Parent Party under Section 9.6(b) of the Merger Agreement is then pending, this letter agreement shall only terminate upon the final, non-appealable resolution of such action and satisfaction by the Investor of any obligations finally determined by a court of competent jurisdiction or agreed to be owed by the Investor in connection with this letter agreement.
| - 3 - |
7. No Assignment. The Investor's obligation to fund the Contribution may not be assigned or delegated (whether by operation of law, merger, consolidation or otherwise). Neither this letter agreement nor any of the rights, interests or obligations hereunder shall be assignable by Holdco or Parent without the Investor's and the Company's prior written consent, and the granting of such consent in any given instance shall be solely in the discretion of the Investor and the Company and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment. Any purported transfer, assignment or delegation in violation of this Section 7 shall be null and void and of no force and effect.
8. No Other Beneficiaries. Except for the rights provided to the Company under Section 4 and Section 7 of this letter agreement, this letter agreement shall be binding on the Investor solely for the benefit of Holdco and Parent, and nothing set forth in this letter agreement is intended to or shall confer upon or give to any Person other than Holdco and Parent any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Holdco or Parent to enforce, the Contribution or any provisions of this letter agreement; provided that, notwithstanding anything to the contrary in this letter agreement, any Related Person shall be a third party beneficiary of the provisions set forth herein that are for the benefit of any Related Person (including the provisions of Sections 3, 8, 11, 12 and 14), and all such provisions shall survive any termination of this letter agreement indefinitely. Without limiting the foregoing, neither Holdco's, Parent's, Midco's, Merger Sub's nor the Company's creditors shall have the right to enforce this letter agreement or to cause Holdco or Parent or the Company to enforce this letter agreement.
9. Representations and Warranties. The Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this letter agreement; (b) the execution, delivery and performance of this letter agreement by the Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Investor are necessary therefor; (c) this letter agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by the Investor of this letter agreement do not and will not violate the organizational documents of the Investor or any applicable Law or conflict with any material agreement binding on the Investor; (e) the Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by the Investor.
10. Severability. Any term or provision of this letter agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this letter agreement in any jurisdiction and, if any provision of this letter agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this letter agreement may not be enforced without giving effect to the provisions of Sections 2 through 8, 11 and 12 hereof. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this letter agreement or any part hereof is invalid, illegal or unenforceable.
| - 4 - |
11. Jurisdiction; Dispute Resolution.
In the event of any dispute, controversy, or claim between the Investor and Holdco arising out of or relating to the breach, termination or validity of this letter agreement ("Dispute"), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission ("CIETAC") under the arbitration rules of CIETAC (the "Rule") in force when the notice of arbitration is submitted by a party.
The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule.
The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 11. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party.
The awards rendered by the arbitrators pursuant to this Section 11 shall be non-appealable, final, binding and conclusive on the parties to such Dispute.
The Investor, Holdco and Parent understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision.
12. Headings. Headings of the Sections of this letter agreement are for convenience of the parties only and shall be given no substantive or interpretive effect whatsoever.
13. Governing Law. This letter agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People's Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
| - 5 - |
14. Entire Agreement; Amendment; Counterparts. This letter agreement, the Escrow Agreement, the Limited Guarantee and the Merger Agreement constitute the entire agreement with respect to the subject matter hereof and thereof, and supersede all other prior agreements, understandings and statements, both written and oral, between or among Holdco, Parent or any of their respective Affiliates, on the one hand, and the Investor or any of its Affiliates, on the other hand. Any provision of this letter agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed by the Investor, Holdco and Parent; provided that any amendment, waiver or modification that would be expected to be adverse to the Company's rights set forth in Section 4 and/or Section 7 of this letter agreement shall require the prior written consent of the Company. This letter agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
[Remainder of page intentionally left blank]
| - 6 - |
| Very truly yours, | |
| Ruipu Wenhua (Tianjin) Investment Center (Limited Partnership) | |
| (锐普文华 (天津) 投资中心 (有限合伙) ) |
| By: | /s/ Mingchen Zhang | |
| Name: | Mingchen Zhang | |
| Title: | Executive Director |
| Agreed to and accepted as of the date first | |
| written above: | |
| Tianjin Qixin Zhicheng Technology Co., Ltd. | |
| (天津奇信志成科技有限公司) | |
| [Company chop is affixed] |
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory |
| Tianjin Qixin Tongda Technology Co., Ltd. | |
| (天津奇信通达科技有限公司) | |
| [Company chop is affixed] |
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory |
| Qihoo 360 Technology Co. Ltd. |
| By: | /s/ Eric X. Chen | |
| Name: | Eric X. Chen | |
| Title: | Director |
[Signature Page to Equity Commitment Letter]
Exhibit A
Subscription Agreement(s)
Exhibit 99.34
Execution Version
Shanghai Trust Bridge Partners Investment Management LLC
上海挚信投资管理有限公司
Suite 1206, 68 Yincheng Road Central,
Shanghai, China
December 18, 2015
Tianjin Qixin Zhicheng Technology Co., Ltd.
(天津奇信志成科技有限公司)
Room 9-3-401
No. 39 Gaoxin 6th Road
Binhai Science and Technology Area
Binhai Hi-tech District
Tianjin, China
Tianjin Qixin Tongda Technology Co., Ltd.
(天津奇信通达科技有限公司)
No. 4-B-32, 4F, Building 3
No. 188 Rixin Avenue
Binhai Hi-Tech Zone
Binhai New District
Tianjin, P.R. China 300301
Solely for the purposes of Section 4 and Section 7 hereto,
Qihoo 360 Technology Co. Ltd.
Tower A, Building 2
No.6 Jiuxianqiao Road
Chaoyang District
Beijing, P.R. China 100015
Re: Equity Commitment Letter
Ladies and Gentlemen:
Shanghai Trust Bridge Partners Investment Management LLC (including its successors or permitted assigns, the "Investor") is pleased to offer this commitment, subject to the terms and conditions contained herein, to purchase, directly or indirectly, equity interests in (i) Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), and (ii) Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"). It is contemplated that pursuant to the terms of that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Company"), Holdco, Parent, True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), Merger Sub will merge with and into the Company, with the Company being the surviving company (the "Merger"). Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Merger Agreement.
1. Commitment. The Investor hereby agrees to contribute, or cause to be contributed, within three (3) Business Days after the conditions in Section 2 of this letter agreement are satisfied, as an equity contribution to (i) Holdco, an aggregate amount of RMB equivalent to US$44,401,680 million (the "Holdco Contribution") and (ii) Parent, an aggregate amount of RMB equivalent to US$45,598,320 million (the "Parent Contribution", and collectively with the Holdco Contribution, the "Contribution"), subject to the terms and conditions hereof. For purposes of this letter agreement, the RMB equivalents of U.S. dollars shall be determined using the prevailing exchange rate notified by Parent to the Investor at least three (3) Business Days prior to funding. The proceeds of the Holdco Contribution, along with the amounts to be paid by all other Investors (the "Other Investors") to Holdco under their respective Equity Commitment Letters, shall promptly upon receipt be further contributed by Holdco, as an equity contribution to Parent (collectively, the "Holdco to Parent Contribution"). The proceeds of the Parent Contribution, along with the Holdco to Parent Contribution and amounts to be paid by the Other Investors to Parent under their respective Equity Commitment Letters (such aggregate amount, the "Commitments"), shall be used by Parent, to the extent necessary, to (i) fund (or cause to be funded through Midco or Merger Sub) a portion of the Exchange Fund and any other amounts required to be paid pursuant to the Merger Agreement (including any applicable consideration to the holders of Company Convertible Notes or repurchase of any Company Convertible Notes) and (ii) pay (or cause to be paid through Midco or Merger Sub) related fees and expenses (which, for the avoidance of doubt, shall not include any Parent Termination Fee or any Guaranteed Obligations with respect to a Parent Termination Fee under the Limited Guarantee given by the Investor), in each case, pursuant to and in accordance with the terms of, and subject to the conditions of, the Merger Agreement. Notwithstanding anything else to the contrary in this letter agreement, the aggregate amount of liability of the Investor under this letter agreement shall at no time exceed the aggregate amount of the Contribution less any portion of the Contribution that has been funded in accordance with the terms hereof or the terms of that certain Escrow Agreement, dated of even date herewith, between the Investor and Parent (the "Escrow Agreement").
2. Closing Conditions. The Investor's obligation to make the Contribution pursuant to this letter agreement is subject to the satisfaction in full (or waiver, if permissible) of all conditions precedent to the obligations of the Parent Parties to consummate the transactions contemplated by the Merger Agreement set forth in Article VII thereof other than (i) conditions that by their nature are to be satisfied on the Closing Date and (ii) any PRC Regulatory Approval that is applicable to the Parent Parties only after the Equity Financing and/or the Debt Financing has been funded. The Investor shall make its Contribution pursuant to the terms of the forms of subscription agreement(s) attached hereto as Exhibit A, which do not contain any conditions to which the Investor's obligation to make the Contribution pursuant to this letter agreement is subject other than those referenced in the foregoing sentence.
| - 2 - |
3. Limited Guarantee. Concurrently with the execution and delivery of this letter agreement, the Investor is executing and delivering to the Company a Limited Guarantee (the "Limited Guarantee"). The Company's (i) remedies against the Investor and the Other Investors under their respective Limited Guarantees, (ii) rights set forth in Section 4 of this letter agreement and (iii) remedies against the Parent Parties under the Merger Agreement shall be, and are intended to be, the sole and exclusive direct or indirect remedies available to the Company against the Investor, any former, current or future director, officer, employee, agent or affiliate of the Investor, any former, current or future, direct or indirect holder of any equity interests or securities of the Investor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, affiliate, controlling person or representative of any of the foregoing (each such person or entity, a "Related Person") in respect of any liabilities or obligations arising under, or in connection with, this letter agreement, the Merger Agreement or the transactions contemplated thereby, including without limitation in the event any of the Parent Parties breaches its obligations under the Merger Agreement, whether or not such breach is caused by the Investor's breach of its obligations under this letter agreement; provided that, in the event the Company successfully compels specific performance of the obligations of the Parent Parties to consummate the Merger in accordance with, and subject to the terms and conditions set forth in, Section 9.6(b) of the Merger Agreement, and the Investor shall have made the Contribution (and all Other Investors have funded their Commitments in full and the Effective Time occurred), then neither the Company nor any other Person (including, without limitation, the Company's equityholders, Affiliates and Subsidiaries) shall have any remedy against the Investor or any Related Person, including under the Limited Guarantee.
4. Enforcement. This letter agreement may only be enforced (i) by Holdco or Parent, (ii) by the Company to seek specific performance of the Investor's obligations to fund the Contribution, (iii) by the Company to seek specific performance of Holdco's obligations under Section 1 of this letter agreement to fund the Holdco to Parent Contribution, in the case of each of clause (ii) and clause (iii), in accordance with the Merger Agreement or (iv) by the Company, as set forth in Section 7 of this letter agreement.
5. No Recourse. Notwithstanding anything that may be expressed or implied in this letter agreement, by their acceptance hereof, each of Holdco and Parent acknowledges and agrees that (a) notwithstanding that the Investor may be a limited liability entity, no recourse hereunder or under any documents or instruments delivered in connection herewith may be had against any Related Person, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding or by virtue of any statute, regulation or other applicable law, and (b) no personal liability whatsoever will attach to, be imposed on or otherwise be incurred by Related Persons in connection with this letter agreement or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations or by their creation.
6. Expiration. All obligations under this letter agreement shall expire and terminate automatically and immediately upon the earliest to occur of (a) the valid termination of the Merger Agreement in accordance with its terms, (b) the Closing (at which time the Contribution shall be discharged), (c) the making of the Contribution by the Investor or its permitted assigns, (d) the Company or any of its Affiliates asserting a claim that would make the Limited Guarantee become terminable in accordance with the terms thereof, and (e) ten (10) months after the date hereof; provided that, in the event a claim by the Company or any of its Affiliates under Section 4 of this letter agreement or any claim seeking an injunction, specific performance or other equitable remedy against any Parent Party under Section 9.6(b) of the Merger Agreement is then pending, this letter agreement shall only terminate upon the final, non-appealable resolution of such action and satisfaction by the Investor of any obligations finally determined by a court of competent jurisdiction or agreed to be owed by the Investor in connection with this letter agreement.
| - 3 - |
7. No Assignment. The Investor's obligation to fund the Contribution may not be assigned or delegated (whether by operation of law, merger, consolidation or otherwise). Neither this letter agreement nor any of the rights, interests or obligations hereunder shall be assignable by Holdco or Parent without the Investor's and the Company's prior written consent, and the granting of such consent in any given instance shall be solely in the discretion of the Investor and the Company and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment. Any purported transfer, assignment or delegation in violation of this Section 7 shall be null and void and of no force and effect.
8. No Other Beneficiaries. Except for the rights provided to the Company under Section 4 and Section 7 of this letter agreement, this letter agreement shall be binding on the Investor solely for the benefit of Holdco and Parent, and nothing set forth in this letter agreement is intended to or shall confer upon or give to any Person other than Holdco and Parent any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Holdco or Parent to enforce, the Contribution or any provisions of this letter agreement; provided that, notwithstanding anything to the contrary in this letter agreement, any Related Person shall be a third party beneficiary of the provisions set forth herein that are for the benefit of any Related Person (including the provisions of Sections 3, 8, 11, 12 and 14), and all such provisions shall survive any termination of this letter agreement indefinitely. Without limiting the foregoing, neither Holdco's, Parent's, Midco's, Merger Sub's nor the Company's creditors shall have the right to enforce this letter agreement or to cause Holdco or Parent or the Company to enforce this letter agreement.
9. Representations and Warranties. The Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this letter agreement; (b) the execution, delivery and performance of this letter agreement by the Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Investor are necessary therefor; (c) this letter agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by the Investor of this letter agreement do not and will not violate the organizational documents of the Investor or any applicable Law or conflict with any material agreement binding on the Investor; (e) the Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by the Investor.
10. Severability. Any term or provision of this letter agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this letter agreement in any jurisdiction and, if any provision of this letter agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this letter agreement may not be enforced without giving effect to the provisions of Sections 2 through 8, 11 and 12 hereof. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this letter agreement or any part hereof is invalid, illegal or unenforceable.
| - 4 - |
11. Jurisdiction; Dispute Resolution.
In the event of any dispute, controversy, or claim between the Investor and Holdco arising out of or relating to the breach, termination or validity of this letter agreement ("Dispute"), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission ("CIETAC") under the arbitration rules of CIETAC (the "Rule") in force when the notice of arbitration is submitted by a party.
The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule.
The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 11. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party.
The awards rendered by the arbitrators pursuant to this Section 11 shall be non-appealable, final, binding and conclusive on the parties to such Dispute.
The Investor, Holdco and Parent understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision.
12. Headings. Headings of the Sections of this letter agreement are for convenience of the parties only and shall be given no substantive or interpretive effect whatsoever.
13. Governing Law. This letter agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People's Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
| - 5 - |
14. Entire Agreement; Amendment; Counterparts. This letter agreement, the Escrow Agreement, the Limited Guarantee and the Merger Agreement constitute the entire agreement with respect to the subject matter hereof and thereof, and supersede all other prior agreements, understandings and statements, both written and oral, between or among Holdco, Parent or any of their respective Affiliates, on the one hand, and the Investor or any of its Affiliates, on the other hand. Any provision of this letter agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed by the Investor, Holdco and Parent; provided that any amendment, waiver or modification that would be expected to be adverse to the Company's rights set forth in Section 4 and/or Section 7 of this letter agreement shall require the prior written consent of the Company. This letter agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
[Remainder of page intentionally left blank]
| - 6 - |
| Very truly yours, | |
| Shanghai Trust Bridge Partners Investment Management LLC | |
| (上海挚信投资管理有限公司) | |
| [Company chop is affixed] |
| By: | /s/ Shujun Li | |
| Name: | Shujun Li | |
| Title: | Legal Representative and Executive Director |
| Agreed to and accepted as of the date first | |
| written above: | |
| Tianjin Qixin Zhicheng Technology Co., Ltd. | |
| (天津奇信志成科技有限公司) | |
| [Company chop is affixed] |
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory |
| Tianjin Qixin Tongda Technology Co., Ltd. | |
| (天津奇信通达科技有限公司) | |
| [Company chop is affixed] |
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory |
| Qihoo 360 Technology Co. Ltd. |
| By: | /s/ Eric X. Chen | |
| Name: | Eric X. Chen | |
| Title: | Director |
[Signature Page to Equity Commitment Letter]
Exhibit A
Subscription Agreement(s)
Exhibit 99.35
Execution Version
LTW Chuanfu Investment (Shenzhen) LLP
朗泰传富投资 ( 深圳 ) 合伙企业 ( 有限合伙 )
12/F, Tower A, Ping An International Finance Centre
Xinyuan South Road
Chaoyang District, Beijing, 100027, China
December 18, 2015
Tianjin Qixin Zhicheng Technology Co., Ltd.
(天津奇信志成科技有限公司)
Room 9-3-401
No. 39 Gaoxin 6th Road
Binhai Science and Technology Area
Binhai Hi-tech District
Tianjin, China
Tianjin Qixin Tongda Technology Co., Ltd.
(天津奇信通达科技有限公司)
No. 4-B-32, 4F, Building 3
No. 188 Rixin Avenue
Binhai Hi-Tech Zone
Binhai New District
Tianjin, P.R. China 300301
Solely for the purposes of Section 4 and Section 7 hereto,
Qihoo 360 Technology Co. Ltd.
Tower A, Building 2
No.6 Jiuxianqiao Road
Chaoyang District
Beijing, P.R. China 100015
Re: Equity Commitment Letter
Ladies and Gentlemen:
LTW Chuanfu Investment (Shenzhen) LLP (including its successors or permitted assigns, the "Investor") is pleased to offer this commitment, subject to the terms and conditions contained herein, to purchase, directly or indirectly, equity interests in (i) Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), and (ii) Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"). It is contemplated that pursuant to the terms of that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Company"), Holdco, Parent, True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), Merger Sub will merge with and into the Company, with the Company being the surviving company (the "Merger"). Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Merger Agreement.
1. Commitment. The Investor hereby agrees to contribute, or cause to be contributed, within three (3) Business Days after the conditions in Section 2 of this letter agreement are satisfied, as an equity contribution to (i) Holdco, an aggregate amount of RMB equivalent to US$ 24,667,600 (the "Holdco Contribution") and (ii) Parent, an aggregate amount of RMB equivalent to US$ 25,332,400 (the "Parent Contribution", and collectively with the Holdco Contribution, the "Contribution"), subject to the terms and conditions hereof. For purposes of this letter agreement, the RMB equivalents of U.S. dollars shall be determined using the prevailing exchange rate notified by Parent to the Investor at least three (3) Business Days prior to funding. The proceeds of the Holdco Contribution, along with the amounts to be paid by all other Investors (the "Other Investors") to Holdco under their respective Equity Commitment Letters, shall promptly upon receipt be further contributed by Holdco, as an equity contribution to Parent (collectively, the "Holdco to Parent Contribution"). The proceeds of the Parent Contribution, along with the Holdco to Parent Contribution and amounts to be paid by the Other Investors to Parent under their respective Equity Commitment Letters (such aggregate amount, the "Commitments"), shall be used by Parent, to the extent necessary, to (i) fund (or cause to be funded through Midco or Merger Sub) a portion of the Exchange Fund and any other amounts required to be paid pursuant to the Merger Agreement (including any applicable consideration to the holders of Company Convertible Notes or repurchase of any Company Convertible Notes) and (ii) pay (or cause to be paid through Midco or Merger Sub) related fees and expenses (which, for the avoidance of doubt, shall not include any Parent Termination Fee or any Guaranteed Obligations with respect to a Parent Termination Fee under the Limited Guarantee given by the Investor), in each case, pursuant to and in accordance with the terms of, and subject to the conditions of, the Merger Agreement. Notwithstanding anything else to the contrary in this letter agreement, the aggregate amount of liability of the Investor under this letter agreement shall at no time exceed the aggregate amount of the Contribution less any portion of the Contribution that has been funded in accordance with the terms hereof or the terms of that certain Escrow Agreement, dated of even date herewith, between the Investor and Parent (the "Escrow Agreement").
2. Closing Conditions. The Investor's obligation to make the Contribution pursuant to this letter agreement is subject to the satisfaction in full (or waiver, if permissible) of all conditions precedent to the obligations of the Parent Parties to consummate the transactions contemplated by the Merger Agreement set forth in Article VII thereof other than (i) conditions that by their nature are to be satisfied on the Closing Date and (ii) any PRC Regulatory Approval that is applicable to the Parent Parties only after the Equity Financing and/or the Debt Financing has been funded. The Investor shall make its Contribution pursuant to the terms of the forms of subscription agreement(s) attached hereto as Exhibit A, which do not contain any conditions to which the Investor's obligation to make the Contribution pursuant to this letter agreement is subject other than those referenced in the foregoing sentence.
| - 2 - |
3. Limited Guarantee. Concurrently with the execution and delivery of this letter agreement, the Investor is executing and delivering to the Company a Limited Guarantee (the "Limited Guarantee"). The Company's (i) remedies against the Investor and the Other Investors under their respective Limited Guarantees, (ii) rights set forth in Section 4 of this letter agreement and (iii) remedies against the Parent Parties under the Merger Agreement shall be, and are intended to be, the sole and exclusive direct or indirect remedies available to the Company against the Investor, any former, current or future director, officer, employee, agent or affiliate of the Investor, any former, current or future, direct or indirect holder of any equity interests or securities of the Investor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, affiliate, controlling person or representative of any of the foregoing (each such person or entity, a "Related Person") in respect of any liabilities or obligations arising under, or in connection with, this letter agreement, the Merger Agreement or the transactions contemplated thereby, including without limitation in the event any of the Parent Parties breaches its obligations under the Merger Agreement, whether or not such breach is caused by the Investor's breach of its obligations under this letter agreement; provided that, in the event the Company successfully compels specific performance of the obligations of the Parent Parties to consummate the Merger in accordance with, and subject to the terms and conditions set forth in, Section 9.6(b) of the Merger Agreement, and the Investor shall have made the Contribution (and all Other Investors have funded their Commitments in full and the Effective Time occurred), then neither the Company nor any other Person (including, without limitation, the Company's equityholders, Affiliates and Subsidiaries) shall have any remedy against the Investor or any Related Person, including under the Limited Guarantee.
4. Enforcement. This letter agreement may only be enforced (i) by Holdco or Parent, (ii) by the Company to seek specific performance of the Investor's obligations to fund the Contribution, (iii) by the Company to seek specific performance of Holdco's obligations under Section 1 of this letter agreement to fund the Holdco to Parent Contribution, in the case of each of clause (ii) and clause (iii), in accordance with the Merger Agreement or (iv) by the Company, as set forth in Section 7 of this letter agreement.
5. No Recourse. Notwithstanding anything that may be expressed or implied in this letter agreement, by their acceptance hereof, each of Holdco and Parent acknowledges and agrees that (a) notwithstanding that the Investor may be a limited liability entity, no recourse hereunder or under any documents or instruments delivered in connection herewith may be had against any Related Person, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding or by virtue of any statute, regulation or other applicable law, and (b) no personal liability whatsoever will attach to, be imposed on or otherwise be incurred by Related Persons in connection with this letter agreement or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations or by their creation.
6. Expiration. All obligations under this letter agreement shall expire and terminate automatically and immediately upon the earliest to occur of (a) the valid termination of the Merger Agreement in accordance with its terms, (b) the Closing (at which time the Contribution shall be discharged), (c) the making of the Contribution by the Investor or its permitted assigns, (d) the Company or any of its Affiliates asserting a claim that would make the Limited Guarantee become terminable in accordance with the terms thereof, and (e) ten (10) months after the date hereof; provided that, in the event a claim by the Company or any of its Affiliates under Section 4 of this letter agreement or any claim seeking an injunction, specific performance or other equitable remedy against any Parent Party under Section 9.6(b) of the Merger Agreement is then pending, this letter agreement shall only terminate upon the final, non-appealable resolution of such action and satisfaction by the Investor of any obligations finally determined by a court of competent jurisdiction or agreed to be owed by the Investor in connection with this letter agreement.
| - 3 - |
7. No Assignment. The Investor's obligation to fund the Contribution may not be assigned or delegated (whether by operation of law, merger, consolidation or otherwise). Neither this letter agreement nor any of the rights, interests or obligations hereunder shall be assignable by Holdco or Parent without the Investor's and the Company's prior written consent, and the granting of such consent in any given instance shall be solely in the discretion of the Investor and the Company and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment. Any purported transfer, assignment or delegation in violation of this Section 7 shall be null and void and of no force and effect.
8. No Other Beneficiaries. Except for the rights provided to the Company under Section 4 and Section 7 of this letter agreement, this letter agreement shall be binding on the Investor solely for the benefit of Holdco and Parent, and nothing set forth in this letter agreement is intended to or shall confer upon or give to any Person other than Holdco and Parent any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Holdco or Parent to enforce, the Contribution or any provisions of this letter agreement; provided that, notwithstanding anything to the contrary in this letter agreement, any Related Person shall be a third party beneficiary of the provisions set forth herein that are for the benefit of any Related Person (including the provisions of Sections 3, 8, 11, 12 and 14), and all such provisions shall survive any termination of this letter agreement indefinitely. Without limiting the foregoing, neither Holdco's, Parent's, Midco's, Merger Sub's nor the Company's creditors shall have the right to enforce this letter agreement or to cause Holdco or Parent or the Company to enforce this letter agreement.
9. Representations and Warranties. The Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this letter agreement; (b) the execution, delivery and performance of this letter agreement by the Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Investor are necessary therefor; (c) this letter agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by the Investor of this letter agreement do not and will not violate the organizational documents of the Investor or any applicable Law or conflict with any material agreement binding on the Investor; (e) the Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by the Investor.
10. Severability. Any term or provision of this letter agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this letter agreement in any jurisdiction and, if any provision of this letter agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this letter agreement may not be enforced without giving effect to the provisions of Sections 2 through 8, 11 and 12 hereof. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this letter agreement or any part hereof is invalid, illegal or unenforceable.
| - 4 - |
11. Jurisdiction; Dispute Resolution.
In the event of any dispute, controversy, or claim between the Investor and Holdco arising out of or relating to the breach, termination or validity of this letter agreement ("Dispute"), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission ("CIETAC") under the arbitration rules of CIETAC (the "Rule") in force when the notice of arbitration is submitted by a party.
The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule.
The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 11. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party.
The awards rendered by the arbitrators pursuant to this Section 11 shall be non-appealable, final, binding and conclusive on the parties to such Dispute.
The Investor, Holdco and Parent understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision.
12. Headings. Headings of the Sections of this letter agreement are for convenience of the parties only and shall be given no substantive or interpretive effect whatsoever.
13. Governing Law. This letter agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People's Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
| - 5 - |
14. Entire Agreement; Amendment; Counterparts. This letter agreement, the Escrow Agreement, the Limited Guarantee and the Merger Agreement constitute the entire agreement with respect to the subject matter hereof and thereof, and supersede all other prior agreements, understandings and statements, both written and oral, between or among Holdco, Parent or any of their respective Affiliates, on the one hand, and the Investor or any of its Affiliates, on the other hand. Any provision of this letter agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed by the Investor, Holdco and Parent; provided that any amendment, waiver or modification that would be expected to be adverse to the Company's rights set forth in Section 4 and/or Section 7 of this letter agreement shall require the prior written consent of the Company. This letter agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
[Remainder of page intentionally left blank]
| - 6 - |
| Very truly yours, | |
| LTW Chuanfu Investment (Shenzhen) LLP | |
| (朗泰传富投资 ( 深圳 ) 合伙企业 ( 有限合伙 ) ) | |
| [Company chop is affixed] |
| By: | /s/ Chen Xueliang | |
| Name: | Chen Xueliang 陈学良 | |
| Title: | Representative of Executive Partner 执行事务合伙人委派代表 |
Agreed to and accepted as of the date first
written above:
Tianjin Qixin Zhicheng Technology Co., Ltd.
(天津奇信志成科技有限公司)
[Company chop is affixed]
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory |
Tianjin Qixin Tongda Technology Co., Ltd.
(天津奇信通达科技有限公司)
[Company chop is affixed]
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory |
Qihoo 360 Technology Co. Ltd.
| By: | /s/ Eric X. Chen | |
| Name: | Eric X. Chen | |
| Title: | Director |
[Signature Page to Equity Commitment Letter]
Exhibit A
Subscription Agreement(s)
Exhibit 99.36
Execution Version
Zhejiang Puhua Tianqin Equity Investment Management Co., Ltd.
浙江普华天勤股权投资管理有限公司
16A, ZhongTian Mansion, No. 173, Yugu Road
HangZhou City, ZheJiang, China
December 18, 2015
Tianjin Qixin Zhicheng Technology Co., Ltd.
(天津奇信志成科技有限公司)
Room 9-3-401
No. 39 Gaoxin 6th Road
Binhai Science and Technology Area
Binhai Hi-tech District
Tianjin, China
Tianjin Qixin Tongda Technology Co., Ltd.
(天津奇信通达科技有限公司)
No. 4-B-32, 4F, Building 3
No. 188 Rixin Avenue
Binhai Hi-Tech Zone
Binhai New District
Tianjin, P.R. China 300301
Solely for the purposes of Section 4 and Section 7 hereto,
Qihoo 360 Technology Co. Ltd.
Tower A, Building 2
No.6 Jiuxianqiao Road
Chaoyang District
Beijing, P.R. China 100015
Re: Equity Commitment Letter
Ladies and Gentlemen:
Zhejiang Puhua Tianqin Equity Investment Management Co., Ltd. (including its successors or permitted assigns, the "Investor") is pleased to offer this commitment, subject to the terms and conditions contained herein, to purchase, directly or indirectly, equity interests in (i) Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), and (ii) Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"). It is contemplated that pursuant to the terms of that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Company"), Holdco, Parent, True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), Merger Sub will merge with and into the Company, with the Company being the surviving company (the "Merger"). Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Merger Agreement.
1. Commitment. The Investor hereby agrees to contribute, or cause to be contributed, within three (3) Business Days after the conditions in Section 2 of this letter agreement are satisfied, as an equity contribution to (i) Holdco, an aggregate amount of RMB equivalent to US$ 24,667,600 (the "Holdco Contribution") and (ii) Parent, an aggregate amount of RMB equivalent to US$ 25,332,400 (the "Parent Contribution", and collectively with the Holdco Contribution, the "Contribution"), subject to the terms and conditions hereof. For purposes of this letter agreement, the RMB equivalents of U.S. dollars shall be determined using the prevailing exchange rate notified by Parent to the Investor at least three (3) Business Days prior to funding. The proceeds of the Holdco Contribution, along with the amounts to be paid by all other Investors (the "Other Investors") to Holdco under their respective Equity Commitment Letters, shall promptly upon receipt be further contributed by Holdco, as an equity contribution to Parent (collectively, the "Holdco to Parent Contribution"). The proceeds of the Parent Contribution, along with the Holdco to Parent Contribution and amounts to be paid by the Other Investors to Parent under their respective Equity Commitment Letters (such aggregate amount, the "Commitments"), shall be used by Parent, to the extent necessary, to (i) fund (or cause to be funded through Midco or Merger Sub) a portion of the Exchange Fund and any other amounts required to be paid pursuant to the Merger Agreement (including any applicable consideration to the holders of Company Convertible Notes or repurchase of any Company Convertible Notes) and (ii) pay (or cause to be paid through Midco or Merger Sub) related fees and expenses (which, for the avoidance of doubt, shall not include any Parent Termination Fee or any Guaranteed Obligations with respect to a Parent Termination Fee under the Limited Guarantee given by the Investor), in each case, pursuant to and in accordance with the terms of, and subject to the conditions of, the Merger Agreement. Notwithstanding anything else to the contrary in this letter agreement, the aggregate amount of liability of the Investor under this letter agreement shall at no time exceed the aggregate amount of the Contribution less any portion of the Contribution that has been funded in accordance with the terms hereof or the terms of that certain Escrow Agreement, dated of even date herewith, between the Investor and Parent (the "Escrow Agreement").
2. Closing Conditions. The Investor's obligation to make the Contribution pursuant to this letter agreement is subject to the satisfaction in full (or waiver, if permissible) of all conditions precedent to the obligations of the Parent Parties to consummate the transactions contemplated by the Merger Agreement set forth in Article VII thereof other than (i) conditions that by their nature are to be satisfied on the Closing Date and (ii) any PRC Regulatory Approval that is applicable to the Parent Parties only after the Equity Financing and/or the Debt Financing has been funded. The Investor shall make its Contribution pursuant to the terms of the forms of subscription agreement(s) attached hereto as Exhibit A, which do not contain any conditions to which the Investor's obligation to make the Contribution pursuant to this letter agreement is subject other than those referenced in the foregoing sentence.
| - 2 - |
3. Limited Guarantee. Concurrently with the execution and delivery of this letter agreement, the Investor is executing and delivering to the Company a Limited Guarantee (the "Limited Guarantee"). The Company's (i) remedies against the Investor and the Other Investors under their respective Limited Guarantees, (ii) rights set forth in Section 4 of this letter agreement and (iii) remedies against the Parent Parties under the Merger Agreement shall be, and are intended to be, the sole and exclusive direct or indirect remedies available to the Company against the Investor, any former, current or future director, officer, employee, agent or affiliate of the Investor, any former, current or future, direct or indirect holder of any equity interests or securities of the Investor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, affiliate, controlling person or representative of any of the foregoing (each such person or entity, a "Related Person") in respect of any liabilities or obligations arising under, or in connection with, this letter agreement, the Merger Agreement or the transactions contemplated thereby, including without limitation in the event any of the Parent Parties breaches its obligations under the Merger Agreement, whether or not such breach is caused by the Investor's breach of its obligations under this letter agreement; provided that, in the event the Company successfully compels specific performance of the obligations of the Parent Parties to consummate the Merger in accordance with, and subject to the terms and conditions set forth in, Section 9.6(b) of the Merger Agreement, and the Investor shall have made the Contribution (and all Other Investors have funded their Commitments in full and the Effective Time occurred), then neither the Company nor any other Person (including, without limitation, the Company's equityholders, Affiliates and Subsidiaries) shall have any remedy against the Investor or any Related Person, including under the Limited Guarantee.
4. Enforcement. This letter agreement may only be enforced (i) by Holdco or Parent, (ii) by the Company to seek specific performance of the Investor's obligations to fund the Contribution, (iii) by the Company to seek specific performance of Holdco's obligations under Section 1 of this letter agreement to fund the Holdco to Parent Contribution, in the case of each of clause (ii) and clause (iii), in accordance with the Merger Agreement or (iv) by the Company, as set forth in Section 7 of this letter agreement.
5. No Recourse. Notwithstanding anything that may be expressed or implied in this letter agreement, by their acceptance hereof, each of Holdco and Parent acknowledges and agrees that (a) notwithstanding that the Investor may be a limited liability entity, no recourse hereunder or under any documents or instruments delivered in connection herewith may be had against any Related Person, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding or by virtue of any statute, regulation or other applicable law, and (b) no personal liability whatsoever will attach to, be imposed on or otherwise be incurred by Related Persons in connection with this letter agreement or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations or by their creation.
6. Expiration. All obligations under this letter agreement shall expire and terminate automatically and immediately upon the earliest to occur of (a) the valid termination of the Merger Agreement in accordance with its terms, (b) the Closing (at which time the Contribution shall be discharged), (c) the making of the Contribution by the Investor or its permitted assigns, (d) the Company or any of its Affiliates asserting a claim that would make the Limited Guarantee become terminable in accordance with the terms thereof, and (e) ten (10) months after the date hereof; provided that, in the event a claim by the Company or any of its Affiliates under Section 4 of this letter agreement or any claim seeking an injunction, specific performance or other equitable remedy against any Parent Party under Section 9.6(b) of the Merger Agreement is then pending, this letter agreement shall only terminate upon the final, non-appealable resolution of such action and satisfaction by the Investor of any obligations finally determined by a court of competent jurisdiction or agreed to be owed by the Investor in connection with this letter agreement.
| - 3 - |
7. No Assignment. The Investor's obligation to fund the Contribution may not be assigned or delegated (whether by operation of law, merger, consolidation or otherwise). Neither this letter agreement nor any of the rights, interests or obligations hereunder shall be assignable by Holdco or Parent without the Investor's and the Company's prior written consent, and the granting of such consent in any given instance shall be solely in the discretion of the Investor and the Company and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment. Any purported transfer, assignment or delegation in violation of this Section 7 shall be null and void and of no force and effect.
8. No Other Beneficiaries. Except for the rights provided to the Company under Section 4 and Section 7 of this letter agreement, this letter agreement shall be binding on the Investor solely for the benefit of Holdco and Parent, and nothing set forth in this letter agreement is intended to or shall confer upon or give to any Person other than Holdco and Parent any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Holdco or Parent to enforce, the Contribution or any provisions of this letter agreement; provided that, notwithstanding anything to the contrary in this letter agreement, any Related Person shall be a third party beneficiary of the provisions set forth herein that are for the benefit of any Related Person (including the provisions of Sections 3, 8, 11, 12 and 14), and all such provisions shall survive any termination of this letter agreement indefinitely. Without limiting the foregoing, neither Holdco's, Parent's, Midco's, Merger Sub's nor the Company's creditors shall have the right to enforce this letter agreement or to cause Holdco or Parent or the Company to enforce this letter agreement.
9. Representations and Warranties. The Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this letter agreement; (b) the execution, delivery and performance of this letter agreement by the Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Investor are necessary therefor; (c) this letter agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by the Investor of this letter agreement do not and will not violate the organizational documents of the Investor or any applicable Law or conflict with any material agreement binding on the Investor; (e) the Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by the Investor.
10. Severability. Any term or provision of this letter agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this letter agreement in any jurisdiction and, if any provision of this letter agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this letter agreement may not be enforced without giving effect to the provisions of Sections 2 through 8, 11 and 12 hereof. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this letter agreement or any part hereof is invalid, illegal or unenforceable.
| - 4 - |
11. Jurisdiction; Dispute Resolution.
In the event of any dispute, controversy, or claim between the Investor and Holdco arising out of or relating to the breach, termination or validity of this letter agreement ("Dispute"), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission ("CIETAC") under the arbitration rules of CIETAC (the "Rule") in force when the notice of arbitration is submitted by a party.
The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule.
The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 11. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party.
The awards rendered by the arbitrators pursuant to this Section 11 shall be non-appealable, final, binding and conclusive on the parties to such Dispute.
The Investor, Holdco and Parent understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision.
12. Headings. Headings of the Sections of this letter agreement are for convenience of the parties only and shall be given no substantive or interpretive effect whatsoever.
13. Governing Law. This letter agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People's Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
| - 5 - |
14. Entire Agreement; Amendment; Counterparts. This letter agreement, the Escrow Agreement, the Limited Guarantee and the Merger Agreement constitute the entire agreement with respect to the subject matter hereof and thereof, and supersede all other prior agreements, understandings and statements, both written and oral, between or among Holdco, Parent or any of their respective Affiliates, on the one hand, and the Investor or any of its Affiliates, on the other hand. Any provision of this letter agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed by the Investor, Holdco and Parent; provided that any amendment, waiver or modification that would be expected to be adverse to the Company's rights set forth in Section 4 and/or Section 7 of this letter agreement shall require the prior written consent of the Company. This letter agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
[Remainder of page intentionally left blank]
| - 6 - |
| Very truly yours, | |
| Zhejiang Puhua Tianqin Equity Investment Management Co., Ltd. | |
| (浙江普华天勤股权投资管理有限公司) | |
| [Company chop is affixed] |
| By: | /s/ Qinhua Shen | |
| Name: | Qinhua Shen | |
| Title: | Legal Representative |
Agreed to and accepted as of the date first
written above:
Tianjin Qixin Zhicheng Technology Co., Ltd.
(天津奇信志成科技有限公司)
[Company chop is affixed]
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory |
Tianjin Qixin Tongda Technology Co., Ltd.
(天津奇信通达科技有限公司)
[Company chop is affixed]
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory |
Qihoo 360 Technology Co. Ltd.
| By: | /s/ Eric X. Chen | |
| Name: | Eric X. Chen | |
| Title: | Director |
[Signature Page to Equity Commitment Letter]
Exhibit A
Subscription Agreement(s)
Exhibit 99.37
Execution Version
Tianjin Xinxin Qiyuan Investment Limited Partnership
( 天津信心奇缘股权投资合伙企业 ( 有限合伙 ) )
360 Tower, No. 6 Jiuxianqiao Road,
Chaoyang District, Beijing
December 18, 2015
Tianjin Qixin Zhicheng Technology Co., Ltd.
(天津奇信志成科技有限公司)
Room 9-3-401
No. 39 Gaoxin 6th Road
Binhai Science and Technology Area
Binhai Hi-tech District
Tianjin, China
Tianjin Qixin Tongda Technology Co., Ltd.
(天津奇信通达科技有限公司)
No. 4-B-32, 4F, Building 3
No. 188 Rixin Avenue
Binhai Hi-Tech Zone
Binhai New District
Tianjin, P.R. China 300301
Solely for the purposes of Section 4 and Section 7 hereto,
Qihoo 360 Technology Co. Ltd.
Tower A, Building 2
No.6 Jiuxianqiao Road
Chaoyang District
Beijing, P.R. China 100015
Re: Equity Commitment Letter
Ladies and Gentlemen:
Tianjin Xinxin Qiyuan Investment Limited Partnership (including its successors or permitted assigns, the "Investor") is pleased to offer this commitment, subject to the terms and conditions contained herein, to purchase, directly or indirectly, equity interests in (i) Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), and (ii) Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"). It is contemplated that pursuant to the terms of that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Company"), Holdco, Parent, True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), Merger Sub will merge with and into the Company, with the Company being the surviving company (the "Merger"). Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Merger Agreement.
1. Commitment. The Investor hereby agrees to contribute, or cause to be contributed, within three (3) Business Days after the conditions in Section 2 of this letter agreement are satisfied, as an equity contribution to (i) Holdco, an aggregate amount of RMB equivalent to US$ 269,380,967 (the "Holdco Contribution") and (ii) Parent, an aggregate amount of RMB equivalent to US$ 276,640,874 (the "Parent Contribution", and collectively with the Holdco Contribution, the "Contribution"), subject to the terms and conditions hereof. For purposes of this letter agreement, the RMB equivalents of U.S. dollars shall be determined using the prevailing exchange rate notified by Parent to the Investor at least three (3) Business Days prior to funding. The proceeds of the Holdco Contribution, along with the amounts to be paid by all other Investors (the "Other Investors") to Holdco under their respective Equity Commitment Letters, shall promptly upon receipt be further contributed by Holdco, as an equity contribution to Parent (collectively, the "Holdco to Parent Contribution"). The proceeds of the Parent Contribution, along with the Holdco to Parent Contribution and amounts to be paid by the Other Investors to Parent under their respective Equity Commitment Letters (such aggregate amount, the "Commitments"), shall be used by Parent, to the extent necessary, to (i) fund (or cause to be funded through Midco or Merger Sub) a portion of the Exchange Fund and any other amounts required to be paid pursuant to the Merger Agreement (including any applicable consideration to the holders of Company Convertible Notes or repurchase of any Company Convertible Notes) and (ii) pay (or cause to be paid through Midco or Merger Sub) related fees and expenses (which, for the avoidance of doubt, shall not include any Parent Termination Fee or any Guaranteed Obligations with respect to a Parent Termination Fee under the Limited Guarantee given by the Investor), in each case, pursuant to and in accordance with the terms of, and subject to the conditions of, the Merger Agreement. Notwithstanding anything else to the contrary in this letter agreement, the aggregate amount of liability of the Investor under this letter agreement shall at no time exceed the aggregate amount of the Contribution less any portion of the Contribution that has been funded in accordance with the terms hereof or the terms of that certain Escrow Agreement, dated of even date herewith, between the Investor and Parent (the "Escrow Agreement").
2. Closing Conditions. The Investor's obligation to make the Contribution pursuant to this letter agreement is subject to the satisfaction in full (or waiver, if permissible) of all conditions precedent to the obligations of the Parent Parties to consummate the transactions contemplated by the Merger Agreement set forth in Article VII thereof other than (i) conditions that by their nature are to be satisfied on the Closing Date and (ii) any PRC Regulatory Approval that is applicable to the Parent Parties only after the Equity Financing and/or the Debt Financing has been funded. The Investor shall make its Contribution pursuant to the terms of the forms of subscription agreement(s) attached hereto as Exhibit A, which do not contain any conditions to which the Investor's obligation to make the Contribution pursuant to this letter agreement is subject other than those referenced in the foregoing sentence.
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3. Limited Guarantee. Concurrently with the execution and delivery of this letter agreement, the Investor is executing and delivering to the Company a Limited Guarantee (the "Limited Guarantee"). The Company's (i) remedies against the Investor and the Other Investors under their respective Limited Guarantees, (ii) rights set forth in Section 4 of this letter agreement and (iii) remedies against the Parent Parties under the Merger Agreement shall be, and are intended to be, the sole and exclusive direct or indirect remedies available to the Company against the Investor, any former, current or future director, officer, employee, agent or affiliate of the Investor, any former, current or future, direct or indirect holder of any equity interests or securities of the Investor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, affiliate, controlling person or representative of any of the foregoing (each such person or entity, a "Related Person") in respect of any liabilities or obligations arising under, or in connection with, this letter agreement, the Merger Agreement or the transactions contemplated thereby, including without limitation in the event any of the Parent Parties breaches its obligations under the Merger Agreement, whether or not such breach is caused by the Investor's breach of its obligations under this letter agreement; provided that, in the event the Company successfully compels specific performance of the obligations of the Parent Parties to consummate the Merger in accordance with, and subject to the terms and conditions set forth in, Section 9.6(b) of the Merger Agreement, and the Investor shall have made the Contribution (and all Other Investors have funded their Commitments in full and the Effective Time occurred), then neither the Company nor any other Person (including, without limitation, the Company's equityholders, Affiliates and Subsidiaries) shall have any remedy against the Investor or any Related Person, including under the Limited Guarantee.
4. Enforcement. This letter agreement may only be enforced (i) by Holdco or Parent, (ii) by the Company to seek specific performance of the Investor's obligations to fund the Contribution, (iii) by the Company to seek specific performance of Holdco's obligations under Section 1 of this letter agreement to fund the Holdco to Parent Contribution, in the case of each of clause (ii) and clause (iii), in accordance with the Merger Agreement or (iv) by the Company, as set forth in Section 7 of this letter agreement.
5. No Recourse. Notwithstanding anything that may be expressed or implied in this letter agreement, by their acceptance hereof, each of Holdco and Parent acknowledges and agrees that (a) notwithstanding that the Investor may be a limited liability entity, no recourse hereunder or under any documents or instruments delivered in connection herewith may be had against any Related Person, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding or by virtue of any statute, regulation or other applicable law, and (b) no personal liability whatsoever will attach to, be imposed on or otherwise be incurred by Related Persons in connection with this letter agreement or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations or by their creation.
6. Expiration. All obligations under this letter agreement shall expire and terminate automatically and immediately upon the earliest to occur of (a) the valid termination of the Merger Agreement in accordance with its terms, (b) the Closing (at which time the Contribution shall be discharged), (c) the making of the Contribution by the Investor or its permitted assigns, (d) the Company or any of its Affiliates asserting a claim that would make the Limited Guarantee become terminable in accordance with the terms thereof, and (e) ten (10) months after the date hereof; provided that, in the event a claim by the Company or any of its Affiliates under Section 4 of this letter agreement or any claim seeking an injunction, specific performance or other equitable remedy against any Parent Party under Section 9.6(b) of the Merger Agreement is then pending, this letter agreement shall only terminate upon the final, non-appealable resolution of such action and satisfaction by the Investor of any obligations finally determined by a court of competent jurisdiction or agreed to be owed by the Investor in connection with this letter agreement.
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7. No Assignment. The Investor's obligation to fund the Contribution may not be assigned or delegated (whether by operation of law, merger, consolidation or otherwise). Neither this letter agreement nor any of the rights, interests or obligations hereunder shall be assignable by Holdco or Parent without the Investor's and the Company's prior written consent, and the granting of such consent in any given instance shall be solely in the discretion of the Investor and the Company and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment. Any purported transfer, assignment or delegation in violation of this Section 7 shall be null and void and of no force and effect.
8. No Other Beneficiaries. Except for the rights provided to the Company under Section 4 and Section 7 of this letter agreement, this letter agreement shall be binding on the Investor solely for the benefit of Holdco and Parent, and nothing set forth in this letter agreement is intended to or shall confer upon or give to any Person other than Holdco and Parent any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Holdco or Parent to enforce, the Contribution or any provisions of this letter agreement; provided that, notwithstanding anything to the contrary in this letter agreement, any Related Person shall be a third party beneficiary of the provisions set forth herein that are for the benefit of any Related Person (including the provisions of Sections 3, 8, 11, 12 and 14), and all such provisions shall survive any termination of this letter agreement indefinitely. Without limiting the foregoing, neither Holdco's, Parent's, Midco's, Merger Sub's nor the Company's creditors shall have the right to enforce this letter agreement or to cause Holdco or Parent or the Company to enforce this letter agreement.
9. Representations and Warranties. The Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this letter agreement; (b) the execution, delivery and performance of this letter agreement by the Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Investor are necessary therefor; (c) this letter agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by the Investor of this letter agreement do not and will not violate the organizational documents of the Investor or any applicable Law or conflict with any material agreement binding on the Investor; (e) the Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by the Investor.
10. Severability. Any term or provision of this letter agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this letter agreement in any jurisdiction and, if any provision of this letter agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this letter agreement may not be enforced without giving effect to the provisions of Sections 2 through 8, 11 and 12 hereof. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this letter agreement or any part hereof is invalid, illegal or unenforceable.
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11. Jurisdiction; Dispute Resolution.
In the event of any dispute, controversy, or claim between the Investor and Holdco arising out of or relating to the breach, termination or validity of this letter agreement ("Dispute"), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission ("CIETAC") under the arbitration rules of CIETAC (the "Rule") in force when the notice of arbitration is submitted by a party.
The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule.
The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 11. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party.
The awards rendered by the arbitrators pursuant to this Section 11 shall be non-appealable, final, binding and conclusive on the parties to such Dispute.
The Investor, Holdco and Parent understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision.
12. Headings. Headings of the Sections of this letter agreement are for convenience of the parties only and shall be given no substantive or interpretive effect whatsoever.
13. Governing Law. This letter agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People's Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
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14. Entire Agreement; Amendment; Counterparts. This letter agreement, the Escrow Agreement, the Limited Guarantee and the Merger Agreement constitute the entire agreement with respect to the subject matter hereof and thereof, and supersede all other prior agreements, understandings and statements, both written and oral, between or among Holdco, Parent or any of their respective Affiliates, on the one hand, and the Investor or any of its Affiliates, on the other hand. Any provision of this letter agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed by the Investor, Holdco and Parent; provided that any amendment, waiver or modification that would be expected to be adverse to the Company's rights set forth in Section 4 and/or Section 7 of this letter agreement shall require the prior written consent of the Company. This letter agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
[Remainder of page intentionally left blank]
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| Very truly yours, | |
| Tianjin Xinxin Qiyuan Investment Limited Partnership | |
| (天津信心奇缘股权投资合伙企业 ( 有限合伙 ) ) | |
| [Company chop is affixed] |
| By: | /s/ DONG Jianming | |
| Name: | DONG Jianming | |
| Title: | Authorized Signatory |
Agreed to and accepted as of the date first
written above:
Tianjin Qixin Zhicheng Technology Co., Ltd.
(天津奇信志成科技有限公司)
[Company chop is affixed]
| By: | /s/ Eric X. Chen | |
| Name: | Eric X. Chen | |
| Title: | Director |
Tianjin Qixin Tongda Technology Co., Ltd.
(天津奇信通达科技有限公司)
[Company chop is affixed]
| By: | /s/ Eric X. Chen | |
| Name: | Eric X. Chen | |
| Title: | Director |
Qihoo 360 Technology Co. Ltd.
| By: | /s/ Eric X. Chen | |
| Name: | Eric X. Chen | |
| Title: | Director |
[Signature Page to Equity Commitment Letter]
Exhibit A
Subscription Agreement(s)
Exhibit 99.38
Execution Version
Tianjin Xinxinsheng Investment Limited Partnership
( 天津欣新盛股权投资合伙企业 ( 有限合伙 ) )
360 Tower, No. 6 Jiuxianqiao Road,
Chaoyang District, Beijing
December 18, 2015
Tianjin Qixin Zhicheng Technology Co., Ltd.
(天津奇信志成科技有限公司)
Room 9-3-401
No. 39 Gaoxin 6th Road
Binhai Science and Technology Area
Binhai Hi-tech District
Tianjin, China
Tianjin Qixin Tongda Technology Co., Ltd.
(天津奇信通达科技有限公司)
No. 4-B-32, 4F, Building 3
No. 188 Rixin Avenue
Binhai Hi-Tech Zone
Binhai New District
Tianjin, P.R. China 300301
Solely for the purposes of Section 4 and Section 7 hereto,
Qihoo 360 Technology Co. Ltd.
Tower A, Building 2
No.6 Jiuxianqiao Road
Chaoyang District
Beijing, P.R. China 100015
Re: Equity Commitment Letter
Ladies and Gentlemen:
Tianjin Xinxinsheng Investment Limited Partnership (including its successors or permitted assigns, the "Investor") is pleased to offer this commitment, subject to the terms and conditions contained herein, to purchase, directly or indirectly, equity interests in (i) Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), and (ii) Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"). It is contemplated that pursuant to the terms of that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Company"), Holdco, Parent, True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), Merger Sub will merge with and into the Company, with the Company being the surviving company (the "Merger"). Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Merger Agreement.
1. Commitment. The Investor hereby agrees to contribute, or cause to be contributed, within three (3) Business Days after the conditions in Section 2 of this letter agreement are satisfied, as an equity contribution to (i) Holdco, an aggregate amount of RMB equivalent to US$ 493,351,999 (the "Holdco Contribution") and (ii) Parent, an aggregate amount of RMB equivalent to US$ 506,648,001 (the "Parent Contribution", and collectively with the Holdco Contribution, the "Contribution"), subject to the terms and conditions hereof. For purposes of this letter agreement, the RMB equivalents of U.S. dollars shall be determined using the prevailing exchange rate notified by Parent to the Investor at least three (3) Business Days prior to funding. The proceeds of the Holdco Contribution, along with the amounts to be paid by all other Investors (the "Other Investors") to Holdco under their respective Equity Commitment Letters, shall promptly upon receipt be further contributed by Holdco, as an equity contribution to Parent (collectively, the "Holdco to Parent Contribution"). The proceeds of the Parent Contribution, along with the Holdco to Parent Contribution and amounts to be paid by the Other Investors to Parent under their respective Equity Commitment Letters (such aggregate amount, the "Commitments"), shall be used by Parent, to the extent necessary, to (i) fund (or cause to be funded through Midco or Merger Sub) a portion of the Exchange Fund and any other amounts required to be paid pursuant to the Merger Agreement (including any applicable consideration to the holders of Company Convertible Notes or repurchase of any Company Convertible Notes) and (ii) pay (or cause to be paid through Midco or Merger Sub) related fees and expenses (which, for the avoidance of doubt, shall not include any Parent Termination Fee or any Guaranteed Obligations with respect to a Parent Termination Fee under the Limited Guarantee given by the Investor), in each case, pursuant to and in accordance with the terms of, and subject to the conditions of, the Merger Agreement. Notwithstanding anything else to the contrary in this letter agreement, the aggregate amount of liability of the Investor under this letter agreement shall at no time exceed the aggregate amount of the Contribution less any portion of the Contribution that has been funded in accordance with the terms hereof or the terms of that certain Escrow Agreement, dated of even date herewith, between the Investor and Parent (the "Escrow Agreement").
2. Closing Conditions. The Investor's obligation to make the Contribution pursuant to this letter agreement is subject to the satisfaction in full (or waiver, if permissible) of all conditions precedent to the obligations of the Parent Parties to consummate the transactions contemplated by the Merger Agreement set forth in Article VII thereof other than (i) conditions that by their nature are to be satisfied on the Closing Date and (ii) any PRC Regulatory Approval that is applicable to the Parent Parties only after the Equity Financing and/or the Debt Financing has been funded. The Investor shall make its Contribution pursuant to the terms of the forms of subscription agreement(s) attached hereto as Exhibit A, which do not contain any conditions to which the Investor's obligation to make the Contribution pursuant to this letter agreement is subject other than those referenced in the foregoing sentence.
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3. Limited Guarantee. Concurrently with the execution and delivery of this letter agreement, the Investor is executing and delivering to the Company a Limited Guarantee (the "Limited Guarantee"). The Company's (i) remedies against the Investor and the Other Investors under their respective Limited Guarantees, (ii) rights set forth in Section 4 of this letter agreement and (iii) remedies against the Parent Parties under the Merger Agreement shall be, and are intended to be, the sole and exclusive direct or indirect remedies available to the Company against the Investor, any former, current or future director, officer, employee, agent or affiliate of the Investor, any former, current or future, direct or indirect holder of any equity interests or securities of the Investor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, affiliate, controlling person or representative of any of the foregoing (each such person or entity, a "Related Person") in respect of any liabilities or obligations arising under, or in connection with, this letter agreement, the Merger Agreement or the transactions contemplated thereby, including without limitation in the event any of the Parent Parties breaches its obligations under the Merger Agreement, whether or not such breach is caused by the Investor's breach of its obligations under this letter agreement; provided that, in the event the Company successfully compels specific performance of the obligations of the Parent Parties to consummate the Merger in accordance with, and subject to the terms and conditions set forth in, Section 9.6(b) of the Merger Agreement, and the Investor shall have made the Contribution (and all Other Investors have funded their Commitments in full and the Effective Time occurred), then neither the Company nor any other Person (including, without limitation, the Company's equityholders, Affiliates and Subsidiaries) shall have any remedy against the Investor or any Related Person, including under the Limited Guarantee.
4. Enforcement. This letter agreement may only be enforced (i) by Holdco or Parent, (ii) by the Company to seek specific performance of the Investor's obligations to fund the Contribution, (iii) by the Company to seek specific performance of Holdco's obligations under Section 1 of this letter agreement to fund the Holdco to Parent Contribution, in the case of each of clause (ii) and clause (iii), in accordance with the Merger Agreement or (iv) by the Company, as set forth in Section 7 of this letter agreement.
5. No Recourse. Notwithstanding anything that may be expressed or implied in this letter agreement, by their acceptance hereof, each of Holdco and Parent acknowledges and agrees that (a) notwithstanding that the Investor may be a limited liability entity, no recourse hereunder or under any documents or instruments delivered in connection herewith may be had against any Related Person, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding or by virtue of any statute, regulation or other applicable law, and (b) no personal liability whatsoever will attach to, be imposed on or otherwise be incurred by Related Persons in connection with this letter agreement or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations or by their creation.
6. Expiration. All obligations under this letter agreement shall expire and terminate automatically and immediately upon the earliest to occur of (a) the valid termination of the Merger Agreement in accordance with its terms, (b) the Closing (at which time the Contribution shall be discharged), (c) the making of the Contribution by the Investor or its permitted assigns, (d) the Company or any of its Affiliates asserting a claim that would make the Limited Guarantee become terminable in accordance with the terms thereof, and (e) ten (10) months after the date hereof; provided that, in the event a claim by the Company or any of its Affiliates under Section 4 of this letter agreement or any claim seeking an injunction, specific performance or other equitable remedy against any Parent Party under Section 9.6(b) of the Merger Agreement is then pending, this letter agreement shall only terminate upon the final, non-appealable resolution of such action and satisfaction by the Investor of any obligations finally determined by a court of competent jurisdiction or agreed to be owed by the Investor in connection with this letter agreement.
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7. No Assignment. The Investor's obligation to fund the Contribution may not be assigned or delegated (whether by operation of law, merger, consolidation or otherwise). Neither this letter agreement nor any of the rights, interests or obligations hereunder shall be assignable by Holdco or Parent without the Investor's and the Company's prior written consent, and the granting of such consent in any given instance shall be solely in the discretion of the Investor and the Company and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment. Any purported transfer, assignment or delegation in violation of this Section 7 shall be null and void and of no force and effect.
8. No Other Beneficiaries. Except for the rights provided to the Company under Section 4 and Section 7 of this letter agreement, this letter agreement shall be binding on the Investor solely for the benefit of Holdco and Parent, and nothing set forth in this letter agreement is intended to or shall confer upon or give to any Person other than Holdco and Parent any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Holdco or Parent to enforce, the Contribution or any provisions of this letter agreement; provided that, notwithstanding anything to the contrary in this letter agreement, any Related Person shall be a third party beneficiary of the provisions set forth herein that are for the benefit of any Related Person (including the provisions of Sections 3, 8, 11, 12 and 14), and all such provisions shall survive any termination of this letter agreement indefinitely. Without limiting the foregoing, neither Holdco's, Parent's, Midco's, Merger Sub's nor the Company's creditors shall have the right to enforce this letter agreement or to cause Holdco or Parent or the Company to enforce this letter agreement.
9. Representations and Warranties. The Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this letter agreement; (b) the execution, delivery and performance of this letter agreement by the Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Investor are necessary therefor; (c) this letter agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by the Investor of this letter agreement do not and will not violate the organizational documents of the Investor or any applicable Law or conflict with any material agreement binding on the Investor; (e) the Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by the Investor.
10. Severability. Any term or provision of this letter agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this letter agreement in any jurisdiction and, if any provision of this letter agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this letter agreement may not be enforced without giving effect to the provisions of Sections 2 through 8, 11 and 12 hereof. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this letter agreement or any part hereof is invalid, illegal or unenforceable.
| - 4 - |
11. Jurisdiction; Dispute Resolution.
In the event of any dispute, controversy, or claim between the Investor and Holdco arising out of or relating to the breach, termination or validity of this letter agreement ("Dispute"), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission ("CIETAC") under the arbitration rules of CIETAC (the "Rule") in force when the notice of arbitration is submitted by a party.
The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule.
The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 11. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party.
The awards rendered by the arbitrators pursuant to this Section 11 shall be non-appealable, final, binding and conclusive on the parties to such Dispute.
The Investor, Holdco and Parent understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision.
12. Headings. Headings of the Sections of this letter agreement are for convenience of the parties only and shall be given no substantive or interpretive effect whatsoever.
13. Governing Law. This letter agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People's Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
| - 5 - |
14. Entire Agreement; Amendment; Counterparts. This letter agreement, the Escrow Agreement, the Limited Guarantee and the Merger Agreement constitute the entire agreement with respect to the subject matter hereof and thereof, and supersede all other prior agreements, understandings and statements, both written and oral, between or among Holdco, Parent or any of their respective Affiliates, on the one hand, and the Investor or any of its Affiliates, on the other hand. Any provision of this letter agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed by the Investor, Holdco and Parent; provided that any amendment, waiver or modification that would be expected to be adverse to the Company's rights set forth in Section 4 and/or Section 7 of this letter agreement shall require the prior written consent of the Company. This letter agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
[Remainder of page intentionally left blank]
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| Very truly yours, | |
| Tianjin Xinxinsheng Investment Limited Partnership | |
| (天津欣新盛股权投资合伙企业 ( 有限合伙 ) ) | |
| [Company chop is affixed] |
| By: | /s/ Xiangdong Qi | |
| Name: | Xiangdong Qi | |
| Title: | Authorized Signatory |
Agreed to and accepted as of the date first
written above:
Tianjin Qixin Zhicheng Technology Co., Ltd.
(天津奇信志成科技有限公司)
[Company chop is affixed]
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory |
Tianjin Qixin Tongda Technology Co., Ltd.
(天津奇信通达科技有限公司)
[Company chop is affixed]
| By: | /s/ Hongyi Zhou | |
| Name: | Hongyi Zhou | |
| Title: | Authorized Signatory |
Qihoo 360 Technology Co. Ltd.
| By: | /s/ Eric X. Chen | |
| Name: | Eric X. Chen | |
| Title: | Director |
[Signature Page to Equity Commitment Letter]
Exhibit A
Subscription Agreement(s)
Exhibit 99.39
Execution Version
ESCROW AGREEMENT
This Escrow Agreement (this “Agreement”), dated as of December 18, 2015 (this “Agreement”), is made by and among CITIC Guoan Information Industry Co., Ltd. (中信国安信息产业股份有限公司), a limited liability company incorporated under the laws of the PRC (“Investor”), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the PRC ("Parent"), and Qihoo 360 Technology Co. Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the "Company"). Each of Investor, Parent and the Company are referred to herein as a "Party" and together as "Parties".
Reference is hereby made to each of: (i) that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among the Company, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands("Merger Sub"); (ii) that certain limited guarantee, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Limited Guarantee") between Investor and the Company; (iii) that certain equity commitment letter, executed by Investor on the date hereof in favor of Holdco and Parent and the Company (the "Equity Commitment Letter"); and (iv) that certain Interim Investors Agreement, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Interim Investors Agreement"), by and among Holdco, Parent, Investor and certain other parties identified therein. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
In order to induce Parent to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Interim Investors Agreement and the Company to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Limited Guarantee, and in consideration of the mutual covenants and obligations hereinafter set forth, the Parties hereby agree in this Agreement as follows:
| 1 | Escrow; Representations and Warranties |
| 1.1 | No later than five (5) Business Days after the date hereof (the "Escrow Due Date"), Investor shall pay or cause to be paid to Parent, RMB76,920,000 (the "Escrowed Amount") by wire transfer of immediately available funds into an account designated by Parent (the “Parent Account”). |
| 1 |
| 1.2 | Parent shall set aside the Escrowed Amount, together with the escrowed amount from other investors under the other escrow agreements dated as of the date hereof in the Parent Account as a separate pool of funds for the purposes set forth in Section 2.1, and Parent shall maintain a ledger showing the Escrowed Amount from Investor, and the escrowed amount from other investors under the other escrow agreements dated as of the date hereof individually (the “Ledger”). Within 15 Business Days after the Escrow Due Date, Parent shall provide the Company with a written notice setting forth the detailed information of the Parent Account and the Ledger. Upon request of the Company, Parent shall provide the Company with reasonable evidence with respect to the Parent Account in reasonable details, including without limitation the total balance in the Parent Account, and the Ledger, within two (2) Business Days following such request. |
| 1.3 | Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this Agreement; (b) the execution, delivery and performance of this Agreement by Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of Investor are necessary therefor; (c) this Agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by Investor of this Agreement do not and will not violate the organizational documents of Investor or any applicable Law or conflict with any material agreement binding on Investor; and (e) Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by Investor. |
| 2 | Application of the Escrowed Amount |
| 2.1 | The Parties agree that, subject to the terms of this Agreement, the Escrowed Amount shall be applied by Parent as follows: |
| (a) (i) in the event the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement, the Escrowed Amount shall be used by Parent to pay the Parent Termination Fee that becomes due and payable pursuant to the terms of the Merger Agreement, and (ii) in the event that any of Investor’s obligations under the Limited Guarantee, including the payment of the Guaranteed Obligation pursuant to Section 1(a) of the Limited Guarantee and the obligation under Section 1(c) of the Limited Guarantee, becomes due and payable pursuant to the terms of the Limited Guarantee, the Escrowed Amount shall be used by Parent to pay all such obligations of Investor as arise from and under the Limited Guarantee, and in no event shall the Escrowed Amount be used for or applied towards any other purposes unless and until all the obligations under the foregoing sub-clauses (i) and (ii) have been fully satisfied; |
| (b) in the event Investor’s obligation to fund the Contribution under the Equity Commitment Letter becomes due pursuant to the terms thereunder, the Escrowed Amount shall be credited against, applied towards and offset from the amount of the Contribution; or |
| 2 |
| (c) after full payment is made out of the Parent Account in accordance with the forgoing clause (a) or (b), as applicable, in the event Investor otherwise owes any obligations, liabilities, fees and/or expenses to the Parent Parties or other Investors, Parent shall use the remainder of the Escrowed Amount, if any, to satisfy such obligations, liabilities, fees and/or expenses. |
| 3 | Termination; Treatment of Escrowed Amount |
| 3.1 | This Agreement may be terminated by written notice at any time prior to receipt by Parent of the Escrowed Amount: |
| (a) | by the mutual written consent of the Parties; and |
| (b) | by Parent with the written consent of the Company, if Parent has not received the Escrowed Amount on or before the Escrow Due Date. |
| 3.2 | In the event the Escrowed Amount has been funded pursuant to paragraph 1.1, this Agreement shall terminate upon the earliest to occur of (a) the full payment and application of the Escrowed Amount in accordance with Section 2.1(a) hereof, in the event that the Equity Commitment Letter is terminated pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would become due and payable pursuant to the terms of the Merger Agreement, (b) the termination of the Equity Commitment Letter pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would not become due and payable pursuant to the terms of the Merger Agreement, and (c) the termination of Investor’s participation in the transaction pursuant to the terms of the Interim Investors Agreement. Notwithstanding anything to the contrary herein and for the avoidance of doubt, this Agreement shall not be terminated without the prior written consent of the Company in the event that (i) the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement or (ii) any of Investor’s obligations under the Limited Guarantee becomes due and payable pursuant to the terms of the Limited Guarantee, and in each case the funded Escrowed Amounts have not been utilized in accordance with the terms hereof for the payment of the Parent Termination Fee or such obligations. |
| 3.3 | In the event (i) this Agreement is terminated pursuant to paragraph 3.2(b) and the Contribution under the Equity Commitment Letter is not required to be made or has otherwise been made in full without taking into account the funded Escrow Amount pursuant to the terms thereunder, or (ii) this Agreement is terminated pursuant to paragraph 3.2(c), Parent shall, after deducting and offsetting from the Escrowed Amount any obligations, liabilities, fees and/or expenses of Investor incurred and/or payable under the terms of the Equity Commitment Letter or the Interim Investors Agreement, as applicable, promptly (and in any event within 30 days of such termination) return the remainder of the Escrowed Amount to an account of the Investor designated by the Investor in writing. |
| 3.4 | The Parties hereby acknowledge, covenant and agree that, unless expressly provided for herein, Parent shall not utilize or release any Escrowed Amount from the Parent Account without the prior written consent of the Company. |
| 3 |
| 4 | Governing Law; Dispute Resolution |
| 4.1 | This Agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People’s Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction |
| 4.2 | In the event of any dispute, controversy, or claim between the Parties arising out of or relating to the breach, termination or validity of this Agreement (“Dispute”), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission (“CIETAC”) under the arbitration rules of CIETAC (the “Rule”) in force when the notice of arbitration is submitted by a party. |
| 4.3 | The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule. |
| 4.4 | The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 9. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party. |
| 4.5 | The awards rendered by the arbitrators pursuant to this Section 9 shall be non-appealable, final, binding and conclusive on the parties to such Dispute. |
| 4.6 | The Parties understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision. |
| 5 | General Provisions |
| 5.1 | Each of the Parties confirms that it has received independent legal advice relating to all matters provided for in this Agreement and agrees that the provisions of this Agreement are fair and reasonable. |
| 5.2 | Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Agreement in any jurisdiction and, if any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this Agreement or any part hereof is invalid, illegal or unenforceable. |
| 4 |
| 5.3 | This Agreement shall be binding on and inure for the benefit of the successors of each of the Parties, but the Parties may not assign, grant any security interest, hold on trust or otherwise transfer all or any of their rights and obligations under this Agreement (without the prior written consent of the other Parties). |
| 5.4 | This Agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered (by telecopy or otherwise) to the other Parties. |
| 5.5 | Any waiver of any right or default under this Agreement shall be effective only in the instance given and shall not operate as or imply a waiver of any other or similar right or default on any subsequent occasion. No waiver of any provision of this Agreement will be effective unless it is granted in writing and signed by the Party granting the waiver and with the prior written consent of the Company. Any delay by any Party in exercising, or failure to exercise, any right or remedy under this Agreement shall not constitute a waiver of the right or remedy (or a waiver of any other rights or remedies) and no single or partial exercise of any rights or remedy under this Agreement or otherwise shall prevent any further exercise of the right or remedy (or the exercise of any other right or remedy). |
| 5.6 | This Agreement shall not be amended, changed or modified, except by another agreement in writing executed by the Parties hereto. |
| 5.6 | The Parties hereto agree that irreparable damage would occur in the event that any provision of this Agreement were not performed in accordance with the terms hereof and that each Party shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement, in addition to any other remedy at law or equity. Each Party hereby waives (a) any defenses in any action for specific performance, including the defense that a remedy at law would be adequate and (b) any requirement under any law to post a bond or other security as a prerequisite to obtaining equitable relief. |
| 5.7 | Each Party acknowledges and agrees that (i) the Escrowed Amount is not intended to cap Investor’s liabilities under this Agreement, the Equity Commitment Letter, the Interim Investors Agreement or the Limited Guarantee, or Parent’s liability under the Merger Agreement, and (ii) Parent’s liability to Investor under this Agreement shall not exceed the Escrowed Amount. |
[Signature page follows]
| 5 |
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
Very truly yours,
| CITIC Guoan Information Industry Co., Ltd. | ||
| (中信国安信息产业股份有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Sun Lu | |
| Name: Sun Lu | ||
| Title: General Manager | ||
Accepted and agreed to as of the date first written above:
| Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: Hongyi Zhou | ||
| Title: Authorized Signatory | ||
[Signature Page to Escrow Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
Title: Director | ||
[Signature Page to Escrow Agreement]
Exhibit 99.40
Execution Version
ESCROW AGREEMENT
This Escrow Agreement (this “Agreement”), dated as of December 18, 2015 (this “Agreement”), is made by and among Shen Zhen Ping An Real Estate Investment Co., Ltd. (深圳市平安置业投资有限公司), a limited liability company incorporated under the laws of the PRC (“Investor”), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the PRC ("Parent"), and Qihoo 360 Technology Co. Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the "Company"). Each of Investor, Parent and the Company are referred to herein as a "Party" and together as "Parties".
Reference is hereby made to each of: (i) that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among the Company, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands("Merger Sub"); (ii) that certain limited guarantee, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Limited Guarantee") between Investor and the Company; (iii) that certain equity commitment letter, executed by Investor on the date hereof in favor of Holdco and Parent and the Company (the "Equity Commitment Letter"); and (iv) that certain Interim Investors Agreement, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Interim Investors Agreement"), by and among Holdco, Parent, Investor and certain other parties identified therein. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
In order to induce Parent to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Interim Investors Agreement and the Company to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Limited Guarantee, and in consideration of the mutual covenants and obligations hereinafter set forth, the Parties hereby agree in this Agreement as follows:
| 1 | Escrow; Representations and Warranties |
| 1.1 | No later than five (5) Business Days after the date hereof (the "Escrow Due Date"), Investor shall pay or cause to be paid to Parent, RMB61,536,000 (the "Escrowed Amount") by wire transfer of immediately available funds into an account designated by Parent (the “Parent Account”). |
| 1.2 | Parent shall set aside the Escrowed Amount, together with the escrowed amount from other investors under the other escrow agreements dated as of the date hereof in the Parent Account as a separate pool of funds for the purposes set forth in Section 2.1, and Parent shall maintain a ledger showing the Escrowed Amount from Investor, and the escrowed amount from other investors under the other escrow agreements dated as of the date hereof individually (the “Ledger”). Within 15 Business Days after the Escrow Due Date, Parent shall provide the Company with a written notice setting forth the detailed information of the Parent Account and the Ledger. Upon request of the Company, Parent shall provide the Company with reasonable evidence with respect to the Parent Account in reasonable details, including without limitation the total balance in the Parent Account, and the Ledger, within two (2) Business Days following such request. |
| 1 |
| 1.3 | Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this Agreement; (b) the execution, delivery and performance of this Agreement by Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of Investor are necessary therefor; (c) this Agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by Investor of this Agreement do not and will not violate the organizational documents of Investor or any applicable Law or conflict with any material agreement binding on Investor; and (e) Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by Investor. |
| 2 | Application of the Escrowed Amount |
| 2.1 | The Parties agree that, subject to the terms of this Agreement, the Escrowed Amount shall be applied by Parent as follows: |
| (a) (i) in the event the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement, the Escrowed Amount shall be used by Parent to pay the Parent Termination Fee that becomes due and payable pursuant to the terms of the Merger Agreement, and (ii) in the event that any of Investor’s obligations under the Limited Guarantee, including the payment of the Guaranteed Obligation pursuant to Section 1(a) of the Limited Guarantee and the obligation under Section 1(c) of the Limited Guarantee, becomes due and payable pursuant to the terms of the Limited Guarantee, the Escrowed Amount shall be used by Parent to pay all such obligations of Investor as arise from and under the Limited Guarantee, and in no event shall the Escrowed Amount be used for or applied towards any other purposes unless and until all the obligations under the foregoing sub-clauses (i) and (ii) have been fully satisfied; |
| (b) in the event Investor’s obligation to fund the Contribution under the Equity Commitment Letter becomes due pursuant to the terms thereunder, the Escrowed Amount shall be credited against, applied towards and offset from the amount of the Contribution; or |
| 2 |
| (c) after full payment is made out of the Parent Account in accordance with the forgoing clause (a) or (b), as applicable, in the event Investor otherwise owes any obligations, liabilities, fees and/or expenses to the Parent Parties or other Investors, Parent shall use the remainder of the Escrowed Amount, if any, to satisfy such obligations, liabilities, fees and/or expenses. |
| 3 | Termination; Treatment of Escrowed Amount |
| 3.1 | This Agreement may be terminated by written notice at any time prior to receipt by Parent of the Escrowed Amount: |
| (a) | by the mutual written consent of the Parties; and |
| (b) | by Parent with the written consent of the Company, if Parent has not received the Escrowed Amount on or before the Escrow Due Date. |
| 3.2 | In the event the Escrowed Amount has been funded pursuant to paragraph 1.1, this Agreement shall terminate upon the earliest to occur of (a) the full payment and application of the Escrowed Amount in accordance with Section 2.1(a) hereof, in the event that the Equity Commitment Letter is terminated pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would become due and payable pursuant to the terms of the Merger Agreement, (b) the termination of the Equity Commitment Letter pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would not become due and payable pursuant to the terms of the Merger Agreement, and (c) the termination of Investor’s participation in the transaction pursuant to the terms of the Interim Investors Agreement. Notwithstanding anything to the contrary herein and for the avoidance of doubt, this Agreement shall not be terminated without the prior written consent of the Company in the event that (i) the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement or (ii) any of Investor’s obligations under the Limited Guarantee becomes due and payable pursuant to the terms of the Limited Guarantee, and in each case the funded Escrowed Amounts have not been utilized in accordance with the terms hereof for the payment of the Parent Termination Fee or such obligations. |
| 3.3 | In the event (i) this Agreement is terminated pursuant to paragraph 3.2(b) and the Contribution under the Equity Commitment Letter is not required to be made or has otherwise been made in full without taking into account the funded Escrow Amount pursuant to the terms thereunder, or (ii) this Agreement is terminated pursuant to paragraph 3.2(c), Parent shall, after deducting and offsetting from the Escrowed Amount any obligations, liabilities, fees and/or expenses of Investor incurred and/or payable under the terms of the Equity Commitment Letter or the Interim Investors Agreement, as applicable, promptly (and in any event within 30 days of such termination) return the remainder of the Escrowed Amount to an account of the Investor designated by the Investor in writing. |
| 3.4 | The Parties hereby acknowledge, covenant and agree that, unless expressly provided for herein, Parent shall not utilize or release any Escrowed Amount from the Parent Account without the prior written consent of the Company. |
| 3 |
| 4 | Governing Law; Dispute Resolution |
| 4.1 | This Agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People’s Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction |
| 4.2 | In the event of any dispute, controversy, or claim between the Parties arising out of or relating to the breach, termination or validity of this Agreement (“Dispute”), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission (“CIETAC”) under the arbitration rules of CIETAC (the “Rule”) in force when the notice of arbitration is submitted by a party. |
| 4.3 | The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule. |
| 4.4 | The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 9. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party. |
| 4.5 | The awards rendered by the arbitrators pursuant to this Section 9 shall be non-appealable, final, binding and conclusive on the parties to such Dispute. |
| 4.6 | The Parties understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision. |
| 5 | General Provisions |
| 5.1 | Each of the Parties confirms that it has received independent legal advice relating to all matters provided for in this Agreement and agrees that the provisions of this Agreement are fair and reasonable. |
| 5.2 | Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Agreement in any jurisdiction and, if any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this Agreement or any part hereof is invalid, illegal or unenforceable. |
| 4 |
| 5.3 | This Agreement shall be binding on and inure for the benefit of the successors of each of the Parties, but the Parties may not assign, grant any security interest, hold on trust or otherwise transfer all or any of their rights and obligations under this Agreement (without the prior written consent of the other Parties). |
| 5.4 | This Agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered (by telecopy or otherwise) to the other Parties. |
| 5.5 | Any waiver of any right or default under this Agreement shall be effective only in the instance given and shall not operate as or imply a waiver of any other or similar right or default on any subsequent occasion. No waiver of any provision of this Agreement will be effective unless it is granted in writing and signed by the Party granting the waiver and with the prior written consent of the Company. Any delay by any Party in exercising, or failure to exercise, any right or remedy under this Agreement shall not constitute a waiver of the right or remedy (or a waiver of any other rights or remedies) and no single or partial exercise of any rights or remedy under this Agreement or otherwise shall prevent any further exercise of the right or remedy (or the exercise of any other right or remedy). |
| 5.6 | This Agreement shall not be amended, changed or modified, except by another agreement in writing executed by the Parties hereto. |
| 5.6 | The Parties hereto agree that irreparable damage would occur in the event that any provision of this Agreement were not performed in accordance with the terms hereof and that each Party shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement, in addition to any other remedy at law or equity. Each Party hereby waives (a) any defenses in any action for specific performance, including the defense that a remedy at law would be adequate and (b) any requirement under any law to post a bond or other security as a prerequisite to obtaining equitable relief. |
| 5.7 | Each Party acknowledges and agrees that (i) the Escrowed Amount is not intended to cap Investor’s liabilities under this Agreement, the Equity Commitment Letter, the Interim Investors Agreement or the Limited Guarantee, or Parent’s liability under the Merger Agreement, and (ii) Parent’s liability to Investor under this Agreement shall not exceed the Escrowed Amount. |
[Signature page follows]
| 5 |
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
Very truly yours,
| Shen Zhen Ping An Real Estate Investment Co., Ltd. | ||
| (深圳市平安置业投资有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ MENG Shen | |
| Name: MENG Shen (孟甡) | ||
Title: Corporate Representative | ||
Accepted and agreed to as of the date first written above:
| Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: Hongyi Zhou | ||
| Title: Authorized Signatory | ||
[Signature Page to Escrow Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
|
Title: Director | ||
[Signature Page to Escrow Agreement]
Exhibit 99.41
Execution Version
ESCROW AGREEMENT
This Escrow Agreement (this “Agreement”), dated as of December 18, 2015 (this “Agreement”), is made by and among Sunshine Life Insurance Company Ltd. (阳光人寿保险股份有限公司), a limited liability company incorporated under the laws of the PRC (“Investor”), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the PRC ("Parent"), and Qihoo 360 Technology Co. Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the "Company"). Each of Investor, Parent and the Company are referred to herein as a "Party" and together as "Parties".
Reference is hereby made to each of: (i) that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among the Company, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands("Merger Sub"); (ii) that certain limited guarantee, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Limited Guarantee") between Investor and the Company; (iii) that certain equity commitment letter, executed by Investor on the date hereof in favor of Holdco and Parent and the Company (the "Equity Commitment Letter"); and (iv) that certain Interim Investors Agreement, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Interim Investors Agreement"), by and among Holdco, Parent, Investor and certain other parties identified therein. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
In order to induce Parent to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Interim Investors Agreement and the Company to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Limited Guarantee, and in consideration of the mutual covenants and obligations hereinafter set forth, the Parties hereby agree in this Agreement as follows:
| 1 | Escrow; Representations and Warranties |
| 1.1 | No later than five (5) Business Days after the date hereof (the "Escrow Due Date"), Investor shall pay or cause to be paid to Parent, RMB61,536,000 (the "Escrowed Amount") by wire transfer of immediately available funds into an account designated by Parent (the “Parent Account”). |
| 1.2 | Parent shall set aside the Escrowed Amount, together with the escrowed amount from other investors under the other escrow agreements dated as of the date hereof in the Parent Account as a separate pool of funds for the purposes set forth in Section 2.1, and Parent shall maintain a ledger showing the Escrowed Amount from Investor, and the escrowed amount from other investors under the other escrow agreements dated as of the date hereof individually (the “Ledger”). Within 15 Business Days after the Escrow Due Date, Parent shall provide the Company with a written notice setting forth the detailed information of the Parent Account and the Ledger. Upon request of the Company, Parent shall provide the Company with reasonable evidence with respect to the Parent Account in reasonable details, including without limitation the total balance in the Parent Account, and the Ledger, within two (2) Business Days following such request. |
| 1 |
| 1.3 | Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this Agreement; (b) the execution, delivery and performance of this Agreement by Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of Investor are necessary therefor; (c) this Agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by Investor of this Agreement do not and will not violate the organizational documents of Investor or any applicable Law or conflict with any material agreement binding on Investor; and (e) Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by Investor. |
| 2 | Application of the Escrowed Amount |
| 2.1 | The Parties agree that, subject to the terms of this Agreement, the Escrowed Amount shall be applied by Parent as follows: |
| (a) (i) in the event the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement, the Escrowed Amount shall be used by Parent to pay the Parent Termination Fee that becomes due and payable pursuant to the terms of the Merger Agreement, and (ii) in the event that any of Investor’s obligations under the Limited Guarantee, including the payment of the Guaranteed Obligation pursuant to Section 1(a) of the Limited Guarantee and the obligation under Section 1(c) of the Limited Guarantee, becomes due and payable pursuant to the terms of the Limited Guarantee, the Escrowed Amount shall be used by Parent to pay all such obligations of Investor as arise from and under the Limited Guarantee, and in no event shall the Escrowed Amount be used for or applied towards any other purposes unless and until all the obligations under the foregoing sub-clauses (i) and (ii) have been fully satisfied; |
| (b) in the event Investor’s obligation to fund the Contribution under the Equity Commitment Letter becomes due pursuant to the terms thereunder, the Escrowed Amount shall be credited against, applied towards and offset from the amount of the Contribution; or |
| 2 |
| (c) after full payment is made out of the Parent Account in accordance with the forgoing clause (a) or (b), as applicable, in the event Investor otherwise owes any obligations, liabilities, fees and/or expenses to the Parent Parties or other Investors, Parent shall use the remainder of the Escrowed Amount, if any, to satisfy such obligations, liabilities, fees and/or expenses. |
| 3 | Termination; Treatment of Escrowed Amount |
| 3.1 | This Agreement may be terminated by written notice at any time prior to receipt by Parent of the Escrowed Amount: |
| (a) | by the mutual written consent of the Parties; and |
| (b) | by Parent with the written consent of the Company, if Parent has not received the Escrowed Amount on or before the Escrow Due Date. |
| 3.2 | In the event the Escrowed Amount has been funded pursuant to paragraph 1.1, this Agreement shall terminate upon the earliest to occur of (a) the full payment and application of the Escrowed Amount in accordance with Section 2.1(a) hereof, in the event that the Equity Commitment Letter is terminated pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would become due and payable pursuant to the terms of the Merger Agreement, (b) the termination of the Equity Commitment Letter pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would not become due and payable pursuant to the terms of the Merger Agreement, and (c) the termination of Investor’s participation in the transaction pursuant to the terms of the Interim Investors Agreement. Notwithstanding anything to the contrary herein and for the avoidance of doubt, this Agreement shall not be terminated without the prior written consent of the Company in the event that (i) the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement or (ii) any of Investor’s obligations under the Limited Guarantee becomes due and payable pursuant to the terms of the Limited Guarantee, and in each case the funded Escrowed Amounts have not been utilized in accordance with the terms hereof for the payment of the Parent Termination Fee or such obligations. |
| 3.3 | In the event (i) this Agreement is terminated pursuant to paragraph 3.2(b) and the Contribution under the Equity Commitment Letter is not required to be made or has otherwise been made in full without taking into account the funded Escrow Amount pursuant to the terms thereunder, or (ii) this Agreement is terminated pursuant to paragraph 3.2(c), Parent shall, after deducting and offsetting from the Escrowed Amount any obligations, liabilities, fees and/or expenses of Investor incurred and/or payable under the terms of the Equity Commitment Letter or the Interim Investors Agreement, as applicable, promptly (and in any event within 30 days of such termination) return the remainder of the Escrowed Amount to an account of the Investor designated by the Investor in writing. |
| 3.4 | The Parties hereby acknowledge, covenant and agree that, unless expressly provided for herein, Parent shall not utilize or release any Escrowed Amount from the Parent Account without the prior written consent of the Company. |
| 3 |
| 4 | Governing Law; Dispute Resolution |
| 4.1 | This Agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People’s Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction |
| 4.2 | In the event of any dispute, controversy, or claim between the Parties arising out of or relating to the breach, termination or validity of this Agreement (“Dispute”), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission (“CIETAC”) under the arbitration rules of CIETAC (the “Rule”) in force when the notice of arbitration is submitted by a party. |
| 4.3 | The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule. |
| 4.4 | The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 9. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party. |
| 4.5 | The awards rendered by the arbitrators pursuant to this Section 9 shall be non-appealable, final, binding and conclusive on the parties to such Dispute. |
| 4.6 | The Parties understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision. |
| 5 | General Provisions |
| 5.1 | Each of the Parties confirms that it has received independent legal advice relating to all matters provided for in this Agreement and agrees that the provisions of this Agreement are fair and reasonable. |
| 5.2 | Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Agreement in any jurisdiction and, if any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this Agreement or any part hereof is invalid, illegal or unenforceable. |
| 4 |
| 5.3 | This Agreement shall be binding on and inure for the benefit of the successors of each of the Parties, but the Parties may not assign, grant any security interest, hold on trust or otherwise transfer all or any of their rights and obligations under this Agreement (without the prior written consent of the other Parties). |
| 5.4 | This Agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered (by telecopy or otherwise) to the other Parties. |
| 5.5 | Any waiver of any right or default under this Agreement shall be effective only in the instance given and shall not operate as or imply a waiver of any other or similar right or default on any subsequent occasion. No waiver of any provision of this Agreement will be effective unless it is granted in writing and signed by the Party granting the waiver and with the prior written consent of the Company. Any delay by any Party in exercising, or failure to exercise, any right or remedy under this Agreement shall not constitute a waiver of the right or remedy (or a waiver of any other rights or remedies) and no single or partial exercise of any rights or remedy under this Agreement or otherwise shall prevent any further exercise of the right or remedy (or the exercise of any other right or remedy). |
| 5.6 | This Agreement shall not be amended, changed or modified, except by another agreement in writing executed by the Parties hereto. |
| 5.6 | The Parties hereto agree that irreparable damage would occur in the event that any provision of this Agreement were not performed in accordance with the terms hereof and that each Party shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement, in addition to any other remedy at law or equity. Each Party hereby waives (a) any defenses in any action for specific performance, including the defense that a remedy at law would be adequate and (b) any requirement under any law to post a bond or other security as a prerequisite to obtaining equitable relief. |
| 5.7 | Each Party acknowledges and agrees that (i) the Escrowed Amount is not intended to cap Investor’s liabilities under this Agreement, the Equity Commitment Letter, the Interim Investors Agreement or the Limited Guarantee, or Parent’s liability under the Merger Agreement, and (ii) Parent’s liability to Investor under this Agreement shall not exceed the Escrowed Amount. |
[Signature page follows]
| 5 |
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
Very truly yours,
| Sunshine Life Insurance Company Ltd. | ||
| (阳光人寿保险股份有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Ke Li | |
| Name: Ke Li | ||
Title: Legal Representative | ||
Accepted and agreed to as of the date first written above:
|
Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: Hongyi Zhou | ||
| Title: Authorized Signatory | ||
[Signature Page to Escrow Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
Title: Director | ||
[Signature Page to Escrow Agreement]
Exhibit 99.42
Execution Version
ESCROW AGREEMENT
This Escrow Agreement (this “Agreement”), dated as of December 18, 2015 (this “Agreement”), is made by and among Taikang Life Insurance Co., Ltd. (泰康人寿保险股份有限公司), a limited liability company incorporated under the laws of the PRC (“Investor”), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the PRC ("Parent"), and Qihoo 360 Technology Co. Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the "Company"). Each of Investor, Parent and the Company are referred to herein as a "Party" and together as "Parties".
Reference is hereby made to each of: (i) that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among the Company, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands("Merger Sub"); (ii) that certain limited guarantee, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Limited Guarantee") between Investor and the Company; (iii) that certain equity commitment letter, executed by Investor on the date hereof in favor of Holdco and Parent and the Company (the "Equity Commitment Letter"); and (iv) that certain Interim Investors Agreement, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Interim Investors Agreement"), by and among Holdco, Parent, Investor and certain other parties identified therein. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
In order to induce Parent to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Interim Investors Agreement and the Company to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Limited Guarantee, and in consideration of the mutual covenants and obligations hereinafter set forth, the Parties hereby agree in this Agreement as follows:
| 1 | Escrow; Representations and Warranties |
| 1.1 | No later than five (5) Business Days after the date hereof (the "Escrow Due Date"), Investor shall pay or cause to be paid to Parent, RMB61,536,000 (the "Escrowed Amount") by wire transfer of immediately available funds into an account designated by Parent (the “Parent Account”). |
| 1.2 | Parent shall set aside the Escrowed Amount, together with the escrowed amount from other investors under the other escrow agreements dated as of the date hereof in the Parent Account as a separate pool of funds for the purposes set forth in Section 2.1, and Parent shall maintain a ledger showing the Escrowed Amount from Investor, and the escrowed amount from other investors under the other escrow agreements dated as of the date hereof individually (the “Ledger”). Within 15 Business Days after the Escrow Due Date, Parent shall provide the Company with a written notice setting forth the detailed information of the Parent Account and the Ledger. Upon request of the Company, Parent shall provide the Company with reasonable evidence with respect to the Parent Account in reasonable details, including without limitation the total balance in the Parent Account, and the Ledger, within two (2) Business Days following such request. |
| 1 |
| 1.3 | Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this Agreement; (b) the execution, delivery and performance of this Agreement by Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of Investor are necessary therefor; (c) this Agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by Investor of this Agreement do not and will not violate the organizational documents of Investor or any applicable Law or conflict with any material agreement binding on Investor; and (e) Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by Investor. |
| 2 | Application of the Escrowed Amount |
| 2.1 | The Parties agree that, subject to the terms of this Agreement, the Escrowed Amount shall be applied by Parent as follows: |
| (a) (i) in the event the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement, the Escrowed Amount shall be used by Parent to pay the Parent Termination Fee that becomes due and payable pursuant to the terms of the Merger Agreement, and (ii) in the event that any of Investor’s obligations under the Limited Guarantee, including the payment of the Guaranteed Obligation pursuant to Section 1(a) of the Limited Guarantee and the obligation under Section 1(c) of the Limited Guarantee, becomes due and payable pursuant to the terms of the Limited Guarantee, the Escrowed Amount shall be used by Parent to pay all such obligations of Investor as arise from and under the Limited Guarantee, and in no event shall the Escrowed Amount be used for or applied towards any other purposes unless and until all the obligations under the foregoing sub-clauses (i) and (ii) have been fully satisfied; |
| (b) in the event Investor’s obligation to fund the Contribution under the Equity Commitment Letter becomes due pursuant to the terms thereunder, the Escrowed Amount shall be credited against, applied towards and offset from the amount of the Contribution; or |
| 2 |
| (c) after full payment is made out of the Parent Account in accordance with the forgoing clause (a) or (b), as applicable, in the event Investor otherwise owes any obligations, liabilities, fees and/or expenses to the Parent Parties or other Investors, Parent shall use the remainder of the Escrowed Amount, if any, to satisfy such obligations, liabilities, fees and/or expenses. |
| 3 | Termination; Treatment of Escrowed Amount |
| 3.1 | This Agreement may be terminated by written notice at any time prior to receipt by Parent of the Escrowed Amount: |
| (a) | by the mutual written consent of the Parties; and |
| (b) | by Parent with the written consent of the Company, if Parent has not received the Escrowed Amount on or before the Escrow Due Date. |
| 3.2 | In the event the Escrowed Amount has been funded pursuant to paragraph 1.1, this Agreement shall terminate upon the earliest to occur of (a) the full payment and application of the Escrowed Amount in accordance with Section 2.1(a) hereof, in the event that the Equity Commitment Letter is terminated pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would become due and payable pursuant to the terms of the Merger Agreement, (b) the termination of the Equity Commitment Letter pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would not become due and payable pursuant to the terms of the Merger Agreement, and (c) the termination of Investor’s participation in the transaction pursuant to the terms of the Interim Investors Agreement. Notwithstanding anything to the contrary herein and for the avoidance of doubt, this Agreement shall not be terminated without the prior written consent of the Company in the event that (i) the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement or (ii) any of Investor’s obligations under the Limited Guarantee becomes due and payable pursuant to the terms of the Limited Guarantee, and in each case the funded Escrowed Amounts have not been utilized in accordance with the terms hereof for the payment of the Parent Termination Fee or such obligations. |
| 3.3 | In the event (i) this Agreement is terminated pursuant to paragraph 3.2(b) and the Contribution under the Equity Commitment Letter is not required to be made or has otherwise been made in full without taking into account the funded Escrow Amount pursuant to the terms thereunder, or (ii) this Agreement is terminated pursuant to paragraph 3.2(c), Parent shall, after deducting and offsetting from the Escrowed Amount any obligations, liabilities, fees and/or expenses of Investor incurred and/or payable under the terms of the Equity Commitment Letter or the Interim Investors Agreement, as applicable, promptly (and in any event within 30 days of such termination) return the remainder of the Escrowed Amount to an account of the Investor designated by the Investor in writing. |
| 3.4 | The Parties hereby acknowledge, covenant and agree that, unless expressly provided for herein, Parent shall not utilize or release any Escrowed Amount from the Parent Account without the prior written consent of the Company. |
| 3 |
| 4 | Governing Law; Dispute Resolution |
| 4.1 | This Agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People’s Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction |
| 4.2 | In the event of any dispute, controversy, or claim between the Parties arising out of or relating to the breach, termination or validity of this Agreement (“Dispute”), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission (“CIETAC”) under the arbitration rules of CIETAC (the “Rule”) in force when the notice of arbitration is submitted by a party. |
| 4.3 | The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule. |
| 4.4 | The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 9. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party. |
| 4.5 | The awards rendered by the arbitrators pursuant to this Section 9 shall be non-appealable, final, binding and conclusive on the parties to such Dispute. |
| 4.6 | The Parties understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision. |
| 5 | General Provisions |
| 5.1 | Each of the Parties confirms that it has received independent legal advice relating to all matters provided for in this Agreement and agrees that the provisions of this Agreement are fair and reasonable. |
| 5.2 | Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Agreement in any jurisdiction and, if any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this Agreement or any part hereof is invalid, illegal or unenforceable. |
| 4 |
| 5.3 | This Agreement shall be binding on and inure for the benefit of the successors of each of the Parties, but the Parties may not assign, grant any security interest, hold on trust or otherwise transfer all or any of their rights and obligations under this Agreement (without the prior written consent of the other Parties). |
| 5.4 | This Agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered (by telecopy or otherwise) to the other Parties. |
| 5.5 | Any waiver of any right or default under this Agreement shall be effective only in the instance given and shall not operate as or imply a waiver of any other or similar right or default on any subsequent occasion. No waiver of any provision of this Agreement will be effective unless it is granted in writing and signed by the Party granting the waiver and with the prior written consent of the Company. Any delay by any Party in exercising, or failure to exercise, any right or remedy under this Agreement shall not constitute a waiver of the right or remedy (or a waiver of any other rights or remedies) and no single or partial exercise of any rights or remedy under this Agreement or otherwise shall prevent any further exercise of the right or remedy (or the exercise of any other right or remedy). |
| 5.6 | This Agreement shall not be amended, changed or modified, except by another agreement in writing executed by the Parties hereto. |
| 5.6 | The Parties hereto agree that irreparable damage would occur in the event that any provision of this Agreement were not performed in accordance with the terms hereof and that each Party shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement, in addition to any other remedy at law or equity. Each Party hereby waives (a) any defenses in any action for specific performance, including the defense that a remedy at law would be adequate and (b) any requirement under any law to post a bond or other security as a prerequisite to obtaining equitable relief. |
| 5.7 | Each Party acknowledges and agrees that (i) the Escrowed Amount is not intended to cap Investor’s liabilities under this Agreement, the Equity Commitment Letter, the Interim Investors Agreement or the Limited Guarantee, or Parent’s liability under the Merger Agreement, and (ii) Parent’s liability to Investor under this Agreement shall not exceed the Escrowed Amount. |
[Signature page follows]
| 5 |
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
Very truly yours,
| Taikang Life Insurance Co., Ltd. | ||
| (泰康人寿保险股份有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ CHEN Dongsheng | |
| Name: CHEN Dongsheng | ||
Title: Chairman | ||
Accepted and agreed to as of the date first written above:
|
Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: Hongyi Zhou | ||
| Title: Authorized Signatory | ||
[Signature Page to Escrow Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
Title: Director | ||
[Signature Page to Escrow Agreement]
Exhibit 99.43
Execution Version
ESCROW AGREEMENT
This Escrow Agreement (this “Agreement”), dated as of December 18, 2015 (this “Agreement”), is made by and among New China Capital International Management Limited (新华资本国际管理有限公司), a limited liability company incorporated under the laws of the PRC (“Investor”), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the PRC ("Parent"), and Qihoo 360 Technology Co. Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the "Company"). Each of Investor, Parent and the Company are referred to herein as a "Party" and together as "Parties".
Reference is hereby made to each of: (i) that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among the Company, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands("Merger Sub"); (ii) that certain limited guarantee, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Limited Guarantee") between Investor and the Company; (iii) that certain equity commitment letter, executed by Investor on the date hereof in favor of Holdco and Parent and the Company (the "Equity Commitment Letter"); and (iv) that certain Interim Investors Agreement, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Interim Investors Agreement"), by and among Holdco, Parent, Investor and certain other parties identified therein. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
In order to induce Parent to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Interim Investors Agreement and the Company to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Limited Guarantee, and in consideration of the mutual covenants and obligations hereinafter set forth, the Parties hereby agree in this Agreement as follows:
| 1 | Escrow; Representations and Warranties |
| 1.1 | No later than five (5) Business Days after the date hereof (the "Escrow Due Date"), Investor shall pay or cause to be paid to Parent, RMB38,460,000 (the "Escrowed Amount") by wire transfer of immediately available funds into an account designated by Parent (the “Parent Account”). |
| 1.2 | Parent shall set aside the Escrowed Amount, together with the escrowed amount from other investors under the other escrow agreements dated as of the date hereof in the Parent Account as a separate pool of funds for the purposes set forth in Section 2.1, and Parent shall maintain a ledger showing the Escrowed Amount from Investor, and the escrowed amount from other investors under the other escrow agreements dated as of the date hereof individually (the “Ledger”). Within 15 Business Days after the Escrow Due Date, Parent shall provide the Company with a written notice setting forth the detailed information of the Parent Account and the Ledger. Upon request of the Company, Parent shall provide the Company with reasonable evidence with respect to the Parent Account in reasonable details, including without limitation the total balance in the Parent Account, and the Ledger, within two (2) Business Days following such request. |
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| 1.3 | Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this Agreement; (b) the execution, delivery and performance of this Agreement by Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of Investor are necessary therefor; (c) this Agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by Investor of this Agreement do not and will not violate the organizational documents of Investor or any applicable Law or conflict with any material agreement binding on Investor; and (e) Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by Investor. |
| 2 | Application of the Escrowed Amount |
| 2.1 | The Parties agree that, subject to the terms of this Agreement, the Escrowed Amount shall be applied by Parent as follows: |
| (a) (i) in the event the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement, the Escrowed Amount shall be used by Parent to pay the Parent Termination Fee that becomes due and payable pursuant to the terms of the Merger Agreement, and (ii) in the event that any of Investor’s obligations under the Limited Guarantee, including the payment of the Guaranteed Obligation pursuant to Section 1(a) of the Limited Guarantee and the obligation under Section 1(c) of the Limited Guarantee, becomes due and payable pursuant to the terms of the Limited Guarantee, the Escrowed Amount shall be used by Parent to pay all such obligations of Investor as arise from and under the Limited Guarantee, and in no event shall the Escrowed Amount be used for or applied towards any other purposes unless and until all the obligations under the foregoing sub-clauses (i) and (ii) have been fully satisfied; |
| (b) in the event Investor’s obligation to fund the Contribution under the Equity Commitment Letter becomes due pursuant to the terms thereunder, the Escrowed Amount shall be credited against, applied towards and offset from the amount of the Contribution; or |
| 2 |
| (c) after full payment is made out of the Parent Account in accordance with the forgoing clause (a) or (b), as applicable, in the event Investor otherwise owes any obligations, liabilities, fees and/or expenses to the Parent Parties or other Investors, Parent shall use the remainder of the Escrowed Amount, if any, to satisfy such obligations, liabilities, fees and/or expenses. |
| 3 | Termination; Treatment of Escrowed Amount |
| 3.1 | This Agreement may be terminated by written notice at any time prior to receipt by Parent of the Escrowed Amount: |
| (a) | by the mutual written consent of the Parties; and |
| (b) | by Parent with the written consent of the Company, if Parent has not received the Escrowed Amount on or before the Escrow Due Date. |
| 3.2 | In the event the Escrowed Amount has been funded pursuant to paragraph 1.1, this Agreement shall terminate upon the earliest to occur of (a) the full payment and application of the Escrowed Amount in accordance with Section 2.1(a) hereof, in the event that the Equity Commitment Letter is terminated pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would become due and payable pursuant to the terms of the Merger Agreement, (b) the termination of the Equity Commitment Letter pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would not become due and payable pursuant to the terms of the Merger Agreement, and (c) the termination of Investor’s participation in the transaction pursuant to the terms of the Interim Investors Agreement. Notwithstanding anything to the contrary herein and for the avoidance of doubt, this Agreement shall not be terminated without the prior written consent of the Company in the event that (i) the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement or (ii) any of Investor’s obligations under the Limited Guarantee becomes due and payable pursuant to the terms of the Limited Guarantee, and in each case the funded Escrowed Amounts have not been utilized in accordance with the terms hereof for the payment of the Parent Termination Fee or such obligations. |
| 3.3 | In the event (i) this Agreement is terminated pursuant to paragraph 3.2(b) and the Contribution under the Equity Commitment Letter is not required to be made or has otherwise been made in full without taking into account the funded Escrow Amount pursuant to the terms thereunder, or (ii) this Agreement is terminated pursuant to paragraph 3.2(c), Parent shall, after deducting and offsetting from the Escrowed Amount any obligations, liabilities, fees and/or expenses of Investor incurred and/or payable under the terms of the Equity Commitment Letter or the Interim Investors Agreement, as applicable, promptly (and in any event within 30 days of such termination) return the remainder of the Escrowed Amount to an account of the Investor designated by the Investor in writing. |
| 3.4 | The Parties hereby acknowledge, covenant and agree that, unless expressly provided for herein, Parent shall not utilize or release any Escrowed Amount from the Parent Account without the prior written consent of the Company. |
| 3 |
| 4 | Governing Law; Dispute Resolution |
| 4.1 | This Agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People’s Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction |
| 4.2 | In the event of any dispute, controversy, or claim between the Parties arising out of or relating to the breach, termination or validity of this Agreement (“Dispute”), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission (“CIETAC”) under the arbitration rules of CIETAC (the “Rule”) in force when the notice of arbitration is submitted by a party. |
| 4.3 | The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule. |
| 4.4 | The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 9. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party. |
| 4.5 | The awards rendered by the arbitrators pursuant to this Section 9 shall be non-appealable, final, binding and conclusive on the parties to such Dispute. |
| 4.6 | The Parties understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision. |
| 5 | General Provisions |
| 5.1 | Each of the Parties confirms that it has received independent legal advice relating to all matters provided for in this Agreement and agrees that the provisions of this Agreement are fair and reasonable. |
| 5.2 | Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Agreement in any jurisdiction and, if any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this Agreement or any part hereof is invalid, illegal or unenforceable. |
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| 5.3 | This Agreement shall be binding on and inure for the benefit of the successors of each of the Parties, but the Parties may not assign, grant any security interest, hold on trust or otherwise transfer all or any of their rights and obligations under this Agreement (without the prior written consent of the other Parties). |
| 5.4 | This Agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered (by telecopy or otherwise) to the other Parties. |
| 5.5 | Any waiver of any right or default under this Agreement shall be effective only in the instance given and shall not operate as or imply a waiver of any other or similar right or default on any subsequent occasion. No waiver of any provision of this Agreement will be effective unless it is granted in writing and signed by the Party granting the waiver and with the prior written consent of the Company. Any delay by any Party in exercising, or failure to exercise, any right or remedy under this Agreement shall not constitute a waiver of the right or remedy (or a waiver of any other rights or remedies) and no single or partial exercise of any rights or remedy under this Agreement or otherwise shall prevent any further exercise of the right or remedy (or the exercise of any other right or remedy). |
| 5.6 | This Agreement shall not be amended, changed or modified, except by another agreement in writing executed by the Parties hereto. |
| 5.6 | The Parties hereto agree that irreparable damage would occur in the event that any provision of this Agreement were not performed in accordance with the terms hereof and that each Party shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement, in addition to any other remedy at law or equity. Each Party hereby waives (a) any defenses in any action for specific performance, including the defense that a remedy at law would be adequate and (b) any requirement under any law to post a bond or other security as a prerequisite to obtaining equitable relief. |
| 5.7 | Each Party acknowledges and agrees that (i) the Escrowed Amount is not intended to cap Investor’s liabilities under this Agreement, the Equity Commitment Letter, the Interim Investors Agreement or the Limited Guarantee, or Parent’s liability under the Merger Agreement, and (ii) Parent’s liability to Investor under this Agreement shall not exceed the Escrowed Amount. |
[Signature page follows]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
Very truly yours,
| New China Capital International Management Limited | ||
| (新华资本国际管理有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ AN HONG JUN | |
|
Name: AN HONG JUN | ||
| Title: Director | ||
Accepted and agreed to as of the date first written above:
|
Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: Hongyi Zhou | ||
| Title: Authorized Signatory | ||
[Signature Page to Escrow Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Escrow Agreement]
Exhibit 99.44
Execution Version
ESCROW AGREEMENT
This Escrow Agreement (this “Agreement”), dated as of December 18, 2015 (this “Agreement”), is made by and among Tai Ping Asset Management CO., Ltd. (太平资产管理有限公司), a limited liability company incorporated under the laws of the PRC (“Investor”), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the PRC ("Parent"), and Qihoo 360 Technology Co. Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the "Company"). Each of Investor, Parent and the Company are referred to herein as a "Party" and together as "Parties".
Reference is hereby made to each of: (i) that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among the Company, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands("Merger Sub"); (ii) that certain limited guarantee, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Limited Guarantee") between Investor and the Company; (iii) that certain equity commitment letter, executed by Investor on the date hereof in favor of Holdco and Parent and the Company (the "Equity Commitment Letter"); and (iv) that certain Interim Investors Agreement, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Interim Investors Agreement"), by and among Holdco, Parent, Investor and certain other parties identified therein. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
In order to induce Parent to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Interim Investors Agreement and the Company to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Limited Guarantee, and in consideration of the mutual covenants and obligations hereinafter set forth, the Parties hereby agree in this Agreement as follows:
| 1 | Escrow; Representations and Warranties |
| 1.1 | No later than five (5) Business Days after the date hereof (the "Escrow Due Date"), Investor shall pay or cause to be paid to Parent, RMB19,230,000 (the "Escrowed Amount") by wire transfer of immediately available funds into an account designated by Parent (the “Parent Account”). |
1
| 1.2 | Parent shall set aside the Escrowed Amount, together with the escrowed amount from other investors under the other escrow agreements dated as of the date hereof in the Parent Account as a separate pool of funds for the purposes set forth in Section 2.1, and Parent shall maintain a ledger showing the Escrowed Amount from Investor, and the escrowed amount from other investors under the other escrow agreements dated as of the date hereof individually (the “Ledger”). Within 15 Business Days after the Escrow Due Date, Parent shall provide the Company with a written notice setting forth the detailed information of the Parent Account and the Ledger. Upon request of the Company, Parent shall provide the Company with reasonable evidence with respect to the Parent Account in reasonable details, including without limitation the total balance in the Parent Account, and the Ledger, within two (2) Business Days following such request. |
| 1.3 | Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this Agreement; (b) the execution, delivery and performance of this Agreement by Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of Investor are necessary therefor; (c) this Agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by Investor of this Agreement do not and will not violate the organizational documents of Investor or any applicable Law or conflict with any material agreement binding on Investor; and (e) Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by Investor. |
| 2 | Application of the Escrowed Amount |
| 2.1 | The Parties agree that, subject to the terms of this Agreement, the Escrowed Amount shall be applied by Parent as follows: |
(a) (i) in the event the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement, the Escrowed Amount shall be used by Parent to pay the Parent Termination Fee that becomes due and payable pursuant to the terms of the Merger Agreement, and (ii) in the event that any of Investor’s obligations under the Limited Guarantee, including the payment of the Guaranteed Obligation pursuant to Section 1(a) of the Limited Guarantee and the obligation under Section 1(c) of the Limited Guarantee, becomes due and payable pursuant to the terms of the Limited Guarantee, the Escrowed Amount shall be used by Parent to pay all such obligations of Investor as arise from and under the Limited Guarantee, and in no event shall the Escrowed Amount be used for or applied towards any other purposes unless and until all the obligations under the foregoing sub-clauses (i) and (ii) have been fully satisfied;
(b) in the event Investor’s obligation to fund the Contribution under the Equity Commitment Letter becomes due pursuant to the terms thereunder, the Escrowed Amount shall be credited against, applied towards and offset from the amount of the Contribution; or
2
(c) after full payment is made out of the Parent Account in accordance with the forgoing clause (a) or (b), as applicable, in the event Investor otherwise owes any obligations, liabilities, fees and/or expenses to the Parent Parties or other Investors, Parent shall use the remainder of the Escrowed Amount, if any, to satisfy such obligations, liabilities, fees and/or expenses.
| 3 | Termination; Treatment of Escrowed Amount |
| 3.1 | This Agreement may be terminated by written notice at any time prior to receipt by Parent of the Escrowed Amount: |
| (a) | by the mutual written consent of the Parties; and |
| (b) | by Parent with the written consent of the Company, if Parent has not received the Escrowed Amount on or before the Escrow Due Date. |
| 3.2 | In the event the Escrowed Amount has been funded pursuant to paragraph 1.1, this Agreement shall terminate upon the earliest to occur of (a) the full payment and application of the Escrowed Amount in accordance with Section 2.1(a) hereof, in the event that the Equity Commitment Letter is terminated pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would become due and payable pursuant to the terms of the Merger Agreement, (b) the termination of the Equity Commitment Letter pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would not become due and payable pursuant to the terms of the Merger Agreement, and (c) the termination of Investor’s participation in the transaction pursuant to the terms of the Interim Investors Agreement. Notwithstanding anything to the contrary herein and for the avoidance of doubt, this Agreement shall not be terminated without the prior written consent of the Company in the event that (i) the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement or (ii) any of Investor’s obligations under the Limited Guarantee becomes due and payable pursuant to the terms of the Limited Guarantee, and in each case the funded Escrowed Amounts have not been utilized in accordance with the terms hereof for the payment of the Parent Termination Fee or such obligations. |
| 3.3 | In the event (i) this Agreement is terminated pursuant to paragraph 3.2(b) and the Contribution under the Equity Commitment Letter is not required to be made or has otherwise been made in full without taking into account the funded Escrow Amount pursuant to the terms thereunder, or (ii) this Agreement is terminated pursuant to paragraph 3.2(c), Parent shall, after deducting and offsetting from the Escrowed Amount any obligations, liabilities, fees and/or expenses of Investor incurred and/or payable under the terms of the Equity Commitment Letter or the Interim Investors Agreement, as applicable, promptly (and in any event within 30 days of such termination) return the remainder of the Escrowed Amount to an account of the Investor designated by the Investor in writing. |
| 3.4 | The Parties hereby acknowledge, covenant and agree that, unless expressly provided for herein, Parent shall not utilize or release any Escrowed Amount from the Parent Account without the prior written consent of the Company. |
3
| 4 | Governing Law; Dispute Resolution |
| 4.1 | This Agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People’s Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction |
| 4.2 | In the event of any dispute, controversy, or claim between the Parties arising out of or relating to the breach, termination or validity of this Agreement (“Dispute”), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission (“CIETAC”) under the arbitration rules of CIETAC (the “Rule”) in force when the notice of arbitration is submitted by a party. |
| 4.3 | The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule. |
| 4.4 | The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 9. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party. |
| 4.5 | The awards rendered by the arbitrators pursuant to this Section 9 shall be non-appealable, final, binding and conclusive on the parties to such Dispute. |
| 4.6 | The Parties understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision. |
| 5 | General Provisions |
| 5.1 | Each of the Parties confirms that it has received independent legal advice relating to all matters provided for in this Agreement and agrees that the provisions of this Agreement are fair and reasonable. |
| 5.2 | Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Agreement in any jurisdiction and, if any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this Agreement or any part hereof is invalid, illegal or unenforceable. |
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| 5.3 | This Agreement shall be binding on and inure for the benefit of the successors of each of the Parties, but the Parties may not assign, grant any security interest, hold on trust or otherwise transfer all or any of their rights and obligations under this Agreement (without the prior written consent of the other Parties). |
| 5.4 | This Agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered (by telecopy or otherwise) to the other Parties. |
| 5.5 | Any waiver of any right or default under this Agreement shall be effective only in the instance given and shall not operate as or imply a waiver of any other or similar right or default on any subsequent occasion. No waiver of any provision of this Agreement will be effective unless it is granted in writing and signed by the Party granting the waiver and with the prior written consent of the Company. Any delay by any Party in exercising, or failure to exercise, any right or remedy under this Agreement shall not constitute a waiver of the right or remedy (or a waiver of any other rights or remedies) and no single or partial exercise of any rights or remedy under this Agreement or otherwise shall prevent any further exercise of the right or remedy (or the exercise of any other right or remedy). |
| 5.6 | This Agreement shall not be amended, changed or modified, except by another agreement in writing executed by the Parties hereto. |
| 5.6 | The Parties hereto agree that irreparable damage would occur in the event that any provision of this Agreement were not performed in accordance with the terms hereof and that each Party shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement, in addition to any other remedy at law or equity. Each Party hereby waives (a) any defenses in any action for specific performance, including the defense that a remedy at law would be adequate and (b) any requirement under any law to post a bond or other security as a prerequisite to obtaining equitable relief. |
| 5.7 | Each Party acknowledges and agrees that (i) the Escrowed Amount is not intended to cap Investor’s liabilities under this Agreement, the Equity Commitment Letter, the Interim Investors Agreement or the Limited Guarantee, or Parent’s liability under the Merger Agreement, and (ii) Parent’s liability to Investor under this Agreement shall not exceed the Escrowed Amount. |
[Signature page follows]
5
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
Very truly yours,
| TAI PING ASSET MANAGEMENT CO., LTD. | ||
| (太平资产管理有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Xiao Xing | |
| Name: Xiao Xing | ||
| Title: General Manager | ||
Accepted and agreed to as of the date first written above:
| Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: Hongyi Zhou | ||
| Title: Authorized Signatory | ||
[Signature Page to Escrow Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Escrow Agreement]
Exhibit 99.45
Execution Version
ESCROW AGREEMENT
This Escrow Agreement (this “Agreement”), dated as of December 18, 2015 (this “Agreement”), is made by and among Jiangsu Huatai Ruilian M&A Fund (LLP) (江苏华泰瑞联并购基金 ( 有限合伙)), a limited partnership formed under the laws of the PRC (“Investor”), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the PRC ("Parent"), and Qihoo 360 Technology Co. Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the "Company"). Each of Investor, Parent and the Company are referred to herein as a "Party" and together as "Parties".
Reference is hereby made to each of: (i) that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among the Company, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands("Merger Sub"); (ii) that certain limited guarantee, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Limited Guarantee") between Investor and the Company; (iii) that certain equity commitment letter, executed by Investor on the date hereof in favor of Holdco and Parent and the Company (the "Equity Commitment Letter"); and (iv) that certain Interim Investors Agreement, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Interim Investors Agreement"), by and among Holdco, Parent, Investor and certain other parties identified therein. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
In order to induce Parent to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Interim Investors Agreement and the Company to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Limited Guarantee, and in consideration of the mutual covenants and obligations hereinafter set forth, the Parties hereby agree in this Agreement as follows:
| 1 | Escrow; Representations and Warranties |
| 1.1 | No later than five (5) Business Days after the date hereof (the "Escrow Due Date"), Investor shall pay or cause to be paid to Parent, RMB48,075,000 (the "Escrowed Amount") by wire transfer of immediately available funds into an account designated by Parent (the “Parent Account”). |
| 1.2 | Parent shall set aside the Escrowed Amount, together with the escrowed amount from other investors under the other escrow agreements dated as of the date hereof in the Parent Account as a separate pool of funds for the purposes set forth in Section 2.1, and Parent shall maintain a ledger showing the Escrowed Amount from Investor, and the escrowed amount from other investors under the other escrow agreements dated as of the date hereof individually (the “Ledger”). Within 15 Business Days after the Escrow Due Date, Parent shall provide the Company with a written notice setting forth the detailed information of the Parent Account and the Ledger. Upon request of the Company, Parent shall provide the Company with reasonable evidence with respect to the Parent Account in reasonable details, including without limitation the total balance in the Parent Account, and the Ledger, within two (2) Business Days following such request. | |
| 1 |
| 1.3 | Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this Agreement; (b) the execution, delivery and performance of this Agreement by Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of Investor are necessary therefor; (c) this Agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by Investor of this Agreement do not and will not violate the organizational documents of Investor or any applicable Law or conflict with any material agreement binding on Investor; and (e) Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by Investor. |
| 2 | Application of the Escrowed Amount |
| 2.1 | The Parties agree that, subject to the terms of this Agreement, the Escrowed Amount shall be applied by Parent as follows: |
(a) (i) in the event the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement, the Escrowed Amount shall be used by Parent to pay the Parent Termination Fee that becomes due and payable pursuant to the terms of the Merger Agreement, and (ii) in the event that any of Investor’s obligations under the Limited Guarantee, including the payment of the Guaranteed Obligation pursuant to Section 1(a) of the Limited Guarantee and the obligation under Section 1(c) of the Limited Guarantee, becomes due and payable pursuant to the terms of the Limited Guarantee, the Escrowed Amount shall be used by Parent to pay all such obligations of Investor as arise from and under the Limited Guarantee, and in no event shall the Escrowed Amount be used for or applied towards any other purposes unless and until all the obligations under the foregoing sub-clauses (i) and (ii) have been fully satisfied;
(b) in the event Investor’s obligation to fund the Contribution under the Equity Commitment Letter becomes due pursuant to the terms thereunder, the Escrowed Amount shall be credited against, applied towards and offset from the amount of the Contribution; or
| 2 |
(c) after full payment is made out of the Parent Account in accordance with the forgoing clause (a) or (b), as applicable, in the event Investor otherwise owes any obligations, liabilities, fees and/or expenses to the Parent Parties or other Investors, Parent shall use the remainder of the Escrowed Amount, if any, to satisfy such obligations, liabilities, fees and/or expenses.
| 3 | Termination; Treatment of Escrowed Amount |
| 3.1 | This Agreement may be terminated by written notice at any time prior to receipt by Parent of the Escrowed Amount: |
| (a) | by the mutual written consent of the Parties; and |
| (b) | by Parent with the written consent of the Company, if Parent has not received the Escrowed Amount on or before the Escrow Due Date. |
| 3.2 | In the event the Escrowed Amount has been funded pursuant to paragraph 1.1, this Agreement shall terminate upon the earliest to occur of (a) the full payment and application of the Escrowed Amount in accordance with Section 2.1(a) hereof, in the event that the Equity Commitment Letter is terminated pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would become due and payable pursuant to the terms of the Merger Agreement, (b) the termination of the Equity Commitment Letter pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would not become due and payable pursuant to the terms of the Merger Agreement, and (c) the termination of Investor’s participation in the transaction pursuant to the terms of the Interim Investors Agreement. Notwithstanding anything to the contrary herein and for the avoidance of doubt, this Agreement shall not be terminated without the prior written consent of the Company in the event that (i) the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement or (ii) any of Investor’s obligations under the Limited Guarantee becomes due and payable pursuant to the terms of the Limited Guarantee, and in each case the funded Escrowed Amounts have not been utilized in accordance with the terms hereof for the payment of the Parent Termination Fee or such obligations. |
| 3.3 | In the event (i) this Agreement is terminated pursuant to paragraph 3.2(b) and the Contribution under the Equity Commitment Letter is not required to be made or has otherwise been made in full without taking into account the funded Escrow Amount pursuant to the terms thereunder, or (ii) this Agreement is terminated pursuant to paragraph 3.2(c), Parent shall, after deducting and offsetting from the Escrowed Amount any obligations, liabilities, fees and/or expenses of Investor incurred and/or payable under the terms of the Equity Commitment Letter or the Interim Investors Agreement, as applicable, promptly (and in any event within 30 days of such termination) return the remainder of the Escrowed Amount to an account of the Investor designated by the Investor in writing. |
| 3.4 | The Parties hereby acknowledge, covenant and agree that, unless expressly provided for herein, Parent shall not utilize or release any Escrowed Amount from the Parent Account without the prior written consent of the Company. |
| 3 |
| 4 | Governing Law; Dispute Resolution |
| 4.1 | This Agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People’s Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction |
| 4.2 | In the event of any dispute, controversy, or claim between the Parties arising out of or relating to the breach, termination or validity of this Agreement (“Dispute”), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission (“CIETAC”) under the arbitration rules of CIETAC (the “Rule”) in force when the notice of arbitration is submitted by a party. |
| 4.3 | The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule. |
| 4.4 | The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 9. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party. |
| 4.5 | The awards rendered by the arbitrators pursuant to this Section 9 shall be non-appealable, final, binding and conclusive on the parties to such Dispute. |
| 4.6 | The Parties understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision. |
| 5 | General Provisions |
| 5.1 | Each of the Parties confirms that it has received independent legal advice relating to all matters provided for in this Agreement and agrees that the provisions of this Agreement are fair and reasonable. |
| 5.2 | Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Agreement in any jurisdiction and, if any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this Agreement or any part hereof is invalid, illegal or unenforceable. |
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| 5.3 | This Agreement shall be binding on and inure for the benefit of the successors of each of the Parties, but the Parties may not assign, grant any security interest, hold on trust or otherwise transfer all or any of their rights and obligations under this Agreement (without the prior written consent of the other Parties). |
| 5.4 | This Agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered (by telecopy or otherwise) to the other Parties. |
| 5.5 | Any waiver of any right or default under this Agreement shall be effective only in the instance given and shall not operate as or imply a waiver of any other or similar right or default on any subsequent occasion. No waiver of any provision of this Agreement will be effective unless it is granted in writing and signed by the Party granting the waiver and with the prior written consent of the Company. Any delay by any Party in exercising, or failure to exercise, any right or remedy under this Agreement shall not constitute a waiver of the right or remedy (or a waiver of any other rights or remedies) and no single or partial exercise of any rights or remedy under this Agreement or otherwise shall prevent any further exercise of the right or remedy (or the exercise of any other right or remedy). |
| 5.6 | This Agreement shall not be amended, changed or modified, except by another agreement in writing executed by the Parties hereto. |
| 5.6 | The Parties hereto agree that irreparable damage would occur in the event that any provision of this Agreement were not performed in accordance with the terms hereof and that each Party shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement, in addition to any other remedy at law or equity. Each Party hereby waives (a) any defenses in any action for specific performance, including the defense that a remedy at law would be adequate and (b) any requirement under any law to post a bond or other security as a prerequisite to obtaining equitable relief. |
| 5.7 | Each Party acknowledges and agrees that (i) the Escrowed Amount is not intended to cap Investor’s liabilities under this Agreement, the Equity Commitment Letter, the Interim Investors Agreement or the Limited Guarantee, or Parent’s liability under the Merger Agreement, and (ii) Parent’s liability to Investor under this Agreement shall not exceed the Escrowed Amount. |
[Signature page follows]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
Very truly yours,
| Jiangsu Huatai Ruilian M&A Fund (LLP) | ||
| (江苏华泰瑞联并购基金 (有限合伙)) | ||
| [Company chop is affixed] | ||
| By: | /s/ Zhijie Chen | |
| Name: Zhijie Chen | ||
| Title: Authorized Representative | ||
Accepted and agreed to as of the date first written above:
| Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: Hongyi Zhou | ||
| Title: Authorized Signatory | ||
[Signature Page to Escrow Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Escrow Agreement]
Exhibit 99.46
Execution Version
ESCROW AGREEMENT
This Escrow Agreement (this “Agreement”), dated as of December 18, 2015 (this “Agreement”), is made by and among Greenland Financial Holdings Group Co., Ltd. (绿地金融投资控股集团有限公司), a limited liability company incorporated under the laws of the PRC (“Investor”), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the PRC ("Parent"), and Qihoo 360 Technology Co. Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the "Company"). Each of Investor, Parent and the Company are referred to herein as a "Party" and together as "Parties".
Reference is hereby made to each of: (i) that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among the Company, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands("Merger Sub"); (ii) that certain limited guarantee, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Limited Guarantee") between Investor and the Company; (iii) that certain equity commitment letter, executed by Investor on the date hereof in favor of Holdco and Parent and the Company (the "Equity Commitment Letter"); and (iv) that certain Interim Investors Agreement, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Interim Investors Agreement"), by and among Holdco, Parent, Investor and certain other parties identified therein. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
In order to induce Parent to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Interim Investors Agreement and the Company to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Limited Guarantee, and in consideration of the mutual covenants and obligations hereinafter set forth, the Parties hereby agree in this Agreement as follows:
| 1 | Escrow; Representations and Warranties |
| 1.1 | No later than five (5) Business Days after the date hereof (the "Escrow Due Date"), Investor shall pay or cause to be paid to Parent, RMB19,230,000 (the "Escrowed Amount") by wire transfer of immediately available funds into an account designated by Parent (the “Parent Account”). |
| 1 |
| 1.2 | Parent shall set aside the Escrowed Amount, together with the escrowed amount from other investors under the other escrow agreements dated as of the date hereof in the Parent Account as a separate pool of funds for the purposes set forth in Section 2.1, and Parent shall maintain a ledger showing the Escrowed Amount from Investor, and the escrowed amount from other investors under the other escrow agreements dated as of the date hereof individually (the “Ledger”). Within 15 Business Days after the Escrow Due Date, Parent shall provide the Company with a written notice setting forth the detailed information of the Parent Account and the Ledger. Upon request of the Company, Parent shall provide the Company with reasonable evidence with respect to the Parent Account in reasonable details, including without limitation the total balance in the Parent Account, and the Ledger, within two (2) Business Days following such request. |
| 1.3 | Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this Agreement; (b) the execution, delivery and performance of this Agreement by Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of Investor are necessary therefor; (c) this Agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by Investor of this Agreement do not and will not violate the organizational documents of Investor or any applicable Law or conflict with any material agreement binding on Investor; and (e) Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by Investor. |
| 2 | Application of the Escrowed Amount |
| 2.1 | The Parties agree that, subject to the terms of this Agreement, the Escrowed Amount shall be applied by Parent as follows: |
(a) (i) in the event the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement, the Escrowed Amount shall be used by Parent to pay the Parent Termination Fee that becomes due and payable pursuant to the terms of the Merger Agreement, and (ii) in the event that any of Investor’s obligations under the Limited Guarantee, including the payment of the Guaranteed Obligation pursuant to Section 1(a) of the Limited Guarantee and the obligation under Section 1(c) of the Limited Guarantee, becomes due and payable pursuant to the terms of the Limited Guarantee, the Escrowed Amount shall be used by Parent to pay all such obligations of Investor as arise from and under the Limited Guarantee, and in no event shall the Escrowed Amount be used for or applied towards any other purposes unless and until all the obligations under the foregoing sub-clauses (i) and (ii) have been fully satisfied;
(b) in the event Investor’s obligation to fund the Contribution under the Equity Commitment Letter becomes due pursuant to the terms thereunder, the Escrowed Amount shall be credited against, applied towards and offset from the amount of the Contribution; or
| 2 |
(c) after full payment is made out of the Parent Account in accordance with the forgoing clause (a) or (b), as applicable, in the event Investor otherwise owes any obligations, liabilities, fees and/or expenses to the Parent Parties or other Investors, Parent shall use the remainder of the Escrowed Amount, if any, to satisfy such obligations, liabilities, fees and/or expenses.
| 3 | Termination; Treatment of Escrowed Amount |
| 3.1 | This Agreement may be terminated by written notice at any time prior to receipt by Parent of the Escrowed Amount: |
| (a) | by the mutual written consent of the Parties; and |
| (b) | by Parent with the written consent of the Company, if Parent has not received the Escrowed Amount on or before the Escrow Due Date. |
| 3.2 | In the event the Escrowed Amount has been funded pursuant to paragraph 1.1, this Agreement shall terminate upon the earliest to occur of (a) the full payment and application of the Escrowed Amount in accordance with Section 2.1(a) hereof, in the event that the Equity Commitment Letter is terminated pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would become due and payable pursuant to the terms of the Merger Agreement, (b) the termination of the Equity Commitment Letter pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would not become due and payable pursuant to the terms of the Merger Agreement, and (c) the termination of Investor’s participation in the transaction pursuant to the terms of the Interim Investors Agreement. Notwithstanding anything to the contrary herein and for the avoidance of doubt, this Agreement shall not be terminated without the prior written consent of the Company in the event that (i) the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement or (ii) any of Investor’s obligations under the Limited Guarantee becomes due and payable pursuant to the terms of the Limited Guarantee, and in each case the funded Escrowed Amounts have not been utilized in accordance with the terms hereof for the payment of the Parent Termination Fee or such obligations. |
| 3.3 | In the event (i) this Agreement is terminated pursuant to paragraph 3.2(b) and the Contribution under the Equity Commitment Letter is not required to be made or has otherwise been made in full without taking into account the funded Escrow Amount pursuant to the terms thereunder, or (ii) this Agreement is terminated pursuant to paragraph 3.2(c), Parent shall, after deducting and offsetting from the Escrowed Amount any obligations, liabilities, fees and/or expenses of Investor incurred and/or payable under the terms of the Equity Commitment Letter or the Interim Investors Agreement, as applicable, promptly (and in any event within 30 days of such termination) return the remainder of the Escrowed Amount to an account of the Investor designated by the Investor in writing. |
| 3.4 | The Parties hereby acknowledge, covenant and agree that, unless expressly provided for herein, Parent shall not utilize or release any Escrowed Amount from the Parent Account without the prior written consent of the Company. |
| 3 |
| 4 | Governing Law; Dispute Resolution |
| 4.1 | This Agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People’s Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction |
| 4.2 | In the event of any dispute, controversy, or claim between the Parties arising out of or relating to the breach, termination or validity of this Agreement (“Dispute”), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission (“CIETAC”) under the arbitration rules of CIETAC (the “Rule”) in force when the notice of arbitration is submitted by a party. |
| 4.3 | The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule. |
| 4.4 | The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 9. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party. |
| 4.5 | The awards rendered by the arbitrators pursuant to this Section 9 shall be non-appealable, final, binding and conclusive on the parties to such Dispute. |
| 4.6 | The Parties understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision. |
| 5 | General Provisions |
| 5.1 | Each of the Parties confirms that it has received independent legal advice relating to all matters provided for in this Agreement and agrees that the provisions of this Agreement are fair and reasonable. |
| 5.2 | Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Agreement in any jurisdiction and, if any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this Agreement or any part hereof is invalid, illegal or unenforceable. |
| 4 |
| 5.3 | This Agreement shall be binding on and inure for the benefit of the successors of each of the Parties, but the Parties may not assign, grant any security interest, hold on trust or otherwise transfer all or any of their rights and obligations under this Agreement (without the prior written consent of the other Parties). |
| 5.4 | This Agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered (by telecopy or otherwise) to the other Parties. |
| 5.5 | Any waiver of any right or default under this Agreement shall be effective only in the instance given and shall not operate as or imply a waiver of any other or similar right or default on any subsequent occasion. No waiver of any provision of this Agreement will be effective unless it is granted in writing and signed by the Party granting the waiver and with the prior written consent of the Company. Any delay by any Party in exercising, or failure to exercise, any right or remedy under this Agreement shall not constitute a waiver of the right or remedy (or a waiver of any other rights or remedies) and no single or partial exercise of any rights or remedy under this Agreement or otherwise shall prevent any further exercise of the right or remedy (or the exercise of any other right or remedy). |
| 5.6 | This Agreement shall not be amended, changed or modified, except by another agreement in writing executed by the Parties hereto. |
| 5.6 | The Parties hereto agree that irreparable damage would occur in the event that any provision of this Agreement were not performed in accordance with the terms hereof and that each Party shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement, in addition to any other remedy at law or equity. Each Party hereby waives (a) any defenses in any action for specific performance, including the defense that a remedy at law would be adequate and (b) any requirement under any law to post a bond or other security as a prerequisite to obtaining equitable relief. |
| 5.7 | Each Party acknowledges and agrees that (i) the Escrowed Amount is not intended to cap Investor’s liabilities under this Agreement, the Equity Commitment Letter, the Interim Investors Agreement or the Limited Guarantee, or Parent’s liability under the Merger Agreement, and (ii) Parent’s liability to Investor under this Agreement shall not exceed the Escrowed Amount. |
[Signature page follows]
| 5 |
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
Very truly yours,
| Greenland Financial Holdings Group Co., Ltd. | ||
| (绿地金融投资控股集团有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ GENG Jing | |
|
Name: GENG Jing Title: Chairman of the Board & President | ||
Accepted and agreed to as of the date first written above:
|
Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: Hongyi Zhou | ||
| Title: Authorized Signatory | ||
[Signature Page to Escrow Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Escrow Agreement]
Exhibit 99.47
Execution Version
ESCROW AGREEMENT
This Escrow Agreement (this “Agreement”), dated as of December 18, 2015 (this “Agreement”), is made by and among SIP Oriza Chongyuan M&A Fund Partnership (Limited Partnership) (苏州工业园区元禾重元并购股权投资基金合伙企业 (伙) ), a limited partnership formed under the laws of the PRC (“Investor”), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the PRC ("Parent"), and Qihoo 360 Technology Co. Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the "Company"). Each of Investor, Parent and the Company are referred to herein as a "Party" and together as "Parties".
Reference is hereby made to each of: (i) that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among the Company, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands("Merger Sub"); (ii) that certain limited guarantee, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Limited Guarantee") between Investor and the Company; (iii) that certain equity commitment letter, executed by Investor on the date hereof in favor of Holdco and Parent and the Company (the "Equity Commitment Letter"); and (iv) that certain Interim Investors Agreement, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Interim Investors Agreement"), by and among Holdco, Parent, Investor and certain other parties identified therein. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
In order to induce Parent to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Interim Investors Agreement and the Company to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Limited Guarantee, and in consideration of the mutual covenants and obligations hereinafter set forth, the Parties hereby agree in this Agreement as follows:
| 1 | Escrow; Representations and Warranties |
| 1.1 | No later than five (5) Business Days after the date hereof (the "Escrow Due Date"), Investor shall pay or cause to be paid to Parent, RMB9,615,000 (the "Escrowed Amount") by wire transfer of immediately available funds into an account designated by Parent (the “Parent Account”). |
| 1 |
| 1.2 | Parent shall set aside the Escrowed Amount, together with the escrowed amount from other investors under the other escrow agreements dated as of the date hereof in the Parent Account as a separate pool of funds for the purposes set forth in Section 2.1, and Parent shall maintain a ledger showing the Escrowed Amount from Investor, and the escrowed amount from other investors under the other escrow agreements dated as of the date hereof individually (the “Ledger”). Within 15 Business Days after the Escrow Due Date, Parent shall provide the Company with a written notice setting forth the detailed information of the Parent Account and the Ledger. Upon request of the Company, Parent shall provide the Company with reasonable evidence with respect to the Parent Account in reasonable details, including without limitation the total balance in the Parent Account, and the Ledger, within two (2) Business Days following such request. |
| 1.3 | Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this Agreement; (b) the execution, delivery and performance of this Agreement by Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of Investor are necessary therefor; (c) this Agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by Investor of this Agreement do not and will not violate the organizational documents of Investor or any applicable Law or conflict with any material agreement binding on Investor; and (e) Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by Investor. |
| 2 | Application of the Escrowed Amount |
| 2.1 | The Parties agree that, subject to the terms of this Agreement, the Escrowed Amount shall be applied by Parent as follows: |
(a) (i) in the event the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement, the Escrowed Amount shall be used by Parent to pay the Parent Termination Fee that becomes due and payable pursuant to the terms of the Merger Agreement, and (ii) in the event that any of Investor’s obligations under the Limited Guarantee, including the payment of the Guaranteed Obligation pursuant to Section 1(a) of the Limited Guarantee and the obligation under Section 1(c) of the Limited Guarantee, becomes due and payable pursuant to the terms of the Limited Guarantee, the Escrowed Amount shall be used by Parent to pay all such obligations of Investor as arise from and under the Limited Guarantee, and in no event shall the Escrowed Amount be used for or applied towards any other purposes unless and until all the obligations under the foregoing sub-clauses (i) and (ii) have been fully satisfied;
(b) in the event Investor’s obligation to fund the Contribution under the Equity Commitment Letter becomes due pursuant to the terms thereunder, the Escrowed Amount shall be credited against, applied towards and offset from the amount of the Contribution; or
| 2 |
(c) after full payment is made out of the Parent Account in accordance with the forgoing clause (a) or (b), as applicable, in the event Investor otherwise owes any obligations, liabilities, fees and/or expenses to the Parent Parties or other Investors, Parent shall use the remainder of the Escrowed Amount, if any, to satisfy such obligations, liabilities, fees and/or expenses.
| 3 | Termination; Treatment of Escrowed Amount |
| 3.1 | This Agreement may be terminated by written notice at any time prior to receipt by Parent of the Escrowed Amount: |
| (a) | by the mutual written consent of the Parties; and |
| (b) | by Parent with the written consent of the Company, if Parent has not received the Escrowed Amount on or before the Escrow Due Date. |
| 3.2 | In the event the Escrowed Amount has been funded pursuant to paragraph 1.1, this Agreement shall terminate upon the earliest to occur of (a) the full payment and application of the Escrowed Amount in accordance with Section 2.1(a) hereof, in the event that the Equity Commitment Letter is terminated pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would become due and payable pursuant to the terms of the Merger Agreement, (b) the termination of the Equity Commitment Letter pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would not become due and payable pursuant to the terms of the Merger Agreement, and (c) the termination of Investor’s participation in the transaction pursuant to the terms of the Interim Investors Agreement. Notwithstanding anything to the contrary herein and for the avoidance of doubt, this Agreement shall not be terminated without the prior written consent of the Company in the event that (i) the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement or (ii) any of Investor’s obligations under the Limited Guarantee becomes due and payable pursuant to the terms of the Limited Guarantee, and in each case the funded Escrowed Amounts have not been utilized in accordance with the terms hereof for the payment of the Parent Termination Fee or such obligations. |
| 3.3 | In the event (i) this Agreement is terminated pursuant to paragraph 3.2(b) and the Contribution under the Equity Commitment Letter is not required to be made or has otherwise been made in full without taking into account the funded Escrow Amount pursuant to the terms thereunder, or (ii) this Agreement is terminated pursuant to paragraph 3.2(c), Parent shall, after deducting and offsetting from the Escrowed Amount any obligations, liabilities, fees and/or expenses of Investor incurred and/or payable under the terms of the Equity Commitment Letter or the Interim Investors Agreement, as applicable, promptly (and in any event within 30 days of such termination) return the remainder of the Escrowed Amount to an account of the Investor designated by the Investor in writing. |
| 3.4 | The Parties hereby acknowledge, covenant and agree that, unless expressly provided for herein, Parent shall not utilize or release any Escrowed Amount from the Parent Account without the prior written consent of the Company. |
| 3 |
| 4 | Governing Law; Dispute Resolution |
| 4.1 | This Agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People’s Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction |
| 4.2 | In the event of any dispute, controversy, or claim between the Parties arising out of or relating to the breach, termination or validity of this Agreement (“Dispute”), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission (“CIETAC”) under the arbitration rules of CIETAC (the “Rule”) in force when the notice of arbitration is submitted by a party. |
| 4.3 | The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule. |
| 4.4 | The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 9. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party. |
| 4.5 | The awards rendered by the arbitrators pursuant to this Section 9 shall be non-appealable, final, binding and conclusive on the parties to such Dispute. |
| 4.6 | The Parties understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision. |
| 5 | General Provisions |
| 5.1 | Each of the Parties confirms that it has received independent legal advice relating to all matters provided for in this Agreement and agrees that the provisions of this Agreement are fair and reasonable. |
| 5.2 | Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Agreement in any jurisdiction and, if any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this Agreement or any part hereof is invalid, illegal or unenforceable. |
| 4 |
| 5.3 | This Agreement shall be binding on and inure for the benefit of the successors of each of the Parties, but the Parties may not assign, grant any security interest, hold on trust or otherwise transfer all or any of their rights and obligations under this Agreement (without the prior written consent of the other Parties). |
| 5.4 | This Agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered (by telecopy or otherwise) to the other Parties. |
| 5.5 | Any waiver of any right or default under this Agreement shall be effective only in the instance given and shall not operate as or imply a waiver of any other or similar right or default on any subsequent occasion. No waiver of any provision of this Agreement will be effective unless it is granted in writing and signed by the Party granting the waiver and with the prior written consent of the Company. Any delay by any Party in exercising, or failure to exercise, any right or remedy under this Agreement shall not constitute a waiver of the right or remedy (or a waiver of any other rights or remedies) and no single or partial exercise of any rights or remedy under this Agreement or otherwise shall prevent any further exercise of the right or remedy (or the exercise of any other right or remedy). |
| 5.6 | This Agreement shall not be amended, changed or modified, except by another agreement in writing executed by the Parties hereto. |
| 5.6 | The Parties hereto agree that irreparable damage would occur in the event that any provision of this Agreement were not performed in accordance with the terms hereof and that each Party shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement, in addition to any other remedy at law or equity. Each Party hereby waives (a) any defenses in any action for specific performance, including the defense that a remedy at law would be adequate and (b) any requirement under any law to post a bond or other security as a prerequisite to obtaining equitable relief. |
| 5.7 | Each Party acknowledges and agrees that (i) the Escrowed Amount is not intended to cap Investor’s liabilities under this Agreement, the Equity Commitment Letter, the Interim Investors Agreement or the Limited Guarantee, or Parent’s liability under the Merger Agreement, and (ii) Parent’s liability to Investor under this Agreement shall not exceed the Escrowed Amount. |
[Signature page follows]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
Very truly yours,
| SIP Oriza Chongyuan M&A Fund Partnership (Limited Partnership) | ||
| (苏州工业园区元禾重元并购股权投资基金合伙企业 (伙) ) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hua Yao | |
| Name: Hua Yao | ||
|
Title: Authorized Representative of Executive Partner
| ||
Accepted and agreed to as of the date first written above:
|
Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: Hongyi Zhou | ||
| Title: Authorized Signatory | ||
[Signature Page to Escrow Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Escrow Agreement]
Exhibit 99.48
Execution Version
ESCROW AGREEMENT
This Escrow Agreement (this “Agreement”), dated as of December 18, 2015 (this “Agreement”), is made by and among Shanghai Sailing Merger and Acquisition Investment Fund Partnership (Limited Partnership) (上海赛领并购投资基金合伙企业 (伙) ), a limited partnership formed under the laws of the PRC (“Investor”), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the PRC ("Parent"), and Qihoo 360 Technology Co. Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the "Company"). Each of Investor, Parent and the Company are referred to herein as a "Party" and together as "Parties".
Reference is hereby made to each of: (i) that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among the Company, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands("Merger Sub"); (ii) that certain limited guarantee, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Limited Guarantee") between Investor and the Company; (iii) that certain equity commitment letter, executed by Investor on the date hereof in favor of Holdco and Parent and the Company (the "Equity Commitment Letter"); and (iv) that certain Interim Investors Agreement, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Interim Investors Agreement"), by and among Holdco, Parent, Investor and certain other parties identified therein. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
In order to induce Parent to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Interim Investors Agreement and the Company to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Limited Guarantee, and in consideration of the mutual covenants and obligations hereinafter set forth, the Parties hereby agree in this Agreement as follows:
| 1 | Escrow; Representations and Warranties |
| 1.1 | No later than five (5) Business Days after the date hereof (the "Escrow Due Date"), Investor shall pay or cause to be paid to Parent, RMB9,615,000 (the "Escrowed Amount") by wire transfer of immediately available funds into an account designated by Parent (the “Parent Account”). |
| 1 |
| 1.2 | Parent shall set aside the Escrowed Amount, together with the escrowed amount from other investors under the other escrow agreements dated as of the date hereof in the Parent Account as a separate pool of funds for the purposes set forth in Section 2.1, and Parent shall maintain a ledger showing the Escrowed Amount from Investor, and the escrowed amount from other investors under the other escrow agreements dated as of the date hereof individually (the “Ledger”). Within 15 Business Days after the Escrow Due Date, Parent shall provide the Company with a written notice setting forth the detailed information of the Parent Account and the Ledger. Upon request of the Company, Parent shall provide the Company with reasonable evidence with respect to the Parent Account in reasonable details, including without limitation the total balance in the Parent Account, and the Ledger, within two (2) Business Days following such request. |
| 1.3 | Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this Agreement; (b) the execution, delivery and performance of this Agreement by Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of Investor are necessary therefor; (c) this Agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by Investor of this Agreement do not and will not violate the organizational documents of Investor or any applicable Law or conflict with any material agreement binding on Investor; and (e) Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by Investor. |
| 2 | Application of the Escrowed Amount |
| 2.1 | The Parties agree that, subject to the terms of this Agreement, the Escrowed Amount shall be applied by Parent as follows: |
(a) (i) in the event the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement, the Escrowed Amount shall be used by Parent to pay the Parent Termination Fee that becomes due and payable pursuant to the terms of the Merger Agreement, and (ii) in the event that any of Investor’s obligations under the Limited Guarantee, including the payment of the Guaranteed Obligation pursuant to Section 1(a) of the Limited Guarantee and the obligation under Section 1(c) of the Limited Guarantee, becomes due and payable pursuant to the terms of the Limited Guarantee, the Escrowed Amount shall be used by Parent to pay all such obligations of Investor as arise from and under the Limited Guarantee, and in no event shall the Escrowed Amount be used for or applied towards any other purposes unless and until all the obligations under the foregoing sub-clauses (i) and (ii) have been fully satisfied;
(b) in the event Investor’s obligation to fund the Contribution under the Equity Commitment Letter becomes due pursuant to the terms thereunder, the Escrowed Amount shall be credited against, applied towards and offset from the amount of the Contribution; or
| 2 |
(c) after full payment is made out of the Parent Account in accordance with the forgoing clause (a) or (b), as applicable, in the event Investor otherwise owes any obligations, liabilities, fees and/or expenses to the Parent Parties or other Investors, Parent shall use the remainder of the Escrowed Amount, if any, to satisfy such obligations, liabilities, fees and/or expenses.
| 3 | Termination; Treatment of Escrowed Amount |
| 3.1 | This Agreement may be terminated by written notice at any time prior to receipt by Parent of the Escrowed Amount: |
| (a) | by the mutual written consent of the Parties; and |
| (b) | by Parent with the written consent of the Company, if Parent has not received the Escrowed Amount on or before the Escrow Due Date. |
| 3.2 | In the event the Escrowed Amount has been funded pursuant to paragraph 1.1, this Agreement shall terminate upon the earliest to occur of (a) the full payment and application of the Escrowed Amount in accordance with Section 2.1(a) hereof, in the event that the Equity Commitment Letter is terminated pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would become due and payable pursuant to the terms of the Merger Agreement, (b) the termination of the Equity Commitment Letter pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would not become due and payable pursuant to the terms of the Merger Agreement, and (c) the termination of Investor’s participation in the transaction pursuant to the terms of the Interim Investors Agreement. Notwithstanding anything to the contrary herein and for the avoidance of doubt, this Agreement shall not be terminated without the prior written consent of the Company in the event that (i) the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement or (ii) any of Investor’s obligations under the Limited Guarantee becomes due and payable pursuant to the terms of the Limited Guarantee, and in each case the funded Escrowed Amounts have not been utilized in accordance with the terms hereof for the payment of the Parent Termination Fee or such obligations. |
| 3.3 | In the event (i) this Agreement is terminated pursuant to paragraph 3.2(b) and the Contribution under the Equity Commitment Letter is not required to be made or has otherwise been made in full without taking into account the funded Escrow Amount pursuant to the terms thereunder, or (ii) this Agreement is terminated pursuant to paragraph 3.2(c), Parent shall, after deducting and offsetting from the Escrowed Amount any obligations, liabilities, fees and/or expenses of Investor incurred and/or payable under the terms of the Equity Commitment Letter or the Interim Investors Agreement, as applicable, promptly (and in any event within 30 days of such termination) return the remainder of the Escrowed Amount to an account of the Investor designated by the Investor in writing. |
| 3.4 | The Parties hereby acknowledge, covenant and agree that, unless expressly provided for herein, Parent shall not utilize or release any Escrowed Amount from the Parent Account without the prior written consent of the Company. |
| 3 |
| 4 | Governing Law; Dispute Resolution |
| 4.1 | This Agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People’s Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction |
| 4.2 | In the event of any dispute, controversy, or claim between the Parties arising out of or relating to the breach, termination or validity of this Agreement (“Dispute”), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission (“CIETAC”) under the arbitration rules of CIETAC (the “Rule”) in force when the notice of arbitration is submitted by a party. |
| 4.3 | The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule. |
| 4.4 | The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 9. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party. |
| 4.5 | The awards rendered by the arbitrators pursuant to this Section 9 shall be non-appealable, final, binding and conclusive on the parties to such Dispute. |
| 4.6 | The Parties understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision. |
| 5 | General Provisions |
| 5.1 | Each of the Parties confirms that it has received independent legal advice relating to all matters provided for in this Agreement and agrees that the provisions of this Agreement are fair and reasonable. |
| 5.2 | Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Agreement in any jurisdiction and, if any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this Agreement or any part hereof is invalid, illegal or unenforceable. |
| 4 |
| 5.3 | This Agreement shall be binding on and inure for the benefit of the successors of each of the Parties, but the Parties may not assign, grant any security interest, hold on trust or otherwise transfer all or any of their rights and obligations under this Agreement (without the prior written consent of the other Parties). |
| 5.4 | This Agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered (by telecopy or otherwise) to the other Parties. |
| 5.5 | Any waiver of any right or default under this Agreement shall be effective only in the instance given and shall not operate as or imply a waiver of any other or similar right or default on any subsequent occasion. No waiver of any provision of this Agreement will be effective unless it is granted in writing and signed by the Party granting the waiver and with the prior written consent of the Company. Any delay by any Party in exercising, or failure to exercise, any right or remedy under this Agreement shall not constitute a waiver of the right or remedy (or a waiver of any other rights or remedies) and no single or partial exercise of any rights or remedy under this Agreement or otherwise shall prevent any further exercise of the right or remedy (or the exercise of any other right or remedy). |
| 5.6 | This Agreement shall not be amended, changed or modified, except by another agreement in writing executed by the Parties hereto. |
| 5.6 | The Parties hereto agree that irreparable damage would occur in the event that any provision of this Agreement were not performed in accordance with the terms hereof and that each Party shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement, in addition to any other remedy at law or equity. Each Party hereby waives (a) any defenses in any action for specific performance, including the defense that a remedy at law would be adequate and (b) any requirement under any law to post a bond or other security as a prerequisite to obtaining equitable relief. |
| 5.7 | Each Party acknowledges and agrees that (i) the Escrowed Amount is not intended to cap Investor’s liabilities under this Agreement, the Equity Commitment Letter, the Interim Investors Agreement or the Limited Guarantee, or Parent’s liability under the Merger Agreement, and (ii) Parent’s liability to Investor under this Agreement shall not exceed the Escrowed Amount. |
[Signature page follows]
| 5 |
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
Very truly yours,
| Shanghai Sailing Merger and Acquisition Investment Fund Partnership (Limited Partnership) | ||
| (上海赛领并购投资基金合伙企业 (伙 ) ) | ||
| By: | /s/ Tao Fu | |
| Name: Tao Fu | ||
| Title: Authorized Representative of Managing Partner | ||
Accepted and agreed to as of the date first written above:
|
Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: Hongyi Zhou | ||
| Title: Authorized Signatory | ||
[Signature Page to Escrow Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Escrow Agreement]
Exhibit 99.49
Execution Version
ESCROW AGREEMENT
This Escrow Agreement (this “Agreement”), dated as of December 18, 2015 (this “Agreement”), is made by and among Shanghai Sailing Boda Equity Investment Fund Partnership (Limited Partnership) (上海赛领博达股权投资基金合伙企业 (合伙) ), a limited partnership formed under the laws of the PRC (“Investor”), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the PRC ("Parent"), and Qihoo 360 Technology Co. Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the "Company"). Each of Investor, Parent and the Company are referred to herein as a "Party" and together as "Parties".
Reference is hereby made to each of: (i) that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among the Company, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands("Merger Sub"); (ii) that certain limited guarantee, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Limited Guarantee") between Investor and the Company; (iii) that certain equity commitment letter, executed by Investor on the date hereof in favor of Holdco and Parent and the Company (the "Equity Commitment Letter"); and (iv) that certain Interim Investors Agreement, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Interim Investors Agreement"), by and among Holdco, Parent, Investor and certain other parties identified therein. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
In order to induce Parent to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Interim Investors Agreement and the Company to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Limited Guarantee, and in consideration of the mutual covenants and obligations hereinafter set forth, the Parties hereby agree in this Agreement as follows:
| 1 | Escrow; Representations and Warranties |
| 1.1 | No later than five (5) Business Days after the date hereof (the "Escrow Due Date"), Investor shall pay or cause to be paid to Parent, RMB9,615,000 (the "Escrowed Amount") by wire transfer of immediately available funds into an account designated by Parent (the “Parent Account”). |
| 1 |
| 1.2 | Parent shall set aside the Escrowed Amount, together with the escrowed amount from other investors under the other escrow agreements dated as of the date hereof in the Parent Account as a separate pool of funds for the purposes set forth in Section 2.1, and Parent shall maintain a ledger showing the Escrowed Amount from Investor, and the escrowed amount from other investors under the other escrow agreements dated as of the date hereof individually (the “Ledger”). Within 15 Business Days after the Escrow Due Date, Parent shall provide the Company with a written notice setting forth the detailed information of the Parent Account and the Ledger. Upon request of the Company, Parent shall provide the Company with reasonable evidence with respect to the Parent Account in reasonable details, including without limitation the total balance in the Parent Account, and the Ledger, within two (2) Business Days following such request. |
| 1.3 | Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this Agreement; (b) the execution, delivery and performance of this Agreement by Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of Investor are necessary therefor; (c) this Agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by Investor of this Agreement do not and will not violate the organizational documents of Investor or any applicable Law or conflict with any material agreement binding on Investor; and (e) Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by Investor. |
| 2 | Application of the Escrowed Amount |
| 2.1 | The Parties agree that, subject to the terms of this Agreement, the Escrowed Amount shall be applied by Parent as follows: |
(a) (i) in the event the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement, the Escrowed Amount shall be used by Parent to pay the Parent Termination Fee that becomes due and payable pursuant to the terms of the Merger Agreement, and (ii) in the event that any of Investor’s obligations under the Limited Guarantee, including the payment of the Guaranteed Obligation pursuant to Section 1(a) of the Limited Guarantee and the obligation under Section 1(c) of the Limited Guarantee, becomes due and payable pursuant to the terms of the Limited Guarantee, the Escrowed Amount shall be used by Parent to pay all such obligations of Investor as arise from and under the Limited Guarantee, and in no event shall the Escrowed Amount be used for or applied towards any other purposes unless and until all the obligations under the foregoing sub-clauses (i) and (ii) have been fully satisfied;
(b) in the event Investor’s obligation to fund the Contribution under the Equity Commitment Letter becomes due pursuant to the terms thereunder, the Escrowed Amount shall be credited against, applied towards and offset from the amount of the Contribution; or
| 2 |
(c) after full payment is made out of the Parent Account in accordance with the forgoing clause (a) or (b), as applicable, in the event Investor otherwise owes any obligations, liabilities, fees and/or expenses to the Parent Parties or other Investors, Parent shall use the remainder of the Escrowed Amount, if any, to satisfy such obligations, liabilities, fees and/or expenses.
| 3 | Termination; Treatment of Escrowed Amount |
| 3.1 | This Agreement may be terminated by written notice at any time prior to receipt by Parent of the Escrowed Amount: |
| (a) | by the mutual written consent of the Parties; and |
| (b) | by Parent with the written consent of the Company, if Parent has not received the Escrowed Amount on or before the Escrow Due Date. |
| 3.2 | In the event the Escrowed Amount has been funded pursuant to paragraph 1.1, this Agreement shall terminate upon the earliest to occur of (a) the full payment and application of the Escrowed Amount in accordance with Section 2.1(a) hereof, in the event that the Equity Commitment Letter is terminated pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would become due and payable pursuant to the terms of the Merger Agreement, (b) the termination of the Equity Commitment Letter pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would not become due and payable pursuant to the terms of the Merger Agreement, and (c) the termination of Investor’s participation in the transaction pursuant to the terms of the Interim Investors Agreement. Notwithstanding anything to the contrary herein and for the avoidance of doubt, this Agreement shall not be terminated without the prior written consent of the Company in the event that (i) the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement or (ii) any of Investor’s obligations under the Limited Guarantee becomes due and payable pursuant to the terms of the Limited Guarantee, and in each case the funded Escrowed Amounts have not been utilized in accordance with the terms hereof for the payment of the Parent Termination Fee or such obligations. |
| 3.3 | In the event (i) this Agreement is terminated pursuant to paragraph 3.2(b) and the Contribution under the Equity Commitment Letter is not required to be made or has otherwise been made in full without taking into account the funded Escrow Amount pursuant to the terms thereunder, or (ii) this Agreement is terminated pursuant to paragraph 3.2(c), Parent shall, after deducting and offsetting from the Escrowed Amount any obligations, liabilities, fees and/or expenses of Investor incurred and/or payable under the terms of the Equity Commitment Letter or the Interim Investors Agreement, as applicable, promptly (and in any event within 30 days of such termination) return the remainder of the Escrowed Amount to an account of the Investor designated by the Investor in writing. |
| 3.4 | The Parties hereby acknowledge, covenant and agree that, unless expressly provided for herein, Parent shall not utilize or release any Escrowed Amount from the Parent Account without the prior written consent of the Company. |
| 3 |
| 4 | Governing Law; Dispute Resolution |
| 4.1 | This Agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People’s Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction |
| 4.2 | In the event of any dispute, controversy, or claim between the Parties arising out of or relating to the breach, termination or validity of this Agreement (“Dispute”), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission (“CIETAC”) under the arbitration rules of CIETAC (the “Rule”) in force when the notice of arbitration is submitted by a party. |
| 4.3 | The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule. |
| 4.4 | The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 9. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party. |
| 4.5 | The awards rendered by the arbitrators pursuant to this Section 9 shall be non-appealable, final, binding and conclusive on the parties to such Dispute. |
| 4.6 | The Parties understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision. |
| 5 | General Provisions |
| 5.1 | Each of the Parties confirms that it has received independent legal advice relating to all matters provided for in this Agreement and agrees that the provisions of this Agreement are fair and reasonable. |
| 5.2 | Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Agreement in any jurisdiction and, if any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this Agreement or any part hereof is invalid, illegal or unenforceable. |
| 4 |
| 5.3 | This Agreement shall be binding on and inure for the benefit of the successors of each of the Parties, but the Parties may not assign, grant any security interest, hold on trust or otherwise transfer all or any of their rights and obligations under this Agreement (without the prior written consent of the other Parties). |
| 5.4 | This Agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered (by telecopy or otherwise) to the other Parties. |
| 5.5 | Any waiver of any right or default under this Agreement shall be effective only in the instance given and shall not operate as or imply a waiver of any other or similar right or default on any subsequent occasion. No waiver of any provision of this Agreement will be effective unless it is granted in writing and signed by the Party granting the waiver and with the prior written consent of the Company. Any delay by any Party in exercising, or failure to exercise, any right or remedy under this Agreement shall not constitute a waiver of the right or remedy (or a waiver of any other rights or remedies) and no single or partial exercise of any rights or remedy under this Agreement or otherwise shall prevent any further exercise of the right or remedy (or the exercise of any other right or remedy). |
| 5.6 | This Agreement shall not be amended, changed or modified, except by another agreement in writing executed by the Parties hereto. |
| 5.6 | The Parties hereto agree that irreparable damage would occur in the event that any provision of this Agreement were not performed in accordance with the terms hereof and that each Party shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement, in addition to any other remedy at law or equity. Each Party hereby waives (a) any defenses in any action for specific performance, including the defense that a remedy at law would be adequate and (b) any requirement under any law to post a bond or other security as a prerequisite to obtaining equitable relief. |
| 5.7 | Each Party acknowledges and agrees that (i) the Escrowed Amount is not intended to cap Investor’s liabilities under this Agreement, the Equity Commitment Letter, the Interim Investors Agreement or the Limited Guarantee, or Parent’s liability under the Merger Agreement, and (ii) Parent’s liability to Investor under this Agreement shall not exceed the Escrowed Amount. |
[Signature page follows]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
Very truly yours,
| Shanghai Sailing Boda Equity Investment Fund Partnership (Limited Partnership) | ||
| (上海赛领博达股权投资基金合伙企业 (伙) ) | ||
| [Company chop is affixed] | ||
| By: | /s/ Tao Fu | |
| Name: Tao Fu | ||
| Title: Authorized Representative of Managing Partner | ||
Accepted and agreed to as of the date first written above:
|
Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: Hongyi Zhou | ||
| Title: Authorized Signatory | ||
[Signature Page to Escrow Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
|
Title: Director | ||
[Signature Page to Escrow Agreement]
Exhibit 99.50
Execution Version
ESCROW AGREEMENT
This Escrow Agreement (this “Agreement”), dated as of December 18, 2015 (this “Agreement”), is made by and among Fortune Fountain (Beijing) Holding Group Co., Ltd. (沣沅弘 (股集团有限公司), a limited liability company incorporated under the laws of the PRC (“Investor”), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the PRC ("Parent"), and Qihoo 360 Technology Co. Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the "Company"). Each of Investor, Parent and the Company are referred to herein as a "Party" and together as "Parties".
Reference is hereby made to each of: (i) that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among the Company, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands("Merger Sub"); (ii) that certain limited guarantee, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Limited Guarantee") between Investor and the Company; (iii) that certain equity commitment letter, executed by Investor on the date hereof in favor of Holdco and Parent and the Company (the "Equity Commitment Letter"); and (iv) that certain Interim Investors Agreement, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Interim Investors Agreement"), by and among Holdco, Parent, Investor and certain other parties identified therein. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
In order to induce Parent to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Interim Investors Agreement and the Company to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Limited Guarantee, and in consideration of the mutual covenants and obligations hereinafter set forth, the Parties hereby agree in this Agreement as follows:
| 1 | Escrow; Representations and Warranties |
| 1.1 | No later than five (5) Business Days after the date hereof (the "Escrow Due Date"), Investor shall pay or cause to be paid to Parent, RMB15,384,000 (the "Escrowed Amount") by wire transfer of immediately available funds into an account designated by Parent (the “Parent Account”). |
| 1 |
| 1.2 | Parent shall set aside the Escrowed Amount, together with the escrowed amount from other investors under the other escrow agreements dated as of the date hereof in the Parent Account as a separate pool of funds for the purposes set forth in Section 2.1, and Parent shall maintain a ledger showing the Escrowed Amount from Investor, and the escrowed amount from other investors under the other escrow agreements dated as of the date hereof individually (the “Ledger”). Within 15 Business Days after the Escrow Due Date, Parent shall provide the Company with a written notice setting forth the detailed information of the Parent Account and the Ledger. Upon request of the Company, Parent shall provide the Company with reasonable evidence with respect to the Parent Account in reasonable details, including without limitation the total balance in the Parent Account, and the Ledger, within two (2) Business Days following such request. |
| 1.3 | Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this Agreement; (b) the execution, delivery and performance of this Agreement by Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of Investor are necessary therefor; (c) this Agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by Investor of this Agreement do not and will not violate the organizational documents of Investor or any applicable Law or conflict with any material agreement binding on Investor; and (e) Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by Investor. |
| 2 | Application of the Escrowed Amount |
| 2.1 | The Parties agree that, subject to the terms of this Agreement, the Escrowed Amount shall be applied by Parent as follows: |
(a) (i) in the event the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement, the Escrowed Amount shall be used by Parent to pay the Parent Termination Fee that becomes due and payable pursuant to the terms of the Merger Agreement, and (ii) in the event that any of Investor’s obligations under the Limited Guarantee, including the payment of the Guaranteed Obligation pursuant to Section 1(a) of the Limited Guarantee and the obligation under Section 1(c) of the Limited Guarantee, becomes due and payable pursuant to the terms of the Limited Guarantee, the Escrowed Amount shall be used by Parent to pay all such obligations of Investor as arise from and under the Limited Guarantee, and in no event shall the Escrowed Amount be used for or applied towards any other purposes unless and until all the obligations under the foregoing sub-clauses (i) and (ii) have been fully satisfied;
(b) in the event Investor’s obligation to fund the Contribution under the Equity Commitment Letter becomes due pursuant to the terms thereunder, the Escrowed Amount shall be credited against, applied towards and offset from the amount of the Contribution; or
| 2 |
(c) after full payment is made out of the Parent Account in accordance with the forgoing clause (a) or (b), as applicable, in the event Investor otherwise owes any obligations, liabilities, fees and/or expenses to the Parent Parties or other Investors, Parent shall use the remainder of the Escrowed Amount, if any, to satisfy such obligations, liabilities, fees and/or expenses.
| 3 | Termination; Treatment of Escrowed Amount |
| 3.1 | This Agreement may be terminated by written notice at any time prior to receipt by Parent of the Escrowed Amount: |
| (a) | by the mutual written consent of the Parties; and |
| (b) | by Parent with the written consent of the Company, if Parent has not received the Escrowed Amount on or before the Escrow Due Date. |
| 3.2 | In the event the Escrowed Amount has been funded pursuant to paragraph 1.1, this Agreement shall terminate upon the earliest to occur of (a) the full payment and application of the Escrowed Amount in accordance with Section 2.1(a) hereof, in the event that the Equity Commitment Letter is terminated pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would become due and payable pursuant to the terms of the Merger Agreement, (b) the termination of the Equity Commitment Letter pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would not become due and payable pursuant to the terms of the Merger Agreement, and (c) the termination of Investor’s participation in the transaction pursuant to the terms of the Interim Investors Agreement. Notwithstanding anything to the contrary herein and for the avoidance of doubt, this Agreement shall not be terminated without the prior written consent of the Company in the event that (i) the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement or (ii) any of Investor’s obligations under the Limited Guarantee becomes due and payable pursuant to the terms of the Limited Guarantee, and in each case the funded Escrowed Amounts have not been utilized in accordance with the terms hereof for the payment of the Parent Termination Fee or such obligations. |
| 3.3 | In the event (i) this Agreement is terminated pursuant to paragraph 3.2(b) and the Contribution under the Equity Commitment Letter is not required to be made or has otherwise been made in full without taking into account the funded Escrow Amount pursuant to the terms thereunder, or (ii) this Agreement is terminated pursuant to paragraph 3.2(c), Parent shall, after deducting and offsetting from the Escrowed Amount any obligations, liabilities, fees and/or expenses of Investor incurred and/or payable under the terms of the Equity Commitment Letter or the Interim Investors Agreement, as applicable, promptly (and in any event within 30 days of such termination) return the remainder of the Escrowed Amount to an account of the Investor designated by the Investor in writing. |
| 3.4 | The Parties hereby acknowledge, covenant and agree that, unless expressly provided for herein, Parent shall not utilize or release any Escrowed Amount from the Parent Account without the prior written consent of the Company. |
| 3 |
| 4 | Governing Law; Dispute Resolution |
| 4.1 | This Agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People’s Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction |
| 4.2 | In the event of any dispute, controversy, or claim between the Parties arising out of or relating to the breach, termination or validity of this Agreement (“Dispute”), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission (“CIETAC”) under the arbitration rules of CIETAC (the “Rule”) in force when the notice of arbitration is submitted by a party. |
| 4.3 | The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule. |
| 4.4 | The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 9. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party. |
| 4.5 | The awards rendered by the arbitrators pursuant to this Section 9 shall be non-appealable, final, binding and conclusive on the parties to such Dispute. |
| 4.6 | The Parties understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision. |
| 5 | General Provisions |
| 5.1 | Each of the Parties confirms that it has received independent legal advice relating to all matters provided for in this Agreement and agrees that the provisions of this Agreement are fair and reasonable. |
| 5.2 | Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Agreement in any jurisdiction and, if any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this Agreement or any part hereof is invalid, illegal or unenforceable. |
| 4 |
| 5.3 | This Agreement shall be binding on and inure for the benefit of the successors of each of the Parties, but the Parties may not assign, grant any security interest, hold on trust or otherwise transfer all or any of their rights and obligations under this Agreement (without the prior written consent of the other Parties). |
| 5.4 | This Agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered (by telecopy or otherwise) to the other Parties. |
| 5.5 | Any waiver of any right or default under this Agreement shall be effective only in the instance given and shall not operate as or imply a waiver of any other or similar right or default on any subsequent occasion. No waiver of any provision of this Agreement will be effective unless it is granted in writing and signed by the Party granting the waiver and with the prior written consent of the Company. Any delay by any Party in exercising, or failure to exercise, any right or remedy under this Agreement shall not constitute a waiver of the right or remedy (or a waiver of any other rights or remedies) and no single or partial exercise of any rights or remedy under this Agreement or otherwise shall prevent any further exercise of the right or remedy (or the exercise of any other right or remedy). |
| 5.6 | This Agreement shall not be amended, changed or modified, except by another agreement in writing executed by the Parties hereto. |
| 5.6 | The Parties hereto agree that irreparable damage would occur in the event that any provision of this Agreement were not performed in accordance with the terms hereof and that each Party shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement, in addition to any other remedy at law or equity. Each Party hereby waives (a) any defenses in any action for specific performance, including the defense that a remedy at law would be adequate and (b) any requirement under any law to post a bond or other security as a prerequisite to obtaining equitable relief. |
| 5.7 | Each Party acknowledges and agrees that (i) the Escrowed Amount is not intended to cap Investor’s liabilities under this Agreement, the Equity Commitment Letter, the Interim Investors Agreement or the Limited Guarantee, or Parent’s liability under the Merger Agreement, and (ii) Parent’s liability to Investor under this Agreement shall not exceed the Escrowed Amount. |
[Signature page follows]
| 5 |
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
Very truly yours,
| Fortune Fountain (Beijing) Holding Group Co., Ltd. | ||
| (沣沅弘 (控股集团有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Wong Ning Nick | |
| Name: Wong Ning Nick | ||
| Title: Managing Director | ||
| Dated: December 11th, 2015 | ||
Accepted and agreed to as of the date first written above:
|
Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: Hongyi Zhou | ||
| Title: Authorized Signatory | ||
[Signature Page to Escrow Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Escrow Agreement]
Exhibit 99.51
Execution Version
ESCROW AGREEMENT
This Escrow Agreement (this “Agreement”), dated as of December 18, 2015 (this “Agreement”), is made by and among Beijing ZGC Trinitas Venture Capital Investment Center (Limited Partnership) (北京中关村国盛创业投资中心 (有限合伙)), a limited partnership formed under the laws of the PRC (“Investor”), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the PRC ("Parent"), and Qihoo 360 Technology Co. Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the "Company"). Each of Investor, Parent and the Company are referred to herein as a "Party" and together as "Parties".
Reference is hereby made to each of: (i) that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among the Company, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands("Merger Sub"); (ii) that certain limited guarantee, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Limited Guarantee") between Investor and the Company; (iii) that certain equity commitment letter, executed by Investor on the date hereof in favor of Holdco and Parent and the Company (the "Equity Commitment Letter"); and (iv) that certain Interim Investors Agreement, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Interim Investors Agreement"), by and among Holdco, Parent, Investor and certain other parties identified therein. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
In order to induce Parent to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Interim Investors Agreement and the Company to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Limited Guarantee, and in consideration of the mutual covenants and obligations hereinafter set forth, the Parties hereby agree in this Agreement as follows:
| 1 | Escrow; Representations and Warranties |
| 1.1 | No later than five (5) Business Days after the date hereof (the "Escrow Due Date"), Investor shall pay or cause to be paid to Parent, RMB24,999,000 (the "Escrowed Amount") by wire transfer of immediately available funds into an account designated by Parent (the “Parent Account”). |
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| 1.2 | Parent shall set aside the Escrowed Amount, together with the escrowed amount from other investors under the other escrow agreements dated as of the date hereof in the Parent Account as a separate pool of funds for the purposes set forth in Section 2.1, and Parent shall maintain a ledger showing the Escrowed Amount from Investor, and the escrowed amount from other investors under the other escrow agreements dated as of the date hereof individually (the “Ledger”). Within 15 Business Days after the Escrow Due Date, Parent shall provide the Company with a written notice setting forth the detailed information of the Parent Account and the Ledger. Upon request of the Company, Parent shall provide the Company with reasonable evidence with respect to the Parent Account in reasonable details, including without limitation the total balance in the Parent Account, and the Ledger, within two (2) Business Days following such request. |
| 1.3 | Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this Agreement; (b) the execution, delivery and performance of this Agreement by Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of Investor are necessary therefor; (c) this Agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by Investor of this Agreement do not and will not violate the organizational documents of Investor or any applicable Law or conflict with any material agreement binding on Investor; and (e) Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by Investor. |
| 2 | Application of the Escrowed Amount |
| 2.1 | The Parties agree that, subject to the terms of this Agreement, the Escrowed Amount shall be applied by Parent as follows: |
(a) (i) in the event the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement, the Escrowed Amount shall be used by Parent to pay the Parent Termination Fee that becomes due and payable pursuant to the terms of the Merger Agreement, and (ii) in the event that any of Investor’s obligations under the Limited Guarantee, including the payment of the Guaranteed Obligation pursuant to Section 1(a) of the Limited Guarantee and the obligation under Section 1(c) of the Limited Guarantee, becomes due and payable pursuant to the terms of the Limited Guarantee, the Escrowed Amount shall be used by Parent to pay all such obligations of Investor as arise from and under the Limited Guarantee, and in no event shall the Escrowed Amount be used for or applied towards any other purposes unless and until all the obligations under the foregoing sub-clauses (i) and (ii) have been fully satisfied;
| (b) in the event Investor’s obligation to fund the Contribution under the Equity Commitment Letter becomes due pursuant to the terms thereunder, the Escrowed Amount shall be credited against, applied towards and offset from the amount of the Contribution; or |
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| (c) after full payment is made out of the Parent Account in accordance with the forgoing clause (a) or (b), as applicable, in the event Investor otherwise owes any obligations, liabilities, fees and/or expenses to the Parent Parties or other Investors, Parent shall use the remainder of the Escrowed Amount, if any, to satisfy such obligations, liabilities, fees and/or expenses. |
| 3 | Termination; Treatment of Escrowed Amount |
| 3.1 | This Agreement may be terminated by written notice at any time prior to receipt by Parent of the Escrowed Amount: |
| (a) | by the mutual written consent of the Parties; and |
| (b) | by Parent with the written consent of the Company, if Parent has not received the Escrowed Amount on or before the Escrow Due Date. |
| 3.2 | In the event the Escrowed Amount has been funded pursuant to paragraph 1.1, this Agreement shall terminate upon the earliest to occur of (a) the full payment and application of the Escrowed Amount in accordance with Section 2.1(a) hereof, in the event that the Equity Commitment Letter is terminated pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would become due and payable pursuant to the terms of the Merger Agreement, (b) the termination of the Equity Commitment Letter pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would not become due and payable pursuant to the terms of the Merger Agreement, and (c) the termination of Investor’s participation in the transaction pursuant to the terms of the Interim Investors Agreement. Notwithstanding anything to the contrary herein and for the avoidance of doubt, this Agreement shall not be terminated without the prior written consent of the Company in the event that (i) the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement or (ii) any of Investor’s obligations under the Limited Guarantee becomes due and payable pursuant to the terms of the Limited Guarantee, and in each case the funded Escrowed Amounts have not been utilized in accordance with the terms hereof for the payment of the Parent Termination Fee or such obligations. |
| 3.3 | In the event (i) this Agreement is terminated pursuant to paragraph 3.2(b) and the Contribution under the Equity Commitment Letter is not required to be made or has otherwise been made in full without taking into account the funded Escrow Amount pursuant to the terms thereunder, or (ii) this Agreement is terminated pursuant to paragraph 3.2(c), Parent shall, after deducting and offsetting from the Escrowed Amount any obligations, liabilities, fees and/or expenses of Investor incurred and/or payable under the terms of the Equity Commitment Letter or the Interim Investors Agreement, as applicable, promptly (and in any event within 30 days of such termination) return the remainder of the Escrowed Amount to an account of the Investor designated by the Investor in writing. |
| 3.4 | The Parties hereby acknowledge, covenant and agree that, unless expressly provided for herein, Parent shall not utilize or release any Escrowed Amount from the Parent Account without the prior written consent of the Company. |
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| 4 | Governing Law; Dispute Resolution |
| 4.1 | This Agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People’s Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction |
| 4.2 | In the event of any dispute, controversy, or claim between the Parties arising out of or relating to the breach, termination or validity of this Agreement (“Dispute”), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission (“CIETAC”) under the arbitration rules of CIETAC (the “Rule”) in force when the notice of arbitration is submitted by a party. |
| 4.3 | The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule. |
| 4.4 | The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 9. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party. |
| 4.5 | The awards rendered by the arbitrators pursuant to this Section 9 shall be non-appealable, final, binding and conclusive on the parties to such Dispute. |
| 4.6 | The Parties understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision. |
| 5 | General Provisions |
| 5.1 | Each of the Parties confirms that it has received independent legal advice relating to all matters provided for in this Agreement and agrees that the provisions of this Agreement are fair and reasonable. |
| 5.2 | Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Agreement in any jurisdiction and, if any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this Agreement or any part hereof is invalid, illegal or unenforceable. |
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| 5.3 | This Agreement shall be binding on and inure for the benefit of the successors of each of the Parties, but the Parties may not assign, grant any security interest, hold on trust or otherwise transfer all or any of their rights and obligations under this Agreement (without the prior written consent of the other Parties). |
| 5.4 | This Agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered (by telecopy or otherwise) to the other Parties. |
| 5.5 | Any waiver of any right or default under this Agreement shall be effective only in the instance given and shall not operate as or imply a waiver of any other or similar right or default on any subsequent occasion. No waiver of any provision of this Agreement will be effective unless it is granted in writing and signed by the Party granting the waiver and with the prior written consent of the Company. Any delay by any Party in exercising, or failure to exercise, any right or remedy under this Agreement shall not constitute a waiver of the right or remedy (or a waiver of any other rights or remedies) and no single or partial exercise of any rights or remedy under this Agreement or otherwise shall prevent any further exercise of the right or remedy (or the exercise of any other right or remedy). |
| 5.6 | This Agreement shall not be amended, changed or modified, except by another agreement in writing executed by the Parties hereto. |
| 5.6 | The Parties hereto agree that irreparable damage would occur in the event that any provision of this Agreement were not performed in accordance with the terms hereof and that each Party shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement, in addition to any other remedy at law or equity. Each Party hereby waives (a) any defenses in any action for specific performance, including the defense that a remedy at law would be adequate and (b) any requirement under any law to post a bond or other security as a prerequisite to obtaining equitable relief. |
| 5.7 | Each Party acknowledges and agrees that (i) the Escrowed Amount is not intended to cap Investor’s liabilities under this Agreement, the Equity Commitment Letter, the Interim Investors Agreement or the Limited Guarantee, or Parent’s liability under the Merger Agreement, and (ii) Parent’s liability to Investor under this Agreement shall not exceed the Escrowed Amount. |
[Signature page follows]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
Very truly yours,
| Beijing ZGC Trinitas Venture Capital Investment Center (Limited Partnership) | ||
| (北京中关村国盛创业投资中心 (有限合伙)) | ||
| [Company chop is affixed] | ||
| By: | /s/ ZHOU, CHENG | |
| Name: ZHOU, CHENG (周骋) | ||
| Title: Founding Partner | ||
Accepted and agreed to as of the date first written above:
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Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: Hongyi Zhou | ||
| Title: Authorized Signatory | ||
[Signature Page to Escrow Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Escrow Agreement]
Exhibit 99.52
Execution Version
ESCROW AGREEMENT
This Escrow Agreement (this “Agreement”), dated as of December 18, 2015 (this “Agreement”), is made by and among Shanghai Mango Creative Equity Investment Fund (芒果文创 (上海) 股权投资基金合伙企业 (有限合伙) ), a limited partnership formed under the laws of the PRC (“Investor”), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the PRC ("Parent"), and Qihoo 360 Technology Co. Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the "Company"). Each of Investor, Parent and the Company are referred to herein as a "Party" and together as "Parties".
Reference is hereby made to each of: (i) that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among the Company, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands("Merger Sub"); (ii) that certain limited guarantee, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Limited Guarantee") between Investor and the Company; (iii) that certain equity commitment letter, executed by Investor on the date hereof in favor of Holdco and Parent and the Company (the "Equity Commitment Letter"); and (iv) that certain Interim Investors Agreement, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Interim Investors Agreement"), by and among Holdco, Parent, Investor and certain other parties identified therein. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
In order to induce Parent to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Interim Investors Agreement and the Company to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Limited Guarantee, and in consideration of the mutual covenants and obligations hereinafter set forth, the Parties hereby agree in this Agreement as follows:
| 1 | Escrow; Representations and Warranties |
| 1.1 | No later than five (5) Business Days after the date hereof (the "Escrow Due Date"), Investor shall pay or cause to be paid to Parent, RMB19,230,000 (the "Escrowed Amount") by wire transfer of immediately available funds into an account designated by Parent (the “Parent Account”). |
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| 1.2 | Parent shall set aside the Escrowed Amount, together with the escrowed amount from other investors under the other escrow agreements dated as of the date hereof in the Parent Account as a separate pool of funds for the purposes set forth in Section 2.1, and Parent shall maintain a ledger showing the Escrowed Amount from Investor, and the escrowed amount from other investors under the other escrow agreements dated as of the date hereof individually (the “Ledger”). Within 15 Business Days after the Escrow Due Date, Parent shall provide the Company with a written notice setting forth the detailed information of the Parent Account and the Ledger. Upon request of the Company, Parent shall provide the Company with reasonable evidence with respect to the Parent Account in reasonable details, including without limitation the total balance in the Parent Account, and the Ledger, within two (2) Business Days following such request. |
| 1.3 | Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this Agreement; (b) the execution, delivery and performance of this Agreement by Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of Investor are necessary therefor; (c) this Agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by Investor of this Agreement do not and will not violate the organizational documents of Investor or any applicable Law or conflict with any material agreement binding on Investor; and (e) Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by Investor. |
| 2 | Application of the Escrowed Amount |
| 2.1 | The Parties agree that, subject to the terms of this Agreement, the Escrowed Amount shall be applied by Parent as follows: |
(a) (i) in the event the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement, the Escrowed Amount shall be used by Parent to pay the Parent Termination Fee that becomes due and payable pursuant to the terms of the Merger Agreement, and (ii) in the event that any of Investor’s obligations under the Limited Guarantee, including the payment of the Guaranteed Obligation pursuant to Section 1(a) of the Limited Guarantee and the obligation under Section 1(c) of the Limited Guarantee, becomes due and payable pursuant to the terms of the Limited Guarantee, the Escrowed Amount shall be used by Parent to pay all such obligations of Investor as arise from and under the Limited Guarantee, and in no event shall the Escrowed Amount be used for or applied towards any other purposes unless and until all the obligations under the foregoing sub-clauses (i) and (ii) have been fully satisfied;
| (b) in the event Investor’s obligation to fund the Contribution under the Equity Commitment Letter becomes due pursuant to the terms thereunder, the Escrowed Amount shall be credited against, applied towards and offset from the amount of the Contribution; or |
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| (c) after full payment is made out of the Parent Account in accordance with the forgoing clause (a) or (b), as applicable, in the event Investor otherwise owes any obligations, liabilities, fees and/or expenses to the Parent Parties or other Investors, Parent shall use the remainder of the Escrowed Amount, if any, to satisfy such obligations, liabilities, fees and/or expenses. |
| 3 | Termination; Treatment of Escrowed Amount |
| 3.1 | This Agreement may be terminated by written notice at any time prior to receipt by Parent of the Escrowed Amount: |
| (a) | by the mutual written consent of the Parties; and |
| (b) | by Parent with the written consent of the Company, if Parent has not received the Escrowed Amount on or before the Escrow Due Date. |
| 3.2 | In the event the Escrowed Amount has been funded pursuant to paragraph 1.1, this Agreement shall terminate upon the earliest to occur of (a) the full payment and application of the Escrowed Amount in accordance with Section 2.1(a) hereof, in the event that the Equity Commitment Letter is terminated pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would become due and payable pursuant to the terms of the Merger Agreement, (b) the termination of the Equity Commitment Letter pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would not become due and payable pursuant to the terms of the Merger Agreement, and (c) the termination of Investor’s participation in the transaction pursuant to the terms of the Interim Investors Agreement. Notwithstanding anything to the contrary herein and for the avoidance of doubt, this Agreement shall not be terminated without the prior written consent of the Company in the event that (i) the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement or (ii) any of Investor’s obligations under the Limited Guarantee becomes due and payable pursuant to the terms of the Limited Guarantee, and in each case the funded Escrowed Amounts have not been utilized in accordance with the terms hereof for the payment of the Parent Termination Fee or such obligations. |
| 3.3 | In the event (i) this Agreement is terminated pursuant to paragraph 3.2(b) and the Contribution under the Equity Commitment Letter is not required to be made or has otherwise been made in full without taking into account the funded Escrow Amount pursuant to the terms thereunder, or (ii) this Agreement is terminated pursuant to paragraph 3.2(c), Parent shall, after deducting and offsetting from the Escrowed Amount any obligations, liabilities, fees and/or expenses of Investor incurred and/or payable under the terms of the Equity Commitment Letter or the Interim Investors Agreement, as applicable, promptly (and in any event within 30 days of such termination) return the remainder of the Escrowed Amount to an account of the Investor designated by the Investor in writing. |
| 3.4 | The Parties hereby acknowledge, covenant and agree that, unless expressly provided for herein, Parent shall not utilize or release any Escrowed Amount from the Parent Account without the prior written consent of the Company. |
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| 4 | Governing Law; Dispute Resolution |
| 4.1 | This Agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People’s Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction |
| 4.2 | In the event of any dispute, controversy, or claim between the Parties arising out of or relating to the breach, termination or validity of this Agreement (“Dispute”), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission (“CIETAC”) under the arbitration rules of CIETAC (the “Rule”) in force when the notice of arbitration is submitted by a party. |
| 4.3 | The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule. |
| 4.4 | The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 9. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party. |
| 4.5 | The awards rendered by the arbitrators pursuant to this Section 9 shall be non-appealable, final, binding and conclusive on the parties to such Dispute. |
| 4.6 | The Parties understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision. |
| 5 | General Provisions |
| 5.1 | Each of the Parties confirms that it has received independent legal advice relating to all matters provided for in this Agreement and agrees that the provisions of this Agreement are fair and reasonable. |
| 5.2 | Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Agreement in any jurisdiction and, if any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this Agreement or any part hereof is invalid, illegal or unenforceable. |
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| 5.3 | This Agreement shall be binding on and inure for the benefit of the successors of each of the Parties, but the Parties may not assign, grant any security interest, hold on trust or otherwise transfer all or any of their rights and obligations under this Agreement (without the prior written consent of the other Parties). |
| 5.4 | This Agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered (by telecopy or otherwise) to the other Parties. |
| 5.5 | Any waiver of any right or default under this Agreement shall be effective only in the instance given and shall not operate as or imply a waiver of any other or similar right or default on any subsequent occasion. No waiver of any provision of this Agreement will be effective unless it is granted in writing and signed by the Party granting the waiver and with the prior written consent of the Company. Any delay by any Party in exercising, or failure to exercise, any right or remedy under this Agreement shall not constitute a waiver of the right or remedy (or a waiver of any other rights or remedies) and no single or partial exercise of any rights or remedy under this Agreement or otherwise shall prevent any further exercise of the right or remedy (or the exercise of any other right or remedy). |
| 5.6 | This Agreement shall not be amended, changed or modified, except by another agreement in writing executed by the Parties hereto. |
| 5.6 | The Parties hereto agree that irreparable damage would occur in the event that any provision of this Agreement were not performed in accordance with the terms hereof and that each Party shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement, in addition to any other remedy at law or equity. Each Party hereby waives (a) any defenses in any action for specific performance, including the defense that a remedy at law would be adequate and (b) any requirement under any law to post a bond or other security as a prerequisite to obtaining equitable relief. |
| 5.7 | Each Party acknowledges and agrees that (i) the Escrowed Amount is not intended to cap Investor’s liabilities under this Agreement, the Equity Commitment Letter, the Interim Investors Agreement or the Limited Guarantee, or Parent’s liability under the Merger Agreement, and (ii) Parent’s liability to Investor under this Agreement shall not exceed the Escrowed Amount. |
[Signature page follows]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
Very truly yours,
| Shanghai Mango Creative Equity Investment Fund | ||
| (芒果文创 (上海) 股权投资基金合伙企业 (有限合伙) ) | ||
| [Company chop is affixed] | ||
| By: | /s/ Cai Huaijun | |
| Name: Cai Huaijun (蔡怀军) | ||
| Title: Representative | ||
Accepted and agreed to as of the date first written above:
|
Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: Hongyi Zhou | ||
| Title: Authorized Signatory | ||
[Signature Page to Escrow Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Escrow Agreement]
Exhibit 99.53
Execution Version
ESCROW AGREEMENT
This Escrow Agreement (this “Agreement”), dated as of December 18, 2015 (this “Agreement”), is made by and among Qiancai NO.1 Equity Investment Limited Partnership Enterprise (千采壹号 (象山) 股权投资合伙企业 (有限合伙) ), a limited partnership formed under the laws of the PRC (“Investor”), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the PRC ("Parent"), and Qihoo 360 Technology Co. Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the "Company"). Each of Investor, Parent and the Company are referred to herein as a "Party" and together as "Parties".
Reference is hereby made to each of: (i) that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among the Company, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands("Merger Sub"); (ii) that certain limited guarantee, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Limited Guarantee") between Investor and the Company; (iii) that certain equity commitment letter, executed by Investor on the date hereof in favor of Holdco and Parent and the Company (the "Equity Commitment Letter"); and (iv) that certain Interim Investors Agreement, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Interim Investors Agreement"), by and among Holdco, Parent, Investor and certain other parties identified therein. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
In order to induce Parent to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Interim Investors Agreement and the Company to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Limited Guarantee, and in consideration of the mutual covenants and obligations hereinafter set forth, the Parties hereby agree in this Agreement as follows:
| 1 | Escrow; Representations and Warranties |
| 1.1 | No later than five (5) Business Days after the date hereof (the "Escrow Due Date"), Investor shall pay or cause to be paid to Parent, RMB5,769,000 (the "Escrowed Amount") by wire transfer of immediately available funds into an account designated by Parent (the “Parent Account”). |
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| 1.2 | Parent shall set aside the Escrowed Amount, together with the escrowed amount from other investors under the other escrow agreements dated as of the date hereof in the Parent Account as a separate pool of funds for the purposes set forth in Section 2.1, and Parent shall maintain a ledger showing the Escrowed Amount from Investor, and the escrowed amount from other investors under the other escrow agreements dated as of the date hereof individually (the “Ledger”). Within 15 Business Days after the Escrow Due Date, Parent shall provide the Company with a written notice setting forth the detailed information of the Parent Account and the Ledger. Upon request of the Company, Parent shall provide the Company with reasonable evidence with respect to the Parent Account in reasonable details, including without limitation the total balance in the Parent Account, and the Ledger, within two (2) Business Days following such request. |
| 1.3 | Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this Agreement; (b) the execution, delivery and performance of this Agreement by Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of Investor are necessary therefor; (c) this Agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by Investor of this Agreement do not and will not violate the organizational documents of Investor or any applicable Law or conflict with any material agreement binding on Investor; and (e) Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by Investor. |
| 2 | Application of the Escrowed Amount |
| 2.1 | The Parties agree that, subject to the terms of this Agreement, the Escrowed Amount shall be applied by Parent as follows: |
(a) (i) in the event the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement, the Escrowed Amount shall be used by Parent to pay the Parent Termination Fee that becomes due and payable pursuant to the terms of the Merger Agreement, and (ii) in the event that any of Investor’s obligations under the Limited Guarantee, including the payment of the Guaranteed Obligation pursuant to Section 1(a) of the Limited Guarantee and the obligation under Section 1(c) of the Limited Guarantee, becomes due and payable pursuant to the terms of the Limited Guarantee, the Escrowed Amount shall be used by Parent to pay all such obligations of Investor as arise from and under the Limited Guarantee, and in no event shall the Escrowed Amount be used for or applied towards any other purposes unless and until all the obligations under the foregoing sub-clauses (i) and (ii) have been fully satisfied;
| (b) in the event Investor’s obligation to fund the Contribution under the Equity Commitment Letter becomes due pursuant to the terms thereunder, the Escrowed Amount shall be credited against, applied towards and offset from the amount of the Contribution; or |
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| (c) after full payment is made out of the Parent Account in accordance with the forgoing clause (a) or (b), as applicable, in the event Investor otherwise owes any obligations, liabilities, fees and/or expenses to the Parent Parties or other Investors, Parent shall use the remainder of the Escrowed Amount, if any, to satisfy such obligations, liabilities, fees and/or expenses. |
| 3 | Termination; Treatment of Escrowed Amount |
| 3.1 | This Agreement may be terminated by written notice at any time prior to receipt by Parent of the Escrowed Amount: |
| (a) | by the mutual written consent of the Parties; and |
| (b) | by Parent with the written consent of the Company, if Parent has not received the Escrowed Amount on or before the Escrow Due Date. |
| 3.2 | In the event the Escrowed Amount has been funded pursuant to paragraph 1.1, this Agreement shall terminate upon the earliest to occur of (a) the full payment and application of the Escrowed Amount in accordance with Section 2.1(a) hereof, in the event that the Equity Commitment Letter is terminated pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would become due and payable pursuant to the terms of the Merger Agreement, (b) the termination of the Equity Commitment Letter pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would not become due and payable pursuant to the terms of the Merger Agreement, and (c) the termination of Investor’s participation in the transaction pursuant to the terms of the Interim Investors Agreement. Notwithstanding anything to the contrary herein and for the avoidance of doubt, this Agreement shall not be terminated without the prior written consent of the Company in the event that (i) the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement or (ii) any of Investor’s obligations under the Limited Guarantee becomes due and payable pursuant to the terms of the Limited Guarantee, and in each case the funded Escrowed Amounts have not been utilized in accordance with the terms hereof for the payment of the Parent Termination Fee or such obligations. |
| 3.3 | In the event (i) this Agreement is terminated pursuant to paragraph 3.2(b) and the Contribution under the Equity Commitment Letter is not required to be made or has otherwise been made in full without taking into account the funded Escrow Amount pursuant to the terms thereunder, or (ii) this Agreement is terminated pursuant to paragraph 3.2(c), Parent shall, after deducting and offsetting from the Escrowed Amount any obligations, liabilities, fees and/or expenses of Investor incurred and/or payable under the terms of the Equity Commitment Letter or the Interim Investors Agreement, as applicable, promptly (and in any event within 30 days of such termination) return the remainder of the Escrowed Amount to an account of the Investor designated by the Investor in writing. |
| 3.4 | The Parties hereby acknowledge, covenant and agree that, unless expressly provided for herein, Parent shall not utilize or release any Escrowed Amount from the Parent Account without the prior written consent of the Company. |
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| 4 | Governing Law; Dispute Resolution |
| 4.1 | This Agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People’s Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction |
| 4.2 | In the event of any dispute, controversy, or claim between the Parties arising out of or relating to the breach, termination or validity of this Agreement (“Dispute”), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission (“CIETAC”) under the arbitration rules of CIETAC (the “Rule”) in force when the notice of arbitration is submitted by a party. |
| 4.3 | The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule. |
| 4.4 | The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 9. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party. |
| 4.5 | The awards rendered by the arbitrators pursuant to this Section 9 shall be non-appealable, final, binding and conclusive on the parties to such Dispute. |
| 4.6 | The Parties understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision. |
| 5 | General Provisions |
| 5.1 | Each of the Parties confirms that it has received independent legal advice relating to all matters provided for in this Agreement and agrees that the provisions of this Agreement are fair and reasonable. |
| 5.2 | Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Agreement in any jurisdiction and, if any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this Agreement or any part hereof is invalid, illegal or unenforceable. |
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| 5.3 | This Agreement shall be binding on and inure for the benefit of the successors of each of the Parties, but the Parties may not assign, grant any security interest, hold on trust or otherwise transfer all or any of their rights and obligations under this Agreement (without the prior written consent of the other Parties). |
| 5.4 | This Agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered (by telecopy or otherwise) to the other Parties. |
| 5.5 | Any waiver of any right or default under this Agreement shall be effective only in the instance given and shall not operate as or imply a waiver of any other or similar right or default on any subsequent occasion. No waiver of any provision of this Agreement will be effective unless it is granted in writing and signed by the Party granting the waiver and with the prior written consent of the Company. Any delay by any Party in exercising, or failure to exercise, any right or remedy under this Agreement shall not constitute a waiver of the right or remedy (or a waiver of any other rights or remedies) and no single or partial exercise of any rights or remedy under this Agreement or otherwise shall prevent any further exercise of the right or remedy (or the exercise of any other right or remedy). |
| 5.6 | This Agreement shall not be amended, changed or modified, except by another agreement in writing executed by the Parties hereto. |
| 5.6 | The Parties hereto agree that irreparable damage would occur in the event that any provision of this Agreement were not performed in accordance with the terms hereof and that each Party shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement, in addition to any other remedy at law or equity. Each Party hereby waives (a) any defenses in any action for specific performance, including the defense that a remedy at law would be adequate and (b) any requirement under any law to post a bond or other security as a prerequisite to obtaining equitable relief. |
| 5.7 | Each Party acknowledges and agrees that (i) the Escrowed Amount is not intended to cap Investor’s liabilities under this Agreement, the Equity Commitment Letter, the Interim Investors Agreement or the Limited Guarantee, or Parent’s liability under the Merger Agreement, and (ii) Parent’s liability to Investor under this Agreement shall not exceed the Escrowed Amount. |
[Signature page follows]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
Very truly yours,
| Qiancai NO.1 Equity Investment Limited Partnership Enterprise | ||
| (千采壹号 (象山) 股权投资合伙企业 (有限合伙) ) | ||
| [Company chop is affixed] | ||
| By: | /s/ Dayong Yang | |
| Name: Dayong Yang | ||
| Title: Representative of The General Partner of Qiancai NO.1 Equity .L,P. | ||
Accepted and agreed to as of the date first written above:
|
Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: Hongyi Zhou | ||
| Title: Authorized Signatory | ||
[Signature Page to Escrow Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Escrow Agreement]
Exhibit 99.54
Execution Version
ESCROW AGREEMENT
This Escrow Agreement (this “Agreement”), dated as of December 18, 2015 (this “Agreement”), is made by and among Pearl River Life Insurance Co., Ltd. (珠江人寿保险股份有限公司), a limited liability company incorporated under the laws of the PRC (“Investor”), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the PRC ("Parent"), and Qihoo 360 Technology Co. Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the "Company"). Each of Investor, Parent and the Company are referred to herein as a "Party" and together as "Parties".
Reference is hereby made to each of: (i) that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among the Company, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands("Merger Sub"); (ii) that certain limited guarantee, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Limited Guarantee") between Investor and the Company; (iii) that certain equity commitment letter, executed by Investor on the date hereof in favor of Holdco and Parent and the Company (the "Equity Commitment Letter"); and (iv) that certain Interim Investors Agreement, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Interim Investors Agreement"), by and among Holdco, Parent, Investor and certain other parties identified therein. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
In order to induce Parent to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Interim Investors Agreement and the Company to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Limited Guarantee, and in consideration of the mutual covenants and obligations hereinafter set forth, the Parties hereby agree in this Agreement as follows:
| 1 | Escrow; Representations and Warranties |
| 1.1 | No later than five (5) Business Days after the date hereof (the "Escrow Due Date"), Investor shall pay or cause to be paid to Parent, RMB19,230,000 (the "Escrowed Amount") by wire transfer of immediately available funds into an account designated by Parent (the “Parent Account”). |
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| 1.2 | Parent shall set aside the Escrowed Amount, together with the escrowed amount from other investors under the other escrow agreements dated as of the date hereof in the Parent Account as a separate pool of funds for the purposes set forth in Section 2.1, and Parent shall maintain a ledger showing the Escrowed Amount from Investor, and the escrowed amount from other investors under the other escrow agreements dated as of the date hereof individually (the “Ledger”). Within 15 Business Days after the Escrow Due Date, Parent shall provide the Company with a written notice setting forth the detailed information of the Parent Account and the Ledger. Upon request of the Company, Parent shall provide the Company with reasonable evidence with respect to the Parent Account in reasonable details, including without limitation the total balance in the Parent Account, and the Ledger, within two (2) Business Days following such request. |
| 1.3 | Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this Agreement; (b) the execution, delivery and performance of this Agreement by Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of Investor are necessary therefor; (c) this Agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by Investor of this Agreement do not and will not violate the organizational documents of Investor or any applicable Law or conflict with any material agreement binding on Investor; and (e) Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by Investor. |
| 2 | Application of the Escrowed Amount |
| 2.1 | The Parties agree that, subject to the terms of this Agreement, the Escrowed Amount shall be applied by Parent as follows: |
(a) (i) in the event the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement, the Escrowed Amount shall be used by Parent to pay the Parent Termination Fee that becomes due and payable pursuant to the terms of the Merger Agreement, and (ii) in the event that any of Investor’s obligations under the Limited Guarantee, including the payment of the Guaranteed Obligation pursuant to Section 1(a) of the Limited Guarantee and the obligation under Section 1(c) of the Limited Guarantee, becomes due and payable pursuant to the terms of the Limited Guarantee, the Escrowed Amount shall be used by Parent to pay all such obligations of Investor as arise from and under the Limited Guarantee, and in no event shall the Escrowed Amount be used for or applied towards any other purposes unless and until all the obligations under the foregoing sub-clauses (i) and (ii) have been fully satisfied;
| (b) in the event Investor’s obligation to fund the Contribution under the Equity Commitment Letter becomes due pursuant to the terms thereunder, the Escrowed Amount shall be credited against, applied towards and offset from the amount of the Contribution; or |
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| (c) after full payment is made out of the Parent Account in accordance with the forgoing clause (a) or (b), as applicable, in the event Investor otherwise owes any obligations, liabilities, fees and/or expenses to the Parent Parties or other Investors, Parent shall use the remainder of the Escrowed Amount, if any, to satisfy such obligations, liabilities, fees and/or expenses. |
| 3 | Termination; Treatment of Escrowed Amount |
| 3.1 | This Agreement may be terminated by written notice at any time prior to receipt by Parent of the Escrowed Amount: |
| (a) | by the mutual written consent of the Parties; and |
| (b) | by Parent with the written consent of the Company, if Parent has not received the Escrowed Amount on or before the Escrow Due Date. |
| 3.2 | In the event the Escrowed Amount has been funded pursuant to paragraph 1.1, this Agreement shall terminate upon the earliest to occur of (a) the full payment and application of the Escrowed Amount in accordance with Section 2.1(a) hereof, in the event that the Equity Commitment Letter is terminated pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would become due and payable pursuant to the terms of the Merger Agreement, (b) the termination of the Equity Commitment Letter pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would not become due and payable pursuant to the terms of the Merger Agreement, and (c) the termination of Investor’s participation in the transaction pursuant to the terms of the Interim Investors Agreement. Notwithstanding anything to the contrary herein and for the avoidance of doubt, this Agreement shall not be terminated without the prior written consent of the Company in the event that (i) the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement or (ii) any of Investor’s obligations under the Limited Guarantee becomes due and payable pursuant to the terms of the Limited Guarantee, and in each case the funded Escrowed Amounts have not been utilized in accordance with the terms hereof for the payment of the Parent Termination Fee or such obligations. |
| 3.3 | In the event (i) this Agreement is terminated pursuant to paragraph 3.2(b) and the Contribution under the Equity Commitment Letter is not required to be made or has otherwise been made in full without taking into account the funded Escrow Amount pursuant to the terms thereunder, or (ii) this Agreement is terminated pursuant to paragraph 3.2(c), Parent shall, after deducting and offsetting from the Escrowed Amount any obligations, liabilities, fees and/or expenses of Investor incurred and/or payable under the terms of the Equity Commitment Letter or the Interim Investors Agreement, as applicable, promptly (and in any event within 30 days of such termination) return the remainder of the Escrowed Amount to an account of the Investor designated by the Investor in writing. |
| 3.4 | The Parties hereby acknowledge, covenant and agree that, unless expressly provided for herein, Parent shall not utilize or release any Escrowed Amount from the Parent Account without the prior written consent of the Company. |
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| 4 | Governing Law; Dispute Resolution |
| 4.1 | This Agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People’s Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction |
| 4.2 | In the event of any dispute, controversy, or claim between the Parties arising out of or relating to the breach, termination or validity of this Agreement (“Dispute”), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission (“CIETAC”) under the arbitration rules of CIETAC (the “Rule”) in force when the notice of arbitration is submitted by a party. |
| 4.3 | The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule. |
| 4.4 | The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 9. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party. |
| 4.5 | The awards rendered by the arbitrators pursuant to this Section 9 shall be non-appealable, final, binding and conclusive on the parties to such Dispute. |
| 4.6 | The Parties understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision. |
| 5 | General Provisions |
| 5.1 | Each of the Parties confirms that it has received independent legal advice relating to all matters provided for in this Agreement and agrees that the provisions of this Agreement are fair and reasonable. |
| 5.2 | Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Agreement in any jurisdiction and, if any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this Agreement or any part hereof is invalid, illegal or unenforceable. |
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| 5.3 | This Agreement shall be binding on and inure for the benefit of the successors of each of the Parties, but the Parties may not assign, grant any security interest, hold on trust or otherwise transfer all or any of their rights and obligations under this Agreement (without the prior written consent of the other Parties). |
| 5.4 | This Agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered (by telecopy or otherwise) to the other Parties. |
| 5.5 | Any waiver of any right or default under this Agreement shall be effective only in the instance given and shall not operate as or imply a waiver of any other or similar right or default on any subsequent occasion. No waiver of any provision of this Agreement will be effective unless it is granted in writing and signed by the Party granting the waiver and with the prior written consent of the Company. Any delay by any Party in exercising, or failure to exercise, any right or remedy under this Agreement shall not constitute a waiver of the right or remedy (or a waiver of any other rights or remedies) and no single or partial exercise of any rights or remedy under this Agreement or otherwise shall prevent any further exercise of the right or remedy (or the exercise of any other right or remedy). |
| 5.6 | This Agreement shall not be amended, changed or modified, except by another agreement in writing executed by the Parties hereto. |
| 5.6 | The Parties hereto agree that irreparable damage would occur in the event that any provision of this Agreement were not performed in accordance with the terms hereof and that each Party shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement, in addition to any other remedy at law or equity. Each Party hereby waives (a) any defenses in any action for specific performance, including the defense that a remedy at law would be adequate and (b) any requirement under any law to post a bond or other security as a prerequisite to obtaining equitable relief. |
| 5.7 | Each Party acknowledges and agrees that (i) the Escrowed Amount is not intended to cap Investor’s liabilities under this Agreement, the Equity Commitment Letter, the Interim Investors Agreement or the Limited Guarantee, or Parent’s liability under the Merger Agreement, and (ii) Parent’s liability to Investor under this Agreement shall not exceed the Escrowed Amount. |
[Signature page follows]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
Very truly yours,
| Pearl River Life Insurance Co., Ltd. (珠江人寿保险股份有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Gaoping Hu | |
| Name: Gaoping Hu | ||
| Title: President | ||
Accepted and agreed to as of the date first written above:
|
Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: Hongyi Zhou | ||
| Title: Authorized Signatory | ||
[Signature Page to Escrow Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Escrow Agreement]
Exhibit 99.55
Version
ESCROW AGREEMENT
This Escrow Agreement (this “Agreement”), dated as of December 18, 2015 (this “Agreement”), is made by and among Hengdian Group Holdings Limited (横店集团控股有限公司), a limited liability company incorporated under the laws of the PRC (“Investor”), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the PRC ("Parent"), and Qihoo 360 Technology Co. Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the "Company"). Each of Investor, Parent and the Company are referred to herein as a "Party" and together as "Parties".
Reference is hereby made to each of: (i) that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among the Company, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands("Merger Sub"); (ii) that certain limited guarantee, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Limited Guarantee") between Investor and the Company; (iii) that certain equity commitment letter, executed by Investor on the date hereof in favor of Holdco and Parent and the Company (the "Equity Commitment Letter"); and (iv) that certain Interim Investors Agreement, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Interim Investors Agreement"), by and among Holdco, Parent, Investor and certain other parties identified therein. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
In order to induce Parent to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Interim Investors Agreement and the Company to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Limited Guarantee, and in consideration of the mutual covenants and obligations hereinafter set forth, the Parties hereby agree in this Agreement as follows:
| 1 | Escrow; Representations and Warranties |
| 1.1 | No later than five (5) Business Days after the date hereof (the "Escrow Due Date"), Investor shall pay or cause to be paid to Parent, RMB19,230,000 (the "Escrowed Amount") by wire transfer of immediately available funds into an account designated by Parent (the “Parent Account”). |
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| 1.2 | Parent shall set aside the Escrowed Amount, together with the escrowed amount from other investors under the other escrow agreements dated as of the date hereof in the Parent Account as a separate pool of funds for the purposes set forth in Section 2.1, and Parent shall maintain a ledger showing the Escrowed Amount from Investor, and the escrowed amount from other investors under the other escrow agreements dated as of the date hereof individually (the “Ledger”). Within 15 Business Days after the Escrow Due Date, Parent shall provide the Company with a written notice setting forth the detailed information of the Parent Account and the Ledger. Upon request of the Company, Parent shall provide the Company with reasonable evidence with respect to the Parent Account in reasonable details, including without limitation the total balance in the Parent Account, and the Ledger, within two (2) Business Days following such request. |
| 1.3 | Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this Agreement; (b) the execution, delivery and performance of this Agreement by Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of Investor are necessary therefor; (c) this Agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by Investor of this Agreement do not and will not violate the organizational documents of Investor or any applicable Law or conflict with any material agreement binding on Investor; and (e) Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by Investor. |
| 2 | Application of the Escrowed Amount |
| 2.1 | The Parties agree that, subject to the terms of this Agreement, the Escrowed Amount shall be applied by Parent as follows: |
(a) (i) in the event the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement, the Escrowed Amount shall be used by Parent to pay the Parent Termination Fee that becomes due and payable pursuant to the terms of the Merger Agreement, and (ii) in the event that any of Investor’s obligations under the Limited Guarantee, including the payment of the Guaranteed Obligation pursuant to Section 1(a) of the Limited Guarantee and the obligation under Section 1(c) of the Limited Guarantee, becomes due and payable pursuant to the terms of the Limited Guarantee, the Escrowed Amount shall be used by Parent to pay all such obligations of Investor as arise from and under the Limited Guarantee, and in no event shall the Escrowed Amount be used for or applied towards any other purposes unless and until all the obligations under the foregoing sub-clauses (i) and (ii) have been fully satisfied;
| (b) in the event Investor’s obligation to fund the Contribution under the Equity Commitment Letter becomes due pursuant to the terms thereunder, the Escrowed Amount shall be credited against, applied towards and offset from the amount of the Contribution; or |
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| (c) after full payment is made out of the Parent Account in accordance with the forgoing clause (a) or (b), as applicable, in the event Investor otherwise owes any obligations, liabilities, fees and/or expenses to the Parent Parties or other Investors, Parent shall use the remainder of the Escrowed Amount, if any, to satisfy such obligations, liabilities, fees and/or expenses. |
| 3 | Termination; Treatment of Escrowed Amount |
| 3.1 | This Agreement may be terminated by written notice at any time prior to receipt by Parent of the Escrowed Amount: |
| (a) | by the mutual written consent of the Parties; and |
| (b) | by Parent with the written consent of the Company, if Parent has not received the Escrowed Amount on or before the Escrow Due Date. |
| 3.2 | In the event the Escrowed Amount has been funded pursuant to paragraph 1.1, this Agreement shall terminate upon the earliest to occur of (a) the full payment and application of the Escrowed Amount in accordance with Section 2.1(a) hereof, in the event that the Equity Commitment Letter is terminated pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would become due and payable pursuant to the terms of the Merger Agreement, (b) the termination of the Equity Commitment Letter pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would not become due and payable pursuant to the terms of the Merger Agreement, and (c) the termination of Investor’s participation in the transaction pursuant to the terms of the Interim Investors Agreement. Notwithstanding anything to the contrary herein and for the avoidance of doubt, this Agreement shall not be terminated without the prior written consent of the Company in the event that (i) the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement or (ii) any of Investor’s obligations under the Limited Guarantee becomes due and payable pursuant to the terms of the Limited Guarantee, and in each case the funded Escrowed Amounts have not been utilized in accordance with the terms hereof for the payment of the Parent Termination Fee or such obligations. |
| 3.3 | In the event (i) this Agreement is terminated pursuant to paragraph 3.2(b) and the Contribution under the Equity Commitment Letter is not required to be made or has otherwise been made in full without taking into account the funded Escrow Amount pursuant to the terms thereunder, or (ii) this Agreement is terminated pursuant to paragraph 3.2(c), Parent shall, after deducting and offsetting from the Escrowed Amount any obligations, liabilities, fees and/or expenses of Investor incurred and/or payable under the terms of the Equity Commitment Letter or the Interim Investors Agreement, as applicable, promptly (and in any event within 30 days of such termination) return the remainder of the Escrowed Amount to an account of the Investor designated by the Investor in writing. |
| 3.4 | The Parties hereby acknowledge, covenant and agree that, unless expressly provided for herein, Parent shall not utilize or release any Escrowed Amount from the Parent Account without the prior written consent of the Company. |
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| 4 | Governing Law; Dispute Resolution |
| 4.1 | This Agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People’s Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction |
| 4.2 | In the event of any dispute, controversy, or claim between the Parties arising out of or relating to the breach, termination or validity of this Agreement (“Dispute”), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission (“CIETAC”) under the arbitration rules of CIETAC (the “Rule”) in force when the notice of arbitration is submitted by a party. |
| 4.3 | The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule. |
| 4.4 | The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 9. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party. |
| 4.5 | The awards rendered by the arbitrators pursuant to this Section 9 shall be non-appealable, final, binding and conclusive on the parties to such Dispute. |
| 4.6 | The Parties understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision. |
| 5 | General Provisions |
| 5.1 | Each of the Parties confirms that it has received independent legal advice relating to all matters provided for in this Agreement and agrees that the provisions of this Agreement are fair and reasonable. |
| 5.2 | Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Agreement in any jurisdiction and, if any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this Agreement or any part hereof is invalid, illegal or unenforceable. |
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| 5.3 | This Agreement shall be binding on and inure for the benefit of the successors of each of the Parties, but the Parties may not assign, grant any security interest, hold on trust or otherwise transfer all or any of their rights and obligations under this Agreement (without the prior written consent of the other Parties). |
| 5.4 | This Agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered (by telecopy or otherwise) to the other Parties. |
| 5.5 | Any waiver of any right or default under this Agreement shall be effective only in the instance given and shall not operate as or imply a waiver of any other or similar right or default on any subsequent occasion. No waiver of any provision of this Agreement will be effective unless it is granted in writing and signed by the Party granting the waiver and with the prior written consent of the Company. Any delay by any Party in exercising, or failure to exercise, any right or remedy under this Agreement shall not constitute a waiver of the right or remedy (or a waiver of any other rights or remedies) and no single or partial exercise of any rights or remedy under this Agreement or otherwise shall prevent any further exercise of the right or remedy (or the exercise of any other right or remedy). |
| 5.6 | This Agreement shall not be amended, changed or modified, except by another agreement in writing executed by the Parties hereto. |
| 5.6 | The Parties hereto agree that irreparable damage would occur in the event that any provision of this Agreement were not performed in accordance with the terms hereof and that each Party shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement, in addition to any other remedy at law or equity. Each Party hereby waives (a) any defenses in any action for specific performance, including the defense that a remedy at law would be adequate and (b) any requirement under any law to post a bond or other security as a prerequisite to obtaining equitable relief. |
| 5.7 | Each Party acknowledges and agrees that (i) the Escrowed Amount is not intended to cap Investor’s liabilities under this Agreement, the Equity Commitment Letter, the Interim Investors Agreement or the Limited Guarantee, or Parent’s liability under the Merger Agreement, and (ii) Parent’s liability to Investor under this Agreement shall not exceed the Escrowed Amount. |
[Signature page follows]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
Very truly yours,
| Hengdian Group Holdings Limited | ||
| (横店集团控股有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Yong’an Xu | |
| Name: Yong’an Xu (徐永安) | ||
| Title: Chairman & President | ||
Accepted and agreed to as of the date first written above:
|
Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: Hongyi Zhou | ||
| Title: Authorized Signatory | ||
[Signature Page to Escrow Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Escrow Agreement]
Exhibit 99.56
Execution Version
ESCROW AGREEMENT
This Escrow Agreement (this “Agreement”), dated as of December 18, 2015 (this “Agreement”), is made by and among Jiangsu Gaoli Group (江苏高力集团有限公司), a limited liability company incorporated under the laws of the PRC (“Investor”), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the PRC ("Parent"), and Qihoo 360 Technology Co. Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the "Company"). Each of Investor, Parent and the Company are referred to herein as a "Party" and together as "Parties".
Reference is hereby made to each of: (i) that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among the Company, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands("Merger Sub"); (ii) that certain limited guarantee, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Limited Guarantee") between Investor and the Company; (iii) that certain equity commitment letter, executed by Investor on the date hereof in favor of Holdco and Parent and the Company (the "Equity Commitment Letter"); and (iv) that certain Interim Investors Agreement, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Interim Investors Agreement"), by and among Holdco, Parent, Investor and certain other parties identified therein. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
In order to induce Parent to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Interim Investors Agreement and the Company to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Limited Guarantee, and in consideration of the mutual covenants and obligations hereinafter set forth, the Parties hereby agree in this Agreement as follows:
| 1 | Escrow; Representations and Warranties |
| 1.1 | No later than five (5) Business Days after the date hereof (the "Escrow Due Date"), Investor shall pay or cause to be paid to Parent, RMB9,615,000 (the "Escrowed Amount") by wire transfer of immediately available funds into an account designated by Parent (the “Parent Account”). |
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| 1.2 | Parent shall set aside the Escrowed Amount, together with the escrowed amount from other investors under the other escrow agreements dated as of the date hereof in the Parent Account as a separate pool of funds for the purposes set forth in Section 2.1, and Parent shall maintain a ledger showing the Escrowed Amount from Investor, and the escrowed amount from other investors under the other escrow agreements dated as of the date hereof individually (the “Ledger”). Within 15 Business Days after the Escrow Due Date, Parent shall provide the Company with a written notice setting forth the detailed information of the Parent Account and the Ledger. Upon request of the Company, Parent shall provide the Company with reasonable evidence with respect to the Parent Account in reasonable details, including without limitation the total balance in the Parent Account, and the Ledger, within two (2) Business Days following such request. |
| 1.3 | Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this Agreement; (b) the execution, delivery and performance of this Agreement by Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of Investor are necessary therefor; (c) this Agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by Investor of this Agreement do not and will not violate the organizational documents of Investor or any applicable Law or conflict with any material agreement binding on Investor; and (e) Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by Investor. |
| 2 | Application of the Escrowed Amount |
| 2.1 | The Parties agree that, subject to the terms of this Agreement, the Escrowed Amount shall be applied by Parent as follows: |
(a) (i) in the event the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement, the Escrowed Amount shall be used by Parent to pay the Parent Termination Fee that becomes due and payable pursuant to the terms of the Merger Agreement, and (ii) in the event that any of Investor’s obligations under the Limited Guarantee, including the payment of the Guaranteed Obligation pursuant to Section 1(a) of the Limited Guarantee and the obligation under Section 1(c) of the Limited Guarantee, becomes due and payable pursuant to the terms of the Limited Guarantee, the Escrowed Amount shall be used by Parent to pay all such obligations of Investor as arise from and under the Limited Guarantee, and in no event shall the Escrowed Amount be used for or applied towards any other purposes unless and until all the obligations under the foregoing sub-clauses (i) and (ii) have been fully satisfied;
(b) in the event Investor’s obligation to fund the Contribution under the Equity Commitment Letter becomes due pursuant to the terms thereunder, the Escrowed Amount shall be credited against, applied towards and offset from the amount of the Contribution; or
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(c) after full payment is made out of the Parent Account in accordance with the forgoing clause (a) or (b), as applicable, in the event Investor otherwise owes any obligations, liabilities, fees and/or expenses to the Parent Parties or other Investors, Parent shall use the remainder of the Escrowed Amount, if any, to satisfy such obligations, liabilities, fees and/or expenses.
| 3 | Termination; Treatment of Escrowed Amount |
| 3.1 | This Agreement may be terminated by written notice at any time prior to receipt by Parent of the Escrowed Amount: |
| (a) | by the mutual written consent of the Parties; and |
| (b) | by Parent with the written consent of the Company, if Parent has not received the Escrowed Amount on or before the Escrow Due Date. |
| 3.2 | In the event the Escrowed Amount has been funded pursuant to paragraph 1.1, this Agreement shall terminate upon the earliest to occur of (a) the full payment and application of the Escrowed Amount in accordance with Section 2.1(a) hereof, in the event that the Equity Commitment Letter is terminated pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would become due and payable pursuant to the terms of the Merger Agreement, (b) the termination of the Equity Commitment Letter pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would not become due and payable pursuant to the terms of the Merger Agreement, and (c) the termination of Investor’s participation in the transaction pursuant to the terms of the Interim Investors Agreement. Notwithstanding anything to the contrary herein and for the avoidance of doubt, this Agreement shall not be terminated without the prior written consent of the Company in the event that (i) the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement or (ii) any of Investor’s obligations under the Limited Guarantee becomes due and payable pursuant to the terms of the Limited Guarantee, and in each case the funded Escrowed Amounts have not been utilized in accordance with the terms hereof for the payment of the Parent Termination Fee or such obligations. |
| 3.3 | In the event (i) this Agreement is terminated pursuant to paragraph 3.2(b) and the Contribution under the Equity Commitment Letter is not required to be made or has otherwise been made in full without taking into account the funded Escrow Amount pursuant to the terms thereunder, or (ii) this Agreement is terminated pursuant to paragraph 3.2(c), Parent shall, after deducting and offsetting from the Escrowed Amount any obligations, liabilities, fees and/or expenses of Investor incurred and/or payable under the terms of the Equity Commitment Letter or the Interim Investors Agreement, as applicable, promptly (and in any event within 30 days of such termination) return the remainder of the Escrowed Amount to an account of the Investor designated by the Investor in writing. |
| 3.4 | The Parties hereby acknowledge, covenant and agree that, unless expressly provided for herein, Parent shall not utilize or release any Escrowed Amount from the Parent Account without the prior written consent of the Company. |
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| 4 | Governing Law; Dispute Resolution |
| 4.1 | This Agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People’s Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction |
| 4.2 | In the event of any dispute, controversy, or claim between the Parties arising out of or relating to the breach, termination or validity of this Agreement (“Dispute”), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission (“CIETAC”) under the arbitration rules of CIETAC (the “Rule”) in force when the notice of arbitration is submitted by a party. |
| 4.3 | The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule. |
| 4.4 | The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 9. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party. |
| 4.5 | The awards rendered by the arbitrators pursuant to this Section 9 shall be non-appealable, final, binding and conclusive on the parties to such Dispute. |
| 4.6 | The Parties understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision. |
| 5 | General Provisions |
| 5.1 | Each of the Parties confirms that it has received independent legal advice relating to all matters provided for in this Agreement and agrees that the provisions of this Agreement are fair and reasonable. |
| 5.2 | Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Agreement in any jurisdiction and, if any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this Agreement or any part hereof is invalid, illegal or unenforceable. |
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| 5.3 | This Agreement shall be binding on and inure for the benefit of the successors of each of the Parties, but the Parties may not assign, grant any security interest, hold on trust or otherwise transfer all or any of their rights and obligations under this Agreement (without the prior written consent of the other Parties). |
| 5.4 | This Agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered (by telecopy or otherwise) to the other Parties. |
| 5.5 | Any waiver of any right or default under this Agreement shall be effective only in the instance given and shall not operate as or imply a waiver of any other or similar right or default on any subsequent occasion. No waiver of any provision of this Agreement will be effective unless it is granted in writing and signed by the Party granting the waiver and with the prior written consent of the Company. Any delay by any Party in exercising, or failure to exercise, any right or remedy under this Agreement shall not constitute a waiver of the right or remedy (or a waiver of any other rights or remedies) and no single or partial exercise of any rights or remedy under this Agreement or otherwise shall prevent any further exercise of the right or remedy (or the exercise of any other right or remedy). |
| 5.6 | This Agreement shall not be amended, changed or modified, except by another agreement in writing executed by the Parties hereto. |
| 5.6 | The Parties hereto agree that irreparable damage would occur in the event that any provision of this Agreement were not performed in accordance with the terms hereof and that each Party shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement, in addition to any other remedy at law or equity. Each Party hereby waives (a) any defenses in any action for specific performance, including the defense that a remedy at law would be adequate and (b) any requirement under any law to post a bond or other security as a prerequisite to obtaining equitable relief. |
| 5.7 | Each Party acknowledges and agrees that (i) the Escrowed Amount is not intended to cap Investor’s liabilities under this Agreement, the Equity Commitment Letter, the Interim Investors Agreement or the Limited Guarantee, or Parent’s liability under the Merger Agreement, and (ii) Parent’s liability to Investor under this Agreement shall not exceed the Escrowed Amount. |
[Signature page follows]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| Very truly yours, | ||
| JIANGSU GAOLI GROUP | ||
| (江苏高力集团有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Shijun Gao | |
| Name: Shijun Gao (高仕军) | ||
| Title: President | ||
Accepted and agreed to as of the date first written above:
|
Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: Hongyi Zhou | ||
| Title: Authorized Signatory | ||
[Signature Page to Escrow Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Escrow Agreement]
Exhibit 99.57
Execution Version
ESCROW AGREEMENT
This Escrow Agreement (this “Agreement”), dated as of December 18, 2015 (this “Agreement”), is made by and among Minsheng Royal Asset Management Co., Ltd. (民生加银资产管理有限公司), a limited liability company incorporated under the laws of the PRC (“Investor”), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the PRC ("Parent"), and Qihoo 360 Technology Co. Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the "Company"). Each of Investor, Parent and the Company are referred to herein as a "Party" and together as "Parties".
Reference is hereby made to each of: (i) that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among the Company, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands("Merger Sub"); (ii) that certain limited guarantee, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Limited Guarantee") between Investor and the Company; (iii) that certain equity commitment letter, executed by Investor on the date hereof in favor of Holdco and Parent and the Company (the "Equity Commitment Letter"); and (iv) that certain Interim Investors Agreement, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Interim Investors Agreement"), by and among Holdco, Parent, Investor and certain other parties identified therein. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
In order to induce Parent to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Interim Investors Agreement and the Company to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Limited Guarantee, and in consideration of the mutual covenants and obligations hereinafter set forth, the Parties hereby agree in this Agreement as follows:
| 1 | Escrow; Representations and Warranties |
| 1.1 | No later than five (5) Business Days after the date hereof (the "Escrow Due Date"), Investor shall pay or cause to be paid to Parent, RMB19,230,000 (the "Escrowed Amount") by wire transfer of immediately available funds into an account designated by Parent (the “Parent Account”). |
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| 1.2 | Parent shall set aside the Escrowed Amount, together with the escrowed amount from other investors under the other escrow agreements dated as of the date hereof in the Parent Account as a separate pool of funds for the purposes set forth in Section 2.1, and Parent shall maintain a ledger showing the Escrowed Amount from Investor, and the escrowed amount from other investors under the other escrow agreements dated as of the date hereof individually (the “Ledger”). Within 15 Business Days after the Escrow Due Date, Parent shall provide the Company with a written notice setting forth the detailed information of the Parent Account and the Ledger. Upon request of the Company, Parent shall provide the Company with reasonable evidence with respect to the Parent Account in reasonable details, including without limitation the total balance in the Parent Account, and the Ledger, within two (2) Business Days following such request. |
| 1.3 | Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this Agreement; (b) the execution, delivery and performance of this Agreement by Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of Investor are necessary therefor; (c) this Agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by Investor of this Agreement do not and will not violate the organizational documents of Investor or any applicable Law or conflict with any material agreement binding on Investor; and (e) Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by Investor. |
| 2 | Application of the Escrowed Amount |
| 2.1 | The Parties agree that, subject to the terms of this Agreement, the Escrowed Amount shall be applied by Parent as follows: |
(a) (i) in the event the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement, the Escrowed Amount shall be used by Parent to pay the Parent Termination Fee that becomes due and payable pursuant to the terms of the Merger Agreement, and (ii) in the event that any of Investor’s obligations under the Limited Guarantee, including the payment of the Guaranteed Obligation pursuant to Section 1(a) of the Limited Guarantee and the obligation under Section 1(c) of the Limited Guarantee, becomes due and payable pursuant to the terms of the Limited Guarantee, the Escrowed Amount shall be used by Parent to pay all such obligations of Investor as arise from and under the Limited Guarantee, and in no event shall the Escrowed Amount be used for or applied towards any other purposes unless and until all the obligations under the foregoing sub-clauses (i) and (ii) have been fully satisfied;
(b) in the event Investor’s obligation to fund the Contribution under the Equity Commitment Letter becomes due pursuant to the terms thereunder, the Escrowed Amount shall be credited against, applied towards and offset from the amount of the Contribution; or
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(c) after full payment is made out of the Parent Account in accordance with the forgoing clause (a) or (b), as applicable, in the event Investor otherwise owes any obligations, liabilities, fees and/or expenses to the Parent Parties or other Investors, Parent shall use the remainder of the Escrowed Amount, if any, to satisfy such obligations, liabilities, fees and/or expenses.
| 3 | Termination; Treatment of Escrowed Amount |
| 3.1 | This Agreement may be terminated by written notice at any time prior to receipt by Parent of the Escrowed Amount: |
| (a) | by the mutual written consent of the Parties; and |
| (b) | by Parent with the written consent of the Company, if Parent has not received the Escrowed Amount on or before the Escrow Due Date. |
| 3.2 | In the event the Escrowed Amount has been funded pursuant to paragraph 1.1, this Agreement shall terminate upon the earliest to occur of (a) the full payment and application of the Escrowed Amount in accordance with Section 2.1(a) hereof, in the event that the Equity Commitment Letter is terminated pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would become due and payable pursuant to the terms of the Merger Agreement, (b) the termination of the Equity Commitment Letter pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would not become due and payable pursuant to the terms of the Merger Agreement, and (c) the termination of Investor’s participation in the transaction pursuant to the terms of the Interim Investors Agreement. Notwithstanding anything to the contrary herein and for the avoidance of doubt, this Agreement shall not be terminated without the prior written consent of the Company in the event that (i) the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement or (ii) any of Investor’s obligations under the Limited Guarantee becomes due and payable pursuant to the terms of the Limited Guarantee, and in each case the funded Escrowed Amounts have not been utilized in accordance with the terms hereof for the payment of the Parent Termination Fee or such obligations. |
| 3.3 | In the event (i) this Agreement is terminated pursuant to paragraph 3.2(b) and the Contribution under the Equity Commitment Letter is not required to be made or has otherwise been made in full without taking into account the funded Escrow Amount pursuant to the terms thereunder, or (ii) this Agreement is terminated pursuant to paragraph 3.2(c), Parent shall, after deducting and offsetting from the Escrowed Amount any obligations, liabilities, fees and/or expenses of Investor incurred and/or payable under the terms of the Equity Commitment Letter or the Interim Investors Agreement, as applicable, promptly (and in any event within 30 days of such termination) return the remainder of the Escrowed Amount to an account of the Investor designated by the Investor in writing. |
| 3.4 | The Parties hereby acknowledge, covenant and agree that, unless expressly provided for herein, Parent shall not utilize or release any Escrowed Amount from the Parent Account without the prior written consent of the Company. |
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| 4 | Governing Law; Dispute Resolution |
| 4.1 | This Agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People’s Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction |
| 4.2 | In the event of any dispute, controversy, or claim between the Parties arising out of or relating to the breach, termination or validity of this Agreement (“Dispute”), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission (“CIETAC”) under the arbitration rules of CIETAC (the “Rule”) in force when the notice of arbitration is submitted by a party. |
| 4.3 | The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule. |
| 4.4 | The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 9. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party. |
| 4.5 | The awards rendered by the arbitrators pursuant to this Section 9 shall be non-appealable, final, binding and conclusive on the parties to such Dispute. |
| 4.6 | The Parties understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision. |
| 5 | General Provisions |
| 5.1 | Each of the Parties confirms that it has received independent legal advice relating to all matters provided for in this Agreement and agrees that the provisions of this Agreement are fair and reasonable. |
| 5.2 | Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Agreement in any jurisdiction and, if any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this Agreement or any part hereof is invalid, illegal or unenforceable. |
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| 5.3 | This Agreement shall be binding on and inure for the benefit of the successors of each of the Parties, but the Parties may not assign, grant any security interest, hold on trust or otherwise transfer all or any of their rights and obligations under this Agreement (without the prior written consent of the other Parties). |
| 5.4 | This Agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered (by telecopy or otherwise) to the other Parties. |
| 5.5 | Any waiver of any right or default under this Agreement shall be effective only in the instance given and shall not operate as or imply a waiver of any other or similar right or default on any subsequent occasion. No waiver of any provision of this Agreement will be effective unless it is granted in writing and signed by the Party granting the waiver and with the prior written consent of the Company. Any delay by any Party in exercising, or failure to exercise, any right or remedy under this Agreement shall not constitute a waiver of the right or remedy (or a waiver of any other rights or remedies) and no single or partial exercise of any rights or remedy under this Agreement or otherwise shall prevent any further exercise of the right or remedy (or the exercise of any other right or remedy). |
| 5.6 | This Agreement shall not be amended, changed or modified, except by another agreement in writing executed by the Parties hereto. |
| 5.6 | The Parties hereto agree that irreparable damage would occur in the event that any provision of this Agreement were not performed in accordance with the terms hereof and that each Party shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement, in addition to any other remedy at law or equity. Each Party hereby waives (a) any defenses in any action for specific performance, including the defense that a remedy at law would be adequate and (b) any requirement under any law to post a bond or other security as a prerequisite to obtaining equitable relief. |
| 5.7 | Each Party acknowledges and agrees that (i) the Escrowed Amount is not intended to cap Investor’s liabilities under this Agreement, the Equity Commitment Letter, the Interim Investors Agreement or the Limited Guarantee, or Parent’s liability under the Merger Agreement, and (ii) Parent’s liability to Investor under this Agreement shall not exceed the Escrowed Amount. |
[Signature page follows]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
Very truly yours,
| Minsheng Royal Asset Management Co., Ltd. | ||
| (民生加银资产管理有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Zhixiang Jiang | |
| Name: Zhixiang Jiang | ||
| Title: General Manager | ||
Accepted and agreed to as of the date first written above:
|
Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: Hongyi Zhou | ||
| Title: Authorized Signatory | ||
[Signature Page to Escrow Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Escrow Agreement]
Exhibit 99.58
Execution Version
ESCROW AGREEMENT
This Escrow Agreement (this “Agreement”), dated as of December 18, 2015 (this “Agreement”), is made by and among CCB International Capital Management (Tianjin) Ltd. (建银国际资本管理 (天津) 有限公司), a limited liability company incorporated under the laws of the PRC (“Investor”), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the PRC ("Parent"), and Qihoo 360 Technology Co. Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the "Company"). Each of Investor, Parent and the Company are referred to herein as a "Party" and together as "Parties".
Reference is hereby made to each of: (i) that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among the Company, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands("Merger Sub"); (ii) that certain limited guarantee, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Limited Guarantee") between Investor and the Company; (iii) that certain equity commitment letter, executed by Investor on the date hereof in favor of Holdco and Parent and the Company (the "Equity Commitment Letter"); and (iv) that certain Interim Investors Agreement, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Interim Investors Agreement"), by and among Holdco, Parent, Investor and certain other parties identified therein. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
In order to induce Parent to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Interim Investors Agreement and the Company to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Limited Guarantee, and in consideration of the mutual covenants and obligations hereinafter set forth, the Parties hereby agree in this Agreement as follows:
| 1 | Escrow; Representations and Warranties |
| 1.1 | No later than five (5) Business Days after the date hereof (the "Escrow Due Date"), Investor shall pay or cause to be paid to Parent, RMB19,230,000 (the "Escrowed Amount") by wire transfer of immediately available funds into an account designated by Parent (the “Parent Account”). |
1
| 1.2 | Parent shall set aside the Escrowed Amount, together with the escrowed amount from other investors under the other escrow agreements dated as of the date hereof in the Parent Account as a separate pool of funds for the purposes set forth in Section 2.1, and Parent shall maintain a ledger showing the Escrowed Amount from Investor, and the escrowed amount from other investors under the other escrow agreements dated as of the date hereof individually (the “Ledger”). Within 15 Business Days after the Escrow Due Date, Parent shall provide the Company with a written notice setting forth the detailed information of the Parent Account and the Ledger. Upon request of the Company, Parent shall provide the Company with reasonable evidence with respect to the Parent Account in reasonable details, including without limitation the total balance in the Parent Account, and the Ledger, within two (2) Business Days following such request. |
| 1.3 | Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this Agreement; (b) the execution, delivery and performance of this Agreement by Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of Investor are necessary therefor; (c) this Agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by Investor of this Agreement do not and will not violate the organizational documents of Investor or any applicable Law or conflict with any material agreement binding on Investor; and (e) Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by Investor. |
| 2 | Application of the Escrowed Amount |
| 2.1 | The Parties agree that, subject to the terms of this Agreement, the Escrowed Amount shall be applied by Parent as follows: |
| (a) (i) in the event the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement, the Escrowed Amount shall be used by Parent to pay the Parent Termination Fee that becomes due and payable pursuant to the terms of the Merger Agreement, and (ii) in the event that any of Investor’s obligations under the Limited Guarantee, including the payment of the Guaranteed Obligation pursuant to Section 1(a) of the Limited Guarantee and the obligation under Section 1(c) of the Limited Guarantee, becomes due and payable pursuant to the terms of the Limited Guarantee, the Escrowed Amount shall be used by Parent to pay all such obligations of Investor as arise from and under the Limited Guarantee, and in no event shall the Escrowed Amount be used for or applied towards any other purposes unless and until all the obligations under the foregoing sub-clauses (i) and (ii) have been fully satisfied; |
| (b) in the event Investor’s obligation to fund the Contribution under the Equity Commitment Letter becomes due pursuant to the terms thereunder, the Escrowed Amount shall be credited against, applied towards and offset from the amount of the Contribution; or |
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| (c) after full payment is made out of the Parent Account in accordance with the forgoing clause (a) or (b), as applicable, in the event Investor otherwise owes any obligations, liabilities, fees and/or expenses to the Parent Parties or other Investors, Parent shall use the remainder of the Escrowed Amount, if any, to satisfy such obligations, liabilities, fees and/or expenses. |
| 3 | Termination; Treatment of Escrowed Amount |
| 3.1 | This Agreement may be terminated by written notice at any time prior to receipt by Parent of the Escrowed Amount: |
| (a) | by the mutual written consent of the Parties; and |
| (b) | by Parent with the written consent of the Company, if Parent has not received the Escrowed Amount on or before the Escrow Due Date. |
| 3.2 | In the event the Escrowed Amount has been funded pursuant to paragraph 1.1, this Agreement shall terminate upon the earliest to occur of (a) the full payment and application of the Escrowed Amount in accordance with Section 2.1(a) hereof, in the event that the Equity Commitment Letter is terminated pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would become due and payable pursuant to the terms of the Merger Agreement, (b) the termination of the Equity Commitment Letter pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would not become due and payable pursuant to the terms of the Merger Agreement, and (c) the termination of Investor’s participation in the transaction pursuant to the terms of the Interim Investors Agreement. Notwithstanding anything to the contrary herein and for the avoidance of doubt, this Agreement shall not be terminated without the prior written consent of the Company in the event that (i) the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement or (ii) any of Investor’s obligations under the Limited Guarantee becomes due and payable pursuant to the terms of the Limited Guarantee, and in each case the funded Escrowed Amounts have not been utilized in accordance with the terms hereof for the payment of the Parent Termination Fee or such obligations. |
| 3.3 | In the event (i) this Agreement is terminated pursuant to paragraph 3.2(b) and the Contribution under the Equity Commitment Letter is not required to be made or has otherwise been made in full without taking into account the funded Escrow Amount pursuant to the terms thereunder, or (ii) this Agreement is terminated pursuant to paragraph 3.2(c), Parent shall, after deducting and offsetting from the Escrowed Amount any obligations, liabilities, fees and/or expenses of Investor incurred and/or payable under the terms of the Equity Commitment Letter or the Interim Investors Agreement, as applicable, promptly (and in any event within 30 days of such termination) return the remainder of the Escrowed Amount to an account of the Investor designated by the Investor in writing. |
| 3.4 | The Parties hereby acknowledge, covenant and agree that, unless expressly provided for herein, Parent shall not utilize or release any Escrowed Amount from the Parent Account without the prior written consent of the Company. |
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| 4 | Governing Law; Dispute Resolution |
| 4.1 | This Agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People’s Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction |
| 4.2 | In the event of any dispute, controversy, or claim between the Parties arising out of or relating to the breach, termination or validity of this Agreement (“Dispute”), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission (“CIETAC”) under the arbitration rules of CIETAC (the “Rule”) in force when the notice of arbitration is submitted by a party. |
| 4.3 | The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule. |
| 4.4 | The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 9. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party. |
| 4.5 | The awards rendered by the arbitrators pursuant to this Section 9 shall be non-appealable, final, binding and conclusive on the parties to such Dispute. |
| 4.6 | The Parties understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision. |
| 5 | General Provisions |
| 5.1 | Each of the Parties confirms that it has received independent legal advice relating to all matters provided for in this Agreement and agrees that the provisions of this Agreement are fair and reasonable. |
| 5.2 | Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Agreement in any jurisdiction and, if any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this Agreement or any part hereof is invalid, illegal or unenforceable. |
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| 5.3 | This Agreement shall be binding on and inure for the benefit of the successors of each of the Parties, but the Parties may not assign, grant any security interest, hold on trust or otherwise transfer all or any of their rights and obligations under this Agreement (without the prior written consent of the other Parties). |
| 5.4 | This Agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered (by telecopy or otherwise) to the other Parties. |
| 5.5 | Any waiver of any right or default under this Agreement shall be effective only in the instance given and shall not operate as or imply a waiver of any other or similar right or default on any subsequent occasion. No waiver of any provision of this Agreement will be effective unless it is granted in writing and signed by the Party granting the waiver and with the prior written consent of the Company. Any delay by any Party in exercising, or failure to exercise, any right or remedy under this Agreement shall not constitute a waiver of the right or remedy (or a waiver of any other rights or remedies) and no single or partial exercise of any rights or remedy under this Agreement or otherwise shall prevent any further exercise of the right or remedy (or the exercise of any other right or remedy). |
| 5.6 | This Agreement shall not be amended, changed or modified, except by another agreement in writing executed by the Parties hereto. |
| 5.6 | The Parties hereto agree that irreparable damage would occur in the event that any provision of this Agreement were not performed in accordance with the terms hereof and that each Party shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement, in addition to any other remedy at law or equity. Each Party hereby waives (a) any defenses in any action for specific performance, including the defense that a remedy at law would be adequate and (b) any requirement under any law to post a bond or other security as a prerequisite to obtaining equitable relief. |
| 5.7 | Each Party acknowledges and agrees that (i) the Escrowed Amount is not intended to cap Investor’s liabilities under this Agreement, the Equity Commitment Letter, the Interim Investors Agreement or the Limited Guarantee, or Parent’s liability under the Merger Agreement, and (ii) Parent’s liability to Investor under this Agreement shall not exceed the Escrowed Amount. |
[Signature page follows]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
Very truly yours,
| CCB International Capital Management (Tianjin) Ltd. | ||
| (建银国际资本管理 (天津 )有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Cheng Jing Dong | |
| Name: Cheng Jing Dong | ||
| Title: General Manager | ||
Accepted and agreed to as of the date first written above:
| Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: Hongyi Zhou | ||
| Title: Authorized Signatory | ||
[Signature Page to Escrow Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Escrow Agreement]
Exhibit 99.59
Execution Version
ESCROW AGREEMENT
This Escrow Agreement (this “Agreement”), dated as of December 18, 2015 (this “Agreement”), is made by and among China Merchants Wealth Asset Management Co., Ltd. (招商财富资产管理有限公司), a limited liability company incorporated under the laws of the PRC (“Investor”), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the PRC ("Parent"), and Qihoo 360 Technology Co. Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the "Company"). Each of Investor, Parent and the Company are referred to herein as a "Party" and together as "Parties".
Reference is hereby made to each of: (i) that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among the Company, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands("Merger Sub"); (ii) that certain limited guarantee, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Limited Guarantee") between Investor and the Company; (iii) that certain equity commitment letter, executed by Investor on the date hereof in favor of Holdco and Parent and the Company (the "Equity Commitment Letter"); and (iv) that certain Interim Investors Agreement, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Interim Investors Agreement"), by and among Holdco, Parent, Investor and certain other parties identified therein. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
In order to induce Parent to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Interim Investors Agreement and the Company to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Limited Guarantee, and in consideration of the mutual covenants and obligations hereinafter set forth, the Parties hereby agree in this Agreement as follows:
| 1 | Escrow; Representations and Warranties |
| 1.1 | No later than five (5) Business Days after the date hereof (the "Escrow Due Date"), Investor shall pay or cause to be paid to Parent, RMB19,230,000 (the "Escrowed Amount") by wire transfer of immediately available funds into an account designated by Parent (the “Parent Account”). |
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| 1.2 | Parent shall set aside the Escrowed Amount, together with the escrowed amount from other investors under the other escrow agreements dated as of the date hereof in the Parent Account as a separate pool of funds for the purposes set forth in Section 2.1, and Parent shall maintain a ledger showing the Escrowed Amount from Investor, and the escrowed amount from other investors under the other escrow agreements dated as of the date hereof individually (the “Ledger”). Within 15 Business Days after the Escrow Due Date, Parent shall provide the Company with a written notice setting forth the detailed information of the Parent Account and the Ledger. Upon request of the Company, Parent shall provide the Company with reasonable evidence with respect to the Parent Account in reasonable details, including without limitation the total balance in the Parent Account, and the Ledger, within two (2) Business Days following such request. |
| 1.3 | Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this Agreement; (b) the execution, delivery and performance of this Agreement by Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of Investor are necessary therefor; (c) this Agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by Investor of this Agreement do not and will not violate the organizational documents of Investor or any applicable Law or conflict with any material agreement binding on Investor; and (e) Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by Investor. |
| 2 | Application of the Escrowed Amount |
| 2.1 | The Parties agree that, subject to the terms of this Agreement, the Escrowed Amount shall be applied by Parent as follows: |
| (a) (i) in the event the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement, the Escrowed Amount shall be used by Parent to pay the Parent Termination Fee that becomes due and payable pursuant to the terms of the Merger Agreement, and (ii) in the event that any of Investor’s obligations under the Limited Guarantee, including the payment of the Guaranteed Obligation pursuant to Section 1(a) of the Limited Guarantee and the obligation under Section 1(c) of the Limited Guarantee, becomes due and payable pursuant to the terms of the Limited Guarantee, the Escrowed Amount shall be used by Parent to pay all such obligations of Investor as arise from and under the Limited Guarantee, and in no event shall the Escrowed Amount be used for or applied towards any other purposes unless and until all the obligations under the foregoing sub-clauses (i) and (ii) have been fully satisfied; |
| (b) in the event Investor’s obligation to fund the Contribution under the Equity Commitment Letter becomes due pursuant to the terms thereunder, the Escrowed Amount shall be credited against, applied towards and offset from the amount of the Contribution; or |
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| (c) after full payment is made out of the Parent Account in accordance with the forgoing clause (a) or (b), as applicable, in the event Investor otherwise owes any obligations, liabilities, fees and/or expenses to the Parent Parties or other Investors, Parent shall use the remainder of the Escrowed Amount, if any, to satisfy such obligations, liabilities, fees and/or expenses. |
| 3 | Termination; Treatment of Escrowed Amount |
| 3.1 | This Agreement may be terminated by written notice at any time prior to receipt by Parent of the Escrowed Amount: |
| (a) | by the mutual written consent of the Parties; and |
| (b) | by Parent with the written consent of the Company, if Parent has not received the Escrowed Amount on or before the Escrow Due Date. |
| 3.2 | In the event the Escrowed Amount has been funded pursuant to paragraph 1.1, this Agreement shall terminate upon the earliest to occur of (a) the full payment and application of the Escrowed Amount in accordance with Section 2.1(a) hereof, in the event that the Equity Commitment Letter is terminated pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would become due and payable pursuant to the terms of the Merger Agreement, (b) the termination of the Equity Commitment Letter pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would not become due and payable pursuant to the terms of the Merger Agreement, and (c) the termination of Investor’s participation in the transaction pursuant to the terms of the Interim Investors Agreement. Notwithstanding anything to the contrary herein and for the avoidance of doubt, this Agreement shall not be terminated without the prior written consent of the Company in the event that (i) the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement or (ii) any of Investor’s obligations under the Limited Guarantee becomes due and payable pursuant to the terms of the Limited Guarantee, and in each case the funded Escrowed Amounts have not been utilized in accordance with the terms hereof for the payment of the Parent Termination Fee or such obligations. |
| 3.3 | In the event (i) this Agreement is terminated pursuant to paragraph 3.2(b) and the Contribution under the Equity Commitment Letter is not required to be made or has otherwise been made in full without taking into account the funded Escrow Amount pursuant to the terms thereunder, or (ii) this Agreement is terminated pursuant to paragraph 3.2(c), Parent shall, after deducting and offsetting from the Escrowed Amount any obligations, liabilities, fees and/or expenses of Investor incurred and/or payable under the terms of the Equity Commitment Letter or the Interim Investors Agreement, as applicable, promptly (and in any event within 30 days of such termination) return the remainder of the Escrowed Amount to an account of the Investor designated by the Investor in writing. |
| 3.4 | The Parties hereby acknowledge, covenant and agree that, unless expressly provided for herein, Parent shall not utilize or release any Escrowed Amount from the Parent Account without the prior written consent of the Company. |
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| 4 | Governing Law; Dispute Resolution |
| 4.1 | This Agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People’s Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction |
| 4.2 | In the event of any dispute, controversy, or claim between the Parties arising out of or relating to the breach, termination or validity of this Agreement (“Dispute”), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission (“CIETAC”) under the arbitration rules of CIETAC (the “Rule”) in force when the notice of arbitration is submitted by a party. |
| 4.3 | The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule. |
| 4.4 | The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 9. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party. |
| 4.5 | The awards rendered by the arbitrators pursuant to this Section 9 shall be non-appealable, final, binding and conclusive on the parties to such Dispute. |
| 4.6 | The Parties understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision. |
| 5 | General Provisions |
| 5.1 | Each of the Parties confirms that it has received independent legal advice relating to all matters provided for in this Agreement and agrees that the provisions of this Agreement are fair and reasonable. |
| 5.2 | Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Agreement in any jurisdiction and, if any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this Agreement or any part hereof is invalid, illegal or unenforceable. |
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| 5.3 | This Agreement shall be binding on and inure for the benefit of the successors of each of the Parties, but the Parties may not assign, grant any security interest, hold on trust or otherwise transfer all or any of their rights and obligations under this Agreement (without the prior written consent of the other Parties). |
| 5.4 | This Agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered (by telecopy or otherwise) to the other Parties. |
| 5.5 | Any waiver of any right or default under this Agreement shall be effective only in the instance given and shall not operate as or imply a waiver of any other or similar right or default on any subsequent occasion. No waiver of any provision of this Agreement will be effective unless it is granted in writing and signed by the Party granting the waiver and with the prior written consent of the Company. Any delay by any Party in exercising, or failure to exercise, any right or remedy under this Agreement shall not constitute a waiver of the right or remedy (or a waiver of any other rights or remedies) and no single or partial exercise of any rights or remedy under this Agreement or otherwise shall prevent any further exercise of the right or remedy (or the exercise of any other right or remedy). |
| 5.6 | This Agreement shall not be amended, changed or modified, except by another agreement in writing executed by the Parties hereto. |
| 5.6 | The Parties hereto agree that irreparable damage would occur in the event that any provision of this Agreement were not performed in accordance with the terms hereof and that each Party shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement, in addition to any other remedy at law or equity. Each Party hereby waives (a) any defenses in any action for specific performance, including the defense that a remedy at law would be adequate and (b) any requirement under any law to post a bond or other security as a prerequisite to obtaining equitable relief. |
| 5.7 | Each Party acknowledges and agrees that (i) the Escrowed Amount is not intended to cap Investor’s liabilities under this Agreement, the Equity Commitment Letter, the Interim Investors Agreement or the Limited Guarantee, or Parent’s liability under the Merger Agreement, and (ii) Parent’s liability to Investor under this Agreement shall not exceed the Escrowed Amount. |
[Signature page follows]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
Very truly yours,
| China Merchants Wealth Asset Management Co., Ltd. | ||
| (招商财富资产管理有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Shengzhang Zhao | |
| Name: Shengzhang Zhao | ||
| Title: Legal Representative and General Manager | ||
Accepted and agreed to as of the date first written above:
| Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: Hongyi Zhou | ||
| Title: Authorized Signatory | ||
[Signature Page to Escrow Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Escrow Agreement]
Exhibit 99.60
Execution Version
ESCROW AGREEMENT
This Escrow Agreement (this “Agreement”), dated as of December 18, 2015 (this “Agreement”), is made by and among Huarong Ruize Investment Management Co., Ltd. (华融瑞泽投资管理有限公司), a limited liability company incorporated under the laws of the PRC (“Investor”), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the PRC ("Parent"), and Qihoo 360 Technology Co. Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the "Company"). Each of Investor, Parent and the Company are referred to herein as a "Party" and together as "Parties".
Reference is hereby made to each of: (i) that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among the Company, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands("Merger Sub"); (ii) that certain limited guarantee, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Limited Guarantee") between Investor and the Company; (iii) that certain equity commitment letter, executed by Investor on the date hereof in favor of Holdco and Parent and the Company (the "Equity Commitment Letter"); and (iv) that certain Interim Investors Agreement, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Interim Investors Agreement"), by and among Holdco, Parent, Investor and certain other parties identified therein. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
In order to induce Parent to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Interim Investors Agreement and the Company to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Limited Guarantee, and in consideration of the mutual covenants and obligations hereinafter set forth, the Parties hereby agree in this Agreement as follows:
| 1 | Escrow; Representations and Warranties |
| 1.1 | No later than five (5) Business Days after the date hereof (the "Escrow Due Date"), Investor shall pay or cause to be paid to Parent, RMB24,999,000 (the "Escrowed Amount") by wire transfer of immediately available funds into an account designated by Parent (the “Parent Account”). |
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| 1.2 | Parent shall set aside the Escrowed Amount, together with the escrowed amount from other investors under the other escrow agreements dated as of the date hereof in the Parent Account as a separate pool of funds for the purposes set forth in Section 2.1, and Parent shall maintain a ledger showing the Escrowed Amount from Investor, and the escrowed amount from other investors under the other escrow agreements dated as of the date hereof individually (the “Ledger”). Within 15 Business Days after the Escrow Due Date, Parent shall provide the Company with a written notice setting forth the detailed information of the Parent Account and the Ledger. Upon request of the Company, Parent shall provide the Company with reasonable evidence with respect to the Parent Account in reasonable details, including without limitation the total balance in the Parent Account, and the Ledger, within two (2) Business Days following such request. |
| 1.3 | Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this Agreement; (b) the execution, delivery and performance of this Agreement by Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of Investor are necessary therefor; (c) this Agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by Investor of this Agreement do not and will not violate the organizational documents of Investor or any applicable Law or conflict with any material agreement binding on Investor; and (e) Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by Investor. |
| 2 | Application of the Escrowed Amount |
| 2.1 | The Parties agree that, subject to the terms of this Agreement, the Escrowed Amount shall be applied by Parent as follows: |
| (a) (i) in the event the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement, the Escrowed Amount shall be used by Parent to pay the Parent Termination Fee that becomes due and payable pursuant to the terms of the Merger Agreement, and (ii) in the event that any of Investor’s obligations under the Limited Guarantee, including the payment of the Guaranteed Obligation pursuant to Section 1(a) of the Limited Guarantee and the obligation under Section 1(c) of the Limited Guarantee, becomes due and payable pursuant to the terms of the Limited Guarantee, the Escrowed Amount shall be used by Parent to pay all such obligations of Investor as arise from and under the Limited Guarantee, and in no event shall the Escrowed Amount be used for or applied towards any other purposes unless and until all the obligations under the foregoing sub-clauses (i) and (ii) have been fully satisfied; |
| (b) in the event Investor’s obligation to fund the Contribution under the Equity Commitment Letter becomes due pursuant to the terms thereunder, the Escrowed Amount shall be credited against, applied towards and offset from the amount of the Contribution; or |
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| (c) after full payment is made out of the Parent Account in accordance with the forgoing clause (a) or (b), as applicable, in the event Investor otherwise owes any obligations, liabilities, fees and/or expenses to the Parent Parties or other Investors, Parent shall use the remainder of the Escrowed Amount, if any, to satisfy such obligations, liabilities, fees and/or expenses. |
| 3 | Termination; Treatment of Escrowed Amount |
| 3.1 | This Agreement may be terminated by written notice at any time prior to receipt by Parent of the Escrowed Amount: |
| (a) | by the mutual written consent of the Parties; and |
| (b) | by Parent with the written consent of the Company, if Parent has not received the Escrowed Amount on or before the Escrow Due Date. |
| 3.2 | In the event the Escrowed Amount has been funded pursuant to paragraph 1.1, this Agreement shall terminate upon the earliest to occur of (a) the full payment and application of the Escrowed Amount in accordance with Section 2.1(a) hereof, in the event that the Equity Commitment Letter is terminated pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would become due and payable pursuant to the terms of the Merger Agreement, (b) the termination of the Equity Commitment Letter pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would not become due and payable pursuant to the terms of the Merger Agreement, and (c) the termination of Investor’s participation in the transaction pursuant to the terms of the Interim Investors Agreement. Notwithstanding anything to the contrary herein and for the avoidance of doubt, this Agreement shall not be terminated without the prior written consent of the Company in the event that (i) the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement or (ii) any of Investor’s obligations under the Limited Guarantee becomes due and payable pursuant to the terms of the Limited Guarantee, and in each case the funded Escrowed Amounts have not been utilized in accordance with the terms hereof for the payment of the Parent Termination Fee or such obligations. |
| 3.3 | In the event (i) this Agreement is terminated pursuant to paragraph 3.2(b) and the Contribution under the Equity Commitment Letter is not required to be made or has otherwise been made in full without taking into account the funded Escrow Amount pursuant to the terms thereunder, or (ii) this Agreement is terminated pursuant to paragraph 3.2(c), Parent shall, after deducting and offsetting from the Escrowed Amount any obligations, liabilities, fees and/or expenses of Investor incurred and/or payable under the terms of the Equity Commitment Letter or the Interim Investors Agreement, as applicable, promptly (and in any event within 30 days of such termination) return the remainder of the Escrowed Amount to an account of the Investor designated by the Investor in writing. |
| 3.4 | The Parties hereby acknowledge, covenant and agree that, unless expressly provided for herein, Parent shall not utilize or release any Escrowed Amount from the Parent Account without the prior written consent of the Company. |
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| 4 | Governing Law; Dispute Resolution |
| 4.1 | This Agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People’s Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction |
| 4.2 | In the event of any dispute, controversy, or claim between the Parties arising out of or relating to the breach, termination or validity of this Agreement (“Dispute”), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission (“CIETAC”) under the arbitration rules of CIETAC (the “Rule”) in force when the notice of arbitration is submitted by a party. |
| 4.3 | The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule. |
| 4.4 | The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 9. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party. |
| 4.5 | The awards rendered by the arbitrators pursuant to this Section 9 shall be non-appealable, final, binding and conclusive on the parties to such Dispute. |
| 4.6 | The Parties understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision. |
| 5 | General Provisions |
| 5.1 | Each of the Parties confirms that it has received independent legal advice relating to all matters provided for in this Agreement and agrees that the provisions of this Agreement are fair and reasonable. |
| 5.2 | Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Agreement in any jurisdiction and, if any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this Agreement or any part hereof is invalid, illegal or unenforceable. |
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| 5.3 | This Agreement shall be binding on and inure for the benefit of the successors of each of the Parties, but the Parties may not assign, grant any security interest, hold on trust or otherwise transfer all or any of their rights and obligations under this Agreement (without the prior written consent of the other Parties). |
| 5.4 | This Agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered (by telecopy or otherwise) to the other Parties. |
| 5.5 | Any waiver of any right or default under this Agreement shall be effective only in the instance given and shall not operate as or imply a waiver of any other or similar right or default on any subsequent occasion. No waiver of any provision of this Agreement will be effective unless it is granted in writing and signed by the Party granting the waiver and with the prior written consent of the Company. Any delay by any Party in exercising, or failure to exercise, any right or remedy under this Agreement shall not constitute a waiver of the right or remedy (or a waiver of any other rights or remedies) and no single or partial exercise of any rights or remedy under this Agreement or otherwise shall prevent any further exercise of the right or remedy (or the exercise of any other right or remedy). |
| 5.6 | This Agreement shall not be amended, changed or modified, except by another agreement in writing executed by the Parties hereto. |
| 5.6 | The Parties hereto agree that irreparable damage would occur in the event that any provision of this Agreement were not performed in accordance with the terms hereof and that each Party shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement, in addition to any other remedy at law or equity. Each Party hereby waives (a) any defenses in any action for specific performance, including the defense that a remedy at law would be adequate and (b) any requirement under any law to post a bond or other security as a prerequisite to obtaining equitable relief. |
| 5.7 | Each Party acknowledges and agrees that (i) the Escrowed Amount is not intended to cap Investor’s liabilities under this Agreement, the Equity Commitment Letter, the Interim Investors Agreement or the Limited Guarantee, or Parent’s liability under the Merger Agreement, and (ii) Parent’s liability to Investor under this Agreement shall not exceed the Escrowed Amount. |
[Signature page follows]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
Very truly yours,
| HUARONG RUIZE INVESTMENT MANAGEMENT CO., LTD. | ||
| (华融瑞泽投资管理有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Xiaomao Yuan | |
| Name: Xiaomao Yuan | ||
| Title: General Manager | ||
Accepted and agreed to as of the date first written above:
|
Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: Hongyi Zhou | ||
| Title: Authorized Signatory | ||
[Signature Page to Escrow Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Escrow Agreement]
Exhibit 99.61
Execution Version
ESCROW AGREEMENT
This Escrow Agreement (this “Agreement”), dated as of December 18, 2015 (this “Agreement”), is made by and among Beijing Sequoia Yi Yuan Equity Investment Center (Limited Partnership) (北京红杉懿远股权投资中心 (有限合伙) ), a limited partnership formed under the laws of the PRC (“Investor”), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the PRC ("Parent"), and Qihoo 360 Technology Co. Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the "Company"). Each of Investor, Parent and the Company are referred to herein as a "Party" and together as "Parties".
Reference is hereby made to each of: (i) that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among the Company, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands("Merger Sub"); (ii) that certain limited guarantee, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Limited Guarantee") between Investor and the Company; (iii) that certain equity commitment letter, executed by Investor on the date hereof in favor of Holdco and Parent and the Company (the "Equity Commitment Letter"); and (iv) that certain Interim Investors Agreement, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Interim Investors Agreement"), by and among Holdco, Parent, Investor and certain other parties identified therein. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
In order to induce Parent to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Interim Investors Agreement and the Company to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Limited Guarantee, and in consideration of the mutual covenants and obligations hereinafter set forth, the Parties hereby agree in this Agreement as follows:
| 1 | Escrow; Representations and Warranties |
| 1.1 | No later than five (5) Business Days after the date hereof (the "Escrow Due Date"), Investor shall pay or cause to be paid to Parent, RMB67,305,000 (the "Escrowed Amount") by wire transfer of immediately available funds into an account designated by Parent (the “Parent Account”). |
| 1 |
| 1.2 | Parent shall set aside the Escrowed Amount, together with the escrowed amount from other investors under the other escrow agreements dated as of the date hereof in the Parent Account as a separate pool of funds for the purposes set forth in Section 2.1, and Parent shall maintain a ledger showing the Escrowed Amount from Investor, and the escrowed amount from other investors under the other escrow agreements dated as of the date hereof individually (the “Ledger”). Within 15 Business Days after the Escrow Due Date, Parent shall provide the Company with a written notice setting forth the detailed information of the Parent Account and the Ledger. Upon request of the Company, Parent shall provide the Company with reasonable evidence with respect to the Parent Account in reasonable details, including without limitation the total balance in the Parent Account, and the Ledger, within two (2) Business Days following such request. |
| 1.3 | Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this Agreement; (b) the execution, delivery and performance of this Agreement by Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of Investor are necessary therefor; (c) this Agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by Investor of this Agreement do not and will not violate the organizational documents of Investor or any applicable Law or conflict with any material agreement binding on Investor; and (e) Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by Investor. |
| 2 | Application of the Escrowed Amount |
| 2.1 | The Parties agree that, subject to the terms of this Agreement, the Escrowed Amount shall be applied by Parent as follows: |
| (a) (i) in the event the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement, the Escrowed Amount shall be used by Parent to pay the Parent Termination Fee that becomes due and payable pursuant to the terms of the Merger Agreement, and (ii) in the event that any of Investor’s obligations under the Limited Guarantee, including the payment of the Guaranteed Obligation pursuant to Section 1(a) of the Limited Guarantee and the obligation under Section 1(c) of the Limited Guarantee, becomes due and payable pursuant to the terms of the Limited Guarantee, the Escrowed Amount shall be used by Parent to pay all such obligations of Investor as arise from and under the Limited Guarantee, and in no event shall the Escrowed Amount be used for or applied towards any other purposes unless and until all the obligations under the foregoing sub-clauses (i) and (ii) have been fully satisfied; |
| (b) in the event Investor’s obligation to fund the Contribution under the Equity Commitment Letter becomes due pursuant to the terms thereunder, the Escrowed Amount shall be credited against, applied towards and offset from the amount of the Contribution; or |
| 2 |
| (c) after full payment is made out of the Parent Account in accordance with the forgoing clause (a) or (b), as applicable, in the event Investor otherwise owes any obligations, liabilities, fees and/or expenses to the Parent Parties or other Investors, Parent shall use the remainder of the Escrowed Amount, if any, to satisfy such obligations, liabilities, fees and/or expenses. |
| 3 | Termination; Treatment of Escrowed Amount |
| 3.1 | This Agreement may be terminated by written notice at any time prior to receipt by Parent of the Escrowed Amount: |
| (a) | by the mutual written consent of the Parties; and |
| (b) | by Parent with the written consent of the Company, if Parent has not received the Escrowed Amount on or before the Escrow Due Date. |
| 3.2 | In the event the Escrowed Amount has been funded pursuant to paragraph 1.1, this Agreement shall terminate upon the earliest to occur of (a) the full payment and application of the Escrowed Amount in accordance with Section 2.1(a) hereof, in the event that the Equity Commitment Letter is terminated pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would become due and payable pursuant to the terms of the Merger Agreement, (b) the termination of the Equity Commitment Letter pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would not become due and payable pursuant to the terms of the Merger Agreement, and (c) the termination of Investor’s participation in the transaction pursuant to the terms of the Interim Investors Agreement. Notwithstanding anything to the contrary herein and for the avoidance of doubt, this Agreement shall not be terminated without the prior written consent of the Company in the event that (i) the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement or (ii) any of Investor’s obligations under the Limited Guarantee becomes due and payable pursuant to the terms of the Limited Guarantee, and in each case the funded Escrowed Amounts have not been utilized in accordance with the terms hereof for the payment of the Parent Termination Fee or such obligations. |
| 3.3 | In the event (i) this Agreement is terminated pursuant to paragraph 3.2(b) and the Contribution under the Equity Commitment Letter is not required to be made or has otherwise been made in full without taking into account the funded Escrow Amount pursuant to the terms thereunder, or (ii) this Agreement is terminated pursuant to paragraph 3.2(c), Parent shall, after deducting and offsetting from the Escrowed Amount any obligations, liabilities, fees and/or expenses of Investor incurred and/or payable under the terms of the Equity Commitment Letter or the Interim Investors Agreement, as applicable, promptly (and in any event within 30 days of such termination) return the remainder of the Escrowed Amount to an account of the Investor designated by the Investor in writing. |
| 3.4 | The Parties hereby acknowledge, covenant and agree that, unless expressly provided for herein, Parent shall not utilize or release any Escrowed Amount from the Parent Account without the prior written consent of the Company. |
| 3 |
| 4 | Governing Law; Dispute Resolution |
| 4.1 | This Agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People’s Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction |
| 4.2 | In the event of any dispute, controversy, or claim between the Parties arising out of or relating to the breach, termination or validity of this Agreement (“Dispute”), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission (“CIETAC”) under the arbitration rules of CIETAC (the “Rule”) in force when the notice of arbitration is submitted by a party. |
| 4.3 | The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule. |
| 4.4 | The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 9. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party. |
| 4.5 | The awards rendered by the arbitrators pursuant to this Section 9 shall be non-appealable, final, binding and conclusive on the parties to such Dispute. |
| 4.6 | The Parties understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision. |
| 5 | General Provisions |
| 5.1 | Each of the Parties confirms that it has received independent legal advice relating to all matters provided for in this Agreement and agrees that the provisions of this Agreement are fair and reasonable. |
| 5.2 | Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Agreement in any jurisdiction and, if any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this Agreement or any part hereof is invalid, illegal or unenforceable. |
| 4 |
| 5.3 | This Agreement shall be binding on and inure for the benefit of the successors of each of the Parties, but the Parties may not assign, grant any security interest, hold on trust or otherwise transfer all or any of their rights and obligations under this Agreement (without the prior written consent of the other Parties). |
| 5.4 | This Agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered (by telecopy or otherwise) to the other Parties. |
| 5.5 | Any waiver of any right or default under this Agreement shall be effective only in the instance given and shall not operate as or imply a waiver of any other or similar right or default on any subsequent occasion. No waiver of any provision of this Agreement will be effective unless it is granted in writing and signed by the Party granting the waiver and with the prior written consent of the Company. Any delay by any Party in exercising, or failure to exercise, any right or remedy under this Agreement shall not constitute a waiver of the right or remedy (or a waiver of any other rights or remedies) and no single or partial exercise of any rights or remedy under this Agreement or otherwise shall prevent any further exercise of the right or remedy (or the exercise of any other right or remedy). |
| 5.6 | This Agreement shall not be amended, changed or modified, except by another agreement in writing executed by the Parties hereto. |
| 5.6 | The Parties hereto agree that irreparable damage would occur in the event that any provision of this Agreement were not performed in accordance with the terms hereof and that each Party shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement, in addition to any other remedy at law or equity. Each Party hereby waives (a) any defenses in any action for specific performance, including the defense that a remedy at law would be adequate and (b) any requirement under any law to post a bond or other security as a prerequisite to obtaining equitable relief. |
| 5.7 | Each Party acknowledges and agrees that (i) the Escrowed Amount is not intended to cap Investor’s liabilities under this Agreement, the Equity Commitment Letter, the Interim Investors Agreement or the Limited Guarantee, or Parent’s liability under the Merger Agreement, and (ii) Parent’s liability to Investor under this Agreement shall not exceed the Escrowed Amount. |
[Signature page follows]
| 5 |
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
Very truly yours,
| Beijing Sequoia Yi Yuan Equity Investment Center (Limited Partnership) | ||
| (北京红杉懿远股权投资中心 (有限合伙) ) | ||
| [Company chop is affixed] | ||
| By: | /s/ Kui Zhou | |
| Name: Kui Zhou | ||
| Title: Authorized Representative of Executive Manager | ||
Accepted and agreed to as of the date first written above:
|
Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: Hongyi Zhou | ||
| Title: Authorized Signatory | ||
[Signature Page to Escrow Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
|
Title: Director
| ||
[Signature Page to Escrow Agreement]
Exhibit 99.62
Execution Version
ESCROW AGREEMENT
This Escrow Agreement (this “Agreement”), dated as of December 18, 2015 (this “Agreement”), is made by and among Golden Brick Silk Road Investment (Shenzhen) LLP (金砖丝路投资 ( 深圳 ) 合伙企业 ( 有限合伙 ) ), a limited partnership formed under the laws of the PRC (“Investor”), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the PRC ("Parent"), and Qihoo 360 Technology Co. Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the "Company"). Each of Investor, Parent and the Company are referred to herein as a "Party" and together as "Parties".
Reference is hereby made to each of: (i) that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among the Company, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands("Merger Sub"); (ii) that certain limited guarantee, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Limited Guarantee") between Investor and the Company; (iii) that certain equity commitment letter, executed by Investor on the date hereof in favor of Holdco and Parent and the Company (the "Equity Commitment Letter"); and (iv) that certain Interim Investors Agreement, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Interim Investors Agreement"), by and among Holdco, Parent, Investor and certain other parties identified therein. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
In order to induce Parent to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Interim Investors Agreement and the Company to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Limited Guarantee, and in consideration of the mutual covenants and obligations hereinafter set forth, the Parties hereby agree in this Agreement as follows:
| 1 | Escrow; Representations and Warranties |
| 1.1 | No later than five (5) Business Days after the date hereof (the "Escrow Due Date"), Investor shall pay or cause to be paid to Parent, RMB67,305,000 (the "Escrowed Amount") by wire transfer of immediately available funds into an account designated by Parent (the “Parent Account”). |
| 1 |
| 1.2 | Parent shall set aside the Escrowed Amount, together with the escrowed amount from other investors under the other escrow agreements dated as of the date hereof in the Parent Account as a separate pool of funds for the purposes set forth in Section 2.1, and Parent shall maintain a ledger showing the Escrowed Amount from Investor, and the escrowed amount from other investors under the other escrow agreements dated as of the date hereof individually (the “Ledger”). Within 15 Business Days after the Escrow Due Date, Parent shall provide the Company with a written notice setting forth the detailed information of the Parent Account and the Ledger. Upon request of the Company, Parent shall provide the Company with reasonable evidence with respect to the Parent Account in reasonable details, including without limitation the total balance in the Parent Account, and the Ledger, within two (2) Business Days following such request. |
| 1.3 | Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this Agreement; (b) the execution, delivery and performance of this Agreement by Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of Investor are necessary therefor; (c) this Agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by Investor of this Agreement do not and will not violate the organizational documents of Investor or any applicable Law or conflict with any material agreement binding on Investor; and (e) Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by Investor. |
| 2 | Application of the Escrowed Amount |
| 2.1 | The Parties agree that, subject to the terms of this Agreement, the Escrowed Amount shall be applied by Parent as follows: |
| (a) (i) in the event the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement, the Escrowed Amount shall be used by Parent to pay the Parent Termination Fee that becomes due and payable pursuant to the terms of the Merger Agreement, and (ii) in the event that any of Investor’s obligations under the Limited Guarantee, including the payment of the Guaranteed Obligation pursuant to Section 1(a) of the Limited Guarantee and the obligation under Section 1(c) of the Limited Guarantee, becomes due and payable pursuant to the terms of the Limited Guarantee, the Escrowed Amount shall be used by Parent to pay all such obligations of Investor as arise from and under the Limited Guarantee, and in no event shall the Escrowed Amount be used for or applied towards any other purposes unless and until all the obligations under the foregoing sub-clauses (i) and (ii) have been fully satisfied; |
| (b) in the event Investor’s obligation to fund the Contribution under the Equity Commitment Letter becomes due pursuant to the terms thereunder, the Escrowed Amount shall be credited against, applied towards and offset from the amount of the Contribution; or |
| 2 |
| (c) after full payment is made out of the Parent Account in accordance with the forgoing clause (a) or (b), as applicable, in the event Investor otherwise owes any obligations, liabilities, fees and/or expenses to the Parent Parties or other Investors, Parent shall use the remainder of the Escrowed Amount, if any, to satisfy such obligations, liabilities, fees and/or expenses. |
| 3 | Termination; Treatment of Escrowed Amount |
| 3.1 | This Agreement may be terminated by written notice at any time prior to receipt by Parent of the Escrowed Amount: |
| (a) | by the mutual written consent of the Parties; and |
| (b) | by Parent with the written consent of the Company, if Parent has not received the Escrowed Amount on or before the Escrow Due Date. |
| 3.2 | In the event the Escrowed Amount has been funded pursuant to paragraph 1.1, this Agreement shall terminate upon the earliest to occur of (a) the full payment and application of the Escrowed Amount in accordance with Section 2.1(a) hereof, in the event that the Equity Commitment Letter is terminated pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would become due and payable pursuant to the terms of the Merger Agreement, (b) the termination of the Equity Commitment Letter pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would not become due and payable pursuant to the terms of the Merger Agreement, and (c) the termination of Investor’s participation in the transaction pursuant to the terms of the Interim Investors Agreement. Notwithstanding anything to the contrary herein and for the avoidance of doubt, this Agreement shall not be terminated without the prior written consent of the Company in the event that (i) the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement or (ii) any of Investor’s obligations under the Limited Guarantee becomes due and payable pursuant to the terms of the Limited Guarantee, and in each case the funded Escrowed Amounts have not been utilized in accordance with the terms hereof for the payment of the Parent Termination Fee or such obligations. |
| 3.3 | In the event (i) this Agreement is terminated pursuant to paragraph 3.2(b) and the Contribution under the Equity Commitment Letter is not required to be made or has otherwise been made in full without taking into account the funded Escrow Amount pursuant to the terms thereunder, or (ii) this Agreement is terminated pursuant to paragraph 3.2(c), Parent shall, after deducting and offsetting from the Escrowed Amount any obligations, liabilities, fees and/or expenses of Investor incurred and/or payable under the terms of the Equity Commitment Letter or the Interim Investors Agreement, as applicable, promptly (and in any event within 30 days of such termination) return the remainder of the Escrowed Amount to an account of the Investor designated by the Investor in writing. |
| 3.4 | The Parties hereby acknowledge, covenant and agree that, unless expressly provided for herein, Parent shall not utilize or release any Escrowed Amount from the Parent Account without the prior written consent of the Company. |
| 3 |
| 4 | Governing Law; Dispute Resolution |
| 4.1 | This Agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People’s Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction |
| 4.2 | In the event of any dispute, controversy, or claim between the Parties arising out of or relating to the breach, termination or validity of this Agreement (“Dispute”), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission (“CIETAC”) under the arbitration rules of CIETAC (the “Rule”) in force when the notice of arbitration is submitted by a party. |
| 4.3 | The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule. |
| 4.4 | The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 9. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party. |
| 4.5 | The awards rendered by the arbitrators pursuant to this Section 9 shall be non-appealable, final, binding and conclusive on the parties to such Dispute. |
| 4.6 | The Parties understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision. |
| 5 | General Provisions |
| 5.1 | Each of the Parties confirms that it has received independent legal advice relating to all matters provided for in this Agreement and agrees that the provisions of this Agreement are fair and reasonable. |
| 5.2 | Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Agreement in any jurisdiction and, if any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this Agreement or any part hereof is invalid, illegal or unenforceable. |
| 4 |
| 5.3 | This Agreement shall be binding on and inure for the benefit of the successors of each of the Parties, but the Parties may not assign, grant any security interest, hold on trust or otherwise transfer all or any of their rights and obligations under this Agreement (without the prior written consent of the other Parties). |
| 5.4 | This Agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered (by telecopy or otherwise) to the other Parties. |
| 5.5 | Any waiver of any right or default under this Agreement shall be effective only in the instance given and shall not operate as or imply a waiver of any other or similar right or default on any subsequent occasion. No waiver of any provision of this Agreement will be effective unless it is granted in writing and signed by the Party granting the waiver and with the prior written consent of the Company. Any delay by any Party in exercising, or failure to exercise, any right or remedy under this Agreement shall not constitute a waiver of the right or remedy (or a waiver of any other rights or remedies) and no single or partial exercise of any rights or remedy under this Agreement or otherwise shall prevent any further exercise of the right or remedy (or the exercise of any other right or remedy). |
| 5.6 | This Agreement shall not be amended, changed or modified, except by another agreement in writing executed by the Parties hereto. |
| 5.6 | The Parties hereto agree that irreparable damage would occur in the event that any provision of this Agreement were not performed in accordance with the terms hereof and that each Party shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement, in addition to any other remedy at law or equity. Each Party hereby waives (a) any defenses in any action for specific performance, including the defense that a remedy at law would be adequate and (b) any requirement under any law to post a bond or other security as a prerequisite to obtaining equitable relief. |
| 5.7 | Each Party acknowledges and agrees that (i) the Escrowed Amount is not intended to cap Investor’s liabilities under this Agreement, the Equity Commitment Letter, the Interim Investors Agreement or the Limited Guarantee, or Parent’s liability under the Merger Agreement, and (ii) Parent’s liability to Investor under this Agreement shall not exceed the Escrowed Amount. |
[Signature page follows]
| 5 |
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
Very truly yours,
| Golden Brick Silk Road Investment (Shenzhen) LLP | ||
| (金砖丝路投资 (深圳) 合伙企业 ( 有限合伙 ) ) | ||
| [Company chop is affixed] | ||
| By: | /s/ Yuping He | |
| Name: Yuping He | ||
| Title: COO | ||
| Golden Brick Silk Road Capital (Shenzhen) Holding Limited | ||
| (金砖资本控股有限公司( 深圳) 有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Shunxi Yue | |
| Name: Shunxi Yue] | ||
Accepted and agreed to as of the date first written above:
Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: Hongyi Zhou | ||
| Title: Authorized Signatory | ||
[Signature Page to Escrow Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Escrow Agreement]
Exhibit 99.63
Execution Version
ESCROW AGREEMENT
This Escrow Agreement (this “Agreement”), dated as of December 18, 2015 (this “Agreement”), is made by and among CICC Jiatai (Tianjin) Equity Investment Fund, L.P. (中金佳泰 (天津) 股权投资基金合伙企业 (有限合伙 ) ), a limited partnership formed under the laws of the PRC (“Investor”), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the PRC ("Parent"), and Qihoo 360 Technology Co. Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the "Company"). Each of Investor, Parent and the Company are referred to herein as a "Party" and together as "Parties".
Reference is hereby made to each of: (i) that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among the Company, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands("Merger Sub"); (ii) that certain limited guarantee, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Limited Guarantee") between Investor and the Company; (iii) that certain equity commitment letter, executed by Investor on the date hereof in favor of Holdco and Parent and the Company (the "Equity Commitment Letter"); and (iv) that certain Interim Investors Agreement, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Interim Investors Agreement"), by and among Holdco, Parent, Investor and certain other parties identified therein. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
In order to induce Parent to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Interim Investors Agreement and the Company to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Limited Guarantee, and in consideration of the mutual covenants and obligations hereinafter set forth, the Parties hereby agree in this Agreement as follows:
| 1 | Escrow; Representations and Warranties |
| 1.1 | No later than five (5) Business Days after the date hereof (the "Escrow Due Date"), Investor shall pay or cause to be paid to Parent, RMB9,615,000 (the "Escrowed Amount") by wire transfer of immediately available funds into an account designated by Parent (the “Parent Account”). |
| 1 |
| 1.2 | Parent shall set aside the Escrowed Amount, together with the escrowed amount from other investors under the other escrow agreements dated as of the date hereof in the Parent Account as a separate pool of funds for the purposes set forth in Section 2.1, and Parent shall maintain a ledger showing the Escrowed Amount from Investor, and the escrowed amount from other investors under the other escrow agreements dated as of the date hereof individually (the “Ledger”). Within 15 Business Days after the Escrow Due Date, Parent shall provide the Company with a written notice setting forth the detailed information of the Parent Account and the Ledger. Upon request of the Company, Parent shall provide the Company with reasonable evidence with respect to the Parent Account in reasonable details, including without limitation the total balance in the Parent Account, and the Ledger, within two (2) Business Days following such request. |
| 1.3 | Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this Agreement; (b) the execution, delivery and performance of this Agreement by Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of Investor are necessary therefor; (c) this Agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by Investor of this Agreement do not and will not violate the organizational documents of Investor or any applicable Law or conflict with any material agreement binding on Investor; and (e) Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by Investor. |
| 2 | Application of the Escrowed Amount |
| 2.1 | The Parties agree that, subject to the terms of this Agreement, the Escrowed Amount shall be applied by Parent as follows: |
| (a) (i) in the event the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement, the Escrowed Amount shall be used by Parent to pay the Parent Termination Fee that becomes due and payable pursuant to the terms of the Merger Agreement, and (ii) in the event that any of Investor’s obligations under the Limited Guarantee, including the payment of the Guaranteed Obligation pursuant to Section 1(a) of the Limited Guarantee and the obligation under Section 1(c) of the Limited Guarantee, becomes due and payable pursuant to the terms of the Limited Guarantee, the Escrowed Amount shall be used by Parent to pay all such obligations of Investor as arise from and under the Limited Guarantee, and in no event shall the Escrowed Amount be used for or applied towards any other purposes unless and until all the obligations under the foregoing sub-clauses (i) and (ii) have been fully satisfied; |
| (b) in the event Investor’s obligation to fund the Contribution under the Equity Commitment Letter becomes due pursuant to the terms thereunder, the Escrowed Amount shall be credited against, applied towards and offset from the amount of the Contribution; or |
| 2 |
| (c) after full payment is made out of the Parent Account in accordance with the forgoing clause (a) or (b), as applicable, in the event Investor otherwise owes any obligations, liabilities, fees and/or expenses to the Parent Parties or other Investors, Parent shall use the remainder of the Escrowed Amount, if any, to satisfy such obligations, liabilities, fees and/or expenses. |
| 3 | Termination; Treatment of Escrowed Amount |
| 3.1 | This Agreement may be terminated by written notice at any time prior to receipt by Parent of the Escrowed Amount: |
| (a) | by the mutual written consent of the Parties; and |
| (b) | by Parent with the written consent of the Company, if Parent has not received the Escrowed Amount on or before the Escrow Due Date. |
| 3.2 | In the event the Escrowed Amount has been funded pursuant to paragraph 1.1, this Agreement shall terminate upon the earliest to occur of (a) the full payment and application of the Escrowed Amount in accordance with Section 2.1(a) hereof, in the event that the Equity Commitment Letter is terminated pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would become due and payable pursuant to the terms of the Merger Agreement, (b) the termination of the Equity Commitment Letter pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would not become due and payable pursuant to the terms of the Merger Agreement, and (c) the termination of Investor’s participation in the transaction pursuant to the terms of the Interim Investors Agreement. Notwithstanding anything to the contrary herein and for the avoidance of doubt, this Agreement shall not be terminated without the prior written consent of the Company in the event that (i) the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement or (ii) any of Investor’s obligations under the Limited Guarantee becomes due and payable pursuant to the terms of the Limited Guarantee, and in each case the funded Escrowed Amounts have not been utilized in accordance with the terms hereof for the payment of the Parent Termination Fee or such obligations. |
| 3.3 | In the event (i) this Agreement is terminated pursuant to paragraph 3.2(b) and the Contribution under the Equity Commitment Letter is not required to be made or has otherwise been made in full without taking into account the funded Escrow Amount pursuant to the terms thereunder, or (ii) this Agreement is terminated pursuant to paragraph 3.2(c), Parent shall, after deducting and offsetting from the Escrowed Amount any obligations, liabilities, fees and/or expenses of Investor incurred and/or payable under the terms of the Equity Commitment Letter or the Interim Investors Agreement, as applicable, promptly (and in any event within 30 days of such termination) return the remainder of the Escrowed Amount to an account of the Investor designated by the Investor in writing. |
| 3.4 | The Parties hereby acknowledge, covenant and agree that, unless expressly provided for herein, Parent shall not utilize or release any Escrowed Amount from the Parent Account without the prior written consent of the Company. |
| 3 |
| 4 | Governing Law; Dispute Resolution |
| 4.1 | This Agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People’s Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction |
| 4.2 | In the event of any dispute, controversy, or claim between the Parties arising out of or relating to the breach, termination or validity of this Agreement (“Dispute”), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission (“CIETAC”) under the arbitration rules of CIETAC (the “Rule”) in force when the notice of arbitration is submitted by a party. |
| 4.3 | The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule. |
| 4.4 | The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 9. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party. |
| 4.5 | The awards rendered by the arbitrators pursuant to this Section 9 shall be non-appealable, final, binding and conclusive on the parties to such Dispute. |
| 4.6 | The Parties understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision. |
| 5 | General Provisions |
| 5.1 | Each of the Parties confirms that it has received independent legal advice relating to all matters provided for in this Agreement and agrees that the provisions of this Agreement are fair and reasonable. |
| 5.2 | Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Agreement in any jurisdiction and, if any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this Agreement or any part hereof is invalid, illegal or unenforceable. |
| 4 |
| 5.3 | This Agreement shall be binding on and inure for the benefit of the successors of each of the Parties, but the Parties may not assign, grant any security interest, hold on trust or otherwise transfer all or any of their rights and obligations under this Agreement (without the prior written consent of the other Parties). |
| 5.4 | This Agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered (by telecopy or otherwise) to the other Parties. |
| 5.5 | Any waiver of any right or default under this Agreement shall be effective only in the instance given and shall not operate as or imply a waiver of any other or similar right or default on any subsequent occasion. No waiver of any provision of this Agreement will be effective unless it is granted in writing and signed by the Party granting the waiver and with the prior written consent of the Company. Any delay by any Party in exercising, or failure to exercise, any right or remedy under this Agreement shall not constitute a waiver of the right or remedy (or a waiver of any other rights or remedies) and no single or partial exercise of any rights or remedy under this Agreement or otherwise shall prevent any further exercise of the right or remedy (or the exercise of any other right or remedy). |
| 5.6 | This Agreement shall not be amended, changed or modified, except by another agreement in writing executed by the Parties hereto. |
| 5.6 | The Parties hereto agree that irreparable damage would occur in the event that any provision of this Agreement were not performed in accordance with the terms hereof and that each Party shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement, in addition to any other remedy at law or equity. Each Party hereby waives (a) any defenses in any action for specific performance, including the defense that a remedy at law would be adequate and (b) any requirement under any law to post a bond or other security as a prerequisite to obtaining equitable relief. |
| 5.7 | Each Party acknowledges and agrees that (i) the Escrowed Amount is not intended to cap Investor’s liabilities under this Agreement, the Equity Commitment Letter, the Interim Investors Agreement or the Limited Guarantee, or Parent’s liability under the Merger Agreement, and (ii) Parent’s liability to Investor under this Agreement shall not exceed the Escrowed Amount. |
[Signature page follows]
| 5 |
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
Very truly yours,
| CICC Jiatai (Tianjin) Equity Investment Fund, L.P. | ||
| (中金佳泰 (天津 ) 股权投资基金合伙企业 (有限合伙 ) ) | ||
| By: | /s/ QING ZHANG | |
| Name: 张清QING ZHANG | ||
|
Title: 委派代表Authorized Representative
| ||
Accepted and agreed to as of the date first written above:
|
Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
| By: | /s/ Hongyi Zhou | |
| Name: Hongyi Zhou | ||
| Title: Authorized Signatory | ||
[Signature Page to Escrow Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
|
Title: Director | ||
[Signature Page to Escrow Agreement]
Exhibit 99.64
Execution Version
ESCROW AGREEMENT
This Escrow Agreement (this “Agreement”), dated as of December 18, 2015 (this “Agreement”), is made by and among Shanghai Huasheng Lingfei Equity Investment (LLP) (上海华晟领飞股权投资合伙企业 (有限合伙) ), a limited partnership formed under the laws of the PRC (“Investor”), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the PRC ("Parent"), and Qihoo 360 Technology Co. Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the "Company"). Each of Investor, Parent and the Company are referred to herein as a "Party" and together as "Parties".
Reference is hereby made to each of: (i) that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among the Company, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands("Merger Sub"); (ii) that certain limited guarantee, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Limited Guarantee") between Investor and the Company; (iii) that certain equity commitment letter, executed by Investor on the date hereof in favor of Holdco and Parent and the Company (the "Equity Commitment Letter"); and (iv) that certain Interim Investors Agreement, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Interim Investors Agreement"), by and among Holdco, Parent, Investor and certain other parties identified therein. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
In order to induce Parent to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Interim Investors Agreement and the Company to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Limited Guarantee, and in consideration of the mutual covenants and obligations hereinafter set forth, the Parties hereby agree in this Agreement as follows:
| 1 | Escrow; Representations and Warranties |
| 1.1 | No later than five (5) Business Days after the date hereof (the "Escrow Due Date"), Investor shall pay or cause to be paid to Parent, RMB34,614,000 (the "Escrowed Amount") by wire transfer of immediately available funds into an account designated by Parent (the “Parent Account”). |
| 1 |
| 1.2 | Parent shall set aside the Escrowed Amount, together with the escrowed amount from other investors under the other escrow agreements dated as of the date hereof in the Parent Account as a separate pool of funds for the purposes set forth in Section 2.1, and Parent shall maintain a ledger showing the Escrowed Amount from Investor, and the escrowed amount from other investors under the other escrow agreements dated as of the date hereof individually (the “Ledger”). Within 15 Business Days after the Escrow Due Date, Parent shall provide the Company with a written notice setting forth the detailed information of the Parent Account and the Ledger. Upon request of the Company, Parent shall provide the Company with reasonable evidence with respect to the Parent Account in reasonable details, including without limitation the total balance in the Parent Account, and the Ledger, within two (2) Business Days following such request. |
| 1.3 | Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this Agreement; (b) the execution, delivery and performance of this Agreement by Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of Investor are necessary therefor; (c) this Agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by Investor of this Agreement do not and will not violate the organizational documents of Investor or any applicable Law or conflict with any material agreement binding on Investor; and (e) Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by Investor. |
| 2 | Application of the Escrowed Amount |
| 2.1 | The Parties agree that, subject to the terms of this Agreement, the Escrowed Amount shall be applied by Parent as follows: |
| (a) (i) in the event the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement, the Escrowed Amount shall be used by Parent to pay the Parent Termination Fee that becomes due and payable pursuant to the terms of the Merger Agreement, and (ii) in the event that any of Investor’s obligations under the Limited Guarantee, including the payment of the Guaranteed Obligation pursuant to Section 1(a) of the Limited Guarantee and the obligation under Section 1(c) of the Limited Guarantee, becomes due and payable pursuant to the terms of the Limited Guarantee, the Escrowed Amount shall be used by Parent to pay all such obligations of Investor as arise from and under the Limited Guarantee, and in no event shall the Escrowed Amount be used for or applied towards any other purposes unless and until all the obligations under the foregoing sub-clauses (i) and (ii) have been fully satisfied; |
| (b) in the event Investor’s obligation to fund the Contribution under the Equity Commitment Letter becomes due pursuant to the terms thereunder, the Escrowed Amount shall be credited against, applied towards and offset from the amount of the Contribution; or |
| 2 |
| (c) after full payment is made out of the Parent Account in accordance with the forgoing clause (a) or (b), as applicable, in the event Investor otherwise owes any obligations, liabilities, fees and/or expenses to the Parent Parties or other Investors, Parent shall use the remainder of the Escrowed Amount, if any, to satisfy such obligations, liabilities, fees and/or expenses. |
| 3 | Termination; Treatment of Escrowed Amount |
| 3.1 | This Agreement may be terminated by written notice at any time prior to receipt by Parent of the Escrowed Amount: |
| (a) | by the mutual written consent of the Parties; and |
| (b) | by Parent with the written consent of the Company, if Parent has not received the Escrowed Amount on or before the Escrow Due Date. |
| 3.2 | In the event the Escrowed Amount has been funded pursuant to paragraph 1.1, this Agreement shall terminate upon the earliest to occur of (a) the full payment and application of the Escrowed Amount in accordance with Section 2.1(a) hereof, in the event that the Equity Commitment Letter is terminated pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would become due and payable pursuant to the terms of the Merger Agreement, (b) the termination of the Equity Commitment Letter pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would not become due and payable pursuant to the terms of the Merger Agreement, and (c) the termination of Investor’s participation in the transaction pursuant to the terms of the Interim Investors Agreement. Notwithstanding anything to the contrary herein and for the avoidance of doubt, this Agreement shall not be terminated without the prior written consent of the Company in the event that (i) the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement or (ii) any of Investor’s obligations under the Limited Guarantee becomes due and payable pursuant to the terms of the Limited Guarantee, and in each case the funded Escrowed Amounts have not been utilized in accordance with the terms hereof for the payment of the Parent Termination Fee or such obligations. |
| 3.3 | In the event (i) this Agreement is terminated pursuant to paragraph 3.2(b) and the Contribution under the Equity Commitment Letter is not required to be made or has otherwise been made in full without taking into account the funded Escrow Amount pursuant to the terms thereunder, or (ii) this Agreement is terminated pursuant to paragraph 3.2(c), Parent shall, after deducting and offsetting from the Escrowed Amount any obligations, liabilities, fees and/or expenses of Investor incurred and/or payable under the terms of the Equity Commitment Letter or the Interim Investors Agreement, as applicable, promptly (and in any event within 30 days of such termination) return the remainder of the Escrowed Amount to an account of the Investor designated by the Investor in writing. |
| 3.4 | The Parties hereby acknowledge, covenant and agree that, unless expressly provided for herein, Parent shall not utilize or release any Escrowed Amount from the Parent Account without the prior written consent of the Company. |
| 3 |
| 4 | Governing Law; Dispute Resolution |
| 4.1 | This Agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People’s Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction |
| 4.2 | In the event of any dispute, controversy, or claim between the Parties arising out of or relating to the breach, termination or validity of this Agreement (“Dispute”), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission (“CIETAC”) under the arbitration rules of CIETAC (the “Rule”) in force when the notice of arbitration is submitted by a party. |
| 4.3 | The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule. |
| 4.4 | The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 9. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party. |
| 4.5 | The awards rendered by the arbitrators pursuant to this Section 9 shall be non-appealable, final, binding and conclusive on the parties to such Dispute. |
| 4.6 | The Parties understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision. |
| 5 | General Provisions |
| 5.1 | Each of the Parties confirms that it has received independent legal advice relating to all matters provided for in this Agreement and agrees that the provisions of this Agreement are fair and reasonable. |
| 5.2 | Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Agreement in any jurisdiction and, if any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this Agreement or any part hereof is invalid, illegal or unenforceable. |
| 4 |
| 5.3 | This Agreement shall be binding on and inure for the benefit of the successors of each of the Parties, but the Parties may not assign, grant any security interest, hold on trust or otherwise transfer all or any of their rights and obligations under this Agreement (without the prior written consent of the other Parties). |
| 5.4 | This Agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered (by telecopy or otherwise) to the other Parties. |
| 5.5 | Any waiver of any right or default under this Agreement shall be effective only in the instance given and shall not operate as or imply a waiver of any other or similar right or default on any subsequent occasion. No waiver of any provision of this Agreement will be effective unless it is granted in writing and signed by the Party granting the waiver and with the prior written consent of the Company. Any delay by any Party in exercising, or failure to exercise, any right or remedy under this Agreement shall not constitute a waiver of the right or remedy (or a waiver of any other rights or remedies) and no single or partial exercise of any rights or remedy under this Agreement or otherwise shall prevent any further exercise of the right or remedy (or the exercise of any other right or remedy). |
| 5.6 | This Agreement shall not be amended, changed or modified, except by another agreement in writing executed by the Parties hereto. |
| 5.6 | The Parties hereto agree that irreparable damage would occur in the event that any provision of this Agreement were not performed in accordance with the terms hereof and that each Party shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement, in addition to any other remedy at law or equity. Each Party hereby waives (a) any defenses in any action for specific performance, including the defense that a remedy at law would be adequate and (b) any requirement under any law to post a bond or other security as a prerequisite to obtaining equitable relief. |
| 5.7 | Each Party acknowledges and agrees that (i) the Escrowed Amount is not intended to cap Investor’s liabilities under this Agreement, the Equity Commitment Letter, the Interim Investors Agreement or the Limited Guarantee, or Parent’s liability under the Merger Agreement, and (ii) Parent’s liability to Investor under this Agreement shall not exceed the Escrowed Amount. |
[Signature page follows]
| 5 |
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
Very truly yours,
| Shanghai Huasheng Lingfei Equity Investment (Limited Partnership) | ||
| (上海华晟领飞股权投资合伙企业 (有限合伙 ) ) | ||
| [Company chop is affixed] | ||
| By: | /s/ Xinwei Wang | |
| Name: Xinwei Wang | ||
| Title: Authorized Representative of Executive Partner | ||
Accepted and agreed to as of the date first written above:
|
Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: Hongyi Zhou | ||
| Title: Authorized Signatory | ||
[Signature Page to Escrow Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Escrow Agreement]
Exhibit 99.65
Execution Version
ESCROW AGREEMENT
This Escrow Agreement (this “Agreement”), dated as of December 18, 2015 (this “Agreement”), is made by and among BR Wiston Capital (宁波博睿维森股权投资合伙企业 (有限合伙) ), a limited partnership formed under the laws of the PRC (“Investor”), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the PRC ("Parent"), and Qihoo 360 Technology Co. Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the "Company"). Each of Investor, Parent and the Company are referred to herein as a "Party" and together as "Parties".
Reference is hereby made to each of: (i) that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among the Company, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands("Merger Sub"); (ii) that certain limited guarantee, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Limited Guarantee") between Investor and the Company; (iii) that certain equity commitment letter, executed by Investor on the date hereof in favor of Holdco and Parent and the Company (the "Equity Commitment Letter"); and (iv) that certain Interim Investors Agreement, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Interim Investors Agreement"), by and among Holdco, Parent, Investor and certain other parties identified therein. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
In order to induce Parent to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Interim Investors Agreement and the Company to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Limited Guarantee, and in consideration of the mutual covenants and obligations hereinafter set forth, the Parties hereby agree in this Agreement as follows:
| 1 | Escrow; Representations and Warranties |
| 1.1 | No later than five (5) Business Days after the date hereof (the "Escrow Due Date"), Investor shall pay or cause to be paid to Parent, RMB38,460,000 (the "Escrowed Amount") by wire transfer of immediately available funds into an account designated by Parent (the “Parent Account”). |
| 1 |
| 1.2 | Parent shall set aside the Escrowed Amount, together with the escrowed amount from other investors under the other escrow agreements dated as of the date hereof in the Parent Account as a separate pool of funds for the purposes set forth in Section 2.1, and Parent shall maintain a ledger showing the Escrowed Amount from Investor, and the escrowed amount from other investors under the other escrow agreements dated as of the date hereof individually (the “Ledger”). Within 15 Business Days after the Escrow Due Date, Parent shall provide the Company with a written notice setting forth the detailed information of the Parent Account and the Ledger. Upon request of the Company, Parent shall provide the Company with reasonable evidence with respect to the Parent Account in reasonable details, including without limitation the total balance in the Parent Account, and the Ledger, within two (2) Business Days following such request. |
| 1.3 | Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this Agreement; (b) the execution, delivery and performance of this Agreement by Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of Investor are necessary therefor; (c) this Agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by Investor of this Agreement do not and will not violate the organizational documents of Investor or any applicable Law or conflict with any material agreement binding on Investor; and (e) Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by Investor. |
| 2 | Application of the Escrowed Amount |
| 2.1 | The Parties agree that, subject to the terms of this Agreement, the Escrowed Amount shall be applied by Parent as follows: |
| (a) (i) in the event the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement, the Escrowed Amount shall be used by Parent to pay the Parent Termination Fee that becomes due and payable pursuant to the terms of the Merger Agreement, and (ii) in the event that any of Investor’s obligations under the Limited Guarantee, including the payment of the Guaranteed Obligation pursuant to Section 1(a) of the Limited Guarantee and the obligation under Section 1(c) of the Limited Guarantee, becomes due and payable pursuant to the terms of the Limited Guarantee, the Escrowed Amount shall be used by Parent to pay all such obligations of Investor as arise from and under the Limited Guarantee, and in no event shall the Escrowed Amount be used for or applied towards any other purposes unless and until all the obligations under the foregoing sub-clauses (i) and (ii) have been fully satisfied; |
| (b) in the event Investor’s obligation to fund the Contribution under the Equity Commitment Letter becomes due pursuant to the terms thereunder, the Escrowed Amount shall be credited against, applied towards and offset from the amount of the Contribution; or |
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| (c) after full payment is made out of the Parent Account in accordance with the forgoing clause (a) or (b), as applicable, in the event Investor otherwise owes any obligations, liabilities, fees and/or expenses to the Parent Parties or other Investors, Parent shall use the remainder of the Escrowed Amount, if any, to satisfy such obligations, liabilities, fees and/or expenses. |
| 3 | Termination; Treatment of Escrowed Amount |
| 3.1 | This Agreement may be terminated by written notice at any time prior to receipt by Parent of the Escrowed Amount: |
| (a) | by the mutual written consent of the Parties; and |
| (b) | by Parent with the written consent of the Company, if Parent has not received the Escrowed Amount on or before the Escrow Due Date. |
| 3.2 | In the event the Escrowed Amount has been funded pursuant to paragraph 1.1, this Agreement shall terminate upon the earliest to occur of (a) the full payment and application of the Escrowed Amount in accordance with Section 2.1(a) hereof, in the event that the Equity Commitment Letter is terminated pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would become due and payable pursuant to the terms of the Merger Agreement, (b) the termination of the Equity Commitment Letter pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would not become due and payable pursuant to the terms of the Merger Agreement, and (c) the termination of Investor’s participation in the transaction pursuant to the terms of the Interim Investors Agreement. Notwithstanding anything to the contrary herein and for the avoidance of doubt, this Agreement shall not be terminated without the prior written consent of the Company in the event that (i) the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement or (ii) any of Investor’s obligations under the Limited Guarantee becomes due and payable pursuant to the terms of the Limited Guarantee, and in each case the funded Escrowed Amounts have not been utilized in accordance with the terms hereof for the payment of the Parent Termination Fee or such obligations. |
| 3.3 | In the event (i) this Agreement is terminated pursuant to paragraph 3.2(b) and the Contribution under the Equity Commitment Letter is not required to be made or has otherwise been made in full without taking into account the funded Escrow Amount pursuant to the terms thereunder, or (ii) this Agreement is terminated pursuant to paragraph 3.2(c), Parent shall, after deducting and offsetting from the Escrowed Amount any obligations, liabilities, fees and/or expenses of Investor incurred and/or payable under the terms of the Equity Commitment Letter or the Interim Investors Agreement, as applicable, promptly (and in any event within 30 days of such termination) return the remainder of the Escrowed Amount to an account of the Investor designated by the Investor in writing. |
| 3.4 | The Parties hereby acknowledge, covenant and agree that, unless expressly provided for herein, Parent shall not utilize or release any Escrowed Amount from the Parent Account without the prior written consent of the Company. |
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| 4 | Governing Law; Dispute Resolution |
| 4.1 | This Agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People’s Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction |
| 4.2 | In the event of any dispute, controversy, or claim between the Parties arising out of or relating to the breach, termination or validity of this Agreement (“Dispute”), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission (“CIETAC”) under the arbitration rules of CIETAC (the “Rule”) in force when the notice of arbitration is submitted by a party. |
| 4.3 | The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule. |
| 4.4 | The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 9. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party. |
| 4.5 | The awards rendered by the arbitrators pursuant to this Section 9 shall be non-appealable, final, binding and conclusive on the parties to such Dispute. |
| 4.6 | The Parties understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision. |
| 5 | General Provisions |
| 5.1 | Each of the Parties confirms that it has received independent legal advice relating to all matters provided for in this Agreement and agrees that the provisions of this Agreement are fair and reasonable. |
| 5.2 | Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Agreement in any jurisdiction and, if any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this Agreement or any part hereof is invalid, illegal or unenforceable. |
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| 5.3 | This Agreement shall be binding on and inure for the benefit of the successors of each of the Parties, but the Parties may not assign, grant any security interest, hold on trust or otherwise transfer all or any of their rights and obligations under this Agreement (without the prior written consent of the other Parties). |
| 5.4 | This Agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered (by telecopy or otherwise) to the other Parties. |
| 5.5 | Any waiver of any right or default under this Agreement shall be effective only in the instance given and shall not operate as or imply a waiver of any other or similar right or default on any subsequent occasion. No waiver of any provision of this Agreement will be effective unless it is granted in writing and signed by the Party granting the waiver and with the prior written consent of the Company. Any delay by any Party in exercising, or failure to exercise, any right or remedy under this Agreement shall not constitute a waiver of the right or remedy (or a waiver of any other rights or remedies) and no single or partial exercise of any rights or remedy under this Agreement or otherwise shall prevent any further exercise of the right or remedy (or the exercise of any other right or remedy). |
| 5.6 | This Agreement shall not be amended, changed or modified, except by another agreement in writing executed by the Parties hereto. |
| 5.6 | The Parties hereto agree that irreparable damage would occur in the event that any provision of this Agreement were not performed in accordance with the terms hereof and that each Party shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement, in addition to any other remedy at law or equity. Each Party hereby waives (a) any defenses in any action for specific performance, including the defense that a remedy at law would be adequate and (b) any requirement under any law to post a bond or other security as a prerequisite to obtaining equitable relief. |
| 5.7 | Each Party acknowledges and agrees that (i) the Escrowed Amount is not intended to cap Investor’s liabilities under this Agreement, the Equity Commitment Letter, the Interim Investors Agreement or the Limited Guarantee, or Parent’s liability under the Merger Agreement, and (ii) Parent’s liability to Investor under this Agreement shall not exceed the Escrowed Amount. |
[Signature page follows]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
Very truly yours,
| BR WISTON CAPITAL | ||
| (宁波博睿维森股权投资合伙企业 (有限合伙 ) ) | ||
| [Company chop is affixed] | ||
| By: | /s/ Sun Peng | |
|
Name: Sun Peng Title: 执行事务合伙人委派代表 | ||
Accepted and agreed to as of the date first written above:
|
Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: Hongyi Zhou | ||
| Title: Authorized Signatory | ||
[Signature Page to Escrow Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Escrow Agreement]
Exhibit 99.66
Execution Version
ESCROW AGREEMENT
This Escrow Agreement (this “Agreement”), dated as of December 18, 2015 (this “Agreement”), is made by and among Yi Capital Qiyuan Fund, L.P. (宁波执一奇元股权投资中心 (有限合伙) ), a limited partnership formed under the laws of the PRC (“Investor”), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the PRC ("Parent"), and Qihoo 360 Technology Co. Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the "Company"). Each of Investor, Parent and the Company are referred to herein as a "Party" and together as "Parties".
Reference is hereby made to each of: (i) that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among the Company, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands("Merger Sub"); (ii) that certain limited guarantee, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Limited Guarantee") between Investor and the Company; (iii) that certain equity commitment letter, executed by Investor on the date hereof in favor of Holdco and Parent and the Company (the "Equity Commitment Letter"); and (iv) that certain Interim Investors Agreement, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Interim Investors Agreement"), by and among Holdco, Parent, Investor and certain other parties identified therein. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
In order to induce Parent to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Interim Investors Agreement and the Company to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Limited Guarantee, and in consideration of the mutual covenants and obligations hereinafter set forth, the Parties hereby agree in this Agreement as follows:
| 1 | Escrow; Representations and Warranties |
| 1.1 | No later than five (5) Business Days after the date hereof (the "Escrow Due Date"), Investor shall pay or cause to be paid to Parent, RMB19,230,000 (the "Escrowed Amount") by wire transfer of immediately available funds into an account designated by Parent (the “Parent Account”). |
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| 1.2 | Parent shall set aside the Escrowed Amount, together with the escrowed amount from other investors under the other escrow agreements dated as of the date hereof in the Parent Account as a separate pool of funds for the purposes set forth in Section 2.1, and Parent shall maintain a ledger showing the Escrowed Amount from Investor, and the escrowed amount from other investors under the other escrow agreements dated as of the date hereof individually (the “Ledger”). Within 15 Business Days after the Escrow Due Date, Parent shall provide the Company with a written notice setting forth the detailed information of the Parent Account and the Ledger. Upon request of the Company, Parent shall provide the Company with reasonable evidence with respect to the Parent Account in reasonable details, including without limitation the total balance in the Parent Account, and the Ledger, within two (2) Business Days following such request. |
| 1.3 | Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this Agreement; (b) the execution, delivery and performance of this Agreement by Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of Investor are necessary therefor; (c) this Agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by Investor of this Agreement do not and will not violate the organizational documents of Investor or any applicable Law or conflict with any material agreement binding on Investor; and (e) Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by Investor. |
| 2 | Application of the Escrowed Amount |
| 2.1 | The Parties agree that, subject to the terms of this Agreement, the Escrowed Amount shall be applied by Parent as follows: |
(a) (i) in the event the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement, the Escrowed Amount shall be used by Parent to pay the Parent Termination Fee that becomes due and payable pursuant to the terms of the Merger Agreement, and (ii) in the event that any of Investor’s obligations under the Limited Guarantee, including the payment of the Guaranteed Obligation pursuant to Section 1(a) of the Limited Guarantee and the obligation under Section 1(c) of the Limited Guarantee, becomes due and payable pursuant to the terms of the Limited Guarantee, the Escrowed Amount shall be used by Parent to pay all such obligations of Investor as arise from and under the Limited Guarantee, and in no event shall the Escrowed Amount be used for or applied towards any other purposes unless and until all the obligations under the foregoing sub-clauses (i) and (ii) have been fully satisfied;
| (b) in the event Investor’s obligation to fund the Contribution under the Equity Commitment Letter becomes due pursuant to the terms thereunder, the Escrowed Amount shall be credited against, applied towards and offset from the amount of the Contribution; or |
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| (c) after full payment is made out of the Parent Account in accordance with the forgoing clause (a) or (b), as applicable, in the event Investor otherwise owes any obligations, liabilities, fees and/or expenses to the Parent Parties or other Investors, Parent shall use the remainder of the Escrowed Amount, if any, to satisfy such obligations, liabilities, fees and/or expenses. |
| 3 | Termination; Treatment of Escrowed Amount |
| 3.1 | This Agreement may be terminated by written notice at any time prior to receipt by Parent of the Escrowed Amount: |
| (a) | by the mutual written consent of the Parties; and |
| (b) | by Parent with the written consent of the Company, if Parent has not received the Escrowed Amount on or before the Escrow Due Date. |
| 3.2 | In the event the Escrowed Amount has been funded pursuant to paragraph 1.1, this Agreement shall terminate upon the earliest to occur of (a) the full payment and application of the Escrowed Amount in accordance with Section 2.1(a) hereof, in the event that the Equity Commitment Letter is terminated pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would become due and payable pursuant to the terms of the Merger Agreement, (b) the termination of the Equity Commitment Letter pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would not become due and payable pursuant to the terms of the Merger Agreement, and (c) the termination of Investor’s participation in the transaction pursuant to the terms of the Interim Investors Agreement. Notwithstanding anything to the contrary herein and for the avoidance of doubt, this Agreement shall not be terminated without the prior written consent of the Company in the event that (i) the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement or (ii) any of Investor’s obligations under the Limited Guarantee becomes due and payable pursuant to the terms of the Limited Guarantee, and in each case the funded Escrowed Amounts have not been utilized in accordance with the terms hereof for the payment of the Parent Termination Fee or such obligations. |
| 3.3 | In the event (i) this Agreement is terminated pursuant to paragraph 3.2(b) and the Contribution under the Equity Commitment Letter is not required to be made or has otherwise been made in full without taking into account the funded Escrow Amount pursuant to the terms thereunder, or (ii) this Agreement is terminated pursuant to paragraph 3.2(c), Parent shall, after deducting and offsetting from the Escrowed Amount any obligations, liabilities, fees and/or expenses of Investor incurred and/or payable under the terms of the Equity Commitment Letter or the Interim Investors Agreement, as applicable, promptly (and in any event within 30 days of such termination) return the remainder of the Escrowed Amount to an account of the Investor designated by the Investor in writing. |
| 3.4 | The Parties hereby acknowledge, covenant and agree that, unless expressly provided for herein, Parent shall not utilize or release any Escrowed Amount from the Parent Account without the prior written consent of the Company. |
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| 4 | Governing Law; Dispute Resolution |
| 4.1 | This Agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People’s Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction |
| 4.2 | In the event of any dispute, controversy, or claim between the Parties arising out of or relating to the breach, termination or validity of this Agreement (“Dispute”), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission (“CIETAC”) under the arbitration rules of CIETAC (the “Rule”) in force when the notice of arbitration is submitted by a party. |
| 4.3 | The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule. |
| 4.4 | The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 9. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party. |
| 4.5 | The awards rendered by the arbitrators pursuant to this Section 9 shall be non-appealable, final, binding and conclusive on the parties to such Dispute. |
| 4.6 | The Parties understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision. |
| 5 | General Provisions |
| 5.1 | Each of the Parties confirms that it has received independent legal advice relating to all matters provided for in this Agreement and agrees that the provisions of this Agreement are fair and reasonable. |
| 5.2 | Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Agreement in any jurisdiction and, if any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this Agreement or any part hereof is invalid, illegal or unenforceable. |
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| 5.3 | This Agreement shall be binding on and inure for the benefit of the successors of each of the Parties, but the Parties may not assign, grant any security interest, hold on trust or otherwise transfer all or any of their rights and obligations under this Agreement (without the prior written consent of the other Parties). |
| 5.4 | This Agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered (by telecopy or otherwise) to the other Parties. |
| 5.5 | Any waiver of any right or default under this Agreement shall be effective only in the instance given and shall not operate as or imply a waiver of any other or similar right or default on any subsequent occasion. No waiver of any provision of this Agreement will be effective unless it is granted in writing and signed by the Party granting the waiver and with the prior written consent of the Company. Any delay by any Party in exercising, or failure to exercise, any right or remedy under this Agreement shall not constitute a waiver of the right or remedy (or a waiver of any other rights or remedies) and no single or partial exercise of any rights or remedy under this Agreement or otherwise shall prevent any further exercise of the right or remedy (or the exercise of any other right or remedy). |
| 5.6 | This Agreement shall not be amended, changed or modified, except by another agreement in writing executed by the Parties hereto. |
| 5.6 | The Parties hereto agree that irreparable damage would occur in the event that any provision of this Agreement were not performed in accordance with the terms hereof and that each Party shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement, in addition to any other remedy at law or equity. Each Party hereby waives (a) any defenses in any action for specific performance, including the defense that a remedy at law would be adequate and (b) any requirement under any law to post a bond or other security as a prerequisite to obtaining equitable relief. |
| 5.7 | Each Party acknowledges and agrees that (i) the Escrowed Amount is not intended to cap Investor’s liabilities under this Agreement, the Equity Commitment Letter, the Interim Investors Agreement or the Limited Guarantee, or Parent’s liability under the Merger Agreement, and (ii) Parent’s liability to Investor under this Agreement shall not exceed the Escrowed Amount. |
[Signature page follows]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
Very truly yours,
| Yi Capital Qiyuan Fund, L.P. | ||
| (宁波执一奇元股权投资中心 (有限合伙) ) | ||
| [Company chop is affixed] | ||
| By: | /s/ Wenjiang Chen | |
| Name: Wenjiang Chen (陈文江) | ||
| Title: Representative of the General Partner of Yi Capital Qiyuan Fund, L.P. (执行事务合伙人委派代表) | ||
Accepted and agreed to as of the date first written above:
|
Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: Hongyi Zhou | ||
| Title: Authorized Signatory | ||
[Signature Page to Escrow Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Escrow Agreement]
Exhibit 99.67
Execution Version
ESCROW AGREEMENT
This Escrow Agreement (this “Agreement”), dated as of December 18, 2015 (this “Agreement”), is made by and among Jiaxingyingfei Investment Center (Limited Partnership) (嘉兴英飞投资中心 (有限合伙) ), a limited partnership formed under the laws of the PRC (“Investor”), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the PRC ("Parent"), and Qihoo 360 Technology Co. Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the "Company"). Each of Investor, Parent and the Company are referred to herein as a "Party" and together as "Parties".
Reference is hereby made to each of: (i) that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among the Company, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands("Merger Sub"); (ii) that certain limited guarantee, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Limited Guarantee") between Investor and the Company; (iii) that certain equity commitment letter, executed by Investor on the date hereof in favor of Holdco and Parent and the Company (the "Equity Commitment Letter"); and (iv) that certain Interim Investors Agreement, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Interim Investors Agreement"), by and among Holdco, Parent, Investor and certain other parties identified therein. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
In order to induce Parent to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Interim Investors Agreement and the Company to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Limited Guarantee, and in consideration of the mutual covenants and obligations hereinafter set forth, the Parties hereby agree in this Agreement as follows:
| 1 | Escrow; Representations and Warranties |
| 1.1 | No later than five (5) Business Days after the date hereof (the "Escrow Due Date"), Investor shall pay or cause to be paid to Parent, RMB8,653,500 (the "Escrowed Amount") by wire transfer of immediately available funds into an account designated by Parent (the “Parent Account”). |
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| 1.2 | Parent shall set aside the Escrowed Amount, together with the escrowed amount from other investors under the other escrow agreements dated as of the date hereof in the Parent Account as a separate pool of funds for the purposes set forth in Section 2.1, and Parent shall maintain a ledger showing the Escrowed Amount from Investor, and the escrowed amount from other investors under the other escrow agreements dated as of the date hereof individually (the “Ledger”). Within 15 Business Days after the Escrow Due Date, Parent shall provide the Company with a written notice setting forth the detailed information of the Parent Account and the Ledger. Upon request of the Company, Parent shall provide the Company with reasonable evidence with respect to the Parent Account in reasonable details, including without limitation the total balance in the Parent Account, and the Ledger, within two (2) Business Days following such request. |
| 1.3 | Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this Agreement; (b) the execution, delivery and performance of this Agreement by Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of Investor are necessary therefor; (c) this Agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by Investor of this Agreement do not and will not violate the organizational documents of Investor or any applicable Law or conflict with any material agreement binding on Investor; and (e) Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by Investor. |
| 2 | Application of the Escrowed Amount |
| 2.1 | The Parties agree that, subject to the terms of this Agreement, the Escrowed Amount shall be applied by Parent as follows: |
(a) (i) in the event the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement, the Escrowed Amount shall be used by Parent to pay the Parent Termination Fee that becomes due and payable pursuant to the terms of the Merger Agreement, and (ii) in the event that any of Investor’s obligations under the Limited Guarantee, including the payment of the Guaranteed Obligation pursuant to Section 1(a) of the Limited Guarantee and the obligation under Section 1(c) of the Limited Guarantee, becomes due and payable pursuant to the terms of the Limited Guarantee, the Escrowed Amount shall be used by Parent to pay all such obligations of Investor as arise from and under the Limited Guarantee, and in no event shall the Escrowed Amount be used for or applied towards any other purposes unless and until all the obligations under the foregoing sub-clauses (i) and (ii) have been fully satisfied;
| (b) in the event Investor’s obligation to fund the Contribution under the Equity Commitment Letter becomes due pursuant to the terms thereunder, the Escrowed Amount shall be credited against, applied towards and offset from the amount of the Contribution; or |
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| (c) after full payment is made out of the Parent Account in accordance with the forgoing clause (a) or (b), as applicable, in the event Investor otherwise owes any obligations, liabilities, fees and/or expenses to the Parent Parties or other Investors, Parent shall use the remainder of the Escrowed Amount, if any, to satisfy such obligations, liabilities, fees and/or expenses. |
| 3 | Termination; Treatment of Escrowed Amount |
| 3.1 | This Agreement may be terminated by written notice at any time prior to receipt by Parent of the Escrowed Amount: |
| (a) | by the mutual written consent of the Parties; and |
| (b) | by Parent with the written consent of the Company, if Parent has not received the Escrowed Amount on or before the Escrow Due Date. |
| 3.2 | In the event the Escrowed Amount has been funded pursuant to paragraph 1.1, this Agreement shall terminate upon the earliest to occur of (a) the full payment and application of the Escrowed Amount in accordance with Section 2.1(a) hereof, in the event that the Equity Commitment Letter is terminated pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would become due and payable pursuant to the terms of the Merger Agreement, (b) the termination of the Equity Commitment Letter pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would not become due and payable pursuant to the terms of the Merger Agreement, and (c) the termination of Investor’s participation in the transaction pursuant to the terms of the Interim Investors Agreement. Notwithstanding anything to the contrary herein and for the avoidance of doubt, this Agreement shall not be terminated without the prior written consent of the Company in the event that (i) the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement or (ii) any of Investor’s obligations under the Limited Guarantee becomes due and payable pursuant to the terms of the Limited Guarantee, and in each case the funded Escrowed Amounts have not been utilized in accordance with the terms hereof for the payment of the Parent Termination Fee or such obligations. |
| 3.3 | In the event (i) this Agreement is terminated pursuant to paragraph 3.2(b) and the Contribution under the Equity Commitment Letter is not required to be made or has otherwise been made in full without taking into account the funded Escrow Amount pursuant to the terms thereunder, or (ii) this Agreement is terminated pursuant to paragraph 3.2(c), Parent shall, after deducting and offsetting from the Escrowed Amount any obligations, liabilities, fees and/or expenses of Investor incurred and/or payable under the terms of the Equity Commitment Letter or the Interim Investors Agreement, as applicable, promptly (and in any event within 30 days of such termination) return the remainder of the Escrowed Amount to an account of the Investor designated by the Investor in writing. |
| 3.4 | The Parties hereby acknowledge, covenant and agree that, unless expressly provided for herein, Parent shall not utilize or release any Escrowed Amount from the Parent Account without the prior written consent of the Company. |
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|
4 | Governing Law; Dispute Resolution |
| 4.1 | This Agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People’s Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction |
| 4.2 | In the event of any dispute, controversy, or claim between the Parties arising out of or relating to the breach, termination or validity of this Agreement (“Dispute”), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission (“CIETAC”) under the arbitration rules of CIETAC (the “Rule”) in force when the notice of arbitration is submitted by a party. |
| 4.3 | The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule. |
| 4.4 | The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 9. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party. |
| 4.5 | The awards rendered by the arbitrators pursuant to this Section 9 shall be non-appealable, final, binding and conclusive on the parties to such Dispute. |
| 4.6 | The Parties understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision. |
| 5 | General Provisions |
| 5.1 | Each of the Parties confirms that it has received independent legal advice relating to all matters provided for in this Agreement and agrees that the provisions of this Agreement are fair and reasonable. |
| 5.2 | Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Agreement in any jurisdiction and, if any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this Agreement or any part hereof is invalid, illegal or unenforceable. |
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| 5.3 | This Agreement shall be binding on and inure for the benefit of the successors of each of the Parties, but the Parties may not assign, grant any security interest, hold on trust or otherwise transfer all or any of their rights and obligations under this Agreement (without the prior written consent of the other Parties). |
| 5.4 | This Agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered (by telecopy or otherwise) to the other Parties. |
| 5.5 | Any waiver of any right or default under this Agreement shall be effective only in the instance given and shall not operate as or imply a waiver of any other or similar right or default on any subsequent occasion. No waiver of any provision of this Agreement will be effective unless it is granted in writing and signed by the Party granting the waiver and with the prior written consent of the Company. Any delay by any Party in exercising, or failure to exercise, any right or remedy under this Agreement shall not constitute a waiver of the right or remedy (or a waiver of any other rights or remedies) and no single or partial exercise of any rights or remedy under this Agreement or otherwise shall prevent any further exercise of the right or remedy (or the exercise of any other right or remedy). |
| 5.6 | This Agreement shall not be amended, changed or modified, except by another agreement in writing executed by the Parties hereto. |
| 5.6 | The Parties hereto agree that irreparable damage would occur in the event that any provision of this Agreement were not performed in accordance with the terms hereof and that each Party shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement, in addition to any other remedy at law or equity. Each Party hereby waives (a) any defenses in any action for specific performance, including the defense that a remedy at law would be adequate and (b) any requirement under any law to post a bond or other security as a prerequisite to obtaining equitable relief. |
| 5.7 | Each Party acknowledges and agrees that (i) the Escrowed Amount is not intended to cap Investor’s liabilities under this Agreement, the Equity Commitment Letter, the Interim Investors Agreement or the Limited Guarantee, or Parent’s liability under the Merger Agreement, and (ii) Parent’s liability to Investor under this Agreement shall not exceed the Escrowed Amount. |
[Signature page follows]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
Very truly yours,
| Jiaxingyingfei Investment Center (Limited Partnership) | ||
| (嘉兴英飞投资中心 (有限合伙) ) | ||
| [Company chop is affixed] | ||
| By: | /s/ Xiuzhen Wang | |
| Name: Xiuzhen Wang | ||
| Title: Managing Partner | ||
| 执行事务合伙人 | ||
Accepted and agreed to as of the date first written above:
|
Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: Hongyi Zhou | ||
| Title: Authorized Signatory | ||
[Signature Page to Escrow Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Escrow Agreement]
Exhibit 99.68
Execution Version
ESCROW AGREEMENT
This Escrow Agreement (this “Agreement”), dated as of December 18, 2015 (this “Agreement”), is made by and among Jiaxing Yun Qi Internet Plus Venture Partners LLP (嘉兴云启网加创业投资合伙企业 (有限合伙) ), a limited partnership formed under the laws of the PRC (“Investor”), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the PRC ("Parent"), and Qihoo 360 Technology Co. Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the "Company"). Each of Investor, Parent and the Company are referred to herein as a "Party" and together as "Parties".
Reference is hereby made to each of: (i) that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among the Company, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands("Merger Sub"); (ii) that certain limited guarantee, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Limited Guarantee") between Investor and the Company; (iii) that certain equity commitment letter, executed by Investor on the date hereof in favor of Holdco and Parent and the Company (the "Equity Commitment Letter"); and (iv) that certain Interim Investors Agreement, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Interim Investors Agreement"), by and among Holdco, Parent, Investor and certain other parties identified therein. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
In order to induce Parent to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Interim Investors Agreement and the Company to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Limited Guarantee, and in consideration of the mutual covenants and obligations hereinafter set forth, the Parties hereby agree in this Agreement as follows:
| 1 | Escrow; Representations and Warranties |
| 1.1 | No later than five (5) Business Days after the date hereof (the "Escrow Due Date"), Investor shall pay or cause to be paid to Parent, RMB8,653,500 (the "Escrowed Amount") by wire transfer of immediately available funds into an account designated by Parent (the “Parent Account”). |
1
| 1.2 | Parent shall set aside the Escrowed Amount, together with the escrowed amount from other investors under the other escrow agreements dated as of the date hereof in the Parent Account as a separate pool of funds for the purposes set forth in Section 2.1, and Parent shall maintain a ledger showing the Escrowed Amount from Investor, and the escrowed amount from other investors under the other escrow agreements dated as of the date hereof individually (the “Ledger”). Within 15 Business Days after the Escrow Due Date, Parent shall provide the Company with a written notice setting forth the detailed information of the Parent Account and the Ledger. Upon request of the Company, Parent shall provide the Company with reasonable evidence with respect to the Parent Account in reasonable details, including without limitation the total balance in the Parent Account, and the Ledger, within two (2) Business Days following such request. |
| 1.3 | Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this Agreement; (b) the execution, delivery and performance of this Agreement by Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of Investor are necessary therefor; (c) this Agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by Investor of this Agreement do not and will not violate the organizational documents of Investor or any applicable Law or conflict with any material agreement binding on Investor; and (e) Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by Investor. |
| 2 | Application of the Escrowed Amount |
| 2.1 | The Parties agree that, subject to the terms of this Agreement, the Escrowed Amount shall be applied by Parent as follows: |
(a) (i) in the event the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement, the Escrowed Amount shall be used by Parent to pay the Parent Termination Fee that becomes due and payable pursuant to the terms of the Merger Agreement, and (ii) in the event that any of Investor’s obligations under the Limited Guarantee, including the payment of the Guaranteed Obligation pursuant to Section 1(a) of the Limited Guarantee and the obligation under Section 1(c) of the Limited Guarantee, becomes due and payable pursuant to the terms of the Limited Guarantee, the Escrowed Amount shall be used by Parent to pay all such obligations of Investor as arise from and under the Limited Guarantee, and in no event shall the Escrowed Amount be used for or applied towards any other purposes unless and until all the obligations under the foregoing sub-clauses (i) and (ii) have been fully satisfied;
| (b) in the event Investor’s obligation to fund the Contribution under the Equity Commitment Letter becomes due pursuant to the terms thereunder, the Escrowed Amount shall be credited against, applied towards and offset from the amount of the Contribution; or |
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| (c) after full payment is made out of the Parent Account in accordance with the forgoing clause (a) or (b), as applicable, in the event Investor otherwise owes any obligations, liabilities, fees and/or expenses to the Parent Parties or other Investors, Parent shall use the remainder of the Escrowed Amount, if any, to satisfy such obligations, liabilities, fees and/or expenses. |
| 3 | Termination; Treatment of Escrowed Amount |
| 3.1 | This Agreement may be terminated by written notice at any time prior to receipt by Parent of the Escrowed Amount: |
| (a) | by the mutual written consent of the Parties; and |
| (b) | by Parent with the written consent of the Company, if Parent has not received the Escrowed Amount on or before the Escrow Due Date. |
| 3.2 | In the event the Escrowed Amount has been funded pursuant to paragraph 1.1, this Agreement shall terminate upon the earliest to occur of (a) the full payment and application of the Escrowed Amount in accordance with Section 2.1(a) hereof, in the event that the Equity Commitment Letter is terminated pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would become due and payable pursuant to the terms of the Merger Agreement, (b) the termination of the Equity Commitment Letter pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would not become due and payable pursuant to the terms of the Merger Agreement, and (c) the termination of Investor’s participation in the transaction pursuant to the terms of the Interim Investors Agreement. Notwithstanding anything to the contrary herein and for the avoidance of doubt, this Agreement shall not be terminated without the prior written consent of the Company in the event that (i) the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement or (ii) any of Investor’s obligations under the Limited Guarantee becomes due and payable pursuant to the terms of the Limited Guarantee, and in each case the funded Escrowed Amounts have not been utilized in accordance with the terms hereof for the payment of the Parent Termination Fee or such obligations. |
| 3.3 | In the event (i) this Agreement is terminated pursuant to paragraph 3.2(b) and the Contribution under the Equity Commitment Letter is not required to be made or has otherwise been made in full without taking into account the funded Escrow Amount pursuant to the terms thereunder, or (ii) this Agreement is terminated pursuant to paragraph 3.2(c), Parent shall, after deducting and offsetting from the Escrowed Amount any obligations, liabilities, fees and/or expenses of Investor incurred and/or payable under the terms of the Equity Commitment Letter or the Interim Investors Agreement, as applicable, promptly (and in any event within 30 days of such termination) return the remainder of the Escrowed Amount to an account of the Investor designated by the Investor in writing. |
| 3.4 | The Parties hereby acknowledge, covenant and agree that, unless expressly provided for herein, Parent shall not utilize or release any Escrowed Amount from the Parent Account without the prior written consent of the Company. |
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| 4 | Governing Law; Dispute Resolution |
| 4.1 | This Agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People’s Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction |
| 4.2 | In the event of any dispute, controversy, or claim between the Parties arising out of or relating to the breach, termination or validity of this Agreement (“Dispute”), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission (“CIETAC”) under the arbitration rules of CIETAC (the “Rule”) in force when the notice of arbitration is submitted by a party. |
| 4.3 | The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule. |
| 4.4 | The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 9. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party. |
| 4.5 | The awards rendered by the arbitrators pursuant to this Section 9 shall be non-appealable, final, binding and conclusive on the parties to such Dispute. |
| 4.6 | The Parties understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision. |
| 5 | General Provisions |
| 5.1 | Each of the Parties confirms that it has received independent legal advice relating to all matters provided for in this Agreement and agrees that the provisions of this Agreement are fair and reasonable. |
| 5.2 | Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Agreement in any jurisdiction and, if any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this Agreement or any part hereof is invalid, illegal or unenforceable. |
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| 5.3 | This Agreement shall be binding on and inure for the benefit of the successors of each of the Parties, but the Parties may not assign, grant any security interest, hold on trust or otherwise transfer all or any of their rights and obligations under this Agreement (without the prior written consent of the other Parties). |
| 5.4 | This Agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered (by telecopy or otherwise) to the other Parties. |
| 5.5 | Any waiver of any right or default under this Agreement shall be effective only in the instance given and shall not operate as or imply a waiver of any other or similar right or default on any subsequent occasion. No waiver of any provision of this Agreement will be effective unless it is granted in writing and signed by the Party granting the waiver and with the prior written consent of the Company. Any delay by any Party in exercising, or failure to exercise, any right or remedy under this Agreement shall not constitute a waiver of the right or remedy (or a waiver of any other rights or remedies) and no single or partial exercise of any rights or remedy under this Agreement or otherwise shall prevent any further exercise of the right or remedy (or the exercise of any other right or remedy). |
| 5.6 | This Agreement shall not be amended, changed or modified, except by another agreement in writing executed by the Parties hereto. |
| 5.6 | The Parties hereto agree that irreparable damage would occur in the event that any provision of this Agreement were not performed in accordance with the terms hereof and that each Party shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement, in addition to any other remedy at law or equity. Each Party hereby waives (a) any defenses in any action for specific performance, including the defense that a remedy at law would be adequate and (b) any requirement under any law to post a bond or other security as a prerequisite to obtaining equitable relief. |
| 5.7 | Each Party acknowledges and agrees that (i) the Escrowed Amount is not intended to cap Investor’s liabilities under this Agreement, the Equity Commitment Letter, the Interim Investors Agreement or the Limited Guarantee, or Parent’s liability under the Merger Agreement, and (ii) Parent’s liability to Investor under this Agreement shall not exceed the Escrowed Amount. |
[Signature page follows]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
Very truly yours,
| Jiaxing Yun Qi Internet Plus Venture Partners LLP | ||
| (嘉兴云启网加创业投资合伙企业 (有限合伙) ) | ||
| [Company chop is affixed] | ||
| By: | /s/ MAO Chengyu | |
| Name: MAO Chengyu (毛丞宇) | ||
| Title: Authorized Signatory | ||
Accepted and agreed to as of the date first written above:
|
Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: Hongyi Zhou | ||
| Title: Authorized Signatory | ||
[Signature Page to Escrow Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
|
Title: Director | ||
[Signature Page to Escrow Agreement]
Exhibit 99.69
Execution Version
ESCROW AGREEMENT
This Escrow Agreement (this “Agreement”), dated as of December 18, 2015 (this “Agreement”), is made by and among Ruipu Wenhua (Tianjin) Investment Center (Limited Partnership) (锐普文华 (天津) 投资中心 (有限合伙) ), a limited partnership formed under the laws of the PRC (“Investor”), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the PRC ("Parent"), and Qihoo 360 Technology Co. Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the "Company"). Each of Investor, Parent and the Company are referred to herein as a "Party" and together as "Parties".
Reference is hereby made to each of: (i) that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among the Company, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands("Merger Sub"); (ii) that certain limited guarantee, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Limited Guarantee") between Investor and the Company; (iii) that certain equity commitment letter, executed by Investor on the date hereof in favor of Holdco and Parent and the Company (the "Equity Commitment Letter"); and (iv) that certain Interim Investors Agreement, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Interim Investors Agreement"), by and among Holdco, Parent, Investor and certain other parties identified therein. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
In order to induce Parent to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Interim Investors Agreement and the Company to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Limited Guarantee, and in consideration of the mutual covenants and obligations hereinafter set forth, the Parties hereby agree in this Agreement as follows:
| 1 | Escrow; Representations and Warranties |
| 1.1 | No later than five (5) Business Days after the date hereof (the "Escrow Due Date"), Investor shall pay or cause to be paid to Parent, RMB15,384,000 (the "Escrowed Amount") by wire transfer of immediately available funds into an account designated by Parent (the “Parent Account”). |
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| 1.2 | Parent shall set aside the Escrowed Amount, together with the escrowed amount from other investors under the other escrow agreements dated as of the date hereof in the Parent Account as a separate pool of funds for the purposes set forth in Section 2.1, and Parent shall maintain a ledger showing the Escrowed Amount from Investor, and the escrowed amount from other investors under the other escrow agreements dated as of the date hereof individually (the “Ledger”). Within 15 Business Days after the Escrow Due Date, Parent shall provide the Company with a written notice setting forth the detailed information of the Parent Account and the Ledger. Upon request of the Company, Parent shall provide the Company with reasonable evidence with respect to the Parent Account in reasonable details, including without limitation the total balance in the Parent Account, and the Ledger, within two (2) Business Days following such request. |
| 1.3 | Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this Agreement; (b) the execution, delivery and performance of this Agreement by Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of Investor are necessary therefor; (c) this Agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by Investor of this Agreement do not and will not violate the organizational documents of Investor or any applicable Law or conflict with any material agreement binding on Investor; and (e) Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by Investor. |
| 2 | Application of the Escrowed Amount |
| 2.1 | The Parties agree that, subject to the terms of this Agreement, the Escrowed Amount shall be applied by Parent as follows: |
(a) (i) in the event the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement, the Escrowed Amount shall be used by Parent to pay the Parent Termination Fee that becomes due and payable pursuant to the terms of the Merger Agreement, and (ii) in the event that any of Investor’s obligations under the Limited Guarantee, including the payment of the Guaranteed Obligation pursuant to Section 1(a) of the Limited Guarantee and the obligation under Section 1(c) of the Limited Guarantee, becomes due and payable pursuant to the terms of the Limited Guarantee, the Escrowed Amount shall be used by Parent to pay all such obligations of Investor as arise from and under the Limited Guarantee, and in no event shall the Escrowed Amount be used for or applied towards any other purposes unless and until all the obligations under the foregoing sub-clauses (i) and (ii) have been fully satisfied;
| (b) in the event Investor’s obligation to fund the Contribution under the Equity Commitment Letter becomes due pursuant to the terms thereunder, the Escrowed Amount shall be credited against, applied towards and offset from the amount of the Contribution; or |
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| (c) after full payment is made out of the Parent Account in accordance with the forgoing clause (a) or (b), as applicable, in the event Investor otherwise owes any obligations, liabilities, fees and/or expenses to the Parent Parties or other Investors, Parent shall use the remainder of the Escrowed Amount, if any, to satisfy such obligations, liabilities, fees and/or expenses. |
| 3 | Termination; Treatment of Escrowed Amount |
| 3.1 | This Agreement may be terminated by written notice at any time prior to receipt by Parent of the Escrowed Amount: |
| (a) | by the mutual written consent of the Parties; and |
| (b) | by Parent with the written consent of the Company, if Parent has not received the Escrowed Amount on or before the Escrow Due Date. |
| 3.2 | In the event the Escrowed Amount has been funded pursuant to paragraph 1.1, this Agreement shall terminate upon the earliest to occur of (a) the full payment and application of the Escrowed Amount in accordance with Section 2.1(a) hereof, in the event that the Equity Commitment Letter is terminated pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would become due and payable pursuant to the terms of the Merger Agreement, (b) the termination of the Equity Commitment Letter pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would not become due and payable pursuant to the terms of the Merger Agreement, and (c) the termination of Investor’s participation in the transaction pursuant to the terms of the Interim Investors Agreement. Notwithstanding anything to the contrary herein and for the avoidance of doubt, this Agreement shall not be terminated without the prior written consent of the Company in the event that (i) the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement or (ii) any of Investor’s obligations under the Limited Guarantee becomes due and payable pursuant to the terms of the Limited Guarantee, and in each case the funded Escrowed Amounts have not been utilized in accordance with the terms hereof for the payment of the Parent Termination Fee or such obligations. |
| 3.3 | In the event (i) this Agreement is terminated pursuant to paragraph 3.2(b) and the Contribution under the Equity Commitment Letter is not required to be made or has otherwise been made in full without taking into account the funded Escrow Amount pursuant to the terms thereunder, or (ii) this Agreement is terminated pursuant to paragraph 3.2(c), Parent shall, after deducting and offsetting from the Escrowed Amount any obligations, liabilities, fees and/or expenses of Investor incurred and/or payable under the terms of the Equity Commitment Letter or the Interim Investors Agreement, as applicable, promptly (and in any event within 30 days of such termination) return the remainder of the Escrowed Amount to an account of the Investor designated by the Investor in writing. |
| 3.4 | The Parties hereby acknowledge, covenant and agree that, unless expressly provided for herein, Parent shall not utilize or release any Escrowed Amount from the Parent Account without the prior written consent of the Company. |
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| 4 | Governing Law; Dispute Resolution |
| 4.1 | This Agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People’s Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction |
| 4.2 | In the event of any dispute, controversy, or claim between the Parties arising out of or relating to the breach, termination or validity of this Agreement (“Dispute”), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission (“CIETAC”) under the arbitration rules of CIETAC (the “Rule”) in force when the notice of arbitration is submitted by a party. |
| 4.3 | The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule. |
| 4.4 | The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 9. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party. |
| 4.5 | The awards rendered by the arbitrators pursuant to this Section 9 shall be non-appealable, final, binding and conclusive on the parties to such Dispute. |
| 4.6 | The Parties understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision. |
| 5 | General Provisions |
| 5.1 | Each of the Parties confirms that it has received independent legal advice relating to all matters provided for in this Agreement and agrees that the provisions of this Agreement are fair and reasonable. |
| 5.2 | Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Agreement in any jurisdiction and, if any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this Agreement or any part hereof is invalid, illegal or unenforceable. |
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| 5.3 | This Agreement shall be binding on and inure for the benefit of the successors of each of the Parties, but the Parties may not assign, grant any security interest, hold on trust or otherwise transfer all or any of their rights and obligations under this Agreement (without the prior written consent of the other Parties). |
| 5.4 | This Agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered (by telecopy or otherwise) to the other Parties. |
| 5.5 | Any waiver of any right or default under this Agreement shall be effective only in the instance given and shall not operate as or imply a waiver of any other or similar right or default on any subsequent occasion. No waiver of any provision of this Agreement will be effective unless it is granted in writing and signed by the Party granting the waiver and with the prior written consent of the Company. Any delay by any Party in exercising, or failure to exercise, any right or remedy under this Agreement shall not constitute a waiver of the right or remedy (or a waiver of any other rights or remedies) and no single or partial exercise of any rights or remedy under this Agreement or otherwise shall prevent any further exercise of the right or remedy (or the exercise of any other right or remedy). |
| 5.6 | This Agreement shall not be amended, changed or modified, except by another agreement in writing executed by the Parties hereto. |
| 5.6 | The Parties hereto agree that irreparable damage would occur in the event that any provision of this Agreement were not performed in accordance with the terms hereof and that each Party shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement, in addition to any other remedy at law or equity. Each Party hereby waives (a) any defenses in any action for specific performance, including the defense that a remedy at law would be adequate and (b) any requirement under any law to post a bond or other security as a prerequisite to obtaining equitable relief. |
| 5.7 | Each Party acknowledges and agrees that (i) the Escrowed Amount is not intended to cap Investor’s liabilities under this Agreement, the Equity Commitment Letter, the Interim Investors Agreement or the Limited Guarantee, or Parent’s liability under the Merger Agreement, and (ii) Parent’s liability to Investor under this Agreement shall not exceed the Escrowed Amount. |
[Signature page follows]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
Very truly yours,
| Ruipu Wenhua (Tianjin) Investment Center (Limited Partnership) | ||
| (锐普文华 (天津) 投资中心 (有限合伙) ) | ||
| By: | /s/ Mingchen Zhang | |
| Name: Mingchen Zhang | ||
| Title: Executive Director | ||
Accepted and agreed to as of the date first written above:
|
Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: Hongyi Zhou | ||
| Title: Authorized Signatory | ||
[Signature Page to Escrow Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Escrow Agreement]
Exhibit 99.70
Execution Version
ESCROW AGREEMENT
This Escrow Agreement (this “Agreement”), dated as of December 18, 2015 (this “Agreement”), is made by and among Shanghai Trust Bridge Partners Investment Management LLC (上海挚信投资管理有限公司), a limited liability company incorporated under the laws of the PRC (“Investor”), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the PRC ("Parent"), and Qihoo 360 Technology Co. Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the "Company"). Each of Investor, Parent and the Company are referred to herein as a "Party" and together as "Parties".
Reference is hereby made to each of: (i) that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among the Company, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands("Merger Sub"); (ii) that certain limited guarantee, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Limited Guarantee") between Investor and the Company; (iii) that certain equity commitment letter, executed by Investor on the date hereof in favor of Holdco and Parent and the Company (the "Equity Commitment Letter"); and (iv) that certain Interim Investors Agreement, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Interim Investors Agreement"), by and among Holdco, Parent, Investor and certain other parties identified therein. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
In order to induce Parent to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Interim Investors Agreement and the Company to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Limited Guarantee, and in consideration of the mutual covenants and obligations hereinafter set forth, the Parties hereby agree in this Agreement as follows:
| 1 | Escrow; Representations and Warranties |
| 1.1 | No later than five (5) Business Days after the date hereof (the "Escrow Due Date"), Investor shall pay or cause to be paid to Parent, RMB17,307,000 (the "Escrowed Amount") by wire transfer of immediately available funds into an account designated by Parent (the “Parent Account”). |
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| 1.2 | Parent shall set aside the Escrowed Amount, together with the escrowed amount from other investors under the other escrow agreements dated as of the date hereof in the Parent Account as a separate pool of funds for the purposes set forth in Section 2.1, and Parent shall maintain a ledger showing the Escrowed Amount from Investor, and the escrowed amount from other investors under the other escrow agreements dated as of the date hereof individually (the “Ledger”). Within 15 Business Days after the Escrow Due Date, Parent shall provide the Company with a written notice setting forth the detailed information of the Parent Account and the Ledger. Upon request of the Company, Parent shall provide the Company with reasonable evidence with respect to the Parent Account in reasonable details, including without limitation the total balance in the Parent Account, and the Ledger, within two (2) Business Days following such request. |
| 1.3 | Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this Agreement; (b) the execution, delivery and performance of this Agreement by Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of Investor are necessary therefor; (c) this Agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by Investor of this Agreement do not and will not violate the organizational documents of Investor or any applicable Law or conflict with any material agreement binding on Investor; and (e) Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by Investor. |
| 2 | Application of the Escrowed Amount |
| 2.1 | The Parties agree that, subject to the terms of this Agreement, the Escrowed Amount shall be applied by Parent as follows: |
(a) (i) in the event the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement, the Escrowed Amount shall be used by Parent to pay the Parent Termination Fee that becomes due and payable pursuant to the terms of the Merger Agreement, and (ii) in the event that any of Investor’s obligations under the Limited Guarantee, including the payment of the Guaranteed Obligation pursuant to Section 1(a) of the Limited Guarantee and the obligation under Section 1(c) of the Limited Guarantee, becomes due and payable pursuant to the terms of the Limited Guarantee, the Escrowed Amount shall be used by Parent to pay all such obligations of Investor as arise from and under the Limited Guarantee, and in no event shall the Escrowed Amount be used for or applied towards any other purposes unless and until all the obligations under the foregoing sub-clauses (i) and (ii) have been fully satisfied;
(b) in the event Investor’s obligation to fund the Contribution under the Equity Commitment Letter becomes due pursuant to the terms thereunder, the Escrowed Amount shall be credited against, applied towards and offset from the amount of the Contribution; or
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(c) after full payment is made out of the Parent Account in accordance with the forgoing clause (a) or (b), as applicable, in the event Investor otherwise owes any obligations, liabilities, fees and/or expenses to the Parent Parties or other Investors, Parent shall use the remainder of the Escrowed Amount, if any, to satisfy such obligations, liabilities, fees and/or expenses.
| 3 | Termination; Treatment of Escrowed Amount |
| 3.1 | This Agreement may be terminated by written notice at any time prior to receipt by Parent of the Escrowed Amount: |
| (a) | by the mutual written consent of the Parties; and |
| (b) | by Parent with the written consent of the Company, if Parent has not received the Escrowed Amount on or before the Escrow Due Date. |
| 3.2 | In the event the Escrowed Amount has been funded pursuant to paragraph 1.1, this Agreement shall terminate upon the earliest to occur of (a) the full payment and application of the Escrowed Amount in accordance with Section 2.1(a) hereof, in the event that the Equity Commitment Letter is terminated pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would become due and payable pursuant to the terms of the Merger Agreement, (b) the termination of the Equity Commitment Letter pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would not become due and payable pursuant to the terms of the Merger Agreement, and (c) the termination of Investor’s participation in the transaction pursuant to the terms of the Interim Investors Agreement. Notwithstanding anything to the contrary herein and for the avoidance of doubt, this Agreement shall not be terminated without the prior written consent of the Company in the event that (i) the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement or (ii) any of Investor’s obligations under the Limited Guarantee becomes due and payable pursuant to the terms of the Limited Guarantee, and in each case the funded Escrowed Amounts have not been utilized in accordance with the terms hereof for the payment of the Parent Termination Fee or such obligations. |
| 3.3 | In the event (i) this Agreement is terminated pursuant to paragraph 3.2(b) and the Contribution under the Equity Commitment Letter is not required to be made or has otherwise been made in full without taking into account the funded Escrow Amount pursuant to the terms thereunder, or (ii) this Agreement is terminated pursuant to paragraph 3.2(c), Parent shall, after deducting and offsetting from the Escrowed Amount any obligations, liabilities, fees and/or expenses of Investor incurred and/or payable under the terms of the Equity Commitment Letter or the Interim Investors Agreement, as applicable, promptly (and in any event within 30 days of such termination) return the remainder of the Escrowed Amount to an account of the Investor designated by the Investor in writing. |
| 3.4 | The Parties hereby acknowledge, covenant and agree that, unless expressly provided for herein, Parent shall not utilize or release any Escrowed Amount from the Parent Account without the prior written consent of the Company. |
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| 4 | Governing Law; Dispute Resolution |
| 4.1 | This Agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People’s Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction |
| 4.2 | In the event of any dispute, controversy, or claim between the Parties arising out of or relating to the breach, termination or validity of this Agreement (“Dispute”), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission (“CIETAC”) under the arbitration rules of CIETAC (the “Rule”) in force when the notice of arbitration is submitted by a party. |
| 4.3 | The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule. |
| 4.4 | The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 9. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party. |
| 4.5 | The awards rendered by the arbitrators pursuant to this Section 9 shall be non-appealable, final, binding and conclusive on the parties to such Dispute. |
| 4.6 | The Parties understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision. |
| 5 | General Provisions |
| 5.1 | Each of the Parties confirms that it has received independent legal advice relating to all matters provided for in this Agreement and agrees that the provisions of this Agreement are fair and reasonable. |
| 5.2 | Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Agreement in any jurisdiction and, if any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this Agreement or any part hereof is invalid, illegal or unenforceable. |
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| 5.3 | This Agreement shall be binding on and inure for the benefit of the successors of each of the Parties, but the Parties may not assign, grant any security interest, hold on trust or otherwise transfer all or any of their rights and obligations under this Agreement (without the prior written consent of the other Parties). |
| 5.4 | This Agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered (by telecopy or otherwise) to the other Parties. |
| 5.5 | Any waiver of any right or default under this Agreement shall be effective only in the instance given and shall not operate as or imply a waiver of any other or similar right or default on any subsequent occasion. No waiver of any provision of this Agreement will be effective unless it is granted in writing and signed by the Party granting the waiver and with the prior written consent of the Company. Any delay by any Party in exercising, or failure to exercise, any right or remedy under this Agreement shall not constitute a waiver of the right or remedy (or a waiver of any other rights or remedies) and no single or partial exercise of any rights or remedy under this Agreement or otherwise shall prevent any further exercise of the right or remedy (or the exercise of any other right or remedy). |
| 5.6 | This Agreement shall not be amended, changed or modified, except by another agreement in writing executed by the Parties hereto. |
| 5.6 | The Parties hereto agree that irreparable damage would occur in the event that any provision of this Agreement were not performed in accordance with the terms hereof and that each Party shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement, in addition to any other remedy at law or equity. Each Party hereby waives (a) any defenses in any action for specific performance, including the defense that a remedy at law would be adequate and (b) any requirement under any law to post a bond or other security as a prerequisite to obtaining equitable relief. |
| 5.7 | Each Party acknowledges and agrees that (i) the Escrowed Amount is not intended to cap Investor’s liabilities under this Agreement, the Equity Commitment Letter, the Interim Investors Agreement or the Limited Guarantee, or Parent’s liability under the Merger Agreement, and (ii) Parent’s liability to Investor under this Agreement shall not exceed the Escrowed Amount. |
[Signature page follows]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
Very truly yours,
| Shanghai Trust Bridge Partners Investment Management LLC | ||
| (上海挚信投资管理有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Shujun Li | |
| Name: Shujun Li | ||
| Title: Legal Representative and Executive Director | ||
Accepted and agreed to as of the date first written above:
|
Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: Hongyi Zhou | ||
| Title: Authorized Signatory | ||
[Signature Page to Escrow Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Escrow Agreement]
Exhibit 99.71
Execution Version
ESCROW AGREEMENT
This Escrow Agreement (this “Agreement”), dated as of December 18, 2015 (this “Agreement”), is made by and among LTW Chuanfu Investment (Shenzhen) LLP (朗泰传富投资 (深圳) 合伙企业 (有限合伙) ), a limited partnership formed under the laws of the PRC (“Investor”), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the PRC ("Parent"), and Qihoo 360 Technology Co. Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the "Company"). Each of Investor, Parent and the Company are referred to herein as a "Party" and together as "Parties".
Reference is hereby made to each of: (i) that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among the Company, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands("Merger Sub"); (ii) that certain limited guarantee, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Limited Guarantee") between Investor and the Company; (iii) that certain equity commitment letter, executed by Investor on the date hereof in favor of Holdco and Parent and the Company (the "Equity Commitment Letter"); and (iv) that certain Interim Investors Agreement, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Interim Investors Agreement"), by and among Holdco, Parent, Investor and certain other parties identified therein. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
In order to induce Parent to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Interim Investors Agreement and the Company to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Limited Guarantee, and in consideration of the mutual covenants and obligations hereinafter set forth, the Parties hereby agree in this Agreement as follows:
| 1 | Escrow; Representations and Warranties |
| 1.1 | No later than five (5) Business Days after the date hereof (the "Escrow Due Date"), Investor shall pay or cause to be paid to Parent, RMB9,615,000 (the "Escrowed Amount") by wire transfer of immediately available funds into an account designated by Parent (the “Parent Account”). |
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| 1.2 | Parent shall set aside the Escrowed Amount, together with the escrowed amount from other investors under the other escrow agreements dated as of the date hereof in the Parent Account as a separate pool of funds for the purposes set forth in Section 2.1, and Parent shall maintain a ledger showing the Escrowed Amount from Investor, and the escrowed amount from other investors under the other escrow agreements dated as of the date hereof individually (the “Ledger”). Within 15 Business Days after the Escrow Due Date, Parent shall provide the Company with a written notice setting forth the detailed information of the Parent Account and the Ledger. Upon request of the Company, Parent shall provide the Company with reasonable evidence with respect to the Parent Account in reasonable details, including without limitation the total balance in the Parent Account, and the Ledger, within two (2) Business Days following such request. |
| 1.3 | Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this Agreement; (b) the execution, delivery and performance of this Agreement by Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of Investor are necessary therefor; (c) this Agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by Investor of this Agreement do not and will not violate the organizational documents of Investor or any applicable Law or conflict with any material agreement binding on Investor; and (e) Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by Investor. |
| 2 | Application of the Escrowed Amount |
| 2.1 | The Parties agree that, subject to the terms of this Agreement, the Escrowed Amount shall be applied by Parent as follows: |
| (a) (i) in the event the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement, the Escrowed Amount shall be used by Parent to pay the Parent Termination Fee that becomes due and payable pursuant to the terms of the Merger Agreement, and (ii) in the event that any of Investor’s obligations under the Limited Guarantee, including the payment of the Guaranteed Obligation pursuant to Section 1(a) of the Limited Guarantee and the obligation under Section 1(c) of the Limited Guarantee, becomes due and payable pursuant to the terms of the Limited Guarantee, the Escrowed Amount shall be used by Parent to pay all such obligations of Investor as arise from and under the Limited Guarantee, and in no event shall the Escrowed Amount be used for or applied towards any other purposes unless and until all the obligations under the foregoing sub-clauses (i) and (ii) have been fully satisfied; |
| (b) in the event Investor’s obligation to fund the Contribution under the Equity Commitment Letter becomes due pursuant to the terms thereunder, the Escrowed Amount shall be credited against, applied towards and offset from the amount of the Contribution; or |
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| (c) after full payment is made out of the Parent Account in accordance with the forgoing clause (a) or (b), as applicable, in the event Investor otherwise owes any obligations, liabilities, fees and/or expenses to the Parent Parties or other Investors, Parent shall use the remainder of the Escrowed Amount, if any, to satisfy such obligations, liabilities, fees and/or expenses. |
| 3 | Termination; Treatment of Escrowed Amount |
| 3.1 | This Agreement may be terminated by written notice at any time prior to receipt by Parent of the Escrowed Amount: |
| (a) | by the mutual written consent of the Parties; and |
| (b) | by Parent with the written consent of the Company, if Parent has not received the Escrowed Amount on or before the Escrow Due Date. |
| 3.2 | In the event the Escrowed Amount has been funded pursuant to paragraph 1.1, this Agreement shall terminate upon the earliest to occur of (a) the full payment and application of the Escrowed Amount in accordance with Section 2.1(a) hereof, in the event that the Equity Commitment Letter is terminated pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would become due and payable pursuant to the terms of the Merger Agreement, (b) the termination of the Equity Commitment Letter pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would not become due and payable pursuant to the terms of the Merger Agreement, and (c) the termination of Investor’s participation in the transaction pursuant to the terms of the Interim Investors Agreement. Notwithstanding anything to the contrary herein and for the avoidance of doubt, this Agreement shall not be terminated without the prior written consent of the Company in the event that (i) the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement or (ii) any of Investor’s obligations under the Limited Guarantee becomes due and payable pursuant to the terms of the Limited Guarantee, and in each case the funded Escrowed Amounts have not been utilized in accordance with the terms hereof for the payment of the Parent Termination Fee or such obligations. |
| 3.3 | In the event (i) this Agreement is terminated pursuant to paragraph 3.2(b) and the Contribution under the Equity Commitment Letter is not required to be made or has otherwise been made in full without taking into account the funded Escrow Amount pursuant to the terms thereunder, or (ii) this Agreement is terminated pursuant to paragraph 3.2(c), Parent shall, after deducting and offsetting from the Escrowed Amount any obligations, liabilities, fees and/or expenses of Investor incurred and/or payable under the terms of the Equity Commitment Letter or the Interim Investors Agreement, as applicable, promptly (and in any event within 30 days of such termination) return the remainder of the Escrowed Amount to an account of the Investor designated by the Investor in writing. |
| 3.4 | The Parties hereby acknowledge, covenant and agree that, unless expressly provided for herein, Parent shall not utilize or release any Escrowed Amount from the Parent Account without the prior written consent of the Company. |
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| 4 | Governing Law; Dispute Resolution |
| 4.1 | This Agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People’s Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction |
| 4.2 | In the event of any dispute, controversy, or claim between the Parties arising out of or relating to the breach, termination or validity of this Agreement (“Dispute”), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission (“CIETAC”) under the arbitration rules of CIETAC (the “Rule”) in force when the notice of arbitration is submitted by a party. |
| 4.3 | The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule. |
| 4.4 | The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 9. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party. |
| 4.5 | The awards rendered by the arbitrators pursuant to this Section 9 shall be non-appealable, final, binding and conclusive on the parties to such Dispute. |
| 4.6 | The Parties understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision. |
| 5 | General Provisions |
| 5.1 | Each of the Parties confirms that it has received independent legal advice relating to all matters provided for in this Agreement and agrees that the provisions of this Agreement are fair and reasonable. |
| 5.2 | Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Agreement in any jurisdiction and, if any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this Agreement or any part hereof is invalid, illegal or unenforceable. |
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| 5.3 | This Agreement shall be binding on and inure for the benefit of the successors of each of the Parties, but the Parties may not assign, grant any security interest, hold on trust or otherwise transfer all or any of their rights and obligations under this Agreement (without the prior written consent of the other Parties). |
| 5.4 | This Agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered (by telecopy or otherwise) to the other Parties. |
| 5.5 | Any waiver of any right or default under this Agreement shall be effective only in the instance given and shall not operate as or imply a waiver of any other or similar right or default on any subsequent occasion. No waiver of any provision of this Agreement will be effective unless it is granted in writing and signed by the Party granting the waiver and with the prior written consent of the Company. Any delay by any Party in exercising, or failure to exercise, any right or remedy under this Agreement shall not constitute a waiver of the right or remedy (or a waiver of any other rights or remedies) and no single or partial exercise of any rights or remedy under this Agreement or otherwise shall prevent any further exercise of the right or remedy (or the exercise of any other right or remedy). |
| 5.6 | This Agreement shall not be amended, changed or modified, except by another agreement in writing executed by the Parties hereto. |
| 5.6 | The Parties hereto agree that irreparable damage would occur in the event that any provision of this Agreement were not performed in accordance with the terms hereof and that each Party shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement, in addition to any other remedy at law or equity. Each Party hereby waives (a) any defenses in any action for specific performance, including the defense that a remedy at law would be adequate and (b) any requirement under any law to post a bond or other security as a prerequisite to obtaining equitable relief. |
| 5.7 | Each Party acknowledges and agrees that (i) the Escrowed Amount is not intended to cap Investor’s liabilities under this Agreement, the Equity Commitment Letter, the Interim Investors Agreement or the Limited Guarantee, or Parent’s liability under the Merger Agreement, and (ii) Parent’s liability to Investor under this Agreement shall not exceed the Escrowed Amount. |
[Signature page follows]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
Very truly yours,
| LTW Chuanfu Investment (Shenzhen) LLP | ||
| (朗泰传富投资 (深圳) 合伙企业 (有限合伙) ) | ||
| [Company chop is affixed] | ||
| By: | /s/ Chen Xueliang | |
| Name: Chen Xueliang 陈学梁 | ||
| Title: Representative of Executive Partner执行事务合伙人委派代表 | ||
Accepted and agreed to as of the date first written above:
| Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: Hongyi Zhou | ||
| Title: Authorized Signatory | ||
[Signature Page to Escrow Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Escrow Agreement]
Exhibit 99.72
Execution Version
ESCROW AGREEMENT
This Escrow Agreement (this “Agreement”), dated as of December 18, 2015 (this “Agreement”), is made by and among Zhejiang Puhua Tianqin Equity Investment Management Co., Ltd. (浙江普华天勤股权投资管理有限公司), a limited liability company incorporated under the laws of the PRC (“Investor”), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the PRC ("Parent"), and Qihoo 360 Technology Co. Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the "Company"). Each of Investor, Parent and the Company are referred to herein as a "Party" and together as "Parties".
Reference is hereby made to each of: (i) that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among the Company, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands("Merger Sub"); (ii) that certain limited guarantee, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Limited Guarantee") between Investor and the Company; (iii) that certain equity commitment letter, executed by Investor on the date hereof in favor of Holdco and Parent and the Company (the "Equity Commitment Letter"); and (iv) that certain Interim Investors Agreement, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Interim Investors Agreement"), by and among Holdco, Parent, Investor and certain other parties identified therein. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
In order to induce Parent to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Interim Investors Agreement and the Company to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Limited Guarantee, and in consideration of the mutual covenants and obligations hereinafter set forth, the Parties hereby agree in this Agreement as follows:
| 1 | Escrow; Representations and Warranties |
| 1.1 | No later than five (5) Business Days after the date hereof (the "Escrow Due Date"), Investor shall pay or cause to be paid to Parent, RMB9,615,000 (the "Escrowed Amount") by wire transfer of immediately available funds into an account designated by Parent (the “Parent Account”). |
1
| 1.2 | Parent shall set aside the Escrowed Amount, together with the escrowed amount from other investors under the other escrow agreements dated as of the date hereof in the Parent Account as a separate pool of funds for the purposes set forth in Section 2.1, and Parent shall maintain a ledger showing the Escrowed Amount from Investor, and the escrowed amount from other investors under the other escrow agreements dated as of the date hereof individually (the “Ledger”). Within 15 Business Days after the Escrow Due Date, Parent shall provide the Company with a written notice setting forth the detailed information of the Parent Account and the Ledger. Upon request of the Company, Parent shall provide the Company with reasonable evidence with respect to the Parent Account in reasonable details, including without limitation the total balance in the Parent Account, and the Ledger, within two (2) Business Days following such request. |
| 1.3 | Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this Agreement; (b) the execution, delivery and performance of this Agreement by Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of Investor are necessary therefor; (c) this Agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by Investor of this Agreement do not and will not violate the organizational documents of Investor or any applicable Law or conflict with any material agreement binding on Investor; and (e) Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by Investor. |
| 2 | Application of the Escrowed Amount |
| 2.1 | The Parties agree that, subject to the terms of this Agreement, the Escrowed Amount shall be applied by Parent as follows: |
(a) (i) in the event the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement, the Escrowed Amount shall be used by Parent to pay the Parent Termination Fee that becomes due and payable pursuant to the terms of the Merger Agreement, and (ii) in the event that any of Investor’s obligations under the Limited Guarantee, including the payment of the Guaranteed Obligation pursuant to Section 1(a) of the Limited Guarantee and the obligation under Section 1(c) of the Limited Guarantee, becomes due and payable pursuant to the terms of the Limited Guarantee, the Escrowed Amount shall be used by Parent to pay all such obligations of Investor as arise from and under the Limited Guarantee, and in no event shall the Escrowed Amount be used for or applied towards any other purposes unless and until all the obligations under the foregoing sub-clauses (i) and (ii) have been fully satisfied;
| (b) in the event Investor’s obligation to fund the Contribution under the Equity Commitment Letter becomes due pursuant to the terms thereunder, the Escrowed Amount shall be credited against, applied towards and offset from the amount of the Contribution; or |
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| (c) after full payment is made out of the Parent Account in accordance with the forgoing clause (a) or (b), as applicable, in the event Investor otherwise owes any obligations, liabilities, fees and/or expenses to the Parent Parties or other Investors, Parent shall use the remainder of the Escrowed Amount, if any, to satisfy such obligations, liabilities, fees and/or expenses. |
| 3 | Termination; Treatment of Escrowed Amount |
| 3.1 | This Agreement may be terminated by written notice at any time prior to receipt by Parent of the Escrowed Amount: |
| (a) | by the mutual written consent of the Parties; and |
| (b) | by Parent with the written consent of the Company, if Parent has not received the Escrowed Amount on or before the Escrow Due Date. |
| 3.2 | In the event the Escrowed Amount has been funded pursuant to paragraph 1.1, this Agreement shall terminate upon the earliest to occur of (a) the full payment and application of the Escrowed Amount in accordance with Section 2.1(a) hereof, in the event that the Equity Commitment Letter is terminated pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would become due and payable pursuant to the terms of the Merger Agreement, (b) the termination of the Equity Commitment Letter pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would not become due and payable pursuant to the terms of the Merger Agreement, and (c) the termination of Investor’s participation in the transaction pursuant to the terms of the Interim Investors Agreement. Notwithstanding anything to the contrary herein and for the avoidance of doubt, this Agreement shall not be terminated without the prior written consent of the Company in the event that (i) the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement or (ii) any of Investor’s obligations under the Limited Guarantee becomes due and payable pursuant to the terms of the Limited Guarantee, and in each case the funded Escrowed Amounts have not been utilized in accordance with the terms hereof for the payment of the Parent Termination Fee or such obligations. |
| 3.3 | In the event (i) this Agreement is terminated pursuant to paragraph 3.2(b) and the Contribution under the Equity Commitment Letter is not required to be made or has otherwise been made in full without taking into account the funded Escrow Amount pursuant to the terms thereunder, or (ii) this Agreement is terminated pursuant to paragraph 3.2(c), Parent shall, after deducting and offsetting from the Escrowed Amount any obligations, liabilities, fees and/or expenses of Investor incurred and/or payable under the terms of the Equity Commitment Letter or the Interim Investors Agreement, as applicable, promptly (and in any event within 30 days of such termination) return the remainder of the Escrowed Amount to an account of the Investor designated by the Investor in writing. |
| 3.4 | The Parties hereby acknowledge, covenant and agree that, unless expressly provided for herein, Parent shall not utilize or release any Escrowed Amount from the Parent Account without the prior written consent of the Company. |
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| 4 | Governing Law; Dispute Resolution |
| 4.1 | This Agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People’s Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction |
| 4.2 | In the event of any dispute, controversy, or claim between the Parties arising out of or relating to the breach, termination or validity of this Agreement (“Dispute”), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission (“CIETAC”) under the arbitration rules of CIETAC (the “Rule”) in force when the notice of arbitration is submitted by a party. |
| 4.3 | The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule. |
| 4.4 | The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 9. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party. |
| 4.5 | The awards rendered by the arbitrators pursuant to this Section 9 shall be non-appealable, final, binding and conclusive on the parties to such Dispute. |
| 4.6 | The Parties understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision. |
| 5 | General Provisions |
| 5.1 | Each of the Parties confirms that it has received independent legal advice relating to all matters provided for in this Agreement and agrees that the provisions of this Agreement are fair and reasonable. |
| 5.2 | Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Agreement in any jurisdiction and, if any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this Agreement or any part hereof is invalid, illegal or unenforceable. |
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| 5.3 | This Agreement shall be binding on and inure for the benefit of the successors of each of the Parties, but the Parties may not assign, grant any security interest, hold on trust or otherwise transfer all or any of their rights and obligations under this Agreement (without the prior written consent of the other Parties). |
| 5.4 | This Agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered (by telecopy or otherwise) to the other Parties. |
| 5.5 | Any waiver of any right or default under this Agreement shall be effective only in the instance given and shall not operate as or imply a waiver of any other or similar right or default on any subsequent occasion. No waiver of any provision of this Agreement will be effective unless it is granted in writing and signed by the Party granting the waiver and with the prior written consent of the Company. Any delay by any Party in exercising, or failure to exercise, any right or remedy under this Agreement shall not constitute a waiver of the right or remedy (or a waiver of any other rights or remedies) and no single or partial exercise of any rights or remedy under this Agreement or otherwise shall prevent any further exercise of the right or remedy (or the exercise of any other right or remedy). |
| 5.6 | This Agreement shall not be amended, changed or modified, except by another agreement in writing executed by the Parties hereto. |
| 5.6 | The Parties hereto agree that irreparable damage would occur in the event that any provision of this Agreement were not performed in accordance with the terms hereof and that each Party shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement, in addition to any other remedy at law or equity. Each Party hereby waives (a) any defenses in any action for specific performance, including the defense that a remedy at law would be adequate and (b) any requirement under any law to post a bond or other security as a prerequisite to obtaining equitable relief. |
| 5.7 | Each Party acknowledges and agrees that (i) the Escrowed Amount is not intended to cap Investor’s liabilities under this Agreement, the Equity Commitment Letter, the Interim Investors Agreement or the Limited Guarantee, or Parent’s liability under the Merger Agreement, and (ii) Parent’s liability to Investor under this Agreement shall not exceed the Escrowed Amount. |
[Signature page follows]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
Very truly yours,
| Zhejiang Puhua Tianqin Equity Investment Management Co., Ltd. | ||
| (浙江普华天勤股权投资管理有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Qinhua shen | |
| Name: Qinhua shen | ||
| Title: Legal Representative | ||
Accepted and agreed to as of the date first written above:
| Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: Hongyi Zhou | ||
| Title: Authorized Signatory | ||
[Signature Page to Escrow Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Escrow Agreement]
Exhibit 99.73
Execution Version
ESCROW AGREEMENT
This Escrow Agreement (this “Agreement”), dated as of December 18, 2015 (this “Agreement”), is made by and among Tianjin Xinxin Qiyuan Investment Limited Partnership (天津信心奇缘股权投资合伙企业) 有限合伙) ), a limited partnership formed under the laws of the PRC (“Investor”), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the PRC ("Parent"), and Qihoo 360 Technology Co. Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the "Company"). Each of Investor, Parent and the Company are referred to herein as a "Party" and together as "Parties".
Reference is hereby made to each of: (i) that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among the Company, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands("Merger Sub"); (ii) that certain limited guarantee, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Limited Guarantee") between Investor and the Company; (iii) that certain equity commitment letter, executed by Investor on the date hereof in favor of Holdco and Parent and the Company (the "Equity Commitment Letter"); and (iv) that certain Interim Investors Agreement, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Interim Investors Agreement"), by and among Holdco, Parent, Investor and certain other parties identified therein. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
In order to induce Parent to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Interim Investors Agreement and the Company to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Limited Guarantee, and in consideration of the mutual covenants and obligations hereinafter set forth, the Parties hereby agree in this Agreement as follows:
| 1 | Escrow; Representations and Warranties |
| 1.1 | No later than five (5) Business Days after the date hereof (the "Escrow Due Date"), Investor shall pay or cause to be paid to Parent, RMB105,000,000 (the "Escrowed Amount") by wire transfer of immediately available funds into an account designated by Parent (the “Parent Account”). |
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| 1.2 | Parent shall set aside the Escrowed Amount, together with the escrowed amount from other investors under the other escrow agreements dated as of the date hereof in the Parent Account as a separate pool of funds for the purposes set forth in Section 2.1, and Parent shall maintain a ledger showing the Escrowed Amount from Investor, and the escrowed amount from other investors under the other escrow agreements dated as of the date hereof individually (the “Ledger”). Within 15 Business Days after the Escrow Due Date, Parent shall provide the Company with a written notice setting forth the detailed information of the Parent Account and the Ledger. Upon request of the Company, Parent shall provide the Company with reasonable evidence with respect to the Parent Account in reasonable details, including without limitation the total balance in the Parent Account, and the Ledger, within two (2) Business Days following such request. |
| 1.3 | Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this Agreement; (b) the execution, delivery and performance of this Agreement by Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of Investor are necessary therefor; (c) this Agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by Investor of this Agreement do not and will not violate the organizational documents of Investor or any applicable Law or conflict with any material agreement binding on Investor; and (e) Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by Investor. |
| 2 | Application of the Escrowed Amount |
| 2.1 | The Parties agree that, subject to the terms of this Agreement, the Escrowed Amount shall be applied by Parent as follows: |
(a) (i) in the event the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement, the Escrowed Amount shall be used by Parent to pay the Parent Termination Fee that becomes due and payable pursuant to the terms of the Merger Agreement, and (ii) in the event that any of Investor’s obligations under the Limited Guarantee, including the payment of the Guaranteed Obligation pursuant to Section 1(a) of the Limited Guarantee and the obligation under Section 1(c) of the Limited Guarantee, becomes due and payable pursuant to the terms of the Limited Guarantee, the Escrowed Amount shall be used by Parent to pay all such obligations of Investor as arise from and under the Limited Guarantee, and in no event shall the Escrowed Amount be used for or applied towards any other purposes unless and until all the obligations under the foregoing sub-clauses (i) and (ii) have been fully satisfied;
| (b) in the event Investor’s obligation to fund the Contribution under the Equity Commitment Letter becomes due pursuant to the terms thereunder, the Escrowed Amount shall be credited against, applied towards and offset from the amount of the Contribution; or |
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| (c) after full payment is made out of the Parent Account in accordance with the forgoing clause (a) or (b), as applicable, in the event Investor otherwise owes any obligations, liabilities, fees and/or expenses to the Parent Parties or other Investors, Parent shall use the remainder of the Escrowed Amount, if any, to satisfy such obligations, liabilities, fees and/or expenses. |
| 3 | Termination; Treatment of Escrowed Amount |
| 3.1 | This Agreement may be terminated by written notice at any time prior to receipt by Parent of the Escrowed Amount: |
| (a) | by the mutual written consent of the Parties; and |
| (b) | by Parent with the written consent of the Company, if Parent has not received the Escrowed Amount on or before the Escrow Due Date. |
| 3.2 | In the event the Escrowed Amount has been funded pursuant to paragraph 1.1, this Agreement shall terminate upon the earliest to occur of (a) the full payment and application of the Escrowed Amount in accordance with Section 2.1(a) hereof, in the event that the Equity Commitment Letter is terminated pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would become due and payable pursuant to the terms of the Merger Agreement, (b) the termination of the Equity Commitment Letter pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would not become due and payable pursuant to the terms of the Merger Agreement, and (c) the termination of Investor’s participation in the transaction pursuant to the terms of the Interim Investors Agreement. Notwithstanding anything to the contrary herein and for the avoidance of doubt, this Agreement shall not be terminated without the prior written consent of the Company in the event that (i) the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement or (ii) any of Investor’s obligations under the Limited Guarantee becomes due and payable pursuant to the terms of the Limited Guarantee, and in each case the funded Escrowed Amounts have not been utilized in accordance with the terms hereof for the payment of the Parent Termination Fee or such obligations. |
| 3.3 | In the event (i) this Agreement is terminated pursuant to paragraph 3.2(b) and the Contribution under the Equity Commitment Letter is not required to be made or has otherwise been made in full without taking into account the funded Escrow Amount pursuant to the terms thereunder, or (ii) this Agreement is terminated pursuant to paragraph 3.2(c), Parent shall, after deducting and offsetting from the Escrowed Amount any obligations, liabilities, fees and/or expenses of Investor incurred and/or payable under the terms of the Equity Commitment Letter or the Interim Investors Agreement, as applicable, promptly (and in any event within 30 days of such termination) return the remainder of the Escrowed Amount to an account of the Investor designated by the Investor in writing. |
| 3.4 | The Parties hereby acknowledge, covenant and agree that, unless expressly provided for herein, Parent shall not utilize or release any Escrowed Amount from the Parent Account without the prior written consent of the Company. |
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| 4 | Governing Law; Dispute Resolution |
| 4.1 | This Agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People’s Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction |
| 4.2 | In the event of any dispute, controversy, or claim between the Parties arising out of or relating to the breach, termination or validity of this Agreement (“Dispute”), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission (“CIETAC”) under the arbitration rules of CIETAC (the “Rule”) in force when the notice of arbitration is submitted by a party. |
| 4.3 | The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule. |
| 4.4 | The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 9. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party. |
| 4.5 | The awards rendered by the arbitrators pursuant to this Section 9 shall be non-appealable, final, binding and conclusive on the parties to such Dispute. |
| 4.6 | The Parties understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision. |
| 5 | General Provisions |
| 5.1 | Each of the Parties confirms that it has received independent legal advice relating to all matters provided for in this Agreement and agrees that the provisions of this Agreement are fair and reasonable. |
| 5.2 | Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Agreement in any jurisdiction and, if any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this Agreement or any part hereof is invalid, illegal or unenforceable. |
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| 5.3 | This Agreement shall be binding on and inure for the benefit of the successors of each of the Parties, but the Parties may not assign, grant any security interest, hold on trust or otherwise transfer all or any of their rights and obligations under this Agreement (without the prior written consent of the other Parties). |
| 5.4 | This Agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered (by telecopy or otherwise) to the other Parties. |
| 5.5 | Any waiver of any right or default under this Agreement shall be effective only in the instance given and shall not operate as or imply a waiver of any other or similar right or default on any subsequent occasion. No waiver of any provision of this Agreement will be effective unless it is granted in writing and signed by the Party granting the waiver and with the prior written consent of the Company. Any delay by any Party in exercising, or failure to exercise, any right or remedy under this Agreement shall not constitute a waiver of the right or remedy (or a waiver of any other rights or remedies) and no single or partial exercise of any rights or remedy under this Agreement or otherwise shall prevent any further exercise of the right or remedy (or the exercise of any other right or remedy). |
| 5.6 | This Agreement shall not be amended, changed or modified, except by another agreement in writing executed by the Parties hereto. |
| 5.6 | The Parties hereto agree that irreparable damage would occur in the event that any provision of this Agreement were not performed in accordance with the terms hereof and that each Party shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement, in addition to any other remedy at law or equity. Each Party hereby waives (a) any defenses in any action for specific performance, including the defense that a remedy at law would be adequate and (b) any requirement under any law to post a bond or other security as a prerequisite to obtaining equitable relief. |
| 5.7 | Each Party acknowledges and agrees that (i) the Escrowed Amount is not intended to cap Investor’s liabilities under this Agreement, the Equity Commitment Letter, the Interim Investors Agreement or the Limited Guarantee, or Parent’s liability under the Merger Agreement, and (ii) Parent’s liability to Investor under this Agreement shall not exceed the Escrowed Amount. |
[Signature page follows]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
Very truly yours,
| Tianjin Xinxin Qiyuan Investment Limited Partnership | ||
| (天津信心奇缘股权投资合伙企业) 有限合伙) ) | ||
| [Company chop is affixed] | ||
| By: | /s/ Dong Jian Ming | |
| Name: DONG Jian Ming 董健明 | ||
| Title: Authorized Signatory | ||
Accepted and agreed to as of the date first written above:
| Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: Hongyi Zhou | ||
| Title: Authorized Signatory | ||
[Signature Page to Escrow Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Escrow Agreement]
Exhibit 99.74
Execution Version
ESCROW AGREEMENT
This Escrow Agreement (this “Agreement”), dated as of December 18, 2015 (this “Agreement”), is made by and among Tianjin Xinxinsheng Investment Limited Partnership (天津欣新盛股权投资合伙企业) 有限合伙 (), a limited partnership formed under the laws of the PRC (“Investor”), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the PRC ("Parent"), and Qihoo 360 Technology Co. Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the "Company"). Each of Investor, Parent and the Company are referred to herein as a "Party" and together as "Parties".
Reference is hereby made to each of: (i) that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among the Company, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands("Merger Sub"); (ii) that certain limited guarantee, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Limited Guarantee") between Investor and the Company; (iii) that certain equity commitment letter, executed by Investor on the date hereof in favor of Holdco and Parent and the Company (the "Equity Commitment Letter"); and (iv) that certain Interim Investors Agreement, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Interim Investors Agreement"), by and among Holdco, Parent, Investor and certain other parties identified therein. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
In order to induce Parent to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Interim Investors Agreement and the Company to enter into this Agreement, the Merger Agreement, the Equity Commitment Letter and the Limited Guarantee, and in consideration of the mutual covenants and obligations hereinafter set forth, the Parties hereby agree in this Agreement as follows:
| 1 | Escrow; Representations and Warranties |
| 1.1 | No later than five (5) Business Days after the date hereof (the "Escrow Due Date"), Investor shall pay or cause to be paid to Parent, RMB192,300,000 (the "Escrowed Amount") by wire transfer of immediately available funds into an account designated by Parent (the “Parent Account”). |
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| 1.2 | Parent shall set aside the Escrowed Amount, together with the escrowed amount from other investors under the other escrow agreements dated as of the date hereof in the Parent Account as a separate pool of funds for the purposes set forth in Section 2.1, and Parent shall maintain a ledger showing the Escrowed Amount from Investor, and the escrowed amount from other investors under the other escrow agreements dated as of the date hereof individually (the “Ledger”). Within 15 Business Days after the Escrow Due Date, Parent shall provide the Company with a written notice setting forth the detailed information of the Parent Account and the Ledger. Upon request of the Company, Parent shall provide the Company with reasonable evidence with respect to the Parent Account in reasonable details, including without limitation the total balance in the Parent Account, and the Ledger, within two (2) Business Days following such request. |
| 1.3 | Investor hereby represents and warrants that: (a) it has all power and authority to execute, deliver and perform this Agreement; (b) the execution, delivery and performance of this Agreement by Investor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of Investor are necessary therefor; (c) this Agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against Investor in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally); (d) the execution, delivery and performance by Investor of this Agreement do not and will not violate the organizational documents of Investor or any applicable Law or conflict with any material agreement binding on Investor; and (e) Investor has uncalled capital commitments or otherwise has available funds in excess of the sum of the Contribution and all of its other unfunded contractually binding equity commitments that are currently outstanding; and (f) no action, consent, permit, authorization by, and no notice to or filing with, any Governmental Entity is required in connection with the execution, delivery or performance of this letter agreement by Investor. |
| 2 | Application of the Escrowed Amount |
| 2.1 | The Parties agree that, subject to the terms of this Agreement, the Escrowed Amount shall be applied by Parent as follows: |
| (a) (i) in the event the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement, the Escrowed Amount shall be used by Parent to pay the Parent Termination Fee that becomes due and payable pursuant to the terms of the Merger Agreement, and (ii) in the event that any of Investor’s obligations under the Limited Guarantee, including the payment of the Guaranteed Obligation pursuant to Section 1(a) of the Limited Guarantee and the obligation under Section 1(c) of the Limited Guarantee, becomes due and payable pursuant to the terms of the Limited Guarantee, the Escrowed Amount shall be used by Parent to pay all such obligations of Investor as arise from and under the Limited Guarantee, and in no event shall the Escrowed Amount be used for or applied towards any other purposes unless and until all the obligations under the foregoing sub-clauses (i) and (ii) have been fully satisfied; |
| (b) in the event Investor’s obligation to fund the Contribution under the Equity Commitment Letter becomes due pursuant to the terms thereunder, the Escrowed Amount shall be credited against, applied towards and offset from the amount of the Contribution; or |
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| (c) after full payment is made out of the Parent Account in accordance with the forgoing clause (a) or (b), as applicable, in the event Investor otherwise owes any obligations, liabilities, fees and/or expenses to the Parent Parties or other Investors, Parent shall use the remainder of the Escrowed Amount, if any, to satisfy such obligations, liabilities, fees and/or expenses. |
| 3 | Termination; Treatment of Escrowed Amount |
| 3.1 | This Agreement may be terminated by written notice at any time prior to receipt by Parent of the Escrowed Amount: |
| (a) | by the mutual written consent of the Parties; and |
| (b) | by Parent with the written consent of the Company, if Parent has not received the Escrowed Amount on or before the Escrow Due Date. |
| 3.2 | In the event the Escrowed Amount has been funded pursuant to paragraph 1.1, this Agreement shall terminate upon the earliest to occur of (a) the full payment and application of the Escrowed Amount in accordance with Section 2.1(a) hereof, in the event that the Equity Commitment Letter is terminated pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would become due and payable pursuant to the terms of the Merger Agreement, (b) the termination of the Equity Commitment Letter pursuant to Section 6 of the Equity Commitment Letter under circumstances in which the Parent Termination Fee would not become due and payable pursuant to the terms of the Merger Agreement, and (c) the termination of Investor’s participation in the transaction pursuant to the terms of the Interim Investors Agreement. Notwithstanding anything to the contrary herein and for the avoidance of doubt, this Agreement shall not be terminated without the prior written consent of the Company in the event that (i) the Parent Termination Fee becomes due and payable pursuant to the terms of the Merger Agreement or (ii) any of Investor’s obligations under the Limited Guarantee becomes due and payable pursuant to the terms of the Limited Guarantee, and in each case the funded Escrowed Amounts have not been utilized in accordance with the terms hereof for the payment of the Parent Termination Fee or such obligations. |
| 3.3 | In the event (i) this Agreement is terminated pursuant to paragraph 3.2(b) and the Contribution under the Equity Commitment Letter is not required to be made or has otherwise been made in full without taking into account the funded Escrow Amount pursuant to the terms thereunder, or (ii) this Agreement is terminated pursuant to paragraph 3.2(c), Parent shall, after deducting and offsetting from the Escrowed Amount any obligations, liabilities, fees and/or expenses of Investor incurred and/or payable under the terms of the Equity Commitment Letter or the Interim Investors Agreement, as applicable, promptly (and in any event within 30 days of such termination) return the remainder of the Escrowed Amount to an account of the Investor designated by the Investor in writing. |
| 3.4 | The Parties hereby acknowledge, covenant and agree that, unless expressly provided for herein, Parent shall not utilize or release any Escrowed Amount from the Parent Account without the prior written consent of the Company. |
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| 4 | Governing Law; Dispute Resolution |
| 4.1 | This Agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People’s Republic of China without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction |
| 4.2 | In the event of any dispute, controversy, or claim between the Parties arising out of or relating to the breach, termination or validity of this Agreement (“Dispute”), upon request of either party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the Dispute to the other party, and as soon as practicable after the receipt of such notice, the parties, or senior management (if applicable) as the representatives of such parties shall meet and attempt to reach such resolution by good faith negotiations. If the parties are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by either party to arbitration administered by the China International Economic and Trade Arbitration Commission (“CIETAC”) under the arbitration rules of CIETAC (the “Rule”) in force when the notice of arbitration is submitted by a party. |
| 4.3 | The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule. |
| 4.4 | The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 9. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party. |
| 4.5 | The awards rendered by the arbitrators pursuant to this Section 9 shall be non-appealable, final, binding and conclusive on the parties to such Dispute. |
| 4.6 | The Parties understand and agree that this provision regarding arbitration shall not prevent any of them from pursuing injunctive relief in a judicial forum pending arbitration in order to compel the other side to comply with this provision, to preserve the status quo prior to the invocation of arbitration under this provision, or to prevent or halt actions that may result in irreparable harm. A request for an injunctive relief shall not waive this arbitration provision. |
| 5 | General Provisions |
| 5.1 | Each of the Parties confirms that it has received independent legal advice relating to all matters provided for in this Agreement and agrees that the provisions of this Agreement are fair and reasonable. |
| 5.2 | Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Agreement in any jurisdiction and, if any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable. No party hereto shall assert, and each party hereto shall cause its respective affiliates not to assert, that this Agreement or any part hereof is invalid, illegal or unenforceable. |
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| 5.3 | This Agreement shall be binding on and inure for the benefit of the successors of each of the Parties, but the Parties may not assign, grant any security interest, hold on trust or otherwise transfer all or any of their rights and obligations under this Agreement (without the prior written consent of the other Parties). |
| 5.4 | This Agreement may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered (by telecopy or otherwise) to the other Parties. |
| 5.5 | Any waiver of any right or default under this Agreement shall be effective only in the instance given and shall not operate as or imply a waiver of any other or similar right or default on any subsequent occasion. No waiver of any provision of this Agreement will be effective unless it is granted in writing and signed by the Party granting the waiver and with the prior written consent of the Company. Any delay by any Party in exercising, or failure to exercise, any right or remedy under this Agreement shall not constitute a waiver of the right or remedy (or a waiver of any other rights or remedies) and no single or partial exercise of any rights or remedy under this Agreement or otherwise shall prevent any further exercise of the right or remedy (or the exercise of any other right or remedy). |
| 5.6 | This Agreement shall not be amended, changed or modified, except by another agreement in writing executed by the Parties hereto. |
| 5.6 | The Parties hereto agree that irreparable damage would occur in the event that any provision of this Agreement were not performed in accordance with the terms hereof and that each Party shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement, in addition to any other remedy at law or equity. Each Party hereby waives (a) any defenses in any action for specific performance, including the defense that a remedy at law would be adequate and (b) any requirement under any law to post a bond or other security as a prerequisite to obtaining equitable relief. |
| 5.7 | Each Party acknowledges and agrees that (i) the Escrowed Amount is not intended to cap Investor’s liabilities under this Agreement, the Equity Commitment Letter, the Interim Investors Agreement or the Limited Guarantee, or Parent’s liability under the Merger Agreement, and (ii) Parent’s liability to Investor under this Agreement shall not exceed the Escrowed Amount. |
[Signature page follows]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
Very truly yours,
| Tianjin Xinxinsheng Investment Limited Partnership | ||
| (天津欣新盛股权投资合伙企业 ( 有限合伙 ) ) | ||
| [Company chop is affixed] | ||
| By: | /s/ Xiangdong Qi | |
| Name: Xiangdong Qi | ||
| Title: Authorized Signatory | ||
Accepted and agreed to as of the date first written above:
| Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: Hongyi Zhou | ||
| Title: Authorized Signatory | ||
[Signature Page to Escrow Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Escrow Agreement]
Exhibit 99.75
Execution Version
INTERIM INVESTORS AGREEMENT
This Interim Investors Agreement (the “Agreement”) is made as of December 18, 2015 by and among Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China (“Holdco”), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China (“Parent”), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands (“Midco”), New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands (“Merger Sub”), the Equity Investors (as defined below) and the Founder Investors (as defined below). Capitalized terms used herein but not defined shall have the meanings given to them in the Merger Agreement (as defined below).
RECITALS
WHEREAS, on the date hereof, Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the “Company”), Holdco, Parent, Midco and Merger Sub, executed an Agreement and Plan of Merger (the “Merger Agreement”) pursuant to which Merger Sub will be merged with and into the Company (the “Merger”) with the Company surviving the Merger and becoming a wholly-owned subsidiary of Midco as a result of the Merger;
WHEREAS, on the date hereof, each of the parties listed on the signature pages hereto as an “Equity Investor” (collectively, the “Equity Investors”) executed (i) a letter agreement in favor of Holdco and Parent (each, an “Equity Commitment Letter” and collectively, the “Equity Commitment Letters”), pursuant to which each of the Equity Investors has agreed, subject to the terms and conditions set forth therein, to make an equity investment (each, an “Equity Commitment,” and collectively, the “Equity Commitments”) in Holdco and Parent, prior to the Closing in connection with the Merger and (ii) an escrow agreement in favor of Parent (each, an “Escrow Agreement” and collectively, the “Escrow Agreements”), pursuant to which each of the Equity Investors has agreed, subject to the terms and conditions set forth therein, to fund the Escrowed Amount set forth therein.
WHEREAS, on the date hereof, China Merchants Bank Co., Ltd. (the “Lender”) executed a mandate letter in favor of Holdco and a mandate letter in favor of Parent (collectively, the “Debt Commitment Letters”), pursuant to which the Lender has agreed, subject to the terms and conditions set forth therein, to make available to Holdco and Parent certain credit facilities (collectively, the “Debt Commitment”) immediately prior to the Closing in connection with the Merger;
WHEREAS, each of the parties listed on the signature pages hereto as a “Founder Investor” (collectively, the “Founder Investors”, and together with the Equity Investors, the “Investors”) has agreed to, subject to the terms and conditions set forth in the Merger Agreement, the cancellation of the Founder Securities held by such Founder Investor for no consideration in the Merger (the cash-out value of such Founder Investor’s Founder Securities in the Merger if such Founder Securities were not designated as Founder Securities and were cashed out in accordance with the terms of the Merger Agreement, each a “Founder Commitment”, and the aggregate Founder Commitments and Equity Commitments, collectively the “Commitments”);
WHEREAS, on the date hereof, each of the Guarantors executed a limited guarantee in favor of the Company with respect to certain obligations of the Parent Parties under the Merger Agreement (each a “Limited Guarantee” and collectively, the “Limited Guarantees”); and
WHEREAS, the Investors, Holdco, Parent, Midco and Merger Sub wish to agree to certain terms and conditions that will govern the actions of Holdco, Parent, Midco and Merger Sub and the relationship among the Investors with respect to the Merger Agreement, the Equity Commitment Letters, the Escrow Agreements, the Debt Commitment Letters and the Limited Guarantees, and the transactions contemplated by each.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants and obligations hereinafter set forth, the parties hereto hereby agree as follows:
AGREEMENT
1. AGREEMENTS AMONG THE INVESTORS.
1.1 Actions Under the Merger Agreement.
1.1.1 Subject to Section 1.1.2 and Section 1.7 hereof, the Requisite Investors (as defined below) may cause each of the Parent Parties to take any action or refrain from taking any action in order for each of the Parent Parties to comply with its obligations, satisfy its closing conditions or exercise its rights under the Merger Agreement, including, without limitation, determining that the conditions to closing specified in Sections 7.1, 7.2 and 7.3 of the Merger Agreement (the “Closing Conditions”) have been satisfied, waiving compliance with any agreement or condition in the Merger Agreement (including any Closing Condition), amending or modifying the Merger Agreement and determining to close the Merger; provided that the Requisite Investors may not cause the Parent Parties to amend the Merger Agreement in a way that has an impact on any Investor that is different from the impact on the other Investors in a manner that is materially adverse to such Investor without such Investor’s written consent. The Parent Parties shall not, and the Investors shall not permit the Parent Parties to, determine that the Closing Conditions have been satisfied, waive compliance with any agreement or condition in the Merger Agreement (including any Closing Condition), amend or modify the Merger Agreement or determine to close the Merger unless such action has been approved in advance in writing by the Requisite Investors. Each of the Parent Parties agrees not to take any action with respect to the Merger Agreement, including granting or withholding of waivers and entering into amendments, unless such actions are in accordance with this Agreement. For the purposes of this Agreement, “Requisite Investors” shall mean Mr. Hongyi Zhou and the Equity Investors representing at least a majority of the aggregate Equity Commitments, as determined without taking into account any Failing Investor (as defined below). Notwithstanding any provision of this Agreement to the contrary, from and after the time an Investor becomes a Failing Investor, the approval or consent of such Failing Investor shall not be required for any purposes under this Agreement; provided that any Failing Investor that ultimately participates in the Merger as a result of the Closing Investors (as defined below) exercising their rights to seek specific performance hereunder or the Company exercising its specific performance right under the Merger Agreement shall no longer be deemed a “Failing Investor”, and its approval or consent rights shall be restored as of the date such previously Failing Investor funds its Commitment.
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1.1.2 Subject to Section 1.7 hereof, and notwithstanding the foregoing Section 1.1.1, the Parent Parties shall be permitted to, and the Investors shall cause the Parent Parties to, consent to, waive compliance with or permit the Company to, between the date hereof and the Effective Time, take actions otherwise prohibited by Section 6.1(a) of the Merger Agreement so long as such actions (i) have been approved by at least two members of a three-member interim committee (the “Interim Committee”) and (ii) do not result in (A) issuance of any Equity Interests of the Company in excess of 10% of the then share capital of the Company, (B) establishment or material amendment or modification of any equity incentive plan of the Company or any Company Subsidiary or (C) any carve-out sale and/or a public offering of any Equity Interests of any key Company business (including security, cloud, IOT and game). The Interim Committee shall consist of Mr. Hongyi Zhou and two other members, each of which shall be a representative of an Investor, provided that (i) (A) the Equity Commitment made by such Investor is not less than the other Investors, or (B) such Investor has strategic value to the Company; and (ii) such member is not employed by and does not provide services to any competitor of the Company.
1.2 Debt Financing. Subject to Section 1.7 hereof, Holdco and Parent shall, at the direction of the Requisite Investors, negotiate, enter into and borrow under definitive agreements relating to the Debt Commitment to be provided at the Closing; provided that Holdco and Parent shall not, and the Investors shall not permit Holdco or Parent to, enter into or borrow under any agreement in connection with the Debt Commitment on terms that are materially adverse to Holdco, Parent or the Investors compared to the terms set forth in the Debt Commitment Letters, unless such agreement or borrowing has been first approved by the Requisite Investors.
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1.3 Equity Financing. Subject to Section 1.7 hereof, Holdco and Parent shall, at the direction of the Requisite Investors, enforce the provisions of the Equity Commitment Letters in accordance with the terms of the Merger Agreement and the Equity Commitment Letters. Notwithstanding anything in any Equity Commitment Letter to the contrary, prior to the Effective Time, none of the Investors shall be entitled to assign, sell-down or syndicate any part of its Equity Commitment without the prior written consent of Mr. Zhou.
1.4 Escrow Agreements; Escrow Defaulting Investor. Parent shall, at the direction of Mr. Hongyi Zhou, enforce the provisions of the Escrow Agreements in accordance with the terms of this Agreement and the Escrow Agreements. Notwithstanding anything to the contrary in this Agreement, in the event Parent has not received within 30 days after the date hereof from any Equity Investor the Escrowed Amount under the terms of such Equity Investor’s Escrow Agreement (such Equity Investor, an “Escrow Defaulting Investor”), Mr. Hongyi Zhou may terminate the participation in the transaction of such Escrow Defaulting Investor (if so terminated, a “Terminated Defaulting Investor”); provided that (i) the Terminated Defaulting Investor shall be responsible for such Terminated Defaulting Investor’s portion (calculated as the amount of the Terminated Defaulting Investor’s Commitment to the aggregate Commitments of the Investors) of the Consortium Costs (as defined below) incurred up to the date of such termination and (ii) the Closing Investors shall be entitled to payment by the Terminated Defaulting Investor of the aggregate out-of-pocket damages incurred by such Closing Investors (including amounts paid under any such Closing Investor’s Limited Guarantee). The amount of any Terminated Defaulting Investor’s Commitment shall be offered to one or more Investors and/or one or more new investors as determined by Mr. Hongyi Zhou.
1.5 Shareholders Agreement; Appointment of Directors. Subject to Section 1.7 hereof, each Investor agrees to negotiate in good faith with the other Investors with respect to, and cause the entity through which it funds its Equity Commitment to enter into prior to the Effective Time, a Shareholders Agreement or other definitive agreements for each of Holdco and Parent, containing, in principle, the terms set forth on Exhibit A hereto so long as such definitive agreements are either (a) consistent with Exhibit A or (b) inconsistent with Exhibit A and approved by the Requisite Investors. Holdco, Parent and each Investor hereby agree to take (or cause to be taken) all actions, if any, required to be taken by each, such that the board of directors of Holdco and Parent shall have the composition contemplated by Exhibit A hereto immediately after the Effective Time.
1.6 Consummation of the Transaction. In the event that the Requisite Investors determine to close the Merger in accordance with the terms of the Merger Agreement, the Requisite Investors may terminate the participation in the transaction of any Failing Investor (as defined below); provided that such termination shall not affect the rights of the Closing Investors (as defined below) against such Failing Investor with respect to such failure to fund, which rights shall be provided in Sections 2.4 and 2.5 hereof. In the event the Failing Investor’s participation in the transaction is terminated pursuant to this Section 1.6, the amount of the Failing Investor’s Commitment shall be offered to one or more Investors and/or one or more new investors as determined by Mr. Hongyi Zhou.
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1.7 Non-Consenting Investors. Notwithstanding anything to the contrary in this Agreement, the Parent Parties shall not, and the Requisite Investors shall not permit the Parent Parties to (i) modify or amend the Merger Agreement so as to increase or modify in a manner adverse to the Parent Parties or the Investors the amount or form of the Merger Consideration (including by waiver of a breach of the Company’s representation and warranty regarding its capitalization) or increase in any way the obligations under the Limited Guarantees or the Equity Commitment Letters, (ii) modify or waive, in a manner adverse to the Parent Parties or the Investors, any provisions relating to the Parent Termination Fee or the aggregate cap on monetary damages available to the Company or (iii) materially modify the structure of the transaction contemplated by the Merger Agreement, in each case, without the consent of each Investor; provided that in the event that the Requisite Investors are willing to agree to, proceed with, or take any action or enter into any agreement (or, in each such case, to permit the Parent Parties to do so) with respect to the matters described in clauses (i) through (iii) above and any one Investor declines to agree to, proceed with, or take any action with respect to such matter (a “Non-Consenting Investor”), the Requisite Investors may nevertheless proceed with such matter by first terminating such Non-Consenting Investor’s participation in the transaction, and in such event such Non-Consenting Investor shall have no rights or liability hereunder (except as specifically provided in Section 1.9 hereof) or, if applicable, under its Equity Commitment Letter, its Limited Guarantee or its Escrow Agreement; and provided, further, that such Non-Consenting Investor shall have received a full and unconditional release of its or his obligations under this Agreement (other than the applicable provisions of Section 1.9 and Section 1.11.3 and except with respect to breaches of this Agreement by such Non-Consenting Investor occurring prior to the date of such release), and, if applicable, under its Equity Commitment Letter, its Limited Guarantee and its Escrow Agreement from Holdco, Parent, Midco, the Company, and each other Investor, or a mutually satisfactory indemnity with respect to such Non-Consenting Investor’s liabilities under this Agreement, and, if applicable, its Equity Commitment Letter, its Limited Guarantee and its Escrow Agreement. In the event the Requisite Investors terminate the Non-Consenting Investor’s participation in the transaction, the amount of the Non-Consenting Investor’s Commitment shall be offered to one or more Investors and/or one or more new investors as determined by Mr. Hongyi Zhou.
1.8 Company Termination Fee. Any Company Termination Fee paid by the Company or any of its affiliates pursuant to the Merger Agreement or otherwise, after making adequate provisions for the payment or reimbursement of Consortium Costs pursuant to Section 1.9 hereof shall be promptly paid by Parent or Merger Sub to the Investors (other than any Investor that is (i) a Terminated Defaulting Investor, (ii) a Non-Consenting Investor whose participation in the transaction has been terminated pursuant to Section 1.7 hereof or (iii) a Failing Investor at the time of termination of the Merger Agreement) or their designees in proportion of their respective Commitment to the aggregate Commitments of the Investors (other than the Terminated Defaulting Investor(s), the Non-Consenting Investor(s) and the Failing Investor(s)).
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1.9 Expense Sharing.
1.9.1 In the event the Merger is consummated, Holdco or Parent will bear all out-of pocket expenses incurred by Holdco, Parent, Midco and Merger Sub, including, without limitation, (i) the reasonable and documented fees, expenses and disbursements of financing sources, lawyers, accountants, consultants and other advisors that may have been retained by Holdco, Parent, Midco or Merger Sub (including, for the avoidance of doubt, Kirkland & Ellis International LLP, Huatai United Securities, KPMG and Fangda Partners) and (ii) any fees related to the Merger (all such fees and expenses, in the aggregate, the “Consortium Costs”). For the avoidance of doubt, (i) the Consortium Costs shall include indemnities actually paid or payable to the debt financing sources, lawyers, accountants, consultants, and other advisors who have been engaged by Holdco, Parent, Midco and/or Merger Sub with respect to the Merger and (ii) each of the Investors shall be responsible for all of its out-of-pocket costs and expenses incurred in connection with the Merger, including fees, expenses and disbursements of financing sources, lawyers, accountants, consultants and other advisors who were retained by each such Investor.
1.9.2 In the event of a termination of the Merger Agreement in which a Company Termination Fee is paid to any of the Parent Parties, the Parent Parties shall first pay all Consortium Costs from the Company Termination Fee and distribute any remaining amount of the Company Termination Fee to the Investors in accordance with Section 1.8 hereof.
1.9.3 In the event of a termination of the Merger Agreement in which no Company Termination Fee is paid to any of the Parent Parties, each Investor agrees that it will be responsible for its or his proportionate share (determined by reference to the amount of its Commitment to the aggregate Commitments of the Investors) of Consortium Costs, and any fees and expenses incurred by any Investor other than the Consortium Costs will be borne by such Investor; provided that if the Merger Agreement is terminated and the Merger is not consummated due to the action or inaction of the Failing Investors or the Terminated Defaulting Investors, such Failing Investors and Terminated Defaulting Investors shall reimburse the Closing Investors for (i) all Consortium Costs incurred by the Closing Investor(s), (ii) any payment obligations of the Parent Parties under Section 8.2(c) of the Merger Agreement, or any guarantee of the foregoing pursuant to the Limited Guarantees and (iii) any other damages or losses payable to the Company. Each Failing Investor or Terminated Defaulting Investor’s portion of the total obligations hereunder shall be the amount equal to the product of (a) the amounts due from all Failing Investors and Terminated Defaulting Investors hereunder multiplied by (b) a fraction of which the numerator is such Failing Investor’s (or Terminated Defaulting Investor’s) Commitment, as applicable, and the denominator is the sum of all Failing Investors and Terminated Defaulting Investors’ Commitments. Notwithstanding the foregoing, no Non-Consenting Investor or Terminated Defaulting Investor shall be responsible for Consortium Costs incurred after the termination of such Non-Consenting Investor’s participation in the transaction.
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1.9.4 Prior to making any payment of Consortium Costs hereunder, each Investor shall be entitled to receive and review reasonable documentation of such fees and expenses.
1.9.5 The obligations under this Section 1.9 shall exist whether or not the Merger is consummated, and shall survive the termination of the other terms of this Agreement, provided that such fees, expenses or liabilities are not paid by Holdco or Parent.
1.10 Representations and Warranties; Covenants.
1.10.1 Each party hereto represents and warrants to the other parties hereto that: (i) if such party is an entity, it has the requisite power and authority to execute, deliver and perform this Agreement, (ii) if such party is an entity, the execution, delivery and performance of this Agreement by it have been duly authorized by all necessary action on the party of such party, (iii) this Agreement has been duly executed and delivered by such Investor and constitutes a valid and binding agreement of such party enforceable in accordance with the terms hereof, and (iv) such party’s execution, delivery and performance of this Agreement will not violate: (a) if such party is a corporate entity, any provision of its organizational documents or (b) or any order, writ, injunction, decree or statute, or any rule or regulation, applicable to such party.
1.10.2 Each Investor hereto represents, warrants and covenants to the other Investors that: (i) none of the information supplied in writing by such Investor specifically for inclusion or incorporation by reference in the Proxy Statement or Schedule 13E-3 will cause a breach of the representations and warranties of Parent or Merger Sub set forth in the Merger Agreement; (ii) it has not entered into any agreement, arrangement or understanding with any other Investor, any other potential investor or group of investors or the Company with respect to the subject matter of this Agreement and the Merger Agreement, other than the agreements expressly contemplated by this Agreement (including exhibits) and the Merger Agreement.
1.10.3 Until this Agreement is terminated pursuant to Section 2.1, no Investor other than Mr. Hongyi Zhou shall enter into any agreement, arrangement or understanding or have discussions with any other potential investor or acquiror or group of investors or acquirors or the Company or any of its representatives with respect to the subject matter of this Agreement and the Merger Agreement or any other similar transaction involving the Company without the prior approval of Mr. Hongyi Zhou; provided that this Section 1.10.3 shall continue to apply to an Investor that is a Failing Investor or that is released from this Agreement pursuant to Section 1.7 for a period of one year following such failure or release.
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1.10.4 The Investors shall cooperate with each other and use (and shall cause their respective Subsidiaries and Affiliates to use) their respective reasonable best efforts to take or cause to be taken all actions and do or cause to be done all things reasonably necessary, proper or advisable on its respective part to help Holdco and Parent obtain as promptly as practicable all consents, approvals, registrations, authorizations, waivers, Permits and Orders, including the PRC Required Approvals, necessary or advisable to be obtained from any Third Party and/or Governmental Entity in order to consummate the Merger or any other transactions contemplated by the Merger Agreement.
1.11 PR Coordination. Subject to Section 6.10 of the Merger Agreement as it relates to the Parent Parties, each party hereto will coordinate in good faith any and all press releases and other public relations matters with respect to the Merger and the transactions contemplated hereby. Unless otherwise required by law or the rules of any stock exchange or regulatory authority, no party hereto may issue any press release or otherwise make any public announcement or comment on the Merger and the transactions contemplated hereby without the prior consent of the Requisite Investors.
1.12 Confidentiality. Each of the parties hereto agree that, until the second anniversary of the date hereof, none of the parties shall, and each party hereto shall cause its directors, officers, employees, advisors and other agents and representatives (all such persons, with respect to any person, such person’s “Representatives”) not to, directly or indirectly, disclose to any other person or entity (other than such party’s Representatives) any Confidential Information received from the other parties hereto, except as compelled by a court or required by law, legal process, rule or regulation (including securities rules and regulations). For purposes hereof, “Confidential Information” means any information, whether in written, oral or other form with respect to the Company, the parties hereto and the transactions contemplated under this Agreement, the Merger Agreement and other transaction agreements referenced herein and therein, provided that Confidential Information does not include any information which at the time of disclosure or thereafter is (i) generally available to or known by the public other than as a result of a disclosure by the receiving party of such information in breach of an obligation of confidentiality or (ii) lawfully available to the recipient of such information from a source other than the disclosing party or its Representatives which source is not, as far as the receiving party is aware, in breach of an obligation of confidentiality.
1.12 Initial Holdco and Parent Shareholders. (i) Each of Messr. Hongyi Zhou and Mingyi Jin, as the current shareholders of Holdco, and (ii) each of Messr. Hongyi Zhou and Xiangdong Qi, Tianjin Qirui Zhongxin Technology Partnership (limited partnership) (天津奇睿众信科技合伙企业(有限合伙)), as the current shareholders of Parent, agree to use commercially reasonable efforts to take all corporate actions reasonably necessary to cause Holdco and Parent, respectively, to give effect and comply with the matters set forth in this Agreement.
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| 2. | MISCELLANEOUS. |
2.1 Effectiveness. This Agreement shall become effective on the date hereof and shall terminate (except with respect to Sections 1.7, 1.9, 1.10, 1.11, 1.12 and 2) upon the earlier of the Effective Time of the Merger and the termination of the Merger Agreement pursuant to Article VIII thereof; provided that any liability for failure to comply with the terms of this Agreement shall survive such termination.
2.2 Amendment. This Agreement may be amended or modified and the provisions hereof may be waived, only by an agreement in writing signed by the Requisite Investors; provided that (i) no provision of this Agreement (excluding exhibits) may be amended in a manner that disproportionately, materially and adversely affects an Investor without such Investor’s consent and (ii) no provision in this Agreement that requires the consent of each Investor may be amended without a writing signed by all of the Investors.
2.3 Severability. In the event that any provision hereof would, under applicable law, be invalid or unenforceable in any respect, such provision shall be construed by modifying or limiting it so as to be valid and enforceable to the maximum extent compatible with, and possible under, applicable law. The provisions hereof are severable, and in the event any provision hereof should be held invalid or unenforceable in any respect, it shall not invalidate, render unenforceable or otherwise affect any other provision hereof.
2.4 Remedies. The parties hereto agree that, except as provided herein, this Agreement will be enforceable by all available remedies at law (including, without limitation, specific performance), provided that the Agreement may only be enforced against an Investor by Holdco, Parent, Midco or Merger Sub, acting at the direction of the Requisite Investors. In the event that (i) Holdco and Parent determine to enforce the provisions of the Equity Commitment Letters, or (ii) Holdco and Parent determine to enforce the provisions of the Debt Commitment Letter, in each case, in accordance with this Agreement, and the Requisite Investors are prepared to (x) cause the Parent Parties to consummate the Merger in accordance with this Agreement and (y) fund their Equity Commitments immediately prior to the Closing, as evidenced in writing to the other Investors (the Investors who are so prepared for each applicable action, the “Closing Investors”), but one or more Investors fails to fund its Equity Commitment or provides written notice that it will not fund its Equity Commitment, as applicable (each such Investor, a “Failing Investor”), the parties hereto agree that the Closing Investors shall be entitled to, in their discretion, either (a) specific performance of the terms of this Agreement and the Equity Commitment Letters (with respect to the remainder of the Contribution thereunder), as applicable, together with any costs of enforcement incurred by the Closing Investors in seeking to enforce such remedy or (b) payment by the Failing Investors and the Terminated Defaulting Investors in an amount equal to the aggregate out-of-pocket damages incurred by such Closing Investors (including amounts paid under any such Investor’s Limited Guarantee). If there are multiple Failing Investors and/or Terminated Defaulting Investors, each Failing Investor’s or Terminated Defaulting Investor’s portion of the total obligations hereunder shall be the amount equal to the product of (a) the amounts due from all Failing Investors and Terminated Defaulting Investors hereunder (including the value of any Founder Commitment) multiplied by (b) a fraction of which the numerator is such Failing Investor’s or Terminated Defaulting Investor’s Commitment, as applicable, and the denominator is the sum of all Failing Investors and Terminated Defaulting Investors’ Commitments. The parties hereto acknowledge and agree that Parent shall use the Escrowed Amount of any Failing Investor to help satisfy any such obligations of such Failing Investor.
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2.5 No Recourse. Notwithstanding anything that may be expressed or implied in this Agreement, and notwithstanding the fact that certain of the Investors may be partnerships or limited liability companies, Holdco, Parent, Midco, Merger Sub and each Investor covenants, agrees and acknowledges that no recourse under this Agreement or any documents or instruments delivered in connection with this Agreement shall be had against any current or future director, officer, employee, general or limited partner or member or manager of any Investor or of any partner, member, manager or affiliate thereof, as such, whether by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any statute, regulation or other applicable law, it being expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise be incurred by any current or future director, officer, employee, general or limited partner or member or manager of any Investor or of any partner, member, manager or affiliate thereof, as such, for any obligation of any Investor under this Agreement or any documents or instruments delivered in connection with this Agreement for any claim based on, in respect of or by reason of such obligations or their creation.
2.6 Governing Law; Dispute Resolution.
2.6.1 This Agreement and the obligations hereunder shall be governed by and construed in accordance with the Laws of the People’s Republic of China.
2.6.2 In the event of any dispute, controversy, or claim among the parties arising out of or relating to the breach, termination or validity of this Agreement (“Dispute”), upon request of any party, the parties shall try to settle the Dispute amicably among themselves. Relevant party may initiate such informal dispute resolution by sending written notice of the dispute to the other parties, and as soon as practicable after the receipt of such notice, appropriate senior management, as the representatives of the parties shall meet and attempt to reach such resolution by good faith negotiations. If such representatives are unable to resolve promptly such Dispute within forty-five (45) days of the receipt of such written notice, such Dispute shall be submitted by any of the parties to arbitration administered by the China International Economic and Trade Arbitration Commission (“CIETAC”) under the arbitration rules of CIETAC (the “Rule”) in force when the notice of arbitration is submitted by a party.
2.6.3 The place of arbitration shall be in Beijing. The arbitration tribunal shall consist of three arbitrators appointed in accordance with the Rule.
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2.6.4 The arbitration shall be conducted in Chinese. The arbitration tribunal shall be entitled to determine the payment to be made by the losing party and the payment to be made by a party due to its substantial incompliance of the Rule or any provision under this Section 2.6. Such payment, as determined by the arbitration tribunal in its sole discretion, may include the legal fee incurred to the winning party.
2.6.5 The awards rendered by the arbitrators pursuant to this Section 2.6 shall be non-appealable, final, binding and conclusive on the parties to such Dispute.
2.7 Exercise of Rights and Remedies. No delay of or omission in the exercise of any right, power or remedy accruing to any party as a result of any breach or default by any other party under this Agreement shall impair any such right, power or remedy, nor shall it be construed as a waiver of or acquiescence in any such breach or default, or of any similar breach or default occurring later; nor shall any such delay, omission nor waiver of any single breach or default be deemed a waiver of any other breach or default occurring before or after that waiver.
2.8 Other Agreements. This Agreement, together with the agreements referenced herein, constitutes the entire agreement, and supersedes all prior agreements, understandings, negotiations and statements, both written and oral, among the parties hereto or any of their affiliates with respect to the subject matter contained herein except for such other agreements as are references herein which shall continue in full force and effect in accordance with their terms.
2.9 Assignment. This Agreement may not be assigned by any party or by operation of law or otherwise without the prior written consent of Mr. Hongyi Zhou. Any attempted assignment in violation of this Section 2.9 shall be void.
2.10 Counterparts. This Agreement may be executed in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
[Signature pages follow]
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In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| Holdco: | ||
| TIANJIN QIXIN ZHICHENG TECHNOLOGY CO., LTD. | ||
| (天津奇信志成科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: Hongyi Zhou | ||
| Title: Authorized Signatory | ||
[Signature Page to Interim Investors Agreement]
In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| Parent: | ||
| Tianjin Qixin Tongda Technology Co., Ltd. | ||
| (天津奇信通达科技有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hongyi Zhou | |
| Name: Hongyi Zhou | ||
| Title: Authorized Signatory | ||
[Signature Page to Interim Investors Agreement]
In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| Midco: | ||
| True Thrive Limited | ||
| (诚盛有限公司) | ||
| By: | /s/ Hongyi Zhou | |
| Name: Hongyi Zhou | ||
| Title: Authorized Signatory | ||
[Signature Page to Interim Investors Agreement]
In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| Merger Sub: | ||
| New Summit Limited | ||
| (新峰有限公司) | ||
| By: | /s/ Hongyi Zhou | |
| Name: Hongyi Zhou | ||
| Title: Authorized Signatory | ||
[Signature Page to Interim Investors Agreement]
In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| Equity Investor: | ||
| CITIC GUOAN INFORMATION INDUSTRY CO., LTD. | ||
| (中信国安信息产业股份有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Sun Lu | |
| Name: Sun Lu | ||
| Title: General Manager | ||
[Signature Page to Interim Investors Agreement]
In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| Equity Investor: | ||
| Shen Zhen Ping An Real Estate Investment Co., LTD | ||
| (深圳市平安置业投资有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ MENG Shen | |
| Name: MENG Shen (孟甡) | ||
| Title: Corporate Representative | ||
[Signature Page to Interim Investors Agreement]
In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| Equity Investor: | ||
| Sunshine Life Insurance Company Ltd. | ||
| (阳光人寿保险股份有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Ke Li | |
| Name: Ke Li | ||
| Title: Legal Representative | ||
[Signature Page to Interim Investors Agreement]
In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| Equity Investor: | ||
| Taikang Life Insurance Co., Ltd. | ||
| (泰康人寿保险股份有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ CHEN Dongsheng | |
| Name: CHEN Dongsheng | ||
| Title: Chairman | ||
[Signature Page to Interim Investors Agreement]
In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| Equity Investor: | ||
| New China Capital International Management Limited | ||
| (新华资本国际管理有限公司) | ||
| By: | /s/ AN HONGJUN | |
| Name: AN HONGJUN | ||
| Title: Director | ||
[Signature Page to Interim Investors Agreement]
In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| Equity Investor: | ||
| TAI PING ASSET MANAGEMENT CO., LTD. | ||
| (太平资产管理有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Xiao Xing | |
| Name: Xiao Xing | ||
| Title: General Manager | ||
[Signature Page to Interim Investors Agreement]
In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| Equity Investor: | ||
| Jiangsu Huatai Ruilian M&A Fund (LLP) | ||
| (江苏华泰瑞联并购基金(有限合伙)) | ||
| [Company chop is affixed] | ||
| By: | /s/ Zhijie Chen | |
| Name: Zhijie Chen | ||
| Title: Authorised Representative | ||
[Signature Page to Interim Investors Agreement]
In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| Equity Investor: | ||
| Greenland Financial Holdings Group Co., LTD. | ||
| (绿地金融投资控股集团有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ GENG Jing | |
| Name: GENG Jing | ||
| Title: Chairman of the Board & President | ||
[Signature Page to Interim Investors Agreement]
In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| Equity Investor: | ||
| SIP Oriza Chongyuan M&A Fund Partnership (Limited Partnership) | ||
| (苏州工业园区元禾重元并购股权投资基金合伙企业(有限合伙)) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hao Yao | |
| Name: Hao Yao | ||
| Title: Authorized Representative of Executive Partner | ||
[Signature Page to Interim Investors Agreement]
In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| Equity Investor: | ||
| Shanghai Sailing Merger and Acquisition Investment Fund PARTNERSHIP (LIMITED PARTNERSHIP) | ||
| (上海赛领并购投资基金合伙企业(有限合伙)) | ||
| By: | /s/ Tao Fu | |
| Name: Tao Fu | ||
| Title: Authorized Representative of Managing Partner | ||
[Signature Page to Interim Investors Agreement]
In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| Equity Investor: | |||
| Shanghai Sailing Boda Equity Investment Fund PARTNERSHIP (LIMITED PARTNERSHIP) | |||
| (上海赛领博达股权投资基金合伙企业(有限合伙)) | |||
| By: | /s/ Tao Fu | ||
| Name: | Tao Fu | ||
| Title: | Authorized Representative of Managing Partner | ||
[Signature Page to Interim Investors Agreement]
In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| Equity Investor: | |||
| Fortune Fountain (Beijing) Holding Group Co., Ltd. | |||
| (沣沅弘(北京)控股集团有限公司) | |||
| [Company chop is affixed] | |||
| By: | /s/ Wong Ning Nick | ||
| Name: | Wong Ning Nick | ||
| Title: | Managing Director | ||
[Signature Page to Interim Investors Agreement]
In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| Equity Investor: | |||
| Beijing ZGC tRINITAS Venture Capital Investment Center (Limited Partnership) | |||
| (北京中关村国盛创业投资中心(有限合伙)) | |||
| [Company chop is affixed] | |||
| By: | /s/ ZHOU, CHENG | ||
| Name: | ZHOU, CHENG (周骋) | ||
| Title: | Founding Partner | ||
[Signature Page to Interim Investors Agreement]
In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| Equity Investor: | |||
| Shanghai Mango Creative Equity Investment Fund | |||
| (芒果文创(上海)股权投资基金合伙企业(有限合伙)) | |||
| [Company chop is affixed] | |||
| By: | /s/ Cai Huaijun | ||
| Name: | Cai Huaijun (蔡怀军) | ||
| Title: | Representative | ||
[Signature Page to Interim Investors Agreement]
In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| Equity Investor: | |||
| Qiancai NO.1 Equity Investment Limited Partnership Enterprise | |||
| (千采壹号(象山)股权投资合伙企业(有限合伙)) | |||
| [Company chop is affixed] | |||
| By: | /s/ Dayong Yang | ||
| Name: | Dayong Yang | ||
| Title: | Representative of The General Partner of | ||
| Qiancai NO.1 Equity Investment Limited Partnership | |||
| Enterprise (执行事务合伙人委托代表) | |||
[Signature Page to Interim Investors Agreement]
In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| Equity Investor: | |||
| Pearl River Life Insurance Co., Ltd. | |||
| (珠江人寿保险股份有限公司) | |||
| [Company chop is affixed] | |||
| By: | /s/ Guoping Hu | ||
| Name: | Guoping Hu | ||
| Title: | President | ||
[Signature Page to Interim Investors Agreement]
In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| Equity Investor: | |||
| HENGDIAN GROUP HOLDINGS LIMITED | |||
| (横店集团控股有限公司) | |||
| [Company chop is affixed] | |||
| By: | /s/ Yong’an Xu | ||
| Name: | Yong’an Xu (徐永安) | ||
| Title: | Chairman & President | ||
[Signature Page to Interim Investors Agreement]
In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| Equity Investor: | |||
| Jiangsu Gaoli Group | |||
| (江苏高力集团有限公司) | |||
| [Company chop is affixed] | |||
| By: | /s/ Shijun Gao | ||
| Name: | Shijun Gao (高仕军) | ||
| Title: | President | ||
[Signature Page to Interim Investors Agreement]
In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| Equity Investor: | |||
| Minsheng Royal Asset Management Co., Ltd. | |||
| (民生加银基金管理有限公司) | |||
| [Company chop is affixed] | |||
| By: | /s/ Zhixiang Jiang | ||
| Name: | Zhixiang Jiang | ||
| Title: | General Manager | ||
[Signature Page to Interim Investors Agreement]
In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| Equity Investor: | |||
| CCB International Capital Management(Tianjin) Ltd. | |||
| (建银国际资本管理(天津)有限公司) | |||
| [Company chop is affixed] | |||
| By: | /s/ Cheng Jing Dong | ||
| Name: | Cheng Jing Dong | ||
| Title: | General Manager | ||
[Signature Page to Interim Investors Agreement]
In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| Equity Investor: | |||
| China Merchants Wealth Asset Management Co., Ltd. | |||
| (招商财富资产管理有限公司) | |||
| [Company chop is affixed] | |||
| By: | /s/ Shengzhang Zhao | ||
| Name: | Shengzhang Zhao | ||
| Title: | Legal Representative and General Manager | ||
[Signature Page to Interim Investors Agreement]
In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| Equity Investor: | |||
| Huarong Ruize Investment Management Co., Ltd. | |||
| (华融瑞泽投资管理有限公司) | |||
| [Company chop is affixed] | |||
| By: | /s/ Xiaomao Yuan | ||
| Name: | Xiaomao Yuan | ||
| Title: | General Manager | ||
[Signature Page to Interim Investors Agreement]
In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| Equity Investor: | |||
| Beijing Sequoia Yi Yuan Equity Investment Center (Limited Partnership) | |||
| (北京红杉懿远股权投资中心(有限合伙)) | |||
| [Company chop is affixed] | |||
| By: | /s/ Kui Zhou | ||
| Name: | Kui Zhou | ||
| Title: | Authorized Representative of Executive Partner | ||
[Signature Page to Interim Investors Agreement]
In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| Equity Investor: | |||
| Golden Brick Silk Road Investment (Shenzhen) LLP | |||
| (金砖丝路(深圳)股权投资合伙企业(有限合伙)) | |||
| [Company chop is affixed] | |||
| By: | /s/ Yuping He | ||
| Name: | Yuping He | ||
| Title: | COO | ||
| GOLDEN BRICK SILK ROAD CAPITAL (SHENZHEN) HOLDING LIMITED | |||
| (金砖资本控股有限公司(深圳)有限公司) | |||
| [Company chop is affixed] | |||
| By: | /s/ Shunxi Yue | ||
| Name: | Shunxi Yue | ||
[Signature Page to Interim Investors Agreement]
In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| Equity Investor: | |||
| CICC Jiatai (Tianjin) Equity Investment Fund, L.P | |||
| (中金佳泰(天津)股权投资基金合伙企业(有限合伙)) | |||
| [Company chop is affixed] | |||
| By: | /s/ ZHANG QING | ||
| Name: | 张清ZHANG QING | ||
| Title: | Authorized Representative | ||
[Signature Page to Interim Investors Agreement]
In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| Equity Investor: | |||
| Shanghai Huasheng Lingfei Equity Investment (Limited Partnership) | |||
| (上海华晟领飞股权投资合伙企业(有限合伙)) | |||
| [Company chop is affixed] | |||
| By: | /s/ Xinwei Wang | ||
| Name: | Xinwei Wang | ||
| Title: | Authorized Representative of Executive Partner | ||
[Signature Page to Interim Investors Agreement]
In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| Equity Investor: | |||
| BR Wiston Capital | |||
| (宁波博睿维森股权投资合伙企业(有限合伙)) | |||
| [Company chop is affixed] | |||
| By: | /s/ Sun Peng | ||
| Name: | Sun Peng 孙鹏 | ||
| Title: | 执行事务合伙人委派代表 | ||
[Signature Page to Interim Investors Agreement]
In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| Equity Investor: | |||
| Yi Capital Qiyuan Fund, L.P. | |||
| (宁波执一奇元股权投资中心(有限合伙)) | |||
| [Company chop is affixed] | |||
| By: | /s/ Wenjiang Chen | ||
| Name: | Wenjiang Chen 陈文江 | ||
| Title: | Representative of the General Partner of Yi | ||
| Capital Qiyuan Fund, L.P. (执行事务合伙人委派代表) | |||
[Signature Page to Interim Investors Agreement]
In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| Equity Investor: | |||
| Jiaxingyingfei Investment Center (Limited Partnership) | |||
| (嘉兴英飞投资中心(有限合伙)) | |||
| [Company chop is affixed] | |||
| By: | /s/ Xiuzhen Wang | ||
| Name: | Xiuzhen Wang | ||
| Title: | Managing Partner 执行事务合伙人 | ||
[Signature Page to Interim Investors Agreement]
In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| Equity Investor: | |||
| Jiaxing Yun Qi Internet Plus Venture Partners LLP | |||
| (嘉兴云启网加创业投资合伙企业(有限合伙)) | |||
| [Company chop is affixed] | |||
| By: | /s/ MAO Chengyu | ||
| Name: | MAO Chengyu (毛丞宇) | ||
| Title: | Authorized Signatory | ||
[Signature Page to Interim Investors Agreement]
In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| Equity Investor: | |||
| Ruipu Wenhua (Tianjin) Investment Center (Limited Partnership) | |||
| (锐普文华(天津)投资中心(有限合伙)) | |||
| By: | /s/ Mingchen Zhang | ||
| Name: | Mingchen Zhang | ||
| Title: | Executive Director | ||
[Signature Page to Interim Investors Agreement]
In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| Equity Investor: | |||
| Shanghai Trust Bridge Partners Investment Management LLC | |||
| (上海挚信投资管理有限公司) | |||
| [Company chop is affixed] | |||
| By: | /s/ Shujun Li | ||
| Name: | Shujun Li | ||
| Title: | Legal Representative and Executive Director | ||
[Signature Page to Interim Investors Agreement]
In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| Equity Investor: | |||
| LTW Chuanfu Investment (Shenzhen) LLP | |||
| (朗泰传富投资(深圳)合伙企业(有限合伙)) | |||
| [Company chop is affixed] | |||
| By: | /s/ Chen Xueliang | ||
| Name: | Chen Xueliang 陈学梁 | ||
| Title: | Representative of Executive Partner | ||
| 执行事务合伙人委派代表 | |||
[Signature Page to Interim Investors Agreement]
In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| Equity Investor: | |||
| Zhejiang Puhua Tianqin Equity Investment Management Co., LTD | |||
| (浙江普华天勤股权投资管理有限公司) | |||
| [Company chop is affixed] | |||
| By: | /s/ Qinhua Shen | ||
| Name: | Qinhua Shen | ||
| Title: | Legal Representative | ||
[Signature Page to Interim Investors Agreement]
In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| Equity Investor: | |||
| Tianjin Xinxin Qiyuan Investment Limited Partnership | |||
| (天津信心奇缘股权投资合伙企业(有限合伙)) | |||
| [Company chop is affixed] | |||
| By: | /s/ DONG Jian Ming | ||
| Name: | DONG Jian Ming 董健明 | ||
| Title: | Authorized Signatory | ||
[Signature Page to Interim Investors Agreement]
In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| Equity Investor: | |||
| Tianjin Xinxinsheng Investment Limited Partnership | |||
| (天津欣新盛股权投资合伙企业(有限合伙)) | |||
| [Company chop is affixed] | |||
| By: | /s/ Xiangdong Qi | ||
| Name: | Xiangdong Qi | ||
| Title: | Authorized Signatory | ||
[Signature Page to Interim Investors Agreement]
In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| Founder Investor: | |||
| GLOBAL VILLAGE ASSOCIATES LIMITED | |||
| By: | /s/ Hongyi Zhou | ||
| Name: | Hongyi Zhou | ||
| Title: | Authorized Signatory | ||
[Signature Page to Interim Investors Agreement]
In witness whereof, each of the undersigned has duly executed this Agreement as of the date first written above.
| Founder Investor: | |||
| YOUNG VISION GROUP LIMITED | |||
| By: | /s/ Xiangdong Qi | ||
| Name: | Xiangdong Qi | ||
| Title: | Authorized Signatory | ||
[Signature Page to Interim Investors Agreement]
Exhibit A
Shareholders Agreement Term Sheet
Exhibit 99.76
Execution Version
LIMITED GUARANTEE
This Limited Guarantee, dated as of December 18, 2015 (this "Limited Guarantee"), is made by CITIC Guoan Information Industry Co., Ltd. (中信国安信息产业股份有限公司), a limited liability company incorporated under the laws of the People’s Republic of China (including its successors and permitted assigns, the "Guarantor"), in favor of Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Guaranteed Party"). Reference is hereby made to the Agreement and Plan of Merger, dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), and the Guaranteed Party. Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Merger Agreement.
1. Limited Guarantee.
(a) To induce the Guaranteed Party to enter into the Merger Agreement, the Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, subject to the terms and conditions hereof, the due and punctual payment and performance when due of 4.95% of the Parent Parties' obligation (the "Guaranteed Obligation") to pay to the Guaranteed Party (i) the Parent Termination Fee if and when required pursuant to Section 8.2(c) of the Merger Agreement, and (ii) the payment obligations of the Parent Parties pursuant to Section 6.6 of the Merger Agreement; provided that the maximum aggregate liability of the Guarantor hereunder shall not exceed US$22,293,445 (the "Maximum Amount").
(b) The Guaranteed Party hereby agrees that (a) the Guarantor shall in no event be required to pay more than the Maximum Amount under or in respect of this Guarantee and (b) the Guarantor shall not have any obligation or liability to any Person (including, without limitation, to the Guaranteed Party's equity holders, Affiliates and/or subsidiaries) relating to, arising out of or in connection with this Limited Guarantee, the Merger Agreement, or the Equity Commitment Letter (as defined below) other than as expressly set forth herein or in the Equity Commitment Letter or the Escrow Agreement (as defined in the Equity Commitment Letter).
(c) The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by the Guaranteed Party in connection with the enforcement of its rights hereunder and under the Merger Agreement, including, without limitation, in the event that (i) the Guarantor asserts in any arbitration, litigation or other proceeding that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms and the Guaranteed Party prevails in such arbitration, litigation or other proceeding, or (ii) the Guarantor fails or refuses to make any payment to the Guaranteed Party hereunder when due and payable and it is determined judicially or by arbitration that the Guarantor is required to make such payment hereunder.
(d) The Guarantor promises and undertakes to make all payments hereunder free and clear of any deduction, offset, defense, claim or counterclaim of any kind. If the Parent Parties fail to pay or cause to be paid the Guaranteed Obligation as and when due and payable pursuant to Section 8.2(c) of the Merger Agreement, as applicable, then the Guarantor's liabilities to the Guaranteed Party hereunder in respect of such Guaranteed Obligation shall become immediately due and payable and the Guaranteed Party may at any time and from time to time, at the Guaranteed Party's option, and so long as the Parent Parties remain in breach of its Guaranteed Obligation, take any and all actions available hereunder or under applicable Law to collect the Guaranteed Obligation from the Guarantor subject to the Maximum Amount as applicable.
2. Terms of Limited Guarantee.
(a) This Limited Guarantee is a primary and original obligation of the Guarantor and is one of payment, not collection, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against any Parent Party or any other Person or whether any Parent Party or any other Person is joined in any such action or actions. Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantor under this Limited Guarantee and of the other guarantors under the other Limited Guarantees dated as of the date hereof ("Other Guarantors") shall be several and not joint.
(b) The liability of the Guarantor under this Limited Guarantee shall, to the fullest extent permitted under applicable law, be absolute, irrevocable and unconditional, irrespective of:
(i) the value, genuineness, validity, illegality or enforceability of the Merger Agreement or the letter agreement dated as of the date hereof between the Guarantor, on the one hand, and Holdco and Parent, on the other hand, pursuant to which the Guarantor has agreed to make a certain equity contribution to Holdco and Parent (the "Equity Commitment Letter") or any other agreement or instrument referred to herein or therein;
(ii) any change in the corporate existence, structure or ownership of any Parent Party or any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting any Parent Party, any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor) or any of their respective assets;
(iii) any amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof;
- 2 -
(iv) the existence of any claim, set-off or other right that the Guarantor may have at any time against any Parent Party or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise;
(v) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against any Parent Party or the Guarantor or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation (other than as and if required by Section 2(a));
(vi) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of the Guaranteed Obligation;
(vii) any other act or omission that may in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment in full of the Guaranteed Obligation in accordance with their terms); or
(viii) the addition, substitution, discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Guaranteed Obligation as a result of payment in full of the Guaranteed Obligation in accordance with their terms) of any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor),
other than in each case with respect to (A) defenses to the payment of the Guaranteed Obligation that are available to any Parent Party under the Merger Agreement or (B) breach by the Guaranteed Party of this Limited Guarantee, including, without limitation, the limitations set forth in Section 3 below), and, notwithstanding any other provision of this Limited Guarantee to the contrary, the Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that any Parent Party could assert against the Company under the terms of, or with respect to, the Merger Agreement that would relieve each of the Parent Parties of its obligations under the Merger Agreement.
(c) To the fullest extent permitted by applicable law, the Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of the Guaranteed Obligation and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligation shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between the Parent Parties and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under no obligation to pursue such rights and remedies it may have against the Parent Parties or any other Person for the Guaranteed Obligation or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue such other rights or remedies or to collect any payments from the Parent Parties or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of the Parent Parties or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guaranteed Party.
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(d) To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, acceptance hereof, presentment, demand for payment, notice of non-performance, default, dishonor and protest, any notice not provided for herein, all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of any Parent Party or any other person interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligation that are available to the Parent Parties under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated under the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits.
(e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that the Parent Parties become subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantor's obligation hereunder. In the event that any payment to the Guaranteed Party in respect of the Guaranteed Obligation is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to the Guaranteed Obligation as if such payment had not been made so long as this Limited Guarantee has not terminated in accordance with its terms.
3. Sole Remedy; No Recourse. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party further agrees that neither it nor any other Person (including, without limitation, the Guaranteed Party's equityholders, Affiliates and subsidiaries) has any right of recovery against, and no personal liability shall attach to, the Guarantor, any former, current or future, director, officer, employee, agent or Affiliate of the Guarantor, any former, current or future, direct or indirect holder of any equity interests or securities of the Guarantor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or representative any of the foregoing (each such Person, a "Related Person"), through any Parent Party or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of any Parent Party against the Guarantor or any Related Person (except for any claim to compel Holdco and/or Parent to enforce the Equity Commitment Letter in accordance with the terms thereof), or otherwise, except for its rights against the Guarantor under this Limited Guarantee and the Escrow Agreement. Recourse against the Guarantor under this Limited Guarantee and the Escrow Agreement and the Guaranteed Party's rights under the Equity Commitment Letter shall be the sole and exclusive remedy of (i) the Guaranteed Party and (ii) all of the Guaranteed Party's equityholders, Affiliates and subsidiaries against the Guarantor and any Related Person (other than the Parent Parties and their respective successors and assigns) in respect of any liabilities or obligations arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby, including by piercing the corporate, limited liability company or limited partnership veil or by a claim by or on behalf of any Parent Party. The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Affiliates and subsidiaries not to institute, any proceeding or bring any other claim arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby (or the failure of such to be consummated), against the Guarantor or any Related Person, except for (A) claims of the Guaranteed Party against the Guarantor under and in accordance with this Limited Guarantee and the Escrow Agreement, (B) claims of the Guaranteed Party against the Parent Parties (and their respective successors and assigns) under and in accordance with the Merger Agreement and the Escrow Agreement, and (C) the exercise of the Guaranteed Party's rights under and in accordance with the Equity Commitment Letter, and the Guaranteed Party hereby, on behalf of itself and its Affiliates and subsidiaries, waives any and all claims arising under, or in connection with, the Merger Agreement, this Limited Guarantee, the Equity Commitment Letter, the Escrow Agreement or, in each case, the transactions contemplated hereby or thereby against the Guarantor or any Related Person and releases such Persons from such claims, in each case, except for claims described in clauses (A), (B) and (C) of this sentence (each, a "Permitted Claim"). Nothing set forth in this Limited Guarantee shall confer or give or shall be construed to confer or give to any Person (including any Person acting in a representative capacity) other than the Guaranteed Party any rights or remedies against any Person, including the Guarantor, except as expressly set forth herein.
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4. Subrogation. The Guarantor will not exercise against any Parent Party any rights of subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by reason of any payment by it pursuant to the provisions of Section 1 hereof unless and until the Guaranteed Obligation and all other amounts payable under this Limited Guarantee have been paid in full.
5. Termination. This Limited Guarantee shall terminate (and the Guarantor shall have no further obligations hereunder) upon the earliest to occur of (a) the Effective Time, (b) the payment in full of the Guaranteed Obligation and the obligation under Section 1(c), (c) the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would not be required pursuant to the terms and subject to the conditions of the Merger Agreement to make any payment of any Guaranteed Obligation; and (d) six months after the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would be required pursuant to the terms and subject to the conditions of the Merger Agreement to make a payment of the Guaranteed Obligation, unless by the end of such six-month period, the Guaranteed Party shall have initiated a claim or proceeding in accordance with the terms of the Merger Agreement for payment of any of the Guaranteed Obligations; provided that if the Guaranteed Party has initiated a claim or proceeding by the end of such six-month period, this Limited Guarantee shall terminate upon the date such claim or proceeding is finally satisfied or otherwise resolved by agreement of the parties hereto or pursuant to Section 12. In the event that the Guaranteed Party or any of its Affiliates or subsidiaries asserts in any litigation or other proceeding relating to this Limited Guarantee or the Merger Agreement (i) that the provisions hereof (including, without limitation, Section 1 hereof limiting the Guarantor's aggregate liability to the Maximum Amount or Section 3 hereof relating to the sole and exclusive remedies of the Guaranteed Party and its equityholders, Affiliates and subsidiaries against the Guarantor or any Related Person) are illegal, invalid or unenforceable, in whole or in part, or (ii) any theory of liability against the Guarantor or any Related Person or any other Guarantor under the other Limited Guarantees dated as of the date hereof or any Related Person of any such other Guarantor with respect to the transactions contemplated by this Limited Guarantee, the Equity Commitment Letter or the Merger Agreement other than any Permitted Claim, then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and be null and void, (y) if the Guarantor has previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments from the Guaranteed Party and (z) neither the Guarantor nor any Related Person (other than the Parent Parties and their respective successors and assigns) shall have any liability to the Guaranteed Party or any of its equityholders, Affiliates or subsidiaries with respect to the Merger Agreement or the transactions contemplated by the Merger Agreement or this Limited Guarantee.
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6. Continuing Guarantee. Except to the extent terminated pursuant to the provisions of Section 5 hereof, this Limited Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed Obligation and the obligation under Section 1(c), shall be binding upon the Guarantor, its successors and assigns, and shall inure to the benefit of, and be enforceable by, the Guaranteed Party and its successors, permitted transferees and permitted assigns; provided that notwithstanding anything to the contrary in this Limited Guarantee, the provisions of this Limited Guarantee that are for the benefit of any Related Person (including the provisions of Sections 3 and 5) shall indefinitely survive any termination of this Limited Guarantee for the benefit of the Guarantor and any Related Persons. All obligation to which this Limited Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
7. Entire Agreement. This Limited Guarantee, the Merger Agreement, the Equity Commitment Letter and the Escrow Agreement constitute the entire agreement with respect to the subject matter hereof, and supersede all other prior agreements and understandings, both written and oral, among the Parent Parties and/or the Guarantor or any of their respective Affiliates, on the one hand, and the Guaranteed Party or any of its Affiliates, on the other hand, regarding the subject matter hereof.
8. Amendments and Waivers. Any provision of this Limited Guarantee may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Guarantor and the Guaranteed Party or, in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by any party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
9. Counterparts. This Limited Guarantee may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
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10. Notices. All notices, requests, claims, demands and other communications hereunder shall be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressee's location on any Business Day after 5:00 p.m. (addressee's local time) shall be deemed to have been received at 9:00 a.m. (addressee's local time) on the next Business Day), by reliable international overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:
if to the Guarantor:
CITIC Guoan Information Industry Co., Ltd.
(中信国安信息产业股份有限公司)
Room 208-1,Winland International Finance Center
No.7, Financial Street
Xicheng District
Beijing 100033 China
Facsimile: 0101-58332388
Attention: Xiaojun Wang
with copies to:
Kirkland & Ellis
26th Floor, Glouster Tower, The Landmark
15 Queen's Road Central
Hong Kong
Facsimile: +852-3761-3301
Attention: David Zhang and Jesse Sheley
If to the Guaranteed Party, as provided in Section 9.2 of the Merger Agreement.
11. Governing Law. This Limited Guarantee (except for the arbitration agreement in Section 12) shall be governed by and construed in accordance with the Laws of the State of New York without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
12. Jurisdiction; Waiver of Service of Process.
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(a) Jurisdiction. In the event any dispute arises among the parties hereto out of or in relation to this Limited Guarantee, including any dispute regarding its existence, interpretation, performance, breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly consultations within thirty (30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions of this Section 12. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre ("HKIAC") Administered Rules in force when a notice of arbitration is submitted. The seat and venue of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The law of the arbitration agreement shall be Hong Kong law. The appointing authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number, and one arbitrator shall be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from nominating their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within 30 days after such two arbitrators have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any person necessary for the conduct of the arbitration, unless otherwise required by Law or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and any interim or final award, as well as the fact that an arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after the submission of any dispute to arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter agreement, except insofar as the same may relate directly to the matters in dispute. The parties hereby agree that any arbitration award rendered in accordance with the provisions of this Section 12 shall be final and binding upon them, and the parties further agree that such award may be enforced by any court having jurisdiction over the party against which the award has been rendered or the assets of such party wherever the same may be located. In any arbitration proceeding, any legal proceeding to enforce any arbitration award and in any other legal proceeding among the Parties pursuant to or relating to this Agreement, each Party expressly waives the defense of sovereign immunity and any other defense based on the fact or allegation that it is an agency or instrumentality of a sovereign state or is otherwise entitled to immunity.
13. Representations and Warranties. The Guarantor hereby represents and warrants to the Guaranteed Party that:
(a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization;
(b) it has all necessary power and authority to execute, deliver and perform this Limited Guarantee;
(c) the execution, delivery and performance of this Limited Guarantee by the Guarantor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Guarantor are necessary therefor;
(d) all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Limited Guarantee by the Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution, delivery or performance of this Limited Guarantee;
(e) this Limited Guarantee has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the undersigned in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law));
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(f) the execution, delivery and performance by the undersigned of this Limited Guarantee do not and will not violate the organizational documents of the undersigned or violate any applicable law, regulation, rule, decree, order, judgment or contractual restriction binding on the Guarantor or its assets or properties; and
(g) it has the financial capacity to pay and perform its obligations under this Limited Guarantee, and all funds necessary for the Guarantor to fulfill its obligations under this Limited Guarantee shall be available to the Guarantor for so long as this Limited Guarantee shall remain in effect in accordance with Section 6.
14. No Assignment. Neither this Limited Guarantee nor any of the rights, interests or obligations hereunder shall be assignable without the prior written consent of the Guaranteed Party (in the case of an assignment by the Guarantor) or the Guarantor (in the case of an assignment by the Guaranteed Party).
15. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LIMITED GUARANTEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 15.
16. Severability. Any term or provision of this Limited Guarantee which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Limited Guarantee in any jurisdiction and, if any provision of this Limited Guarantee is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Maximum Amount provided in Section 1 hereof and to the provisions of Sections 3 and 5 hereof. No party hereto shall assert, and each party shall cause its respective Affiliates and subsidiaries not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.
17. Headings. Headings of the Sections of this Limited Guarantee are for convenience only and shall be given no substantive or interpretive effect whatsoever.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| CITIC Guoan Information Industry Co., Ltd. | ||
| (中信国安信息产业股份有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Sun Lu | |
| Name: Sun Lu | ||
| Title: General Manager | ||
[Signature Page to Limited Guarantee]
IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Limited Guarantee]
Exhibit 99.77
Execution Version
LIMITED GUARANTEE
This Limited Guarantee, dated as of December 18, 2015 (this "Limited Guarantee"), is made by Shen Zhen Ping An Real Estate Investment Co., Ltd. (深圳市平安置业投资有限公司), a limited liability company incorporated under the laws of the People’s Republic of China (including its successors and permitted assigns, the "Guarantor"), in favor of Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Guaranteed Party"). Reference is hereby made to the Agreement and Plan of Merger, dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), and the Guaranteed Party. Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Merger Agreement.
1. Limited Guarantee.
(a) To induce the Guaranteed Party to enter into the Merger Agreement, the Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, subject to the terms and conditions hereof, the due and punctual payment and performance when due of 3.96% of the Parent Parties' obligation (the "Guaranteed Obligation") to pay to the Guaranteed Party (i) the Parent Termination Fee if and when required pursuant to Section 8.2(c) of the Merger Agreement, and (ii) the payment obligations of the Parent Parties pursuant to Section 6.6 of the Merger Agreement; provided that the maximum aggregate liability of the Guarantor hereunder shall not exceed US$17,834,756(the "Maximum Amount").
(b) The Guaranteed Party hereby agrees that (a) the Guarantor shall in no event be required to pay more than the Maximum Amount under or in respect of this Guarantee and (b) the Guarantor shall not have any obligation or liability to any Person (including, without limitation, to the Guaranteed Party's equity holders, Affiliates and/or subsidiaries) relating to, arising out of or in connection with this Limited Guarantee, the Merger Agreement, or the Equity Commitment Letter (as defined below) other than as expressly set forth herein or in the Equity Commitment Letter or the Escrow Agreement (as defined in the Equity Commitment Letter).
(c) The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by the Guaranteed Party in connection with the enforcement of its rights hereunder and under the Merger Agreement, including, without limitation, in the event that (i) the Guarantor asserts in any arbitration, litigation or other proceeding that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms and the Guaranteed Party prevails in such arbitration, litigation or other proceeding, or (ii) the Guarantor fails or refuses to make any payment to the Guaranteed Party hereunder when due and payable and it is determined judicially or by arbitration that the Guarantor is required to make such payment hereunder.
(d) The Guarantor promises and undertakes to make all payments hereunder free and clear of any deduction, offset, defense, claim or counterclaim of any kind. If the Parent Parties fail to pay or cause to be paid the Guaranteed Obligation as and when due and payable pursuant to Section 8.2(c) of the Merger Agreement, as applicable, then the Guarantor's liabilities to the Guaranteed Party hereunder in respect of such Guaranteed Obligation shall become immediately due and payable and the Guaranteed Party may at any time and from time to time, at the Guaranteed Party's option, and so long as the Parent Parties remain in breach of its Guaranteed Obligation, take any and all actions available hereunder or under applicable Law to collect the Guaranteed Obligation from the Guarantor subject to the Maximum Amount as applicable.
2. Terms of Limited Guarantee.
(a) This Limited Guarantee is a primary and original obligation of the Guarantor and is one of payment, not collection, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against any Parent Party or any other Person or whether any Parent Party or any other Person is joined in any such action or actions. Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantor under this Limited Guarantee and of the other guarantors under the other Limited Guarantees dated as of the date hereof ("Other Guarantors") shall be several and not joint.
(b) The liability of the Guarantor under this Limited Guarantee shall, to the fullest extent permitted under applicable law, be absolute, irrevocable and unconditional, irrespective of:
(i) the value, genuineness, validity, illegality or enforceability of the Merger Agreement or the letter agreement dated as of the date hereof between the Guarantor, on the one hand, and Holdco and Parent, on the other hand, pursuant to which the Guarantor has agreed to make a certain equity contribution to Holdco and Parent (the "Equity Commitment Letter") or any other agreement or instrument referred to herein or therein;
(ii) any change in the corporate existence, structure or ownership of any Parent Party or any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting any Parent Party, any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor) or any of their respective assets;
(iii) any amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof;
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(iv) the existence of any claim, set-off or other right that the Guarantor may have at any time against any Parent Party or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise;
(v) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against any Parent Party or the Guarantor or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation (other than as and if required by Section 2(a));
(vi) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of the Guaranteed Obligation;
(vii) any other act or omission that may in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment in full of the Guaranteed Obligation in accordance with their terms); or
(viii) the addition, substitution, discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Guaranteed Obligation as a result of payment in full of the Guaranteed Obligation in accordance with their terms) of any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor),
other than in each case with respect to (A) defenses to the payment of the Guaranteed Obligation that are available to any Parent Party under the Merger Agreement or (B) breach by the Guaranteed Party of this Limited Guarantee, including, without limitation, the limitations set forth in Section 3 below), and, notwithstanding any other provision of this Limited Guarantee to the contrary, the Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that any Parent Party could assert against the Company under the terms of, or with respect to, the Merger Agreement that would relieve each of the Parent Parties of its obligations under the Merger Agreement.
(c) To the fullest extent permitted by applicable law, the Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of the Guaranteed Obligation and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligation shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between the Parent Parties and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under no obligation to pursue such rights and remedies it may have against the Parent Parties or any other Person for the Guaranteed Obligation or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue such other rights or remedies or to collect any payments from the Parent Parties or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of the Parent Parties or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guaranteed Party.
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(d) To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, acceptance hereof, presentment, demand for payment, notice of non-performance, default, dishonor and protest, any notice not provided for herein, all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of any Parent Party or any other person interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligation that are available to the Parent Parties under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated under the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits.
(e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that the Parent Parties become subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantor's obligation hereunder. In the event that any payment to the Guaranteed Party in respect of the Guaranteed Obligation is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to the Guaranteed Obligation as if such payment had not been made so long as this Limited Guarantee has not terminated in accordance with its terms.
3. Sole Remedy; No Recourse. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party further agrees that neither it nor any other Person (including, without limitation, the Guaranteed Party's equityholders, Affiliates and subsidiaries) has any right of recovery against, and no personal liability shall attach to, the Guarantor, any former, current or future, director, officer, employee, agent or Affiliate of the Guarantor, any former, current or future, direct or indirect holder of any equity interests or securities of the Guarantor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or representative any of the foregoing (each such Person, a "Related Person"), through any Parent Party or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of any Parent Party against the Guarantor or any Related Person (except for any claim to compel Holdco and/or Parent to enforce the Equity Commitment Letter in accordance with the terms thereof), or otherwise, except for its rights against the Guarantor under this Limited Guarantee and the Escrow Agreement. Recourse against the Guarantor under this Limited Guarantee and the Escrow Agreement and the Guaranteed Party's rights under the Equity Commitment Letter shall be the sole and exclusive remedy of (i) the Guaranteed Party and (ii) all of the Guaranteed Party's equityholders, Affiliates and subsidiaries against the Guarantor and any Related Person (other than the Parent Parties and their respective successors and assigns) in respect of any liabilities or obligations arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby, including by piercing the corporate, limited liability company or limited partnership veil or by a claim by or on behalf of any Parent Party. The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Affiliates and subsidiaries not to institute, any proceeding or bring any other claim arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby (or the failure of such to be consummated), against the Guarantor or any Related Person, except for (A) claims of the Guaranteed Party against the Guarantor under and in accordance with this Limited Guarantee and the Escrow Agreement, (B) claims of the Guaranteed Party against the Parent Parties (and their respective successors and assigns) under and in accordance with the Merger Agreement and the Escrow Agreement, and (C) the exercise of the Guaranteed Party's rights under and in accordance with the Equity Commitment Letter, and the Guaranteed Party hereby, on behalf of itself and its Affiliates and subsidiaries, waives any and all claims arising under, or in connection with, the Merger Agreement, this Limited Guarantee, the Equity Commitment Letter, the Escrow Agreement or, in each case, the transactions contemplated hereby or thereby against the Guarantor or any Related Person and releases such Persons from such claims, in each case, except for claims described in clauses (A), (B) and (C) of this sentence (each, a "Permitted Claim"). Nothing set forth in this Limited Guarantee shall confer or give or shall be construed to confer or give to any Person (including any Person acting in a representative capacity) other than the Guaranteed Party any rights or remedies against any Person, including the Guarantor, except as expressly set forth herein.
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4. Subrogation. The Guarantor will not exercise against any Parent Party any rights of subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by reason of any payment by it pursuant to the provisions of Section 1 hereof unless and until the Guaranteed Obligation and all other amounts payable under this Limited Guarantee have been paid in full.
5. Termination. This Limited Guarantee shall terminate (and the Guarantor shall have no further obligations hereunder) upon the earliest to occur of (a) the Effective Time, (b) the payment in full of the Guaranteed Obligation and the obligation under Section 1(c), (c) the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would not be required pursuant to the terms and subject to the conditions of the Merger Agreement to make any payment of any Guaranteed Obligation; and (d) six months after the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would be required pursuant to the terms and subject to the conditions of the Merger Agreement to make a payment of the Guaranteed Obligation, unless by the end of such six-month period, the Guaranteed Party shall have initiated a claim or proceeding in accordance with the terms of the Merger Agreement for payment of any of the Guaranteed Obligations; provided that if the Guaranteed Party has initiated a claim or proceeding by the end of such six-month period, this Limited Guarantee shall terminate upon the date such claim or proceeding is finally satisfied or otherwise resolved by agreement of the parties hereto or pursuant to Section 12. In the event that the Guaranteed Party or any of its Affiliates or subsidiaries asserts in any litigation or other proceeding relating to this Limited Guarantee or the Merger Agreement (i) that the provisions hereof (including, without limitation, Section 1 hereof limiting the Guarantor's aggregate liability to the Maximum Amount or Section 3 hereof relating to the sole and exclusive remedies of the Guaranteed Party and its equityholders, Affiliates and subsidiaries against the Guarantor or any Related Person) are illegal, invalid or unenforceable, in whole or in part, or (ii) any theory of liability against the Guarantor or any Related Person or any other Guarantor under the other Limited Guarantees dated as of the date hereof or any Related Person of any such other Guarantor with respect to the transactions contemplated by this Limited Guarantee, the Equity Commitment Letter or the Merger Agreement other than any Permitted Claim, then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and be null and void, (y) if the Guarantor has previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments from the Guaranteed Party and (z) neither the Guarantor nor any Related Person (other than the Parent Parties and their respective successors and assigns) shall have any liability to the Guaranteed Party or any of its equityholders, Affiliates or subsidiaries with respect to the Merger Agreement or the transactions contemplated by the Merger Agreement or this Limited Guarantee.
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6. Continuing Guarantee. Except to the extent terminated pursuant to the provisions of Section 5 hereof, this Limited Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed Obligation and the obligation under Section 1(c), shall be binding upon the Guarantor, its successors and assigns, and shall inure to the benefit of, and be enforceable by, the Guaranteed Party and its successors, permitted transferees and permitted assigns; provided that notwithstanding anything to the contrary in this Limited Guarantee, the provisions of this Limited Guarantee that are for the benefit of any Related Person (including the provisions of Sections 3 and 5) shall indefinitely survive any termination of this Limited Guarantee for the benefit of the Guarantor and any Related Persons. All obligation to which this Limited Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
7. Entire Agreement. This Limited Guarantee, the Merger Agreement, the Equity Commitment Letter and the Escrow Agreement constitute the entire agreement with respect to the subject matter hereof, and supersede all other prior agreements and understandings, both written and oral, among the Parent Parties and/or the Guarantor or any of their respective Affiliates, on the one hand, and the Guaranteed Party or any of its Affiliates, on the other hand, regarding the subject matter hereof.
8. Amendments and Waivers. Any provision of this Limited Guarantee may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Guarantor and the Guaranteed Party or, in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by any party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
9. Counterparts. This Limited Guarantee may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
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10. Notices. All notices, requests, claims, demands and other communications hereunder shall be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressee's location on any Business Day after 5:00 p.m. (addressee's local time) shall be deemed to have been received at 9:00 a.m. (addressee's local time) on the next Business Day), by reliable international overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:
if to the Guarantor:
Shen Zhen Ping An Real Estate Investment Co., Ltd.
(深圳市平安置业投资有限公司)
Attention: Shen Meng
with copies to:
Kirkland & Ellis
26th Floor, Glouster Tower, The Landmark
15 Queen's Road Central
Hong Kong
Facsimile: +852-3761-3301
Attention: David Zhang and Jesse Sheley
If to the Guaranteed Party, as provided in Section 9.2 of the Merger Agreement.
11. Governing Law. This Limited Guarantee (except for the arbitration agreement in Section 12) shall be governed by and construed in accordance with the Laws of the State of New York without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
12. Jurisdiction; Waiver of Service of Process.
(a) Jurisdiction. In the event any dispute arises among the parties hereto out of or in relation to this Limited Guarantee, including any dispute regarding its existence, interpretation, performance, breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly consultations within thirty (30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions of this Section 12. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre ("HKIAC") Administered Rules in force when a notice of arbitration is submitted. The seat and venue of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The law of the arbitration agreement shall be Hong Kong law. The appointing authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number, and one arbitrator shall be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from nominating their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within 30 days after such two arbitrators have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any person necessary for the conduct of the arbitration, unless otherwise required by Law or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and any interim or final award, as well as the fact that an arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after the submission of any dispute to arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter agreement, except insofar as the same may relate directly to the matters in dispute. The parties hereby agree that any arbitration award rendered in accordance with the provisions of this Section 12 shall be final and binding upon them, and the parties further agree that such award may be enforced by any court having jurisdiction over the party against which the award has been rendered or the assets of such party wherever the same may be located. In any arbitration proceeding, any legal proceeding to enforce any arbitration award and in any other legal proceeding among the Parties pursuant to or relating to this Agreement, each Party expressly waives the defense of sovereign immunity and any other defense based on the fact or allegation that it is an agency or instrumentality of a sovereign state or is otherwise entitled to immunity.
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13. Representations and Warranties. The Guarantor hereby represents and warrants to the Guaranteed Party that:
(a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization;
(b) it has all necessary power and authority to execute, deliver and perform this Limited Guarantee;
(c) the execution, delivery and performance of this Limited Guarantee by the Guarantor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Guarantor are necessary therefor;
(d) all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Limited Guarantee by the Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution, delivery or performance of this Limited Guarantee;
(e) this Limited Guarantee has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the undersigned in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law));
(f) the execution, delivery and performance by the undersigned of this Limited Guarantee do not and will not violate the organizational documents of the undersigned or violate any applicable law, regulation, rule, decree, order, judgment or contractual restriction binding on the Guarantor or its assets or properties; and
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(g) it has the financial capacity to pay and perform its obligations under this Limited Guarantee, and all funds necessary for the Guarantor to fulfill its obligations under this Limited Guarantee shall be available to the Guarantor for so long as this Limited Guarantee shall remain in effect in accordance with Section 6.
14. No Assignment. Neither this Limited Guarantee nor any of the rights, interests or obligations hereunder shall be assignable without the prior written consent of the Guaranteed Party (in the case of an assignment by the Guarantor) or the Guarantor (in the case of an assignment by the Guaranteed Party).
15. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LIMITED GUARANTEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 15.
16. Severability. Any term or provision of this Limited Guarantee which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Limited Guarantee in any jurisdiction and, if any provision of this Limited Guarantee is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Maximum Amount provided in Section 1 hereof and to the provisions of Sections 3 and 5 hereof. No party hereto shall assert, and each party shall cause its respective Affiliates and subsidiaries not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.
17. Headings. Headings of the Sections of this Limited Guarantee are for convenience only and shall be given no substantive or interpretive effect whatsoever.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Shen Zhen Ping An Real Estate Investment | ||
| Co., Ltd. | ||
| (深圳市平安置业投资有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ MENG Shen | |
| Name: MENG Shen (孟甡) | ||
| Title: Corporate Representative | ||
[Signature Page to Limited Guarantee]
IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Limited Guarantee]
Exhibit 99.78
Execution Version
LIMITED GUARANTEE
This Limited Guarantee, dated as of December 18, 2015 (this "Limited Guarantee"), is made by Sunshine Life Insurance Company Ltd. (阳光人寿保险股份有限公司), a limited liability company incorporated under the laws of the People’s Republic of China (including its successors and permitted assigns, the "Guarantor"), in favor of Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Guaranteed Party"). Reference is hereby made to the Agreement and Plan of Merger, dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), and the Guaranteed Party. Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Merger Agreement.
1. Limited Guarantee.
(a) To induce the Guaranteed Party to enter into the Merger Agreement, the Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, subject to the terms and conditions hereof, the due and punctual payment and performance when due of 3.96% of the Parent Parties' obligation (the "Guaranteed Obligation") to pay to the Guaranteed Party (i) the Parent Termination Fee if and when required pursuant to Section 8.2(c) of the Merger Agreement, and (ii) the payment obligations of the Parent Parties pursuant to Section 6.6 of the Merger Agreement; provided that the maximum aggregate liability of the Guarantor hereunder shall not exceed US$17,834,756(the "Maximum Amount").
(b) The Guaranteed Party hereby agrees that (a) the Guarantor shall in no event be required to pay more than the Maximum Amount under or in respect of this Guarantee and (b) the Guarantor shall not have any obligation or liability to any Person (including, without limitation, to the Guaranteed Party's equity holders, Affiliates and/or subsidiaries) relating to, arising out of or in connection with this Limited Guarantee, the Merger Agreement, or the Equity Commitment Letter (as defined below) other than as expressly set forth herein or in the Equity Commitment Letter or the Escrow Agreement (as defined in the Equity Commitment Letter).
(c) The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by the Guaranteed Party in connection with the enforcement of its rights hereunder and under the Merger Agreement, including, without limitation, in the event that (i) the Guarantor asserts in any arbitration, litigation or other proceeding that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms and the Guaranteed Party prevails in such arbitration, litigation or other proceeding, or (ii) the Guarantor fails or refuses to make any payment to the Guaranteed Party hereunder when due and payable and it is determined judicially or by arbitration that the Guarantor is required to make such payment hereunder.
(d) The Guarantor promises and undertakes to make all payments hereunder free and clear of any deduction, offset, defense, claim or counterclaim of any kind. If the Parent Parties fail to pay or cause to be paid the Guaranteed Obligation as and when due and payable pursuant to Section 8.2(c) of the Merger Agreement, as applicable, then the Guarantor's liabilities to the Guaranteed Party hereunder in respect of such Guaranteed Obligation shall become immediately due and payable and the Guaranteed Party may at any time and from time to time, at the Guaranteed Party's option, and so long as the Parent Parties remain in breach of its Guaranteed Obligation, take any and all actions available hereunder or under applicable Law to collect the Guaranteed Obligation from the Guarantor subject to the Maximum Amount as applicable.
2. Terms of Limited Guarantee.
(a) This Limited Guarantee is a primary and original obligation of the Guarantor and is one of payment, not collection, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against any Parent Party or any other Person or whether any Parent Party or any other Person is joined in any such action or actions. Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantor under this Limited Guarantee and of the other guarantors under the other Limited Guarantees dated as of the date hereof ("Other Guarantors") shall be several and not joint.
(b) The liability of the Guarantor under this Limited Guarantee shall, to the fullest extent permitted under applicable law, be absolute, irrevocable and unconditional, irrespective of:
(i) the value, genuineness, validity, illegality or enforceability of the Merger Agreement or the letter agreement dated as of the date hereof between the Guarantor, on the one hand, and Holdco and Parent, on the other hand, pursuant to which the Guarantor has agreed to make a certain equity contribution to Holdco and Parent (the "Equity Commitment Letter") or any other agreement or instrument referred to herein or therein;
(ii) any change in the corporate existence, structure or ownership of any Parent Party or any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting any Parent Party, any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor) or any of their respective assets;
(iii) any amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof;
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(iv) the existence of any claim, set-off or other right that the Guarantor may have at any time against any Parent Party or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise;
(v) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against any Parent Party or the Guarantor or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation (other than as and if required by Section 2(a));
(vi) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of the Guaranteed Obligation;
(vii) any other act or omission that may in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment in full of the Guaranteed Obligation in accordance with their terms); or
(viii) the addition, substitution, discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Guaranteed Obligation as a result of payment in full of the Guaranteed Obligation in accordance with their terms) of any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor),
other than in each case with respect to (A) defenses to the payment of the Guaranteed Obligation that are available to any Parent Party under the Merger Agreement or (B) breach by the Guaranteed Party of this Limited Guarantee, including, without limitation, the limitations set forth in Section 3 below), and, notwithstanding any other provision of this Limited Guarantee to the contrary, the Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that any Parent Party could assert against the Company under the terms of, or with respect to, the Merger Agreement that would relieve each of the Parent Parties of its obligations under the Merger Agreement.
(c) To the fullest extent permitted by applicable law, the Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of the Guaranteed Obligation and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligation shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between the Parent Parties and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under no obligation to pursue such rights and remedies it may have against the Parent Parties or any other Person for the Guaranteed Obligation or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue such other rights or remedies or to collect any payments from the Parent Parties or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of the Parent Parties or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guaranteed Party.
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(d) To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, acceptance hereof, presentment, demand for payment, notice of non-performance, default, dishonor and protest, any notice not provided for herein, all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of any Parent Party or any other person interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligation that are available to the Parent Parties under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated under the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits.
(e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that the Parent Parties become subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantor's obligation hereunder. In the event that any payment to the Guaranteed Party in respect of the Guaranteed Obligation is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to the Guaranteed Obligation as if such payment had not been made so long as this Limited Guarantee has not terminated in accordance with its terms.
3. Sole Remedy; No Recourse. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party further agrees that neither it nor any other Person (including, without limitation, the Guaranteed Party's equityholders, Affiliates and subsidiaries) has any right of recovery against, and no personal liability shall attach to, the Guarantor, any former, current or future, director, officer, employee, agent or Affiliate of the Guarantor, any former, current or future, direct or indirect holder of any equity interests or securities of the Guarantor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or representative any of the foregoing (each such Person, a "Related Person"), through any Parent Party or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of any Parent Party against the Guarantor or any Related Person (except for any claim to compel Holdco and/or Parent to enforce the Equity Commitment Letter in accordance with the terms thereof), or otherwise, except for its rights against the Guarantor under this Limited Guarantee and the Escrow Agreement. Recourse against the Guarantor under this Limited Guarantee and the Escrow Agreement and the Guaranteed Party's rights under the Equity Commitment Letter shall be the sole and exclusive remedy of (i) the Guaranteed Party and (ii) all of the Guaranteed Party's equityholders, Affiliates and subsidiaries against the Guarantor and any Related Person (other than the Parent Parties and their respective successors and assigns) in respect of any liabilities or obligations arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby, including by piercing the corporate, limited liability company or limited partnership veil or by a claim by or on behalf of any Parent Party. The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Affiliates and subsidiaries not to institute, any proceeding or bring any other claim arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby (or the failure of such to be consummated), against the Guarantor or any Related Person, except for (A) claims of the Guaranteed Party against the Guarantor under and in accordance with this Limited Guarantee and the Escrow Agreement, (B) claims of the Guaranteed Party against the Parent Parties (and their respective successors and assigns) under and in accordance with the Merger Agreement and the Escrow Agreement, and (C) the exercise of the Guaranteed Party's rights under and in accordance with the Equity Commitment Letter, and the Guaranteed Party hereby, on behalf of itself and its Affiliates and subsidiaries, waives any and all claims arising under, or in connection with, the Merger Agreement, this Limited Guarantee, the Equity Commitment Letter, the Escrow Agreement or, in each case, the transactions contemplated hereby or thereby against the Guarantor or any Related Person and releases such Persons from such claims, in each case, except for claims described in clauses (A), (B) and (C) of this sentence (each, a "Permitted Claim"). Nothing set forth in this Limited Guarantee shall confer or give or shall be construed to confer or give to any Person (including any Person acting in a representative capacity) other than the Guaranteed Party any rights or remedies against any Person, including the Guarantor, except as expressly set forth herein.
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4. Subrogation. The Guarantor will not exercise against any Parent Party any rights of subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by reason of any payment by it pursuant to the provisions of Section 1 hereof unless and until the Guaranteed Obligation and all other amounts payable under this Limited Guarantee have been paid in full.
5. Termination. This Limited Guarantee shall terminate (and the Guarantor shall have no further obligations hereunder) upon the earliest to occur of (a) the Effective Time, (b) the payment in full of the Guaranteed Obligation and the obligation under Section 1(c), (c) the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would not be required pursuant to the terms and subject to the conditions of the Merger Agreement to make any payment of any Guaranteed Obligation; and (d) six months after the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would be required pursuant to the terms and subject to the conditions of the Merger Agreement to make a payment of the Guaranteed Obligation, unless by the end of such six-month period, the Guaranteed Party shall have initiated a claim or proceeding in accordance with the terms of the Merger Agreement for payment of any of the Guaranteed Obligations; provided that if the Guaranteed Party has initiated a claim or proceeding by the end of such six-month period, this Limited Guarantee shall terminate upon the date such claim or proceeding is finally satisfied or otherwise resolved by agreement of the parties hereto or pursuant to Section 12. In the event that the Guaranteed Party or any of its Affiliates or subsidiaries asserts in any litigation or other proceeding relating to this Limited Guarantee or the Merger Agreement (i) that the provisions hereof (including, without limitation, Section 1 hereof limiting the Guarantor's aggregate liability to the Maximum Amount or Section 3 hereof relating to the sole and exclusive remedies of the Guaranteed Party and its equityholders, Affiliates and subsidiaries against the Guarantor or any Related Person) are illegal, invalid or unenforceable, in whole or in part, or (ii) any theory of liability against the Guarantor or any Related Person or any other Guarantor under the other Limited Guarantees dated as of the date hereof or any Related Person of any such other Guarantor with respect to the transactions contemplated by this Limited Guarantee, the Equity Commitment Letter or the Merger Agreement other than any Permitted Claim, then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and be null and void, (y) if the Guarantor has previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments from the Guaranteed Party and (z) neither the Guarantor nor any Related Person (other than the Parent Parties and their respective successors and assigns) shall have any liability to the Guaranteed Party or any of its equityholders, Affiliates or subsidiaries with respect to the Merger Agreement or the transactions contemplated by the Merger Agreement or this Limited Guarantee.
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6. Continuing Guarantee. Except to the extent terminated pursuant to the provisions of Section 5 hereof, this Limited Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed Obligation and the obligation under Section 1(c), shall be binding upon the Guarantor, its successors and assigns, and shall inure to the benefit of, and be enforceable by, the Guaranteed Party and its successors, permitted transferees and permitted assigns; provided that notwithstanding anything to the contrary in this Limited Guarantee, the provisions of this Limited Guarantee that are for the benefit of any Related Person (including the provisions of Sections 3 and 5) shall indefinitely survive any termination of this Limited Guarantee for the benefit of the Guarantor and any Related Persons. All obligation to which this Limited Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
7. Entire Agreement. This Limited Guarantee, the Merger Agreement, the Equity Commitment Letter and the Escrow Agreement constitute the entire agreement with respect to the subject matter hereof, and supersede all other prior agreements and understandings, both written and oral, among the Parent Parties and/or the Guarantor or any of their respective Affiliates, on the one hand, and the Guaranteed Party or any of its Affiliates, on the other hand, regarding the subject matter hereof.
8. Amendments and Waivers. Any provision of this Limited Guarantee may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Guarantor and the Guaranteed Party or, in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by any party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
9. Counterparts. This Limited Guarantee may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
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10. Notices. All notices, requests, claims, demands and other communications hereunder shall be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressee's location on any Business Day after 5:00 p.m. (addressee's local time) shall be deemed to have been received at 9:00 a.m. (addressee's local time) on the next Business Day), by reliable international overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:
if to the Guarantor:
Sunshine Life Insurance Company Ltd.
(阳光人寿保险股份有限公司)
3F North tower World Fortune Center, No.1 Dongsanhua Zhonglu, Chaoyang District, Beijing
Facsimile: 010-57397100
Attention: Zhao Mei
with copies to:
Kirkland & Ellis
26th Floor, Glouster Tower, The Landmark
15 Queen's Road Central
Hong Kong
Facsimile: +852-3761-3301
Attention: David Zhang and Jesse Sheley
If to the Guaranteed Party, as provided in Section 9.2 of the Merger Agreement.
11. Governing Law. This Limited Guarantee (except for the arbitration agreement in Section 12) shall be governed by and construed in accordance with the Laws of the State of New York without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
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12. Jurisdiction; Waiver of Service of Process.
(a) Jurisdiction. In the event any dispute arises among the parties hereto out of or in relation to this Limited Guarantee, including any dispute regarding its existence, interpretation, performance, breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly consultations within thirty (30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions of this Section 12. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre ("HKIAC") Administered Rules in force when a notice of arbitration is submitted. The seat and venue of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The law of the arbitration agreement shall be Hong Kong law. The appointing authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number, and one arbitrator shall be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from nominating their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within 30 days after such two arbitrators have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any person necessary for the conduct of the arbitration, unless otherwise required by Law or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and any interim or final award, as well as the fact that an arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after the submission of any dispute to arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter agreement, except insofar as the same may relate directly to the matters in dispute. The parties hereby agree that any arbitration award rendered in accordance with the provisions of this Section 12 shall be final and binding upon them, and the parties further agree that such award may be enforced by any court having jurisdiction over the party against which the award has been rendered or the assets of such party wherever the same may be located. In any arbitration proceeding, any legal proceeding to enforce any arbitration award and in any other legal proceeding among the Parties pursuant to or relating to this Agreement, each Party expressly waives the defense of sovereign immunity and any other defense based on the fact or allegation that it is an agency or instrumentality of a sovereign state or is otherwise entitled to immunity.
13. Representations and Warranties. The Guarantor hereby represents and warrants to the Guaranteed Party that:
(a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization;
(b) it has all necessary power and authority to execute, deliver and perform this Limited Guarantee;
(c) the execution, delivery and performance of this Limited Guarantee by the Guarantor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Guarantor are necessary therefor;
(d) all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Limited Guarantee by the Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution, delivery or performance of this Limited Guarantee;
(e) this Limited Guarantee has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the undersigned in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law));
(f) the execution, delivery and performance by the undersigned of this Limited Guarantee do not and will not violate the organizational documents of the undersigned or violate any applicable law, regulation, rule, decree, order, judgment or contractual restriction binding on the Guarantor or its assets or properties; and
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(g) it has the financial capacity to pay and perform its obligations under this Limited Guarantee, and all funds necessary for the Guarantor to fulfill its obligations under this Limited Guarantee shall be available to the Guarantor for so long as this Limited Guarantee shall remain in effect in accordance with Section 6.
14. No Assignment. Neither this Limited Guarantee nor any of the rights, interests or obligations hereunder shall be assignable without the prior written consent of the Guaranteed Party (in the case of an assignment by the Guarantor) or the Guarantor (in the case of an assignment by the Guaranteed Party).
15. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LIMITED GUARANTEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 15.
16. Severability. Any term or provision of this Limited Guarantee which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Limited Guarantee in any jurisdiction and, if any provision of this Limited Guarantee is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Maximum Amount provided in Section 1 hereof and to the provisions of Sections 3 and 5 hereof. No party hereto shall assert, and each party shall cause its respective Affiliates and subsidiaries not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.
17. Headings. Headings of the Sections of this Limited Guarantee are for convenience only and shall be given no substantive or interpretive effect whatsoever.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Sunshine Life Insurance Company Ltd. | ||
| (阳光人寿保险股份有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Ke Li | |
| Name: Ke Li | ||
| Title: Legal Representative | ||
[Signature Page to Limited Guarantee]
IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Limited Guarantee]
Exhibit 99.79
Execution Version
LIMITED GUARANTEE
This Limited Guarantee, dated as of December 18, 2015 (this "Limited Guarantee"), is made by Taikang Life Insurance Co., Ltd. (泰康人寿保险股份有限公司), a limited liability company incorporated under the laws of the People’s Republic of China (including its successors and permitted assigns, the "Guarantor"), in favor of Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Guaranteed Party"). Reference is hereby made to the Agreement and Plan of Merger, dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), and the Guaranteed Party. Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Merger Agreement.
1. Limited Guarantee.
(a) To induce the Guaranteed Party to enter into the Merger Agreement, the Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, subject to the terms and conditions hereof, the due and punctual payment and performance when due of 3.96% of the Parent Parties' obligation (the "Guaranteed Obligation") to pay to the Guaranteed Party (i) the Parent Termination Fee if and when required pursuant to Section 8.2(c) of the Merger Agreement, and (ii) the payment obligations of the Parent Parties pursuant to Section 6.6 of the Merger Agreement; provided that the maximum aggregate liability of the Guarantor hereunder shall not exceed US$17,834,756(the "Maximum Amount").
(b) The Guaranteed Party hereby agrees that (a) the Guarantor shall in no event be required to pay more than the Maximum Amount under or in respect of this Guarantee and (b) the Guarantor shall not have any obligation or liability to any Person (including, without limitation, to the Guaranteed Party's equity holders, Affiliates and/or subsidiaries) relating to, arising out of or in connection with this Limited Guarantee, the Merger Agreement, or the Equity Commitment Letter (as defined below) other than as expressly set forth herein or in the Equity Commitment Letter or the Escrow Agreement (as defined in the Equity Commitment Letter).
(c) The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by the Guaranteed Party in connection with the enforcement of its rights hereunder and under the Merger Agreement, including, without limitation, in the event that (i) the Guarantor asserts in any arbitration, litigation or other proceeding that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms and the Guaranteed Party prevails in such arbitration, litigation or other proceeding, or (ii) the Guarantor fails or refuses to make any payment to the Guaranteed Party hereunder when due and payable and it is determined judicially or by arbitration that the Guarantor is required to make such payment hereunder.
(d) The Guarantor promises and undertakes to make all payments hereunder free and clear of any deduction, offset, defense, claim or counterclaim of any kind. If the Parent Parties fail to pay or cause to be paid the Guaranteed Obligation as and when due and payable pursuant to Section 8.2(c) of the Merger Agreement, as applicable, then the Guarantor's liabilities to the Guaranteed Party hereunder in respect of such Guaranteed Obligation shall become immediately due and payable and the Guaranteed Party may at any time and from time to time, at the Guaranteed Party's option, and so long as the Parent Parties remain in breach of its Guaranteed Obligation, take any and all actions available hereunder or under applicable Law to collect the Guaranteed Obligation from the Guarantor subject to the Maximum Amount as applicable.
2. Terms of Limited Guarantee.
(a) This Limited Guarantee is a primary and original obligation of the Guarantor and is one of payment, not collection, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against any Parent Party or any other Person or whether any Parent Party or any other Person is joined in any such action or actions. Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantor under this Limited Guarantee and of the other guarantors under the other Limited Guarantees dated as of the date hereof ("Other Guarantors") shall be several and not joint.
(b) The liability of the Guarantor under this Limited Guarantee shall, to the fullest extent permitted under applicable law, be absolute, irrevocable and unconditional, irrespective of:
(i) the value, genuineness, validity, illegality or enforceability of the Merger Agreement or the letter agreement dated as of the date hereof between the Guarantor, on the one hand, and Holdco and Parent, on the other hand, pursuant to which the Guarantor has agreed to make a certain equity contribution to Holdco and Parent (the "Equity Commitment Letter") or any other agreement or instrument referred to herein or therein;
(ii) any change in the corporate existence, structure or ownership of any Parent Party or any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting any Parent Party, any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor) or any of their respective assets;
(iii) any amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof;
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(iv) the existence of any claim, set-off or other right that the Guarantor may have at any time against any Parent Party or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise;
(v) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against any Parent Party or the Guarantor or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation (other than as and if required by Section 2(a));
(vi) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of the Guaranteed Obligation;
(vii) any other act or omission that may in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment in full of the Guaranteed Obligation in accordance with their terms); or
(viii) the addition, substitution, discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Guaranteed Obligation as a result of payment in full of the Guaranteed Obligation in accordance with their terms) of any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor),
other than in each case with respect to (A) defenses to the payment of the Guaranteed Obligation that are available to any Parent Party under the Merger Agreement or (B) breach by the Guaranteed Party of this Limited Guarantee, including, without limitation, the limitations set forth in Section 3 below), and, notwithstanding any other provision of this Limited Guarantee to the contrary, the Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that any Parent Party could assert against the Company under the terms of, or with respect to, the Merger Agreement that would relieve each of the Parent Parties of its obligations under the Merger Agreement.
(c) To the fullest extent permitted by applicable law, the Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of the Guaranteed Obligation and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligation shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between the Parent Parties and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under no obligation to pursue such rights and remedies it may have against the Parent Parties or any other Person for the Guaranteed Obligation or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue such other rights or remedies or to collect any payments from the Parent Parties or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of the Parent Parties or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guaranteed Party.
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(d) To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, acceptance hereof, presentment, demand for payment, notice of non-performance, default, dishonor and protest, any notice not provided for herein, all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of any Parent Party or any other person interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligation that are available to the Parent Parties under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated under the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits.
(e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that the Parent Parties become subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantor's obligation hereunder. In the event that any payment to the Guaranteed Party in respect of the Guaranteed Obligation is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to the Guaranteed Obligation as if such payment had not been made so long as this Limited Guarantee has not terminated in accordance with its terms.
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3. Sole Remedy; No Recourse. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party further agrees that neither it nor any other Person (including, without limitation, the Guaranteed Party's equityholders, Affiliates and subsidiaries) has any right of recovery against, and no personal liability shall attach to, the Guarantor, any former, current or future, director, officer, employee, agent or Affiliate of the Guarantor, any former, current or future, direct or indirect holder of any equity interests or securities of the Guarantor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or representative any of the foregoing (each such Person, a "Related Person"), through any Parent Party or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of any Parent Party against the Guarantor or any Related Person (except for any claim to compel Holdco and/or Parent to enforce the Equity Commitment Letter in accordance with the terms thereof), or otherwise, except for its rights against the Guarantor under this Limited Guarantee and the Escrow Agreement. Recourse against the Guarantor under this Limited Guarantee and the Escrow Agreement and the Guaranteed Party's rights under the Equity Commitment Letter shall be the sole and exclusive remedy of (i) the Guaranteed Party and (ii) all of the Guaranteed Party's equityholders, Affiliates and subsidiaries against the Guarantor and any Related Person (other than the Parent Parties and their respective successors and assigns) in respect of any liabilities or obligations arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby, including by piercing the corporate, limited liability company or limited partnership veil or by a claim by or on behalf of any Parent Party. The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Affiliates and subsidiaries not to institute, any proceeding or bring any other claim arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby (or the failure of such to be consummated), against the Guarantor or any Related Person, except for (A) claims of the Guaranteed Party against the Guarantor under and in accordance with this Limited Guarantee and the Escrow Agreement, (B) claims of the Guaranteed Party against the Parent Parties (and their respective successors and assigns) under and in accordance with the Merger Agreement and the Escrow Agreement, and (C) the exercise of the Guaranteed Party's rights under and in accordance with the Equity Commitment Letter, and the Guaranteed Party hereby, on behalf of itself and its Affiliates and subsidiaries, waives any and all claims arising under, or in connection with, the Merger Agreement, this Limited Guarantee, the Equity Commitment Letter, the Escrow Agreement or, in each case, the transactions contemplated hereby or thereby against the Guarantor or any Related Person and releases such Persons from such claims, in each case, except for claims described in clauses (A), (B) and (C) of this sentence (each, a "Permitted Claim"). Nothing set forth in this Limited Guarantee shall confer or give or shall be construed to confer or give to any Person (including any Person acting in a representative capacity) other than the Guaranteed Party any rights or remedies against any Person, including the Guarantor, except as expressly set forth herein.
4. Subrogation. The Guarantor will not exercise against any Parent Party any rights of subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by reason of any payment by it pursuant to the provisions of Section 1 hereof unless and until the Guaranteed Obligation and all other amounts payable under this Limited Guarantee have been paid in full.
5. Termination. This Limited Guarantee shall terminate (and the Guarantor shall have no further obligations hereunder) upon the earliest to occur of (a) the Effective Time, (b) the payment in full of the Guaranteed Obligation and the obligation under Section 1(c), (c) the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would not be required pursuant to the terms and subject to the conditions of the Merger Agreement to make any payment of any Guaranteed Obligation; and (d) six months after the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would be required pursuant to the terms and subject to the conditions of the Merger Agreement to make a payment of the Guaranteed Obligation, unless by the end of such six-month period, the Guaranteed Party shall have initiated a claim or proceeding in accordance with the terms of the Merger Agreement for payment of any of the Guaranteed Obligations; provided that if the Guaranteed Party has initiated a claim or proceeding by the end of such six-month period, this Limited Guarantee shall terminate upon the date such claim or proceeding is finally satisfied or otherwise resolved by agreement of the parties hereto or pursuant to Section 12. In the event that the Guaranteed Party or any of its Affiliates or subsidiaries asserts in any litigation or other proceeding relating to this Limited Guarantee or the Merger Agreement (i) that the provisions hereof (including, without limitation, Section 1 hereof limiting the Guarantor's aggregate liability to the Maximum Amount or Section 3 hereof relating to the sole and exclusive remedies of the Guaranteed Party and its equityholders, Affiliates and subsidiaries against the Guarantor or any Related Person) are illegal, invalid or unenforceable, in whole or in part, or (ii) any theory of liability against the Guarantor or any Related Person or any other Guarantor under the other Limited Guarantees dated as of the date hereof or any Related Person of any such other Guarantor with respect to the transactions contemplated by this Limited Guarantee, the Equity Commitment Letter or the Merger Agreement other than any Permitted Claim, then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and be null and void, (y) if the Guarantor has previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments from the Guaranteed Party and (z) neither the Guarantor nor any Related Person (other than the Parent Parties and their respective successors and assigns) shall have any liability to the Guaranteed Party or any of its equityholders, Affiliates or subsidiaries with respect to the Merger Agreement or the transactions contemplated by the Merger Agreement or this Limited Guarantee.
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6. Continuing Guarantee. Except to the extent terminated pursuant to the provisions of Section 5 hereof, this Limited Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed Obligation and the obligation under Section 1(c), shall be binding upon the Guarantor, its successors and assigns, and shall inure to the benefit of, and be enforceable by, the Guaranteed Party and its successors, permitted transferees and permitted assigns; provided that notwithstanding anything to the contrary in this Limited Guarantee, the provisions of this Limited Guarantee that are for the benefit of any Related Person (including the provisions of Sections 3 and 5) shall indefinitely survive any termination of this Limited Guarantee for the benefit of the Guarantor and any Related Persons. All obligation to which this Limited Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
7. Entire Agreement. This Limited Guarantee, the Merger Agreement, the Equity Commitment Letter and the Escrow Agreement constitute the entire agreement with respect to the subject matter hereof, and supersede all other prior agreements and understandings, both written and oral, among the Parent Parties and/or the Guarantor or any of their respective Affiliates, on the one hand, and the Guaranteed Party or any of its Affiliates, on the other hand, regarding the subject matter hereof.
8. Amendments and Waivers. Any provision of this Limited Guarantee may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Guarantor and the Guaranteed Party or, in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by any party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
9. Counterparts. This Limited Guarantee may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
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10. Notices. All notices, requests, claims, demands and other communications hereunder shall be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressee's location on any Business Day after 5:00 p.m. (addressee's local time) shall be deemed to have been received at 9:00 a.m. (addressee's local time) on the next Business Day), by reliable international overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:
if to the Guarantor:
Taikang Life Insurance Co., Ltd.
(泰康人寿保险股份有限公司)
Taikang Life Building, 156 Fuxingmennei Street, Beijing.
Facsimile: 010-57691800
Attention: Dongsheng Chen
with copies to:
Kirkland & Ellis
26th Floor, Glouster Tower, The Landmark
15 Queen's Road Central
Hong Kong
Facsimile: +852-3761-3301
Attention: David Zhang and Jesse Sheley
If to the Guaranteed Party, as provided in Section 9.2 of the Merger Agreement.
11. Governing Law. This Limited Guarantee (except for the arbitration agreement in Section 12) shall be governed by and construed in accordance with the Laws of the State of New York without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
12. Jurisdiction; Waiver of Service of Process.
(a) Jurisdiction. In the event any dispute arises among the parties hereto out of or in relation to this Limited Guarantee, including any dispute regarding its existence, interpretation, performance, breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly consultations within thirty (30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions of this Section 12. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre ("HKIAC") Administered Rules in force when a notice of arbitration is submitted. The seat and venue of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The law of the arbitration agreement shall be Hong Kong law. The appointing authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number, and one arbitrator shall be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from nominating their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within 30 days after such two arbitrators have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any person necessary for the conduct of the arbitration, unless otherwise required by Law or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and any interim or final award, as well as the fact that an arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after the submission of any dispute to arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter agreement, except insofar as the same may relate directly to the matters in dispute. The parties hereby agree that any arbitration award rendered in accordance with the provisions of this Section 12 shall be final and binding upon them, and the parties further agree that such award may be enforced by any court having jurisdiction over the party against which the award has been rendered or the assets of such party wherever the same may be located. In any arbitration proceeding, any legal proceeding to enforce any arbitration award and in any other legal proceeding among the Parties pursuant to or relating to this Agreement, each Party expressly waives the defense of sovereign immunity and any other defense based on the fact or allegation that it is an agency or instrumentality of a sovereign state or is otherwise entitled to immunity.
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13. Representations and Warranties. The Guarantor hereby represents and warrants to the Guaranteed Party that:
(a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization;
(b) it has all necessary power and authority to execute, deliver and perform this Limited Guarantee;
(c) the execution, delivery and performance of this Limited Guarantee by the Guarantor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Guarantor are necessary therefor;
(d) all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Limited Guarantee by the Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution, delivery or performance of this Limited Guarantee;
(e) this Limited Guarantee has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the undersigned in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law));
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(f) the execution, delivery and performance by the undersigned of this Limited Guarantee do not and will not violate the organizational documents of the undersigned or violate any applicable law, regulation, rule, decree, order, judgment or contractual restriction binding on the Guarantor or its assets or properties; and
(g) it has the financial capacity to pay and perform its obligations under this Limited Guarantee, and all funds necessary for the Guarantor to fulfill its obligations under this Limited Guarantee shall be available to the Guarantor for so long as this Limited Guarantee shall remain in effect in accordance with Section 6.
14. No Assignment. Neither this Limited Guarantee nor any of the rights, interests or obligations hereunder shall be assignable without the prior written consent of the Guaranteed Party (in the case of an assignment by the Guarantor) or the Guarantor (in the case of an assignment by the Guaranteed Party).
15. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LIMITED GUARANTEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 15.
16. Severability. Any term or provision of this Limited Guarantee which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Limited Guarantee in any jurisdiction and, if any provision of this Limited Guarantee is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Maximum Amount provided in Section 1 hereof and to the provisions of Sections 3 and 5 hereof. No party hereto shall assert, and each party shall cause its respective Affiliates and subsidiaries not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.
17. Headings. Headings of the Sections of this Limited Guarantee are for convenience only and shall be given no substantive or interpretive effect whatsoever.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Taikang Life Insurance Co., Ltd. | ||
| (泰康人寿保险股份有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ CHEN Dongsheng | |
| Name: | CHEN Dongsheng | |
| Title: | Chairman | |
[Signature Page to Limited Guarantee]
IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: | Eric X. Chen | |
| Title: | Director | |
[Signature Page to Limited Guarantee]
Exhibit 99.80
Execution Version
LIMITED GUARANTEE
This Limited Guarantee, dated as of December 18, 2015 (this "Limited Guarantee"), is made by New China Capital International Management Limited (新华资本国际管理有限公司), a limited liability company incorporated under the laws of the People’s Republic of China (including its successors and permitted assigns, the "Guarantor"), in favor of Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Guaranteed Party"). Reference is hereby made to the Agreement and Plan of Merger, dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), and the Guaranteed Party. Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Merger Agreement.
1. Limited Guarantee.
(a) To induce the Guaranteed Party to enter into the Merger Agreement, the Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, subject to the terms and conditions hereof, the due and punctual payment and performance when due of 2.48% of the Parent Parties' obligation (the "Guaranteed Obligation") to pay to the Guaranteed Party (i) the Parent Termination Fee if and when required pursuant to Section 8.2(c) of the Merger Agreement, and (ii) the payment obligations of the Parent Parties pursuant to Section 6.6 of the Merger Agreement; provided that the maximum aggregate liability of the Guarantor hereunder shall not exceed US$11,146,723(the "Maximum Amount").
(b) The Guaranteed Party hereby agrees that (a) the Guarantor shall in no event be required to pay more than the Maximum Amount under or in respect of this Guarantee and (b) the Guarantor shall not have any obligation or liability to any Person (including, without limitation, to the Guaranteed Party's equity holders, Affiliates and/or subsidiaries) relating to, arising out of or in connection with this Limited Guarantee, the Merger Agreement, or the Equity Commitment Letter (as defined below) other than as expressly set forth herein or in the Equity Commitment Letter or the Escrow Agreement (as defined in the Equity Commitment Letter).
(c) The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by the Guaranteed Party in connection with the enforcement of its rights hereunder and under the Merger Agreement, including, without limitation, in the event that (i) the Guarantor asserts in any arbitration, litigation or other proceeding that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms and the Guaranteed Party prevails in such arbitration, litigation or other proceeding, or (ii) the Guarantor fails or refuses to make any payment to the Guaranteed Party hereunder when due and payable and it is determined judicially or by arbitration that the Guarantor is required to make such payment hereunder.
(d) The Guarantor promises and undertakes to make all payments hereunder free and clear of any deduction, offset, defense, claim or counterclaim of any kind. If the Parent Parties fail to pay or cause to be paid the Guaranteed Obligation as and when due and payable pursuant to Section 8.2(c) of the Merger Agreement, as applicable, then the Guarantor's liabilities to the Guaranteed Party hereunder in respect of such Guaranteed Obligation shall become immediately due and payable and the Guaranteed Party may at any time and from time to time, at the Guaranteed Party's option, and so long as the Parent Parties remain in breach of its Guaranteed Obligation, take any and all actions available hereunder or under applicable Law to collect the Guaranteed Obligation from the Guarantor subject to the Maximum Amount as applicable.
2. Terms of Limited Guarantee.
(a) This Limited Guarantee is a primary and original obligation of the Guarantor and is one of payment, not collection, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against any Parent Party or any other Person or whether any Parent Party or any other Person is joined in any such action or actions. Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantor under this Limited Guarantee and of the other guarantors under the other Limited Guarantees dated as of the date hereof ("Other Guarantors") shall be several and not joint.
(b) The liability of the Guarantor under this Limited Guarantee shall, to the fullest extent permitted under applicable law, be absolute, irrevocable and unconditional, irrespective of:
(i) the value, genuineness, validity, illegality or enforceability of the Merger Agreement or the letter agreement dated as of the date hereof between the Guarantor, on the one hand, and Holdco and Parent, on the other hand, pursuant to which the Guarantor has agreed to make a certain equity contribution to Holdco and Parent (the "Equity Commitment Letter") or any other agreement or instrument referred to herein or therein;
(ii) any change in the corporate existence, structure or ownership of any Parent Party or any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting any Parent Party, any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor) or any of their respective assets;
(iii) any amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof;
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(iv) the existence of any claim, set-off or other right that the Guarantor may have at any time against any Parent Party or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise;
(v) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against any Parent Party or the Guarantor or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation (other than as and if required by Section 2(a));
(vi) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of the Guaranteed Obligation;
(vii) any other act or omission that may in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment in full of the Guaranteed Obligation in accordance with their terms); or
(viii) the addition, substitution, discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Guaranteed Obligation as a result of payment in full of the Guaranteed Obligation in accordance with their terms) of any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor),
other than in each case with respect to (A) defenses to the payment of the Guaranteed Obligation that are available to any Parent Party under the Merger Agreement or (B) breach by the Guaranteed Party of this Limited Guarantee, including, without limitation, the limitations set forth in Section 3 below), and, notwithstanding any other provision of this Limited Guarantee to the contrary, the Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that any Parent Party could assert against the Company under the terms of, or with respect to, the Merger Agreement that would relieve each of the Parent Parties of its obligations under the Merger Agreement.
(c) To the fullest extent permitted by applicable law, the Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of the Guaranteed Obligation and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligation shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between the Parent Parties and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under no obligation to pursue such rights and remedies it may have against the Parent Parties or any other Person for the Guaranteed Obligation or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue such other rights or remedies or to collect any payments from the Parent Parties or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of the Parent Parties or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guaranteed Party.
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(d) To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, acceptance hereof, presentment, demand for payment, notice of non-performance, default, dishonor and protest, any notice not provided for herein, all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of any Parent Party or any other person interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligation that are available to the Parent Parties under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated under the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits.
(e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that the Parent Parties become subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantor's obligation hereunder. In the event that any payment to the Guaranteed Party in respect of the Guaranteed Obligation is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to the Guaranteed Obligation as if such payment had not been made so long as this Limited Guarantee has not terminated in accordance with its terms.
3. Sole Remedy; No Recourse. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party further agrees that neither it nor any other Person (including, without limitation, the Guaranteed Party's equityholders, Affiliates and subsidiaries) has any right of recovery against, and no personal liability shall attach to, the Guarantor, any former, current or future, director, officer, employee, agent or Affiliate of the Guarantor, any former, current or future, direct or indirect holder of any equity interests or securities of the Guarantor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or representative any of the foregoing (each such Person, a "Related Person"), through any Parent Party or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of any Parent Party against the Guarantor or any Related Person (except for any claim to compel Holdco and/or Parent to enforce the Equity Commitment Letter in accordance with the terms thereof), or otherwise, except for its rights against the Guarantor under this Limited Guarantee and the Escrow Agreement. Recourse against the Guarantor under this Limited Guarantee and the Escrow Agreement and the Guaranteed Party's rights under the Equity Commitment Letter shall be the sole and exclusive remedy of (i) the Guaranteed Party and (ii) all of the Guaranteed Party's equityholders, Affiliates and subsidiaries against the Guarantor and any Related Person (other than the Parent Parties and their respective successors and assigns) in respect of any liabilities or obligations arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby, including by piercing the corporate, limited liability company or limited partnership veil or by a claim by or on behalf of any Parent Party. The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Affiliates and subsidiaries not to institute, any proceeding or bring any other claim arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby (or the failure of such to be consummated), against the Guarantor or any Related Person, except for (A) claims of the Guaranteed Party against the Guarantor under and in accordance with this Limited Guarantee and the Escrow Agreement, (B) claims of the Guaranteed Party against the Parent Parties (and their respective successors and assigns) under and in accordance with the Merger Agreement and the Escrow Agreement, and (C) the exercise of the Guaranteed Party's rights under and in accordance with the Equity Commitment Letter, and the Guaranteed Party hereby, on behalf of itself and its Affiliates and subsidiaries, waives any and all claims arising under, or in connection with, the Merger Agreement, this Limited Guarantee, the Equity Commitment Letter, the Escrow Agreement or, in each case, the transactions contemplated hereby or thereby against the Guarantor or any Related Person and releases such Persons from such claims, in each case, except for claims described in clauses (A), (B) and (C) of this sentence (each, a "Permitted Claim"). Nothing set forth in this Limited Guarantee shall confer or give or shall be construed to confer or give to any Person (including any Person acting in a representative capacity) other than the Guaranteed Party any rights or remedies against any Person, including the Guarantor, except as expressly set forth herein.
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4. Subrogation. The Guarantor will not exercise against any Parent Party any rights of subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by reason of any payment by it pursuant to the provisions of Section 1 hereof unless and until the Guaranteed Obligation and all other amounts payable under this Limited Guarantee have been paid in full.
5. Termination. This Limited Guarantee shall terminate (and the Guarantor shall have no further obligations hereunder) upon the earliest to occur of (a) the Effective Time, (b) the payment in full of the Guaranteed Obligation and the obligation under Section 1(c), (c) the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would not be required pursuant to the terms and subject to the conditions of the Merger Agreement to make any payment of any Guaranteed Obligation; and (d) six months after the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would be required pursuant to the terms and subject to the conditions of the Merger Agreement to make a payment of the Guaranteed Obligation, unless by the end of such six-month period, the Guaranteed Party shall have initiated a claim or proceeding in accordance with the terms of the Merger Agreement for payment of any of the Guaranteed Obligations; provided that if the Guaranteed Party has initiated a claim or proceeding by the end of such six-month period, this Limited Guarantee shall terminate upon the date such claim or proceeding is finally satisfied or otherwise resolved by agreement of the parties hereto or pursuant to Section 12. In the event that the Guaranteed Party or any of its Affiliates or subsidiaries asserts in any litigation or other proceeding relating to this Limited Guarantee or the Merger Agreement (i) that the provisions hereof (including, without limitation, Section 1 hereof limiting the Guarantor's aggregate liability to the Maximum Amount or Section 3 hereof relating to the sole and exclusive remedies of the Guaranteed Party and its equityholders, Affiliates and subsidiaries against the Guarantor or any Related Person) are illegal, invalid or unenforceable, in whole or in part, or (ii) any theory of liability against the Guarantor or any Related Person or any other Guarantor under the other Limited Guarantees dated as of the date hereof or any Related Person of any such other Guarantor with respect to the transactions contemplated by this Limited Guarantee, the Equity Commitment Letter or the Merger Agreement other than any Permitted Claim, then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and be null and void, (y) if the Guarantor has previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments from the Guaranteed Party and (z) neither the Guarantor nor any Related Person (other than the Parent Parties and their respective successors and assigns) shall have any liability to the Guaranteed Party or any of its equityholders, Affiliates or subsidiaries with respect to the Merger Agreement or the transactions contemplated by the Merger Agreement or this Limited Guarantee.
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6. Continuing Guarantee. Except to the extent terminated pursuant to the provisions of Section 5 hereof, this Limited Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed Obligation and the obligation under Section 1(c), shall be binding upon the Guarantor, its successors and assigns, and shall inure to the benefit of, and be enforceable by, the Guaranteed Party and its successors, permitted transferees and permitted assigns; provided that notwithstanding anything to the contrary in this Limited Guarantee, the provisions of this Limited Guarantee that are for the benefit of any Related Person (including the provisions of Sections 3 and 5) shall indefinitely survive any termination of this Limited Guarantee for the benefit of the Guarantor and any Related Persons. All obligation to which this Limited Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
7. Entire Agreement. This Limited Guarantee, the Merger Agreement, the Equity Commitment Letter and the Escrow Agreement constitute the entire agreement with respect to the subject matter hereof, and supersede all other prior agreements and understandings, both written and oral, among the Parent Parties and/or the Guarantor or any of their respective Affiliates, on the one hand, and the Guaranteed Party or any of its Affiliates, on the other hand, regarding the subject matter hereof.
8. Amendments and Waivers. Any provision of this Limited Guarantee may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Guarantor and the Guaranteed Party or, in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by any party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
9. Counterparts. This Limited Guarantee may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
10. Notices. All notices, requests, claims, demands and other communications hereunder shall be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressee's location on any Business Day after 5:00 p.m. (addressee's local time) shall be deemed to have been received at 9:00 a.m. (addressee's local time) on the next Business Day), by reliable international overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:
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if to the Guarantor:
New China Capital International Management Limited
(新华资本国际管理有限公司)
19 Floor NCI Tower, A12 Jianguomenwai Avenue, Chaoyang District, Beijing, China (100022)
Facsimile: (8610) 65692376
Attention: Changtai Ju
with copies to:
Kirkland & Ellis
26th Floor, Glouster Tower, The Landmark
15 Queen's Road Central
Hong Kong
Facsimile: +852-3761-3301
Attention: David Zhang and Jesse Sheley
If to the Guaranteed Party, as provided in Section 9.2 of the Merger Agreement.
11. Governing Law. This Limited Guarantee (except for the arbitration agreement in Section 12) shall be governed by and construed in accordance with the Laws of the State of New York without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
12. Jurisdiction; Waiver of Service of Process.
(a) Jurisdiction. In the event any dispute arises among the parties hereto out of or in relation to this Limited Guarantee, including any dispute regarding its existence, interpretation, performance, breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly consultations within thirty (30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions of this Section 12. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre ("HKIAC") Administered Rules in force when a notice of arbitration is submitted. The seat and venue of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The law of the arbitration agreement shall be Hong Kong law. The appointing authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number, and one arbitrator shall be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from nominating their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within 30 days after such two arbitrators have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any person necessary for the conduct of the arbitration, unless otherwise required by Law or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and any interim or final award, as well as the fact that an arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after the submission of any dispute to arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter agreement, except insofar as the same may relate directly to the matters in dispute. The parties hereby agree that any arbitration award rendered in accordance with the provisions of this Section 12 shall be final and binding upon them, and the parties further agree that such award may be enforced by any court having jurisdiction over the party against which the award has been rendered or the assets of such party wherever the same may be located. In any arbitration proceeding, any legal proceeding to enforce any arbitration award and in any other legal proceeding among the Parties pursuant to or relating to this Agreement, each Party expressly waives the defense of sovereign immunity and any other defense based on the fact or allegation that it is an agency or instrumentality of a sovereign state or is otherwise entitled to immunity.
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13. Representations and Warranties. The Guarantor hereby represents and warrants to the Guaranteed Party that:
(a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization;
(b) it has all necessary power and authority to execute, deliver and perform this Limited Guarantee;
(c) the execution, delivery and performance of this Limited Guarantee by the Guarantor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Guarantor are necessary therefor;
(d) all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Limited Guarantee by the Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution, delivery or performance of this Limited Guarantee;
(e) this Limited Guarantee has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the undersigned in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law));
(f) the execution, delivery and performance by the undersigned of this Limited Guarantee do not and will not violate the organizational documents of the undersigned or violate any applicable law, regulation, rule, decree, order, judgment or contractual restriction binding on the Guarantor or its assets or properties; and
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(g) it has the financial capacity to pay and perform its obligations under this Limited Guarantee, and all funds necessary for the Guarantor to fulfill its obligations under this Limited Guarantee shall be available to the Guarantor for so long as this Limited Guarantee shall remain in effect in accordance with Section 6.
14. No Assignment. Neither this Limited Guarantee nor any of the rights, interests or obligations hereunder shall be assignable without the prior written consent of the Guaranteed Party (in the case of an assignment by the Guarantor) or the Guarantor (in the case of an assignment by the Guaranteed Party).
15. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LIMITED GUARANTEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 15.
16. Severability. Any term or provision of this Limited Guarantee which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Limited Guarantee in any jurisdiction and, if any provision of this Limited Guarantee is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Maximum Amount provided in Section 1 hereof and to the provisions of Sections 3 and 5 hereof. No party hereto shall assert, and each party shall cause its respective Affiliates and subsidiaries not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.
17. Headings. Headings of the Sections of this Limited Guarantee are for convenience only and shall be given no substantive or interpretive effect whatsoever.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| New China Capital International | ||
| Management Limited | ||
| (新华资本国际管理有限公司) | ||
| By: | /s/ AN HONGJUN | |
| Name: AN HONGJUN | ||
| Title: Director | ||
[Signature Page to Limited Guarantee]
IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Limited Guarantee]
Exhibit 99.81
Execution Version
LIMITED GUARANTEE
This Limited Guarantee, dated as of December 18, 2015 (this "Limited Guarantee"), is made by Tai Ping Asset Management Co., Ltd. (太平资产管理有限公司) , a limited liability company incorporated under the laws of the People’s Republic of China (including its successors and permitted assigns, the "Guarantor"), in favor of Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Guaranteed Party"). Reference is hereby made to the Agreement and Plan of Merger, dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), and the Guaranteed Party. Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Merger Agreement.
1. Limited Guarantee.
(a) To induce the Guaranteed Party to enter into the Merger Agreement, the Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, subject to the terms and conditions hereof, the due and punctual payment and performance when due of 1.24% of the Parent Parties' obligation (the "Guaranteed Obligation") to pay to the Guaranteed Party (i) the Parent Termination Fee if and when required pursuant to Section 8.2(c) of the Merger Agreement, and (ii) the payment obligations of the Parent Parties pursuant to Section 6.6 of the Merger Agreement; provided that the maximum aggregate liability of the Guarantor hereunder shall not exceed US$5,573,361 (the "Maximum Amount").
(b) The Guaranteed Party hereby agrees that (a) the Guarantor shall in no event be required to pay more than the Maximum Amount under or in respect of this Guarantee and (b) the Guarantor shall not have any obligation or liability to any Person (including, without limitation, to the Guaranteed Party's equity holders, Affiliates and/or subsidiaries) relating to, arising out of or in connection with this Limited Guarantee, the Merger Agreement, or the Equity Commitment Letter (as defined below) other than as expressly set forth herein or in the Equity Commitment Letter or the Escrow Agreement (as defined in the Equity Commitment Letter).
(c) The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by the Guaranteed Party in connection with the enforcement of its rights hereunder and under the Merger Agreement, including, without limitation, in the event that (i) the Guarantor asserts in any arbitration, litigation or other proceeding that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms and the Guaranteed Party prevails in such arbitration, litigation or other proceeding, or (ii) the Guarantor fails or refuses to make any payment to the Guaranteed Party hereunder when due and payable and it is determined judicially or by arbitration that the Guarantor is required to make such payment hereunder.
(d) The Guarantor promises and undertakes to make all payments hereunder free and clear of any deduction, offset, defense, claim or counterclaim of any kind. If the Parent Parties fail to pay or cause to be paid the Guaranteed Obligation as and when due and payable pursuant to Section 8.2(c) of the Merger Agreement, as applicable, then the Guarantor's liabilities to the Guaranteed Party hereunder in respect of such Guaranteed Obligation shall become immediately due and payable and the Guaranteed Party may at any time and from time to time, at the Guaranteed Party's option, and so long as the Parent Parties remain in breach of its Guaranteed Obligation, take any and all actions available hereunder or under applicable Law to collect the Guaranteed Obligation from the Guarantor subject to the Maximum Amount as applicable.
2. Terms of Limited Guarantee.
(a) This Limited Guarantee is a primary and original obligation of the Guarantor and is one of payment, not collection, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against any Parent Party or any other Person or whether any Parent Party or any other Person is joined in any such action or actions. Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantor under this Limited Guarantee and of the other guarantors under the other Limited Guarantees dated as of the date hereof ("Other Guarantors") shall be several and not joint.
(b) The liability of the Guarantor under this Limited Guarantee shall, to the fullest extent permitted under applicable law, be absolute, irrevocable and unconditional, irrespective of:
(i) the value, genuineness, validity, illegality or enforceability of the Merger Agreement or the letter agreement dated as of the date hereof between the Guarantor, on the one hand, and Holdco and Parent, on the other hand, pursuant to which the Guarantor has agreed to make a certain equity contribution to Holdco and Parent (the "Equity Commitment Letter") or any other agreement or instrument referred to herein or therein;
(ii) any change in the corporate existence, structure or ownership of any Parent Party or any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting any Parent Party, any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor) or any of their respective assets;
(iii) any amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof;
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(iv) the existence of any claim, set-off or other right that the Guarantor may have at any time against any Parent Party or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise;
(v) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against any Parent Party or the Guarantor or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation (other than as and if required by Section 2(a));
(vi) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of the Guaranteed Obligation;
(vii) any other act or omission that may in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment in full of the Guaranteed Obligation in accordance with their terms); or
(viii) the addition, substitution, discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Guaranteed Obligation as a result of payment in full of the Guaranteed Obligation in accordance with their terms) of any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor),
other than in each case with respect to (A) defenses to the payment of the Guaranteed Obligation that are available to any Parent Party under the Merger Agreement or (B) breach by the Guaranteed Party of this Limited Guarantee, including, without limitation, the limitations set forth in Section 3 below), and, notwithstanding any other provision of this Limited Guarantee to the contrary, the Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that any Parent Party could assert against the Company under the terms of, or with respect to, the Merger Agreement that would relieve each of the Parent Parties of its obligations under the Merger Agreement.
(c) To the fullest extent permitted by applicable law, the Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of the Guaranteed Obligation and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligation shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between the Parent Parties and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under no obligation to pursue such rights and remedies it may have against the Parent Parties or any other Person for the Guaranteed Obligation or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue such other rights or remedies or to collect any payments from the Parent Parties or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of the Parent Parties or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guaranteed Party.
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(d) To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, acceptance hereof, presentment, demand for payment, notice of non-performance, default, dishonor and protest, any notice not provided for herein, all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of any Parent Party or any other person interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligation that are available to the Parent Parties under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated under the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits.
(e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that the Parent Parties become subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantor's obligation hereunder. In the event that any payment to the Guaranteed Party in respect of the Guaranteed Obligation is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to the Guaranteed Obligation as if such payment had not been made so long as this Limited Guarantee has not terminated in accordance with its terms.
3. Sole Remedy; No Recourse. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party further agrees that neither it nor any other Person (including, without limitation, the Guaranteed Party's equityholders, Affiliates and subsidiaries) has any right of recovery against, and no personal liability shall attach to, the Guarantor, any former, current or future, director, officer, employee, agent or Affiliate of the Guarantor, any former, current or future, direct or indirect holder of any equity interests or securities of the Guarantor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or representative any of the foregoing (each such Person, a "Related Person"), through any Parent Party or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of any Parent Party against the Guarantor or any Related Person (except for any claim to compel Holdco and/or Parent to enforce the Equity Commitment Letter in accordance with the terms thereof), or otherwise, except for its rights against the Guarantor under this Limited Guarantee and the Escrow Agreement. Recourse against the Guarantor under this Limited Guarantee and the Escrow Agreement and the Guaranteed Party's rights under the Equity Commitment Letter shall be the sole and exclusive remedy of (i) the Guaranteed Party and (ii) all of the Guaranteed Party's equityholders, Affiliates and subsidiaries against the Guarantor and any Related Person (other than the Parent Parties and their respective successors and assigns) in respect of any liabilities or obligations arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby, including by piercing the corporate, limited liability company or limited partnership veil or by a claim by or on behalf of any Parent Party. The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Affiliates and subsidiaries not to institute, any proceeding or bring any other claim arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby (or the failure of such to be consummated), against the Guarantor or any Related Person, except for (A) claims of the Guaranteed Party against the Guarantor under and in accordance with this Limited Guarantee and the Escrow Agreement, (B) claims of the Guaranteed Party against the Parent Parties (and their respective successors and assigns) under and in accordance with the Merger Agreement and the Escrow Agreement, and (C) the exercise of the Guaranteed Party's rights under and in accordance with the Equity Commitment Letter, and the Guaranteed Party hereby, on behalf of itself and its Affiliates and subsidiaries, waives any and all claims arising under, or in connection with, the Merger Agreement, this Limited Guarantee, the Equity Commitment Letter, the Escrow Agreement or, in each case, the transactions contemplated hereby or thereby against the Guarantor or any Related Person and releases such Persons from such claims, in each case, except for claims described in clauses (A), (B) and (C) of this sentence (each, a "Permitted Claim"). Nothing set forth in this Limited Guarantee shall confer or give or shall be construed to confer or give to any Person (including any Person acting in a representative capacity) other than the Guaranteed Party any rights or remedies against any Person, including the Guarantor, except as expressly set forth herein.
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4. Subrogation. The Guarantor will not exercise against any Parent Party any rights of subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by reason of any payment by it pursuant to the provisions of Section 1 hereof unless and until the Guaranteed Obligation and all other amounts payable under this Limited Guarantee have been paid in full.
5. Termination. This Limited Guarantee shall terminate (and the Guarantor shall have no further obligations hereunder) upon the earliest to occur of (a) the Effective Time, (b) the payment in full of the Guaranteed Obligation and the obligation under Section 1(c), (c) the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would not be required pursuant to the terms and subject to the conditions of the Merger Agreement to make any payment of any Guaranteed Obligation; and (d) six months after the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would be required pursuant to the terms and subject to the conditions of the Merger Agreement to make a payment of the Guaranteed Obligation, unless by the end of such six-month period, the Guaranteed Party shall have initiated a claim or proceeding in accordance with the terms of the Merger Agreement for payment of any of the Guaranteed Obligations; provided that if the Guaranteed Party has initiated a claim or proceeding by the end of such six-month period, this Limited Guarantee shall terminate upon the date such claim or proceeding is finally satisfied or otherwise resolved by agreement of the parties hereto or pursuant to Section 12. In the event that the Guaranteed Party or any of its Affiliates or subsidiaries asserts in any litigation or other proceeding relating to this Limited Guarantee or the Merger Agreement (i) that the provisions hereof (including, without limitation, Section 1 hereof limiting the Guarantor's aggregate liability to the Maximum Amount or Section 3 hereof relating to the sole and exclusive remedies of the Guaranteed Party and its equityholders, Affiliates and subsidiaries against the Guarantor or any Related Person) are illegal, invalid or unenforceable, in whole or in part, or (ii) any theory of liability against the Guarantor or any Related Person or any other Guarantor under the other Limited Guarantees dated as of the date hereof or any Related Person of any such other Guarantor with respect to the transactions contemplated by this Limited Guarantee, the Equity Commitment Letter or the Merger Agreement other than any Permitted Claim, then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and be null and void, (y) if the Guarantor has previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments from the Guaranteed Party and (z) neither the Guarantor nor any Related Person (other than the Parent Parties and their respective successors and assigns) shall have any liability to the Guaranteed Party or any of its equityholders, Affiliates or subsidiaries with respect to the Merger Agreement or the transactions contemplated by the Merger Agreement or this Limited Guarantee.
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6. Continuing Guarantee. Except to the extent terminated pursuant to the provisions of Section 5 hereof, this Limited Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed Obligation and the obligation under Section 1(c), shall be binding upon the Guarantor, its successors and assigns, and shall inure to the benefit of, and be enforceable by, the Guaranteed Party and its successors, permitted transferees and permitted assigns; provided that notwithstanding anything to the contrary in this Limited Guarantee, the provisions of this Limited Guarantee that are for the benefit of any Related Person (including the provisions of Sections 3 and 5) shall indefinitely survive any termination of this Limited Guarantee for the benefit of the Guarantor and any Related Persons. All obligation to which this Limited Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
7. Entire Agreement. This Limited Guarantee, the Merger Agreement, the Equity Commitment Letter and the Escrow Agreement constitute the entire agreement with respect to the subject matter hereof, and supersede all other prior agreements and understandings, both written and oral, among the Parent Parties and/or the Guarantor or any of their respective Affiliates, on the one hand, and the Guaranteed Party or any of its Affiliates, on the other hand, regarding the subject matter hereof.
8. Amendments and Waivers. Any provision of this Limited Guarantee may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Guarantor and the Guaranteed Party or, in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by any party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
9. Counterparts. This Limited Guarantee may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
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10. Notices. All notices, requests, claims, demands and other communications hereunder shall be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressee's location on any Business Day after 5:00 p.m. (addressee's local time) shall be deemed to have been received at 9:00 a.m. (addressee's local time) on the next Business Day), by reliable international overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:
if to the Guarantor:
TAIPING ASSET MANAGEMENT CO., LTD.
(太平资产管理有限公司)
43/F Taiping Finance Tower,
488 Middle Yincheng Road,
Pudong, Shanghai, PRC
Facsimile: 010-52601757
Attention: Nan Xiao
with copies to:
Kirkland & Ellis
26th Floor, Glouster Tower, The Landmark
15 Queen's Road Central
Hong Kong
Facsimile: +852-3761-3301
Attention: David Zhang and Jesse Sheley
If to the Guaranteed Party, as provided in Section 9.2 of the Merger Agreement.
11. Governing Law. This Limited Guarantee (except for the arbitration agreement in Section 12) shall be governed by and construed in accordance with the Laws of the State of New York without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
12. Jurisdiction; Waiver of Service of Process.
(a) Jurisdiction. In the event any dispute arises among the parties hereto out of or in relation to this Limited Guarantee, including any dispute regarding its existence, interpretation, performance, breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly consultations within thirty (30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions of this Section 12. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre ("HKIAC") Administered Rules in force when a notice of arbitration is submitted. The seat and venue of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The law of the arbitration agreement shall be Hong Kong law. The appointing authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number, and one arbitrator shall be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from nominating their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within 30 days after such two arbitrators have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any person necessary for the conduct of the arbitration, unless otherwise required by Law or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and any interim or final award, as well as the fact that an arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after the submission of any dispute to arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter agreement, except insofar as the same may relate directly to the matters in dispute. The parties hereby agree that any arbitration award rendered in accordance with the provisions of this Section 12 shall be final and binding upon them, and the parties further agree that such award may be enforced by any court having jurisdiction over the party against which the award has been rendered or the assets of such party wherever the same may be located. In any arbitration proceeding, any legal proceeding to enforce any arbitration award and in any other legal proceeding among the Parties pursuant to or relating to this Agreement, each Party expressly waives the defense of sovereign immunity and any other defense based on the fact or allegation that it is an agency or instrumentality of a sovereign state or is otherwise entitled to immunity.
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13. Representations and Warranties. The Guarantor hereby represents and warrants to the Guaranteed Party that:
(a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization;
(b) it has all necessary power and authority to execute, deliver and perform this Limited Guarantee;
(c) the execution, delivery and performance of this Limited Guarantee by the Guarantor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Guarantor are necessary therefor;
(d) all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Limited Guarantee by the Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution, delivery or performance of this Limited Guarantee;
(e) this Limited Guarantee has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the undersigned in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law));
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(f) the execution, delivery and performance by the undersigned of this Limited Guarantee do not and will not violate the organizational documents of the undersigned or violate any applicable law, regulation, rule, decree, order, judgment or contractual restriction binding on the Guarantor or its assets or properties; and
(g) it has the financial capacity to pay and perform its obligations under this Limited Guarantee, and all funds necessary for the Guarantor to fulfill its obligations under this Limited Guarantee shall be available to the Guarantor for so long as this Limited Guarantee shall remain in effect in accordance with Section 6.
14. No Assignment. Neither this Limited Guarantee nor any of the rights, interests or obligations hereunder shall be assignable without the prior written consent of the Guaranteed Party (in the case of an assignment by the Guarantor) or the Guarantor (in the case of an assignment by the Guaranteed Party).
15. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LIMITED GUARANTEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 15.
16. Severability. Any term or provision of this Limited Guarantee which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Limited Guarantee in any jurisdiction and, if any provision of this Limited Guarantee is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Maximum Amount provided in Section 1 hereof and to the provisions of Sections 3 and 5 hereof. No party hereto shall assert, and each party shall cause its respective Affiliates and subsidiaries not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.
17. Headings. Headings of the Sections of this Limited Guarantee are for convenience only and shall be given no substantive or interpretive effect whatsoever.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| TAI PING ASSET MANAGEMENT CO., LTD. | ||
| (太平资产管理有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Xiao Xing | |
| Name: Xiao Xing | ||
| Title: General Manager | ||
[Signature Page to Limited Guarantee]
IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Limited Guarantee]
Exhibit 99.82
Execution Version
LIMITED GUARANTEE
This Limited Guarantee, dated as of December 18, 2015 (this "Limited Guarantee"), is made by Jiangsu Huatai Ruilian M&A Fund (LLP) (江苏华泰瑞联并购基金 (有限合伙)), a limited partnership formed under the laws of the People’s Republic of China (including its successors and permitted assigns, the "Guarantor"), in favor of Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Guaranteed Party"). Reference is hereby made to the Agreement and Plan of Merger, dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), and the Guaranteed Party. Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Merger Agreement.
1. Limited Guarantee.
(a) To induce the Guaranteed Party to enter into the Merger Agreement, the Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, subject to the terms and conditions hereof, the due and punctual payment and performance when due of 3.10% of the Parent Parties' obligation (the "Guaranteed Obligation") to pay to the Guaranteed Party (i) the Parent Termination Fee if and when required pursuant to Section 8.2(c) of the Merger Agreement, and (ii) the payment obligations of the Parent Parties pursuant to Section 6.6 of the Merger Agreement; provided that the maximum aggregate liability of the Guarantor hereunder shall not exceed US$ 13,933,403 (the "Maximum Amount").
(b) The Guaranteed Party hereby agrees that (a) the Guarantor shall in no event be required to pay more than the Maximum Amount under or in respect of this Guarantee and (b) the Guarantor shall not have any obligation or liability to any Person (including, without limitation, to the Guaranteed Party's equity holders, Affiliates and/or subsidiaries) relating to, arising out of or in connection with this Limited Guarantee, the Merger Agreement, or the Equity Commitment Letter (as defined below) other than as expressly set forth herein or in the Equity Commitment Letter or the Escrow Agreement (as defined in the Equity Commitment Letter).
(c) The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by the Guaranteed Party in connection with the enforcement of its rights hereunder and under the Merger Agreement, including, without limitation, in the event that (i) the Guarantor asserts in any arbitration, litigation or other proceeding that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms and the Guaranteed Party prevails in such arbitration, litigation or other proceeding, or (ii) the Guarantor fails or refuses to make any payment to the Guaranteed Party hereunder when due and payable and it is determined judicially or by arbitration that the Guarantor is required to make such payment hereunder.
(d) The Guarantor promises and undertakes to make all payments hereunder free and clear of any deduction, offset, defense, claim or counterclaim of any kind. If the Parent Parties fail to pay or cause to be paid the Guaranteed Obligation as and when due and payable pursuant to Section 8.2(c) of the Merger Agreement, as applicable, then the Guarantor's liabilities to the Guaranteed Party hereunder in respect of such Guaranteed Obligation shall become immediately due and payable and the Guaranteed Party may at any time and from time to time, at the Guaranteed Party's option, and so long as the Parent Parties remain in breach of its Guaranteed Obligation, take any and all actions available hereunder or under applicable Law to collect the Guaranteed Obligation from the Guarantor subject to the Maximum Amount as applicable.
2. Terms of Limited Guarantee.
(a) This Limited Guarantee is a primary and original obligation of the Guarantor and is one of payment, not collection, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against any Parent Party or any other Person or whether any Parent Party or any other Person is joined in any such action or actions. Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantor under this Limited Guarantee and of the other guarantors under the other Limited Guarantees dated as of the date hereof ("Other Guarantors") shall be several and not joint.
(b) The liability of the Guarantor under this Limited Guarantee shall, to the fullest extent permitted under applicable law, be absolute, irrevocable and unconditional, irrespective of:
(i) the value, genuineness, validity, illegality or enforceability of the Merger Agreement or the letter agreement dated as of the date hereof between the Guarantor, on the one hand, and Holdco and Parent, on the other hand, pursuant to which the Guarantor has agreed to make a certain equity contribution to Holdco and Parent (the "Equity Commitment Letter") or any other agreement or instrument referred to herein or therein;
(ii) any change in the corporate existence, structure or ownership of any Parent Party or any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting any Parent Party, any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor) or any of their respective assets;
(iii) any amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof;
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(iv) the existence of any claim, set-off or other right that the Guarantor may have at any time against any Parent Party or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise;
(v) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against any Parent Party or the Guarantor or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation (other than as and if required by Section 2(a));
(vi) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of the Guaranteed Obligation;
(vii) any other act or omission that may in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment in full of the Guaranteed Obligation in accordance with their terms); or
(viii) the addition, substitution, discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Guaranteed Obligation as a result of payment in full of the Guaranteed Obligation in accordance with their terms) of any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor),
other than in each case with respect to (A) defenses to the payment of the Guaranteed Obligation that are available to any Parent Party under the Merger Agreement or (B) breach by the Guaranteed Party of this Limited Guarantee, including, without limitation, the limitations set forth in Section 3 below), and, notwithstanding any other provision of this Limited Guarantee to the contrary, the Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that any Parent Party could assert against the Company under the terms of, or with respect to, the Merger Agreement that would relieve each of the Parent Parties of its obligations under the Merger Agreement.
(c) To the fullest extent permitted by applicable law, the Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of the Guaranteed Obligation and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligation shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between the Parent Parties and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under no obligation to pursue such rights and remedies it may have against the Parent Parties or any other Person for the Guaranteed Obligation or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue such other rights or remedies or to collect any payments from the Parent Parties or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of the Parent Parties or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guaranteed Party.
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(d) To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, acceptance hereof, presentment, demand for payment, notice of non-performance, default, dishonor and protest, any notice not provided for herein, all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of any Parent Party or any other person interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligation that are available to the Parent Parties under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated under the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits.
(e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that the Parent Parties become subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantor's obligation hereunder. In the event that any payment to the Guaranteed Party in respect of the Guaranteed Obligation is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to the Guaranteed Obligation as if such payment had not been made so long as this Limited Guarantee has not terminated in accordance with its terms.
3. Sole Remedy; No Recourse. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party further agrees that neither it nor any other Person (including, without limitation, the Guaranteed Party's equityholders, Affiliates and subsidiaries) has any right of recovery against, and no personal liability shall attach to, the Guarantor, any former, current or future, director, officer, employee, agent or Affiliate of the Guarantor, any former, current or future, direct or indirect holder of any equity interests or securities of the Guarantor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or representative any of the foregoing (each such Person, a "Related Person"), through any Parent Party or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of any Parent Party against the Guarantor or any Related Person (except for any claim to compel Holdco and/or Parent to enforce the Equity Commitment Letter in accordance with the terms thereof), or otherwise, except for its rights against the Guarantor under this Limited Guarantee and the Escrow Agreement. Recourse against the Guarantor under this Limited Guarantee and the Escrow Agreement and the Guaranteed Party's rights under the Equity Commitment Letter shall be the sole and exclusive remedy of (i) the Guaranteed Party and (ii) all of the Guaranteed Party's equityholders, Affiliates and subsidiaries against the Guarantor and any Related Person (other than the Parent Parties and their respective successors and assigns) in respect of any liabilities or obligations arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby, including by piercing the corporate, limited liability company or limited partnership veil or by a claim by or on behalf of any Parent Party. The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Affiliates and subsidiaries not to institute, any proceeding or bring any other claim arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby (or the failure of such to be consummated), against the Guarantor or any Related Person, except for (A) claims of the Guaranteed Party against the Guarantor under and in accordance with this Limited Guarantee and the Escrow Agreement, (B) claims of the Guaranteed Party against the Parent Parties (and their respective successors and assigns) under and in accordance with the Merger Agreement and the Escrow Agreement, and (C) the exercise of the Guaranteed Party's rights under and in accordance with the Equity Commitment Letter, and the Guaranteed Party hereby, on behalf of itself and its Affiliates and subsidiaries, waives any and all claims arising under, or in connection with, the Merger Agreement, this Limited Guarantee, the Equity Commitment Letter, the Escrow Agreement or, in each case, the transactions contemplated hereby or thereby against the Guarantor or any Related Person and releases such Persons from such claims, in each case, except for claims described in clauses (A), (B) and (C) of this sentence (each, a "Permitted Claim"). Nothing set forth in this Limited Guarantee shall confer or give or shall be construed to confer or give to any Person (including any Person acting in a representative capacity) other than the Guaranteed Party any rights or remedies against any Person, including the Guarantor, except as expressly set forth herein.
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4. Subrogation. The Guarantor will not exercise against any Parent Party any rights of subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by reason of any payment by it pursuant to the provisions of Section 1 hereof unless and until the Guaranteed Obligation and all other amounts payable under this Limited Guarantee have been paid in full.
5. Termination. This Limited Guarantee shall terminate (and the Guarantor shall have no further obligations hereunder) upon the earliest to occur of (a) the Effective Time, (b) the payment in full of the Guaranteed Obligation and the obligation under Section 1(c), (c) the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would not be required pursuant to the terms and subject to the conditions of the Merger Agreement to make any payment of any Guaranteed Obligation; and (d) six months after the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would be required pursuant to the terms and subject to the conditions of the Merger Agreement to make a payment of the Guaranteed Obligation, unless by the end of such six-month period, the Guaranteed Party shall have initiated a claim or proceeding in accordance with the terms of the Merger Agreement for payment of any of the Guaranteed Obligations; provided that if the Guaranteed Party has initiated a claim or proceeding by the end of such six-month period, this Limited Guarantee shall terminate upon the date such claim or proceeding is finally satisfied or otherwise resolved by agreement of the parties hereto or pursuant to Section 12. In the event that the Guaranteed Party or any of its Affiliates or subsidiaries asserts in any litigation or other proceeding relating to this Limited Guarantee or the Merger Agreement (i) that the provisions hereof (including, without limitation, Section 1 hereof limiting the Guarantor's aggregate liability to the Maximum Amount or Section 3 hereof relating to the sole and exclusive remedies of the Guaranteed Party and its equityholders, Affiliates and subsidiaries against the Guarantor or any Related Person) are illegal, invalid or unenforceable, in whole or in part, or (ii) any theory of liability against the Guarantor or any Related Person or any other Guarantor under the other Limited Guarantees dated as of the date hereof or any Related Person of any such other Guarantor with respect to the transactions contemplated by this Limited Guarantee, the Equity Commitment Letter or the Merger Agreement other than any Permitted Claim, then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and be null and void, (y) if the Guarantor has previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments from the Guaranteed Party and (z) neither the Guarantor nor any Related Person (other than the Parent Parties and their respective successors and assigns) shall have any liability to the Guaranteed Party or any of its equityholders, Affiliates or subsidiaries with respect to the Merger Agreement or the transactions contemplated by the Merger Agreement or this Limited Guarantee.
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6. Continuing Guarantee. Except to the extent terminated pursuant to the provisions of Section 5 hereof, this Limited Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed Obligation and the obligation under Section 1(c), shall be binding upon the Guarantor, its successors and assigns, and shall inure to the benefit of, and be enforceable by, the Guaranteed Party and its successors, permitted transferees and permitted assigns; provided that notwithstanding anything to the contrary in this Limited Guarantee, the provisions of this Limited Guarantee that are for the benefit of any Related Person (including the provisions of Sections 3 and 5) shall indefinitely survive any termination of this Limited Guarantee for the benefit of the Guarantor and any Related Persons. All obligation to which this Limited Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
7. Entire Agreement. This Limited Guarantee, the Merger Agreement, the Equity Commitment Letter and the Escrow Agreement constitute the entire agreement with respect to the subject matter hereof, and supersede all other prior agreements and understandings, both written and oral, among the Parent Parties and/or the Guarantor or any of their respective Affiliates, on the one hand, and the Guaranteed Party or any of its Affiliates, on the other hand, regarding the subject matter hereof.
8. Amendments and Waivers. Any provision of this Limited Guarantee may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Guarantor and the Guaranteed Party or, in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by any party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
9. Counterparts. This Limited Guarantee may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
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10. Notices. All notices, requests, claims, demands and other communications hereunder shall be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressee's location on any Business Day after 5:00 p.m. (addressee's local time) shall be deemed to have been received at 9:00 a.m. (addressee's local time) on the next Business Day), by reliable international overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:
if to the Guarantor:
JIANGSU HUATAI RUILIAN M&A FUND (LLP)
(江苏华泰瑞联并购基金 (有限合伙))
18/F,28 Fengshenghutong, Taipingqiao Street,
Xicheng District, Beijing 100032 China
Facsimile: 010-63134089
Attention: Dazhou Yue
with copies to:
Kirkland & Ellis
26th Floor, Glouster Tower, The Landmark
15 Queen's Road Central
Hong Kong
Facsimile: +852-3761-3301
Attention: David Zhang and Jesse Sheley
If to the Guaranteed Party, as provided in Section 9.2 of the Merger Agreement.
11. Governing Law. This Limited Guarantee (except for the arbitration agreement in Section 12) shall be governed by and construed in accordance with the Laws of the State of New York without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
12. Jurisdiction; Waiver of Service of Process.
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(a) Jurisdiction. In the event any dispute arises among the parties hereto out of or in relation to this Limited Guarantee, including any dispute regarding its existence, interpretation, performance, breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly consultations within thirty (30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions of this Section 12. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre ("HKIAC") Administered Rules in force when a notice of arbitration is submitted. The seat and venue of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The law of the arbitration agreement shall be Hong Kong law. The appointing authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number, and one arbitrator shall be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from nominating their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within 30 days after such two arbitrators have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any person necessary for the conduct of the arbitration, unless otherwise required by Law or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and any interim or final award, as well as the fact that an arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after the submission of any dispute to arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter agreement, except insofar as the same may relate directly to the matters in dispute. The parties hereby agree that any arbitration award rendered in accordance with the provisions of this Section 12 shall be final and binding upon them, and the parties further agree that such award may be enforced by any court having jurisdiction over the party against which the award has been rendered or the assets of such party wherever the same may be located. In any arbitration proceeding, any legal proceeding to enforce any arbitration award and in any other legal proceeding among the Parties pursuant to or relating to this Agreement, each Party expressly waives the defense of sovereign immunity and any other defense based on the fact or allegation that it is an agency or instrumentality of a sovereign state or is otherwise entitled to immunity.
13. Representations and Warranties. The Guarantor hereby represents and warrants to the Guaranteed Party that:
(a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization;
(b) it has all necessary power and authority to execute, deliver and perform this Limited Guarantee;
(c) the execution, delivery and performance of this Limited Guarantee by the Guarantor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Guarantor are necessary therefor;
(d) all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Limited Guarantee by the Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution, delivery or performance of this Limited Guarantee;
(e) this Limited Guarantee has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the undersigned in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law));
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(f) the execution, delivery and performance by the undersigned of this Limited Guarantee do not and will not violate the organizational documents of the undersigned or violate any applicable law, regulation, rule, decree, order, judgment or contractual restriction binding on the Guarantor or its assets or properties; and
(g) it has the financial capacity to pay and perform its obligations under this Limited Guarantee, and all funds necessary for the Guarantor to fulfill its obligations under this Limited Guarantee shall be available to the Guarantor for so long as this Limited Guarantee shall remain in effect in accordance with Section 6.
14. No Assignment. Neither this Limited Guarantee nor any of the rights, interests or obligations hereunder shall be assignable without the prior written consent of the Guaranteed Party (in the case of an assignment by the Guarantor) or the Guarantor (in the case of an assignment by the Guaranteed Party).
15. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LIMITED GUARANTEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 15.
16. Severability. Any term or provision of this Limited Guarantee which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Limited Guarantee in any jurisdiction and, if any provision of this Limited Guarantee is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Maximum Amount provided in Section 1 hereof and to the provisions of Sections 3 and 5 hereof. No party hereto shall assert, and each party shall cause its respective Affiliates and subsidiaries not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.
17. Headings. Headings of the Sections of this Limited Guarantee are for convenience only and shall be given no substantive or interpretive effect whatsoever.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Jiangsu Huatai Ruilian M&A Fund (LLP) | ||
| (江苏华泰瑞联并购基金 (有限合伙)) | ||
| [Company chop is affixed] | ||
| By: | /s/ Zhijie Chen | |
| Name: Zhijie Chen | ||
| Title: Authorised Representative | ||
[Signature Page to Limited Guarantee]
IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Limited Guarantee]
Exhibit 99.83
Execution Version
LIMITED GUARANTEE
This Limited Guarantee, dated as of December 18, 2015 (this "Limited Guarantee"), is made by Greenland Financial Holdings Group Co., Ltd. (绿地金融投资控股集团有限公司), a limited liability company incorporated under the laws of the People’s Republic of China (including its successors and permitted assigns, the "Guarantor"), in favor of Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Guaranteed Party"). Reference is hereby made to the Agreement and Plan of Merger, dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), and the Guaranteed Party. Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Merger Agreement.
1. Limited Guarantee.
(a) To induce the Guaranteed Party to enter into the Merger Agreement, the Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, subject to the terms and conditions hereof, the due and punctual payment and performance when due of 1.24% of the Parent Parties' obligation (the "Guaranteed Obligation") to pay to the Guaranteed Party (i) the Parent Termination Fee if and when required pursuant to Section 8.2(c) of the Merger Agreement, and (ii) the payment obligations of the Parent Parties pursuant to Section 6.6 of the Merger Agreement; provided that the maximum aggregate liability of the Guarantor hereunder shall not exceed US$5,573,361 (the "Maximum Amount").
(b) The Guaranteed Party hereby agrees that (a) the Guarantor shall in no event be required to pay more than the Maximum Amount under or in respect of this Guarantee and (b) the Guarantor shall not have any obligation or liability to any Person (including, without limitation, to the Guaranteed Party's equity holders, Affiliates and/or subsidiaries) relating to, arising out of or in connection with this Limited Guarantee, the Merger Agreement, or the Equity Commitment Letter (as defined below) other than as expressly set forth herein or in the Equity Commitment Letter or the Escrow Agreement (as defined in the Equity Commitment Letter).
(c) The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by the Guaranteed Party in connection with the enforcement of its rights hereunder and under the Merger Agreement, including, without limitation, in the event that (i) the Guarantor asserts in any arbitration, litigation or other proceeding that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms and the Guaranteed Party prevails in such arbitration, litigation or other proceeding, or (ii) the Guarantor fails or refuses to make any payment to the Guaranteed Party hereunder when due and payable and it is determined judicially or by arbitration that the Guarantor is required to make such payment hereunder.
(d) The Guarantor promises and undertakes to make all payments hereunder free and clear of any deduction, offset, defense, claim or counterclaim of any kind. If the Parent Parties fail to pay or cause to be paid the Guaranteed Obligation as and when due and payable pursuant to Section 8.2(c) of the Merger Agreement, as applicable, then the Guarantor's liabilities to the Guaranteed Party hereunder in respect of such Guaranteed Obligation shall become immediately due and payable and the Guaranteed Party may at any time and from time to time, at the Guaranteed Party's option, and so long as the Parent Parties remain in breach of its Guaranteed Obligation, take any and all actions available hereunder or under applicable Law to collect the Guaranteed Obligation from the Guarantor subject to the Maximum Amount as applicable.
2. Terms of Limited Guarantee.
(a) This Limited Guarantee is a primary and original obligation of the Guarantor and is one of payment, not collection, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against any Parent Party or any other Person or whether any Parent Party or any other Person is joined in any such action or actions. Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantor under this Limited Guarantee and of the other guarantors under the other Limited Guarantees dated as of the date hereof ("Other Guarantors") shall be several and not joint.
(b) The liability of the Guarantor under this Limited Guarantee shall, to the fullest extent permitted under applicable law, be absolute, irrevocable and unconditional, irrespective of:
(i) the value, genuineness, validity, illegality or enforceability of the Merger Agreement or the letter agreement dated as of the date hereof between the Guarantor, on the one hand, and Holdco and Parent, on the other hand, pursuant to which the Guarantor has agreed to make a certain equity contribution to Holdco and Parent (the "Equity Commitment Letter") or any other agreement or instrument referred to herein or therein;
(ii) any change in the corporate existence, structure or ownership of any Parent Party or any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting any Parent Party, any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor) or any of their respective assets;
(iii) any amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof;
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(iv) the existence of any claim, set-off or other right that the Guarantor may have at any time against any Parent Party or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise;
(v) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against any Parent Party or the Guarantor or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation (other than as and if required by Section 2(a));
(vi) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of the Guaranteed Obligation;
(vii) any other act or omission that may in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment in full of the Guaranteed Obligation in accordance with their terms); or
(viii) the addition, substitution, discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Guaranteed Obligation as a result of payment in full of the Guaranteed Obligation in accordance with their terms) of any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor),
other than in each case with respect to (A) defenses to the payment of the Guaranteed Obligation that are available to any Parent Party under the Merger Agreement or (B) breach by the Guaranteed Party of this Limited Guarantee, including, without limitation, the limitations set forth in Section 3 below), and, notwithstanding any other provision of this Limited Guarantee to the contrary, the Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that any Parent Party could assert against the Company under the terms of, or with respect to, the Merger Agreement that would relieve each of the Parent Parties of its obligations under the Merger Agreement.
(c) To the fullest extent permitted by applicable law, the Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of the Guaranteed Obligation and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligation shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between the Parent Parties and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under no obligation to pursue such rights and remedies it may have against the Parent Parties or any other Person for the Guaranteed Obligation or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue such other rights or remedies or to collect any payments from the Parent Parties or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of the Parent Parties or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guaranteed Party.
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(d) To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, acceptance hereof, presentment, demand for payment, notice of non-performance, default, dishonor and protest, any notice not provided for herein, all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of any Parent Party or any other person interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligation that are available to the Parent Parties under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated under the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits.
(e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that the Parent Parties become subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantor's obligation hereunder. In the event that any payment to the Guaranteed Party in respect of the Guaranteed Obligation is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to the Guaranteed Obligation as if such payment had not been made so long as this Limited Guarantee has not terminated in accordance with its terms.
3. Sole Remedy; No Recourse. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party further agrees that neither it nor any other Person (including, without limitation, the Guaranteed Party's equityholders, Affiliates and subsidiaries) has any right of recovery against, and no personal liability shall attach to, the Guarantor, any former, current or future, director, officer, employee, agent or Affiliate of the Guarantor, any former, current or future, direct or indirect holder of any equity interests or securities of the Guarantor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or representative any of the foregoing (each such Person, a "Related Person"), through any Parent Party or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of any Parent Party against the Guarantor or any Related Person (except for any claim to compel Holdco and/or Parent to enforce the Equity Commitment Letter in accordance with the terms thereof), or otherwise, except for its rights against the Guarantor under this Limited Guarantee and the Escrow Agreement. Recourse against the Guarantor under this Limited Guarantee and the Escrow Agreement and the Guaranteed Party's rights under the Equity Commitment Letter shall be the sole and exclusive remedy of (i) the Guaranteed Party and (ii) all of the Guaranteed Party's equityholders, Affiliates and subsidiaries against the Guarantor and any Related Person (other than the Parent Parties and their respective successors and assigns) in respect of any liabilities or obligations arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby, including by piercing the corporate, limited liability company or limited partnership veil or by a claim by or on behalf of any Parent Party. The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Affiliates and subsidiaries not to institute, any proceeding or bring any other claim arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby (or the failure of such to be consummated), against the Guarantor or any Related Person, except for (A) claims of the Guaranteed Party against the Guarantor under and in accordance with this Limited Guarantee and the Escrow Agreement, (B) claims of the Guaranteed Party against the Parent Parties (and their respective successors and assigns) under and in accordance with the Merger Agreement and the Escrow Agreement, and (C) the exercise of the Guaranteed Party's rights under and in accordance with the Equity Commitment Letter, and the Guaranteed Party hereby, on behalf of itself and its Affiliates and subsidiaries, waives any and all claims arising under, or in connection with, the Merger Agreement, this Limited Guarantee, the Equity Commitment Letter, the Escrow Agreement or, in each case, the transactions contemplated hereby or thereby against the Guarantor or any Related Person and releases such Persons from such claims, in each case, except for claims described in clauses (A), (B) and (C) of this sentence (each, a "Permitted Claim"). Nothing set forth in this Limited Guarantee shall confer or give or shall be construed to confer or give to any Person (including any Person acting in a representative capacity) other than the Guaranteed Party any rights or remedies against any Person, including the Guarantor, except as expressly set forth herein.
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4. Subrogation. The Guarantor will not exercise against any Parent Party any rights of subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by reason of any payment by it pursuant to the provisions of Section 1 hereof unless and until the Guaranteed Obligation and all other amounts payable under this Limited Guarantee have been paid in full.
5. Termination. This Limited Guarantee shall terminate (and the Guarantor shall have no further obligations hereunder) upon the earliest to occur of (a) the Effective Time, (b) the payment in full of the Guaranteed Obligation and the obligation under Section 1(c), (c) the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would not be required pursuant to the terms and subject to the conditions of the Merger Agreement to make any payment of any Guaranteed Obligation; and (d) six months after the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would be required pursuant to the terms and subject to the conditions of the Merger Agreement to make a payment of the Guaranteed Obligation, unless by the end of such six-month period, the Guaranteed Party shall have initiated a claim or proceeding in accordance with the terms of the Merger Agreement for payment of any of the Guaranteed Obligations; provided that if the Guaranteed Party has initiated a claim or proceeding by the end of such six-month period, this Limited Guarantee shall terminate upon the date such claim or proceeding is finally satisfied or otherwise resolved by agreement of the parties hereto or pursuant to Section 12. In the event that the Guaranteed Party or any of its Affiliates or subsidiaries asserts in any litigation or other proceeding relating to this Limited Guarantee or the Merger Agreement (i) that the provisions hereof (including, without limitation, Section 1 hereof limiting the Guarantor's aggregate liability to the Maximum Amount or Section 3 hereof relating to the sole and exclusive remedies of the Guaranteed Party and its equityholders, Affiliates and subsidiaries against the Guarantor or any Related Person) are illegal, invalid or unenforceable, in whole or in part, or (ii) any theory of liability against the Guarantor or any Related Person or any other Guarantor under the other Limited Guarantees dated as of the date hereof or any Related Person of any such other Guarantor with respect to the transactions contemplated by this Limited Guarantee, the Equity Commitment Letter or the Merger Agreement other than any Permitted Claim, then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and be null and void, (y) if the Guarantor has previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments from the Guaranteed Party and (z) neither the Guarantor nor any Related Person (other than the Parent Parties and their respective successors and assigns) shall have any liability to the Guaranteed Party or any of its equityholders, Affiliates or subsidiaries with respect to the Merger Agreement or the transactions contemplated by the Merger Agreement or this Limited Guarantee.
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6. Continuing Guarantee. Except to the extent terminated pursuant to the provisions of Section 5 hereof, this Limited Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed Obligation and the obligation under Section 1(c), shall be binding upon the Guarantor, its successors and assigns, and shall inure to the benefit of, and be enforceable by, the Guaranteed Party and its successors, permitted transferees and permitted assigns; provided that notwithstanding anything to the contrary in this Limited Guarantee, the provisions of this Limited Guarantee that are for the benefit of any Related Person (including the provisions of Sections 3 and 5) shall indefinitely survive any termination of this Limited Guarantee for the benefit of the Guarantor and any Related Persons. All obligation to which this Limited Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
7. Entire Agreement. This Limited Guarantee, the Merger Agreement, the Equity Commitment Letter and the Escrow Agreement constitute the entire agreement with respect to the subject matter hereof, and supersede all other prior agreements and understandings, both written and oral, among the Parent Parties and/or the Guarantor or any of their respective Affiliates, on the one hand, and the Guaranteed Party or any of its Affiliates, on the other hand, regarding the subject matter hereof.
8. Amendments and Waivers. Any provision of this Limited Guarantee may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Guarantor and the Guaranteed Party or, in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by any party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
9. Counterparts. This Limited Guarantee may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
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10. Notices. All notices, requests, claims, demands and other communications hereunder shall be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressee's location on any Business Day after 5:00 p.m. (addressee's local time) shall be deemed to have been received at 9:00 a.m. (addressee's local time) on the next Business Day), by reliable international overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:
if to the Guarantor:
GREENLAND FINANCIAL HOLDINGS GROUP CO., LTD.
(绿地金融投资控股集团有限公司)
Floor 9, No 917, East Longhua Road,
Shanghai, China
Facsimile: 021-53011102
Attention: Mengbi Li
with copies to:
Kirkland & Ellis
26th Floor, Glouster Tower, The Landmark
15 Queen's Road Central
Hong Kong
Facsimile: +852-3761-3301
Attention: David Zhang and Jesse Sheley
If to the Guaranteed Party, as provided in Section 9.2 of the Merger Agreement.
11. Governing Law. This Limited Guarantee (except for the arbitration agreement in Section 12) shall be governed by and construed in accordance with the Laws of the State of New York without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
12. Jurisdiction; Waiver of Service of Process.
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(a) Jurisdiction. In the event any dispute arises among the parties hereto out of or in relation to this Limited Guarantee, including any dispute regarding its existence, interpretation, performance, breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly consultations within thirty (30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions of this Section 12. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre ("HKIAC") Administered Rules in force when a notice of arbitration is submitted. The seat and venue of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The law of the arbitration agreement shall be Hong Kong law. The appointing authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number, and one arbitrator shall be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from nominating their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within 30 days after such two arbitrators have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any person necessary for the conduct of the arbitration, unless otherwise required by Law or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and any interim or final award, as well as the fact that an arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after the submission of any dispute to arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter agreement, except insofar as the same may relate directly to the matters in dispute. The parties hereby agree that any arbitration award rendered in accordance with the provisions of this Section 12 shall be final and binding upon them, and the parties further agree that such award may be enforced by any court having jurisdiction over the party against which the award has been rendered or the assets of such party wherever the same may be located. In any arbitration proceeding, any legal proceeding to enforce any arbitration award and in any other legal proceeding among the Parties pursuant to or relating to this Agreement, each Party expressly waives the defense of sovereign immunity and any other defense based on the fact or allegation that it is an agency or instrumentality of a sovereign state or is otherwise entitled to immunity.
13. Representations and Warranties. The Guarantor hereby represents and warrants to the Guaranteed Party that:
(a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization;
(b) it has all necessary power and authority to execute, deliver and perform this Limited Guarantee;
(c) the execution, delivery and performance of this Limited Guarantee by the Guarantor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Guarantor are necessary therefor;
(d) all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Limited Guarantee by the Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution, delivery or performance of this Limited Guarantee;
(e) this Limited Guarantee has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the undersigned in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law));
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(f) the execution, delivery and performance by the undersigned of this Limited Guarantee do not and will not violate the organizational documents of the undersigned or violate any applicable law, regulation, rule, decree, order, judgment or contractual restriction binding on the Guarantor or its assets or properties; and
(g) it has the financial capacity to pay and perform its obligations under this Limited Guarantee, and all funds necessary for the Guarantor to fulfill its obligations under this Limited Guarantee shall be available to the Guarantor for so long as this Limited Guarantee shall remain in effect in accordance with Section 6.
14. No Assignment. Neither this Limited Guarantee nor any of the rights, interests or obligations hereunder shall be assignable without the prior written consent of the Guaranteed Party (in the case of an assignment by the Guarantor) or the Guarantor (in the case of an assignment by the Guaranteed Party).
15. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LIMITED GUARANTEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 15.
16. Severability. Any term or provision of this Limited Guarantee which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Limited Guarantee in any jurisdiction and, if any provision of this Limited Guarantee is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Maximum Amount provided in Section 1 hereof and to the provisions of Sections 3 and 5 hereof. No party hereto shall assert, and each party shall cause its respective Affiliates and subsidiaries not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.
17. Headings. Headings of the Sections of this Limited Guarantee are for convenience only and shall be given no substantive or interpretive effect whatsoever.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Greenland Financial Holdings Group Co., Ltd. | ||
| (绿地金融投资控股集团有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ GENG Jing | |
| Name: GENG Jing | ||
| Title: Chairman of the Board & President | ||
[Signature Page to Limited Guarantee]
IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Limited Guarantee]
Exhibit 99.84
Execution Version
LIMITED GUARANTEE
This Limited Guarantee, dated as of December 18, 2015 (this "Limited Guarantee"), is made by SIP Oriza Chongyuan M&A Fund Partnership (Limited Partnership) (苏州工业园区元禾重元并购股权投资基金合伙企业 (有限合伙)), a limited partnership formed under the laws of the People’s Republic of China (including its successors and permitted assigns, the "Guarantor"), in favor of Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Guaranteed Party"). Reference is hereby made to the Agreement and Plan of Merger, dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), and the Guaranteed Party. Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Merger Agreement.
1. Limited Guarantee.
(a) To induce the Guaranteed Party to enter into the Merger Agreement, the Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, subject to the terms and conditions hereof, the due and punctual payment and performance when due of 0.62% of the Parent Parties' obligation (the "Guaranteed Obligation") to pay to the Guaranteed Party (i) the Parent Termination Fee if and when required pursuant to Section 8.2(c) of the Merger Agreement, and (ii) the payment obligations of the Parent Parties pursuant to Section 6.6 of the Merger Agreement; provided that the maximum aggregate liability of the Guarantor hereunder shall not exceed US$2,786,681 (the "Maximum Amount").
(b) The Guaranteed Party hereby agrees that (a) the Guarantor shall in no event be required to pay more than the Maximum Amount under or in respect of this Guarantee and (b) the Guarantor shall not have any obligation or liability to any Person (including, without limitation, to the Guaranteed Party's equity holders, Affiliates and/or subsidiaries) relating to, arising out of or in connection with this Limited Guarantee, the Merger Agreement, or the Equity Commitment Letter (as defined below) other than as expressly set forth herein or in the Equity Commitment Letter or the Escrow Agreement (as defined in the Equity Commitment Letter).
(c) The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by the Guaranteed Party in connection with the enforcement of its rights hereunder and under the Merger Agreement, including, without limitation, in the event that (i) the Guarantor asserts in any arbitration, litigation or other proceeding that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms and the Guaranteed Party prevails in such arbitration, litigation or other proceeding, or (ii) the Guarantor fails or refuses to make any payment to the Guaranteed Party hereunder when due and payable and it is determined judicially or by arbitration that the Guarantor is required to make such payment hereunder.
(d) The Guarantor promises and undertakes to make all payments hereunder free and clear of any deduction, offset, defense, claim or counterclaim of any kind. If the Parent Parties fail to pay or cause to be paid the Guaranteed Obligation as and when due and payable pursuant to Section 8.2(c) of the Merger Agreement, as applicable, then the Guarantor's liabilities to the Guaranteed Party hereunder in respect of such Guaranteed Obligation shall become immediately due and payable and the Guaranteed Party may at any time and from time to time, at the Guaranteed Party's option, and so long as the Parent Parties remain in breach of its Guaranteed Obligation, take any and all actions available hereunder or under applicable Law to collect the Guaranteed Obligation from the Guarantor subject to the Maximum Amount as applicable.
2. Terms of Limited Guarantee.
(a) This Limited Guarantee is a primary and original obligation of the Guarantor and is one of payment, not collection, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against any Parent Party or any other Person or whether any Parent Party or any other Person is joined in any such action or actions. Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantor under this Limited Guarantee and of the other guarantors under the other Limited Guarantees dated as of the date hereof ("Other Guarantors") shall be several and not joint.
(b) The liability of the Guarantor under this Limited Guarantee shall, to the fullest extent permitted under applicable law, be absolute, irrevocable and unconditional, irrespective of:
(i) the value, genuineness, validity, illegality or enforceability of the Merger Agreement or the letter agreement dated as of the date hereof between the Guarantor, on the one hand, and Holdco and Parent, on the other hand, pursuant to which the Guarantor has agreed to make a certain equity contribution to Holdco and Parent (the "Equity Commitment Letter") or any other agreement or instrument referred to herein or therein;
(ii) any change in the corporate existence, structure or ownership of any Parent Party or any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting any Parent Party, any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor) or any of their respective assets;
(iii) any amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof;
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(iv) the existence of any claim, set-off or other right that the Guarantor may have at any time against any Parent Party or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise;
(v) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against any Parent Party or the Guarantor or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation (other than as and if required by Section 2(a));
(vi) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of the Guaranteed Obligation;
(vii) any other act or omission that may in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment in full of the Guaranteed Obligation in accordance with their terms); or
(viii) the addition, substitution, discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Guaranteed Obligation as a result of payment in full of the Guaranteed Obligation in accordance with their terms) of any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor),
other than in each case with respect to (A) defenses to the payment of the Guaranteed Obligation that are available to any Parent Party under the Merger Agreement or (B) breach by the Guaranteed Party of this Limited Guarantee, including, without limitation, the limitations set forth in Section 3 below), and, notwithstanding any other provision of this Limited Guarantee to the contrary, the Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that any Parent Party could assert against the Company under the terms of, or with respect to, the Merger Agreement that would relieve each of the Parent Parties of its obligations under the Merger Agreement.
(c) To the fullest extent permitted by applicable law, the Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of the Guaranteed Obligation and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligation shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between the Parent Parties and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under no obligation to pursue such rights and remedies it may have against the Parent Parties or any other Person for the Guaranteed Obligation or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue such other rights or remedies or to collect any payments from the Parent Parties or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of the Parent Parties or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guaranteed Party.
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(d) To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, acceptance hereof, presentment, demand for payment, notice of non-performance, default, dishonor and protest, any notice not provided for herein, all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of any Parent Party or any other person interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligation that are available to the Parent Parties under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated under the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits.
(e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that the Parent Parties become subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantor's obligation hereunder. In the event that any payment to the Guaranteed Party in respect of the Guaranteed Obligation is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to the Guaranteed Obligation as if such payment had not been made so long as this Limited Guarantee has not terminated in accordance with its terms.
3. Sole Remedy; No Recourse. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party further agrees that neither it nor any other Person (including, without limitation, the Guaranteed Party's equityholders, Affiliates and subsidiaries) has any right of recovery against, and no personal liability shall attach to, the Guarantor, any former, current or future, director, officer, employee, agent or Affiliate of the Guarantor, any former, current or future, direct or indirect holder of any equity interests or securities of the Guarantor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or representative any of the foregoing (each such Person, a "Related Person"), through any Parent Party or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of any Parent Party against the Guarantor or any Related Person (except for any claim to compel Holdco and/or Parent to enforce the Equity Commitment Letter in accordance with the terms thereof), or otherwise, except for its rights against the Guarantor under this Limited Guarantee and the Escrow Agreement. Recourse against the Guarantor under this Limited Guarantee and the Escrow Agreement and the Guaranteed Party's rights under the Equity Commitment Letter shall be the sole and exclusive remedy of (i) the Guaranteed Party and (ii) all of the Guaranteed Party's equityholders, Affiliates and subsidiaries against the Guarantor and any Related Person (other than the Parent Parties and their respective successors and assigns) in respect of any liabilities or obligations arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby, including by piercing the corporate, limited liability company or limited partnership veil or by a claim by or on behalf of any Parent Party. The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Affiliates and subsidiaries not to institute, any proceeding or bring any other claim arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby (or the failure of such to be consummated), against the Guarantor or any Related Person, except for (A) claims of the Guaranteed Party against the Guarantor under and in accordance with this Limited Guarantee and the Escrow Agreement, (B) claims of the Guaranteed Party against the Parent Parties (and their respective successors and assigns) under and in accordance with the Merger Agreement and the Escrow Agreement, and (C) the exercise of the Guaranteed Party's rights under and in accordance with the Equity Commitment Letter, and the Guaranteed Party hereby, on behalf of itself and its Affiliates and subsidiaries, waives any and all claims arising under, or in connection with, the Merger Agreement, this Limited Guarantee, the Equity Commitment Letter, the Escrow Agreement or, in each case, the transactions contemplated hereby or thereby against the Guarantor or any Related Person and releases such Persons from such claims, in each case, except for claims described in clauses (A), (B) and (C) of this sentence (each, a "Permitted Claim"). Nothing set forth in this Limited Guarantee shall confer or give or shall be construed to confer or give to any Person (including any Person acting in a representative capacity) other than the Guaranteed Party any rights or remedies against any Person, including the Guarantor, except as expressly set forth herein.
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4. Subrogation. The Guarantor will not exercise against any Parent Party any rights of subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by reason of any payment by it pursuant to the provisions of Section 1 hereof unless and until the Guaranteed Obligation and all other amounts payable under this Limited Guarantee have been paid in full.
5. Termination. This Limited Guarantee shall terminate (and the Guarantor shall have no further obligations hereunder) upon the earliest to occur of (a) the Effective Time, (b) the payment in full of the Guaranteed Obligation and the obligation under Section 1(c), (c) the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would not be required pursuant to the terms and subject to the conditions of the Merger Agreement to make any payment of any Guaranteed Obligation; and (d) six months after the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would be required pursuant to the terms and subject to the conditions of the Merger Agreement to make a payment of the Guaranteed Obligation, unless by the end of such six-month period, the Guaranteed Party shall have initiated a claim or proceeding in accordance with the terms of the Merger Agreement for payment of any of the Guaranteed Obligations; provided that if the Guaranteed Party has initiated a claim or proceeding by the end of such six-month period, this Limited Guarantee shall terminate upon the date such claim or proceeding is finally satisfied or otherwise resolved by agreement of the parties hereto or pursuant to Section 12. In the event that the Guaranteed Party or any of its Affiliates or subsidiaries asserts in any litigation or other proceeding relating to this Limited Guarantee or the Merger Agreement (i) that the provisions hereof (including, without limitation, Section 1 hereof limiting the Guarantor's aggregate liability to the Maximum Amount or Section 3 hereof relating to the sole and exclusive remedies of the Guaranteed Party and its equityholders, Affiliates and subsidiaries against the Guarantor or any Related Person) are illegal, invalid or unenforceable, in whole or in part, or (ii) any theory of liability against the Guarantor or any Related Person or any other Guarantor under the other Limited Guarantees dated as of the date hereof or any Related Person of any such other Guarantor with respect to the transactions contemplated by this Limited Guarantee, the Equity Commitment Letter or the Merger Agreement other than any Permitted Claim, then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and be null and void, (y) if the Guarantor has previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments from the Guaranteed Party and (z) neither the Guarantor nor any Related Person (other than the Parent Parties and their respective successors and assigns) shall have any liability to the Guaranteed Party or any of its equityholders, Affiliates or subsidiaries with respect to the Merger Agreement or the transactions contemplated by the Merger Agreement or this Limited Guarantee.
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6. Continuing Guarantee. Except to the extent terminated pursuant to the provisions of Section 5 hereof, this Limited Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed Obligation and the obligation under Section 1(c), shall be binding upon the Guarantor, its successors and assigns, and shall inure to the benefit of, and be enforceable by, the Guaranteed Party and its successors, permitted transferees and permitted assigns; provided that notwithstanding anything to the contrary in this Limited Guarantee, the provisions of this Limited Guarantee that are for the benefit of any Related Person (including the provisions of Sections 3 and 5) shall indefinitely survive any termination of this Limited Guarantee for the benefit of the Guarantor and any Related Persons. All obligation to which this Limited Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
7. Entire Agreement. This Limited Guarantee, the Merger Agreement, the Equity Commitment Letter and the Escrow Agreement constitute the entire agreement with respect to the subject matter hereof, and supersede all other prior agreements and understandings, both written and oral, among the Parent Parties and/or the Guarantor or any of their respective Affiliates, on the one hand, and the Guaranteed Party or any of its Affiliates, on the other hand, regarding the subject matter hereof.
8. Amendments and Waivers. Any provision of this Limited Guarantee may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Guarantor and the Guaranteed Party or, in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by any party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
9. Counterparts. This Limited Guarantee may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
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10. Notices. All notices, requests, claims, demands and other communications hereunder shall be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressee's location on any Business Day after 5:00 p.m. (addressee's local time) shall be deemed to have been received at 9:00 a.m. (addressee's local time) on the next Business Day), by reliable international overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:
if to the Guarantor:
SIP ORIZA CHONGYUAN M&A FUND PARTNERSHIP (LIMITED PARTNERSHIP)
(苏州工业园区元禾重元并购股权投资基金合伙企业 (有限合伙))
Building 18, Sandlake VC/PE Community,
No.183 Suhong East Rd., Suzhou Industrial Park, China
Facsimile: 0512-6696-9727
Attention: Haijie Zhao
with copies to:
Kirkland & Ellis
26th Floor, Glouster Tower, The Landmark
15 Queen's Road Central
Hong Kong
Facsimile: +852-3761-3301
Attention: David Zhang and Jesse Sheley
If to the Guaranteed Party, as provided in Section 9.2 of the Merger Agreement.
11. Governing Law. This Limited Guarantee (except for the arbitration agreement in Section 12) shall be governed by and construed in accordance with the Laws of the State of New York without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
12. Jurisdiction; Waiver of Service of Process.
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(a) Jurisdiction. In the event any dispute arises among the parties hereto out of or in relation to this Limited Guarantee, including any dispute regarding its existence, interpretation, performance, breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly consultations within thirty (30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions of this Section 12. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre ("HKIAC") Administered Rules in force when a notice of arbitration is submitted. The seat and venue of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The law of the arbitration agreement shall be Hong Kong law. The appointing authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number, and one arbitrator shall be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from nominating their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within 30 days after such two arbitrators have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any person necessary for the conduct of the arbitration, unless otherwise required by Law or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and any interim or final award, as well as the fact that an arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after the submission of any dispute to arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter agreement, except insofar as the same may relate directly to the matters in dispute. The parties hereby agree that any arbitration award rendered in accordance with the provisions of this Section 12 shall be final and binding upon them, and the parties further agree that such award may be enforced by any court having jurisdiction over the party against which the award has been rendered or the assets of such party wherever the same may be located. In any arbitration proceeding, any legal proceeding to enforce any arbitration award and in any other legal proceeding among the Parties pursuant to or relating to this Agreement, each Party expressly waives the defense of sovereign immunity and any other defense based on the fact or allegation that it is an agency or instrumentality of a sovereign state or is otherwise entitled to immunity.
13. Representations and Warranties. The Guarantor hereby represents and warrants to the Guaranteed Party that:
(a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization;
(b) it has all necessary power and authority to execute, deliver and perform this Limited Guarantee;
(c) the execution, delivery and performance of this Limited Guarantee by the Guarantor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Guarantor are necessary therefor;
(d) all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Limited Guarantee by the Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution, delivery or performance of this Limited Guarantee;
(e) this Limited Guarantee has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the undersigned in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law));
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(f) the execution, delivery and performance by the undersigned of this Limited Guarantee do not and will not violate the organizational documents of the undersigned or violate any applicable law, regulation, rule, decree, order, judgment or contractual restriction binding on the Guarantor or its assets or properties; and
(g) it has the financial capacity to pay and perform its obligations under this Limited Guarantee, and all funds necessary for the Guarantor to fulfill its obligations under this Limited Guarantee shall be available to the Guarantor for so long as this Limited Guarantee shall remain in effect in accordance with Section 6.
14. No Assignment. Neither this Limited Guarantee nor any of the rights, interests or obligations hereunder shall be assignable without the prior written consent of the Guaranteed Party (in the case of an assignment by the Guarantor) or the Guarantor (in the case of an assignment by the Guaranteed Party).
15. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LIMITED GUARANTEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 15.
16. Severability. Any term or provision of this Limited Guarantee which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Limited Guarantee in any jurisdiction and, if any provision of this Limited Guarantee is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Maximum Amount provided in Section 1 hereof and to the provisions of Sections 3 and 5 hereof. No party hereto shall assert, and each party shall cause its respective Affiliates and subsidiaries not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.
17. Headings. Headings of the Sections of this Limited Guarantee are for convenience only and shall be given no substantive or interpretive effect whatsoever.
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IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| SIP Oriza Chongyuan M&A Fund Partnership (Limited Partnership) | ||
| (苏州工业园区元禾重元并购股权投资基金合伙企业 (有限合伙)) | ||
| [Company chop is affixed] | ||
| By: | /s/ Hua Yao | |
| Name: Hua Yao | ||
| Title: Authorized Representative of Executive Partner | ||
[Signature Page to Limited Guarantee]
IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Limited Guarantee]
Exhibit 99.85
Execution Version
LIMITED GUARANTEE
This Limited Guarantee, dated as of December 18, 2015 (this "Limited Guarantee"), is made by Shanghai Sailing Merger and Acquisition Investment Fund Partnership (Limited Partnership) (上海赛领并购投资基金合伙企业 (有限合伙)), a limited partnership formed under the laws of the People’s Republic of China (including its successors and permitted assigns, the "Guarantor"), in favor of Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Guaranteed Party"). Reference is hereby made to the Agreement and Plan of Merger, dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), and the Guaranteed Party. Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Merger Agreement.
1. Limited Guarantee.
(a) To induce the Guaranteed Party to enter into the Merger Agreement, the Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, subject to the terms and conditions hereof, the due and punctual payment and performance when due of 0.62% of the Parent Parties' obligation (the "Guaranteed Obligation") to pay to the Guaranteed Party (i) the Parent Termination Fee if and when required pursuant to Section 8.2(c) of the Merger Agreement, and (ii) the payment obligations of the Parent Parties pursuant to Section 6.6 of the Merger Agreement; provided that the maximum aggregate liability of the Guarantor hereunder shall not exceed US$2,786,681 (the "Maximum Amount").
(b) The Guaranteed Party hereby agrees that (a) the Guarantor shall in no event be required to pay more than the Maximum Amount under or in respect of this Guarantee and (b) the Guarantor shall not have any obligation or liability to any Person (including, without limitation, to the Guaranteed Party's equity holders, Affiliates and/or subsidiaries) relating to, arising out of or in connection with this Limited Guarantee, the Merger Agreement, or the Equity Commitment Letter (as defined below) other than as expressly set forth herein or in the Equity Commitment Letter or the Escrow Agreement (as defined in the Equity Commitment Letter).
(c) The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by the Guaranteed Party in connection with the enforcement of its rights hereunder and under the Merger Agreement, including, without limitation, in the event that (i) the Guarantor asserts in any arbitration, litigation or other proceeding that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms and the Guaranteed Party prevails in such arbitration, litigation or other proceeding, or (ii) the Guarantor fails or refuses to make any payment to the Guaranteed Party hereunder when due and payable and it is determined judicially or by arbitration that the Guarantor is required to make such payment hereunder.
(d) The Guarantor promises and undertakes to make all payments hereunder free and clear of any deduction, offset, defense, claim or counterclaim of any kind. If the Parent Parties fail to pay or cause to be paid the Guaranteed Obligation as and when due and payable pursuant to Section 8.2(c) of the Merger Agreement, as applicable, then the Guarantor's liabilities to the Guaranteed Party hereunder in respect of such Guaranteed Obligation shall become immediately due and payable and the Guaranteed Party may at any time and from time to time, at the Guaranteed Party's option, and so long as the Parent Parties remain in breach of its Guaranteed Obligation, take any and all actions available hereunder or under applicable Law to collect the Guaranteed Obligation from the Guarantor subject to the Maximum Amount as applicable.
2. Terms of Limited Guarantee.
(a) This Limited Guarantee is a primary and original obligation of the Guarantor and is one of payment, not collection, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against any Parent Party or any other Person or whether any Parent Party or any other Person is joined in any such action or actions. Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantor under this Limited Guarantee and of the other guarantors under the other Limited Guarantees dated as of the date hereof ("Other Guarantors") shall be several and not joint.
(b) The liability of the Guarantor under this Limited Guarantee shall, to the fullest extent permitted under applicable law, be absolute, irrevocable and unconditional, irrespective of:
(i) the value, genuineness, validity, illegality or enforceability of the Merger Agreement or the letter agreement dated as of the date hereof between the Guarantor, on the one hand, and Holdco and Parent, on the other hand, pursuant to which the Guarantor has agreed to make a certain equity contribution to Holdco and Parent (the "Equity Commitment Letter") or any other agreement or instrument referred to herein or therein;
(ii) any change in the corporate existence, structure or ownership of any Parent Party or any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting any Parent Party, any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor) or any of their respective assets;
(iii) any amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof;
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(iv) the existence of any claim, set-off or other right that the Guarantor may have at any time against any Parent Party or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise;
(v) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against any Parent Party or the Guarantor or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation (other than as and if required by Section 2(a));
(vi) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of the Guaranteed Obligation;
(vii) any other act or omission that may in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment in full of the Guaranteed Obligation in accordance with their terms); or
(viii) the addition, substitution, discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Guaranteed Obligation as a result of payment in full of the Guaranteed Obligation in accordance with their terms) of any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor),
other than in each case with respect to (A) defenses to the payment of the Guaranteed Obligation that are available to any Parent Party under the Merger Agreement or (B) breach by the Guaranteed Party of this Limited Guarantee, including, without limitation, the limitations set forth in Section 3 below), and, notwithstanding any other provision of this Limited Guarantee to the contrary, the Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that any Parent Party could assert against the Company under the terms of, or with respect to, the Merger Agreement that would relieve each of the Parent Parties of its obligations under the Merger Agreement.
(c) To the fullest extent permitted by applicable law, the Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of the Guaranteed Obligation and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligation shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between the Parent Parties and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under no obligation to pursue such rights and remedies it may have against the Parent Parties or any other Person for the Guaranteed Obligation or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue such other rights or remedies or to collect any payments from the Parent Parties or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of the Parent Parties or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guaranteed Party.
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(d) To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, acceptance hereof, presentment, demand for payment, notice of non-performance, default, dishonor and protest, any notice not provided for herein, all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of any Parent Party or any other person interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligation that are available to the Parent Parties under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated under the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits.
(e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that the Parent Parties become subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantor's obligation hereunder. In the event that any payment to the Guaranteed Party in respect of the Guaranteed Obligation is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to the Guaranteed Obligation as if such payment had not been made so long as this Limited Guarantee has not terminated in accordance with its terms.
3. Sole Remedy; No Recourse. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party further agrees that neither it nor any other Person (including, without limitation, the Guaranteed Party's equityholders, Affiliates and subsidiaries) has any right of recovery against, and no personal liability shall attach to, the Guarantor, any former, current or future, director, officer, employee, agent or Affiliate of the Guarantor, any former, current or future, direct or indirect holder of any equity interests or securities of the Guarantor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or representative any of the foregoing (each such Person, a "Related Person"), through any Parent Party or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of any Parent Party against the Guarantor or any Related Person (except for any claim to compel Holdco and/or Parent to enforce the Equity Commitment Letter in accordance with the terms thereof), or otherwise, except for its rights against the Guarantor under this Limited Guarantee and the Escrow Agreement. Recourse against the Guarantor under this Limited Guarantee and the Escrow Agreement and the Guaranteed Party's rights under the Equity Commitment Letter shall be the sole and exclusive remedy of (i) the Guaranteed Party and (ii) all of the Guaranteed Party's equityholders, Affiliates and subsidiaries against the Guarantor and any Related Person (other than the Parent Parties and their respective successors and assigns) in respect of any liabilities or obligations arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby, including by piercing the corporate, limited liability company or limited partnership veil or by a claim by or on behalf of any Parent Party. The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Affiliates and subsidiaries not to institute, any proceeding or bring any other claim arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby (or the failure of such to be consummated), against the Guarantor or any Related Person, except for (A) claims of the Guaranteed Party against the Guarantor under and in accordance with this Limited Guarantee and the Escrow Agreement, (B) claims of the Guaranteed Party against the Parent Parties (and their respective successors and assigns) under and in accordance with the Merger Agreement and the Escrow Agreement, and (C) the exercise of the Guaranteed Party's rights under and in accordance with the Equity Commitment Letter, and the Guaranteed Party hereby, on behalf of itself and its Affiliates and subsidiaries, waives any and all claims arising under, or in connection with, the Merger Agreement, this Limited Guarantee, the Equity Commitment Letter, the Escrow Agreement or, in each case, the transactions contemplated hereby or thereby against the Guarantor or any Related Person and releases such Persons from such claims, in each case, except for claims described in clauses (A), (B) and (C) of this sentence (each, a "Permitted Claim"). Nothing set forth in this Limited Guarantee shall confer or give or shall be construed to confer or give to any Person (including any Person acting in a representative capacity) other than the Guaranteed Party any rights or remedies against any Person, including the Guarantor, except as expressly set forth herein.
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4. Subrogation. The Guarantor will not exercise against any Parent Party any rights of subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by reason of any payment by it pursuant to the provisions of Section 1 hereof unless and until the Guaranteed Obligation and all other amounts payable under this Limited Guarantee have been paid in full.
5. Termination. This Limited Guarantee shall terminate (and the Guarantor shall have no further obligations hereunder) upon the earliest to occur of (a) the Effective Time, (b) the payment in full of the Guaranteed Obligation and the obligation under Section 1(c), (c) the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would not be required pursuant to the terms and subject to the conditions of the Merger Agreement to make any payment of any Guaranteed Obligation; and (d) six months after the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would be required pursuant to the terms and subject to the conditions of the Merger Agreement to make a payment of the Guaranteed Obligation, unless by the end of such six-month period, the Guaranteed Party shall have initiated a claim or proceeding in accordance with the terms of the Merger Agreement for payment of any of the Guaranteed Obligations; provided that if the Guaranteed Party has initiated a claim or proceeding by the end of such six-month period, this Limited Guarantee shall terminate upon the date such claim or proceeding is finally satisfied or otherwise resolved by agreement of the parties hereto or pursuant to Section 12. In the event that the Guaranteed Party or any of its Affiliates or subsidiaries asserts in any litigation or other proceeding relating to this Limited Guarantee or the Merger Agreement (i) that the provisions hereof (including, without limitation, Section 1 hereof limiting the Guarantor's aggregate liability to the Maximum Amount or Section 3 hereof relating to the sole and exclusive remedies of the Guaranteed Party and its equityholders, Affiliates and subsidiaries against the Guarantor or any Related Person) are illegal, invalid or unenforceable, in whole or in part, or (ii) any theory of liability against the Guarantor or any Related Person or any other Guarantor under the other Limited Guarantees dated as of the date hereof or any Related Person of any such other Guarantor with respect to the transactions contemplated by this Limited Guarantee, the Equity Commitment Letter or the Merger Agreement other than any Permitted Claim, then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and be null and void, (y) if the Guarantor has previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments from the Guaranteed Party and (z) neither the Guarantor nor any Related Person (other than the Parent Parties and their respective successors and assigns) shall have any liability to the Guaranteed Party or any of its equityholders, Affiliates or subsidiaries with respect to the Merger Agreement or the transactions contemplated by the Merger Agreement or this Limited Guarantee.
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6. Continuing Guarantee. Except to the extent terminated pursuant to the provisions of Section 5 hereof, this Limited Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed Obligation and the obligation under Section 1(c), shall be binding upon the Guarantor, its successors and assigns, and shall inure to the benefit of, and be enforceable by, the Guaranteed Party and its successors, permitted transferees and permitted assigns; provided that notwithstanding anything to the contrary in this Limited Guarantee, the provisions of this Limited Guarantee that are for the benefit of any Related Person (including the provisions of Sections 3 and 5) shall indefinitely survive any termination of this Limited Guarantee for the benefit of the Guarantor and any Related Persons. All obligation to which this Limited Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
7. Entire Agreement. This Limited Guarantee, the Merger Agreement, the Equity Commitment Letter and the Escrow Agreement constitute the entire agreement with respect to the subject matter hereof, and supersede all other prior agreements and understandings, both written and oral, among the Parent Parties and/or the Guarantor or any of their respective Affiliates, on the one hand, and the Guaranteed Party or any of its Affiliates, on the other hand, regarding the subject matter hereof.
8. Amendments and Waivers. Any provision of this Limited Guarantee may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Guarantor and the Guaranteed Party or, in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by any party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
9. Counterparts. This Limited Guarantee may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
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10. Notices. All notices, requests, claims, demands and other communications hereunder shall be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressee's location on any Business Day after 5:00 p.m. (addressee's local time) shall be deemed to have been received at 9:00 a.m. (addressee's local time) on the next Business Day), by reliable international overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:
if to the Guarantor:
SHANGHAI SAILING MERGER AND ACQUISITION INVESTMENT FUND PARTNERSHIP (LIMITED PARTNERSHIP)
(上海赛领并购投资基金合伙企业 (有限合伙))
36/F CITIC PLAZA, No. 859 North Sichuan Road,
Shanghai China
Facsimile: 021-36126811
Attention: Changyin Han
with copies to:
Kirkland & Ellis
26th Floor, Glouster Tower, The Landmark
15 Queen's Road Central
Hong Kong
Facsimile: +852-3761-3301
Attention: David Zhang and Jesse Sheley
If to the Guaranteed Party, as provided in Section 9.2 of the Merger Agreement.
11. Governing Law. This Limited Guarantee (except for the arbitration agreement in Section 12) shall be governed by and construed in accordance with the Laws of the State of New York without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
12. Jurisdiction; Waiver of Service of Process.
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(a) Jurisdiction. In the event any dispute arises among the parties hereto out of or in relation to this Limited Guarantee, including any dispute regarding its existence, interpretation, performance, breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly consultations within thirty (30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions of this Section 12. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre ("HKIAC") Administered Rules in force when a notice of arbitration is submitted. The seat and venue of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The law of the arbitration agreement shall be Hong Kong law. The appointing authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number, and one arbitrator shall be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from nominating their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within 30 days after such two arbitrators have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any person necessary for the conduct of the arbitration, unless otherwise required by Law or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and any interim or final award, as well as the fact that an arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after the submission of any dispute to arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter agreement, except insofar as the same may relate directly to the matters in dispute. The parties hereby agree that any arbitration award rendered in accordance with the provisions of this Section 12 shall be final and binding upon them, and the parties further agree that such award may be enforced by any court having jurisdiction over the party against which the award has been rendered or the assets of such party wherever the same may be located. In any arbitration proceeding, any legal proceeding to enforce any arbitration award and in any other legal proceeding among the Parties pursuant to or relating to this Agreement, each Party expressly waives the defense of sovereign immunity and any other defense based on the fact or allegation that it is an agency or instrumentality of a sovereign state or is otherwise entitled to immunity.
13. Representations and Warranties. The Guarantor hereby represents and warrants to the Guaranteed Party that:
(a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization;
(b) it has all necessary power and authority to execute, deliver and perform this Limited Guarantee;
(c) the execution, delivery and performance of this Limited Guarantee by the Guarantor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Guarantor are necessary therefor;
(d) all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Limited Guarantee by the Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution, delivery or performance of this Limited Guarantee;
(e) this Limited Guarantee has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the undersigned in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law));
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(f) the execution, delivery and performance by the undersigned of this Limited Guarantee do not and will not violate the organizational documents of the undersigned or violate any applicable law, regulation, rule, decree, order, judgment or contractual restriction binding on the Guarantor or its assets or properties; and
(g) it has the financial capacity to pay and perform its obligations under this Limited Guarantee, and all funds necessary for the Guarantor to fulfill its obligations under this Limited Guarantee shall be available to the Guarantor for so long as this Limited Guarantee shall remain in effect in accordance with Section 6.
14. No Assignment. Neither this Limited Guarantee nor any of the rights, interests or obligations hereunder shall be assignable without the prior written consent of the Guaranteed Party (in the case of an assignment by the Guarantor) or the Guarantor (in the case of an assignment by the Guaranteed Party).
15. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LIMITED GUARANTEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 15.
16. Severability. Any term or provision of this Limited Guarantee which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Limited Guarantee in any jurisdiction and, if any provision of this Limited Guarantee is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Maximum Amount provided in Section 1 hereof and to the provisions of Sections 3 and 5 hereof. No party hereto shall assert, and each party shall cause its respective Affiliates and subsidiaries not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.
17. Headings. Headings of the Sections of this Limited Guarantee are for convenience only and shall be given no substantive or interpretive effect whatsoever.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Shanghai Sailing Merger and Acquisition Investment Fund Partnership (Limited Partnership) | ||
| (上海赛领并购投资基金合伙企业 (有限合伙)) | ||
| By: | /s/ Tao Fu | |
| Name: Tao Fu | ||
| Title: Authorized Representative of Managing Partner | ||
[Signature Page to Limited Guarantee]
IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Limited Guarantee]
Exhibit 99.86
Execution Version
LIMITED GUARANTEE
This Limited Guarantee, dated as of December 18, 2015 (this "Limited Guarantee"), is made by Shanghai Sailing Boda Equity Investment Fund Partnership (Limited Partnership) (上海赛领博达股权投资基金合伙企业 ( 有限合伙) ), a limited partnership formed under the laws of the People’s Republic of China (including its successors and permitted assigns, the "Guarantor"), in favor of Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Guaranteed Party"). Reference is hereby made to the Agreement and Plan of Merger, dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), and the Guaranteed Party. Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Merger Agreement.
1. Limited Guarantee.
(a) To induce the Guaranteed Party to enter into the Merger Agreement, the Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, subject to the terms and conditions hereof, the due and punctual payment and performance when due of 0.62% of the Parent Parties' obligation (the "Guaranteed Obligation") to pay to the Guaranteed Party (i) the Parent Termination Fee if and when required pursuant to Section 8.2(c) of the Merger Agreement, and (ii) the payment obligations of the Parent Parties pursuant to Section 6.6 of the Merger Agreement; provided that the maximum aggregate liability of the Guarantor hereunder shall not exceed USD2,786,681 (the "Maximum Amount").
(b) The Guaranteed Party hereby agrees that (a) the Guarantor shall in no event be required to pay more than the Maximum Amount under or in respect of this Guarantee and (b) the Guarantor shall not have any obligation or liability to any Person (including, without limitation, to the Guaranteed Party's equity holders, Affiliates and/or subsidiaries) relating to, arising out of or in connection with this Limited Guarantee, the Merger Agreement, or the Equity Commitment Letter (as defined below) other than as expressly set forth herein or in the Equity Commitment Letter or the Escrow Agreement (as defined in the Equity Commitment Letter).
(c) The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by the Guaranteed Party in connection with the enforcement of its rights hereunder and under the Merger Agreement, including, without limitation, in the event that (i) the Guarantor asserts in any arbitration, litigation or other proceeding that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms and the Guaranteed Party prevails in such arbitration, litigation or other proceeding, or (ii) the Guarantor fails or refuses to make any payment to the Guaranteed Party hereunder when due and payable and it is determined judicially or by arbitration that the Guarantor is required to make such payment hereunder.
(d) The Guarantor promises and undertakes to make all payments hereunder free and clear of any deduction, offset, defense, claim or counterclaim of any kind. If the Parent Parties fail to pay or cause to be paid the Guaranteed Obligation as and when due and payable pursuant to Section 8.2(c) of the Merger Agreement, as applicable, then the Guarantor's liabilities to the Guaranteed Party hereunder in respect of such Guaranteed Obligation shall become immediately due and payable and the Guaranteed Party may at any time and from time to time, at the Guaranteed Party's option, and so long as the Parent Parties remain in breach of its Guaranteed Obligation, take any and all actions available hereunder or under applicable Law to collect the Guaranteed Obligation from the Guarantor subject to the Maximum Amount as applicable.
2. Terms of Limited Guarantee.
(a) This Limited Guarantee is a primary and original obligation of the Guarantor and is one of payment, not collection, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against any Parent Party or any other Person or whether any Parent Party or any other Person is joined in any such action or actions. Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantor under this Limited Guarantee and of the other guarantors under the other Limited Guarantees dated as of the date hereof ("Other Guarantors") shall be several and not joint.
(b) The liability of the Guarantor under this Limited Guarantee shall, to the fullest extent permitted under applicable law, be absolute, irrevocable and unconditional, irrespective of:
(i) the value, genuineness, validity, illegality or enforceability of the Merger Agreement or the letter agreement dated as of the date hereof between the Guarantor, on the one hand, and Holdco and Parent, on the other hand, pursuant to which the Guarantor has agreed to make a certain equity contribution to Holdco and Parent (the "Equity Commitment Letter") or any other agreement or instrument referred to herein or therein;
(ii) any change in the corporate existence, structure or ownership of any Parent Party or any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting any Parent Party, any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor) or any of their respective assets;
(iii) any amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof;
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(iv) the existence of any claim, set-off or other right that the Guarantor may have at any time against any Parent Party or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise;
(v) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against any Parent Party or the Guarantor or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation (other than as and if required by Section 2(a));
(vi) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of the Guaranteed Obligation;
(vii) any other act or omission that may in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment in full of the Guaranteed Obligation in accordance with their terms); or
(viii) the addition, substitution, discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Guaranteed Obligation as a result of payment in full of the Guaranteed Obligation in accordance with their terms) of any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor),
other than in each case with respect to (A) defenses to the payment of the Guaranteed Obligation that are available to any Parent Party under the Merger Agreement or (B) breach by the Guaranteed Party of this Limited Guarantee, including, without limitation, the limitations set forth in Section 3 below), and, notwithstanding any other provision of this Limited Guarantee to the contrary, the Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that any Parent Party could assert against the Company under the terms of, or with respect to, the Merger Agreement that would relieve each of the Parent Parties of its obligations under the Merger Agreement.
(c) To the fullest extent permitted by applicable law, the Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of the Guaranteed Obligation and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligation shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between the Parent Parties and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under no obligation to pursue such rights and remedies it may have against the Parent Parties or any other Person for the Guaranteed Obligation or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue such other rights or remedies or to collect any payments from the Parent Parties or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of the Parent Parties or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guaranteed Party.
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(d) To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, acceptance hereof, presentment, demand for payment, notice of non-performance, default, dishonor and protest, any notice not provided for herein, all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of any Parent Party or any other person interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligation that are available to the Parent Parties under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated under the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits.
(e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that the Parent Parties become subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantor's obligation hereunder. In the event that any payment to the Guaranteed Party in respect of the Guaranteed Obligation is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to the Guaranteed Obligation as if such payment had not been made so long as this Limited Guarantee has not terminated in accordance with its terms.
3. Sole Remedy; No Recourse. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party further agrees that neither it nor any other Person (including, without limitation, the Guaranteed Party's equityholders, Affiliates and subsidiaries) has any right of recovery against, and no personal liability shall attach to, the Guarantor, any former, current or future, director, officer, employee, agent or Affiliate of the Guarantor, any former, current or future, direct or indirect holder of any equity interests or securities of the Guarantor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or representative any of the foregoing (each such Person, a "Related Person"), through any Parent Party or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of any Parent Party against the Guarantor or any Related Person (except for any claim to compel Holdco and/or Parent to enforce the Equity Commitment Letter in accordance with the terms thereof), or otherwise, except for its rights against the Guarantor under this Limited Guarantee and the Escrow Agreement. Recourse against the Guarantor under this Limited Guarantee and the Escrow Agreement and the Guaranteed Party's rights under the Equity Commitment Letter shall be the sole and exclusive remedy of (i) the Guaranteed Party and (ii) all of the Guaranteed Party's equityholders, Affiliates and subsidiaries against the Guarantor and any Related Person (other than the Parent Parties and their respective successors and assigns) in respect of any liabilities or obligations arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby, including by piercing the corporate, limited liability company or limited partnership veil or by a claim by or on behalf of any Parent Party. The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Affiliates and subsidiaries not to institute, any proceeding or bring any other claim arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby (or the failure of such to be consummated), against the Guarantor or any Related Person, except for (A) claims of the Guaranteed Party against the Guarantor under and in accordance with this Limited Guarantee and the Escrow Agreement, (B) claims of the Guaranteed Party against the Parent Parties (and their respective successors and assigns) under and in accordance with the Merger Agreement and the Escrow Agreement, and (C) the exercise of the Guaranteed Party's rights under and in accordance with the Equity Commitment Letter, and the Guaranteed Party hereby, on behalf of itself and its Affiliates and subsidiaries, waives any and all claims arising under, or in connection with, the Merger Agreement, this Limited Guarantee, the Equity Commitment Letter, the Escrow Agreement or, in each case, the transactions contemplated hereby or thereby against the Guarantor or any Related Person and releases such Persons from such claims, in each case, except for claims described in clauses (A), (B) and (C) of this sentence (each, a "Permitted Claim"). Nothing set forth in this Limited Guarantee shall confer or give or shall be construed to confer or give to any Person (including any Person acting in a representative capacity) other than the Guaranteed Party any rights or remedies against any Person, including the Guarantor, except as expressly set forth herein.
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4. Subrogation. The Guarantor will not exercise against any Parent Party any rights of subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by reason of any payment by it pursuant to the provisions of Section 1 hereof unless and until the Guaranteed Obligation and all other amounts payable under this Limited Guarantee have been paid in full.
5. Termination. This Limited Guarantee shall terminate (and the Guarantor shall have no further obligations hereunder) upon the earliest to occur of (a) the Effective Time, (b) the payment in full of the Guaranteed Obligation and the obligation under Section 1(c), (c) the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would not be required pursuant to the terms and subject to the conditions of the Merger Agreement to make any payment of any Guaranteed Obligation; and (d) six months after the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would be required pursuant to the terms and subject to the conditions of the Merger Agreement to make a payment of the Guaranteed Obligation, unless by the end of such six-month period, the Guaranteed Party shall have initiated a claim or proceeding in accordance with the terms of the Merger Agreement for payment of any of the Guaranteed Obligations; provided that if the Guaranteed Party has initiated a claim or proceeding by the end of such six-month period, this Limited Guarantee shall terminate upon the date such claim or proceeding is finally satisfied or otherwise resolved by agreement of the parties hereto or pursuant to Section 12. In the event that the Guaranteed Party or any of its Affiliates or subsidiaries asserts in any litigation or other proceeding relating to this Limited Guarantee or the Merger Agreement (i) that the provisions hereof (including, without limitation, Section 1 hereof limiting the Guarantor's aggregate liability to the Maximum Amount or Section 3 hereof relating to the sole and exclusive remedies of the Guaranteed Party and its equityholders, Affiliates and subsidiaries against the Guarantor or any Related Person) are illegal, invalid or unenforceable, in whole or in part, or (ii) any theory of liability against the Guarantor or any Related Person or any other Guarantor under the other Limited Guarantees dated as of the date hereof or any Related Person of any such other Guarantor with respect to the transactions contemplated by this Limited Guarantee, the Equity Commitment Letter or the Merger Agreement other than any Permitted Claim, then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and be null and void, (y) if the Guarantor has previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments from the Guaranteed Party and (z) neither the Guarantor nor any Related Person (other than the Parent Parties and their respective successors and assigns) shall have any liability to the Guaranteed Party or any of its equityholders, Affiliates or subsidiaries with respect to the Merger Agreement or the transactions contemplated by the Merger Agreement or this Limited Guarantee.
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6. Continuing Guarantee. Except to the extent terminated pursuant to the provisions of Section 5 hereof, this Limited Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed Obligation and the obligation under Section 1(c), shall be binding upon the Guarantor, its successors and assigns, and shall inure to the benefit of, and be enforceable by, the Guaranteed Party and its successors, permitted transferees and permitted assigns; provided that notwithstanding anything to the contrary in this Limited Guarantee, the provisions of this Limited Guarantee that are for the benefit of any Related Person (including the provisions of Sections 3 and 5) shall indefinitely survive any termination of this Limited Guarantee for the benefit of the Guarantor and any Related Persons. All obligation to which this Limited Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
7. Entire Agreement. This Limited Guarantee, the Merger Agreement, the Equity Commitment Letter and the Escrow Agreement constitute the entire agreement with respect to the subject matter hereof, and supersede all other prior agreements and understandings, both written and oral, among the Parent Parties and/or the Guarantor or any of their respective Affiliates, on the one hand, and the Guaranteed Party or any of its Affiliates, on the other hand, regarding the subject matter hereof.
8. Amendments and Waivers. Any provision of this Limited Guarantee may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Guarantor and the Guaranteed Party or, in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by any party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
9. Counterparts. This Limited Guarantee may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
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10. Notices. All notices, requests, claims, demands and other communications hereunder shall be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressee's location on any Business Day after 5:00 p.m. (addressee's local time) shall be deemed to have been received at 9:00 a.m. (addressee's local time) on the next Business Day), by reliable international overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:
if to the Guarantor:
Shanghai Sailing Boda Equity Investment Fund
(上海赛领博达股权投资基金合伙企业 ( 有限合伙))
36/F CITIC PLAZA
No. 859 North Sichuan Road, Shanghai, China
Facsimile: 021-36126811
Attention: Tao Fu
with copies to:
Kirkland & Ellis
26th Floor, Glouster Tower, The Landmark
15 Queen's Road Central
Hong Kong
Facsimile: +852-3761-3301
Attention: David Zhang and Jesse Sheley
If to the Guaranteed Party, as provided in Section 9.2 of the Merger Agreement.
11. Governing Law. This Limited Guarantee (except for the arbitration agreement in Section 12) shall be governed by and construed in accordance with the Laws of the State of New York without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
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12. Jurisdiction; Waiver of Service of Process.
(a) Jurisdiction. In the event any dispute arises among the parties hereto out of or in relation to this Limited Guarantee, including any dispute regarding its existence, interpretation, performance, breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly consultations within thirty (30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions of this Section 12. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre ("HKIAC") Administered Rules in force when a notice of arbitration is submitted. The seat and venue of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The law of the arbitration agreement shall be Hong Kong law. The appointing authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number, and one arbitrator shall be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from nominating their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within 30 days after such two arbitrators have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any person necessary for the conduct of the arbitration, unless otherwise required by Law or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and any interim or final award, as well as the fact that an arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after the submission of any dispute to arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter agreement, except insofar as the same may relate directly to the matters in dispute. The parties hereby agree that any arbitration award rendered in accordance with the provisions of this Section 12 shall be final and binding upon them, and the parties further agree that such award may be enforced by any court having jurisdiction over the party against which the award has been rendered or the assets of such party wherever the same may be located. In any arbitration proceeding, any legal proceeding to enforce any arbitration award and in any other legal proceeding among the Parties pursuant to or relating to this Agreement, each Party expressly waives the defense of sovereign immunity and any other defense based on the fact or allegation that it is an agency or instrumentality of a sovereign state or is otherwise entitled to immunity.
13. Representations and Warranties. The Guarantor hereby represents and warrants to the Guaranteed Party that:
(a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization;
(b) it has all necessary power and authority to execute, deliver and perform this Limited Guarantee;
(c) the execution, delivery and performance of this Limited Guarantee by the Guarantor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Guarantor are necessary therefor;
(d) all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Limited Guarantee by the Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution, delivery or performance of this Limited Guarantee;
(e) this Limited Guarantee has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the undersigned in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law));
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(f) the execution, delivery and performance by the undersigned of this Limited Guarantee do not and will not violate the organizational documents of the undersigned or violate any applicable law, regulation, rule, decree, order, judgment or contractual restriction binding on the Guarantor or its assets or properties; and
(g) it has the financial capacity to pay and perform its obligations under this Limited Guarantee, and all funds necessary for the Guarantor to fulfill its obligations under this Limited Guarantee shall be available to the Guarantor for so long as this Limited Guarantee shall remain in effect in accordance with Section 6.
14. No Assignment. Neither this Limited Guarantee nor any of the rights, interests or obligations hereunder shall be assignable without the prior written consent of the Guaranteed Party (in the case of an assignment by the Guarantor) or the Guarantor (in the case of an assignment by the Guaranteed Party).
15. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LIMITED GUARANTEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 15.
16. Severability. Any term or provision of this Limited Guarantee which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Limited Guarantee in any jurisdiction and, if any provision of this Limited Guarantee is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Maximum Amount provided in Section 1 hereof and to the provisions of Sections 3 and 5 hereof. No party hereto shall assert, and each party shall cause its respective Affiliates and subsidiaries not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.
17. Headings. Headings of the Sections of this Limited Guarantee are for convenience only and shall be given no substantive or interpretive effect whatsoever.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Shanghai Sailing Boda Equity Investment Fund Partnership (Limited Partnership) | ||
| (上海赛领博达股权投资基金合伙企业 | ||
| ( 有限合伙)) | ||
| [Company chop is affixed] | ||
| By: | /s/ Tao Fu | |
| Name: | Tao Fu | |
| Title: | Authorized Representative of Managing Partner | |
[Signature Page to Limited Guarantee]
IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: | Eric X. Chen | |
| Title: | Director | |
[Signature Page to Limited Guarantee]
Exhibit 99.87
Execution Version
LIMITED GUARANTEE
This Limited Guarantee, dated as of December 18, 2015 (this "Limited Guarantee"), is made by Fortune Fountain (Beijing) Holding Group Co., Ltd. (沣沅弘 (北京) 控股集团有限公司), a limited liability company incorporated under the laws of the People’s Republic of China (including its successors and permitted assigns, the "Guarantor"), in favor of Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Guaranteed Party"). Reference is hereby made to the Agreement and Plan of Merger, dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), and the Guaranteed Party. Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Merger Agreement.
1. Limited Guarantee.
(a) To induce the Guaranteed Party to enter into the Merger Agreement, the Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, subject to the terms and conditions hereof, the due and punctual payment and performance when due of 0.99% of the Parent Parties' obligation (the "Guaranteed Obligation") to pay to the Guaranteed Party (i) the Parent Termination Fee if and when required pursuant to Section 8.2(c) of the Merger Agreement, and (ii) the payment obligations of the Parent Parties pursuant to Section 6.6 of the Merger Agreement; provided that the maximum aggregate liability of the Guarantor hereunder shall not exceed USD 4,458,689 (the "Maximum Amount").
(b) The Guaranteed Party hereby agrees that (a) the Guarantor shall in no event be required to pay more than the Maximum Amount under or in respect of this Guarantee and (b) the Guarantor shall not have any obligation or liability to any Person (including, without limitation, to the Guaranteed Party's equity holders, Affiliates and/or subsidiaries) relating to, arising out of or in connection with this Limited Guarantee, the Merger Agreement, or the Equity Commitment Letter (as defined below) other than as expressly set forth herein or in the Equity Commitment Letter or the Escrow Agreement (as defined in the Equity Commitment Letter).
(c) The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by the Guaranteed Party in connection with the enforcement of its rights hereunder and under the Merger Agreement, including, without limitation, in the event that (i) the Guarantor asserts in any arbitration, litigation or other proceeding that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms and the Guaranteed Party prevails in such arbitration, litigation or other proceeding, or (ii) the Guarantor fails or refuses to make any payment to the Guaranteed Party hereunder when due and payable and it is determined judicially or by arbitration that the Guarantor is required to make such payment hereunder.
(d) The Guarantor promises and undertakes to make all payments hereunder free and clear of any deduction, offset, defense, claim or counterclaim of any kind. If the Parent Parties fail to pay or cause to be paid the Guaranteed Obligation as and when due and payable pursuant to Section 8.2(c) of the Merger Agreement, as applicable, then the Guarantor's liabilities to the Guaranteed Party hereunder in respect of such Guaranteed Obligation shall become immediately due and payable and the Guaranteed Party may at any time and from time to time, at the Guaranteed Party's option, and so long as the Parent Parties remain in breach of its Guaranteed Obligation, take any and all actions available hereunder or under applicable Law to collect the Guaranteed Obligation from the Guarantor subject to the Maximum Amount as applicable.
2. Terms of Limited Guarantee.
(a) This Limited Guarantee is a primary and original obligation of the Guarantor and is one of payment, not collection, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against any Parent Party or any other Person or whether any Parent Party or any other Person is joined in any such action or actions. Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantor under this Limited Guarantee and of the other guarantors under the other Limited Guarantees dated as of the date hereof ("Other Guarantors") shall be several and not joint.
(b) The liability of the Guarantor under this Limited Guarantee shall, to the fullest extent permitted under applicable law, be absolute, irrevocable and unconditional, irrespective of:
(i) the value, genuineness, validity, illegality or enforceability of the Merger Agreement or the letter agreement dated as of the date hereof between the Guarantor, on the one hand, and Holdco and Parent, on the other hand, pursuant to which the Guarantor has agreed to make a certain equity contribution to Holdco and Parent (the "Equity Commitment Letter") or any other agreement or instrument referred to herein or therein;
(ii) any change in the corporate existence, structure or ownership of any Parent Party or any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting any Parent Party, any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor) or any of their respective assets;
(iii) any amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof;
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(iv) the existence of any claim, set-off or other right that the Guarantor may have at any time against any Parent Party or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise;
(v) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against any Parent Party or the Guarantor or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation (other than as and if required by Section 2(a));
(vi) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of the Guaranteed Obligation;
(vii) any other act or omission that may in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment in full of the Guaranteed Obligation in accordance with their terms); or
(viii) the addition, substitution, discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Guaranteed Obligation as a result of payment in full of the Guaranteed Obligation in accordance with their terms) of any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor),
other than in each case with respect to (A) defenses to the payment of the Guaranteed Obligation that are available to any Parent Party under the Merger Agreement or (B) breach by the Guaranteed Party of this Limited Guarantee, including, without limitation, the limitations set forth in Section 3 below), and, notwithstanding any other provision of this Limited Guarantee to the contrary, the Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that any Parent Party could assert against the Company under the terms of, or with respect to, the Merger Agreement that would relieve each of the Parent Parties of its obligations under the Merger Agreement.
(c) To the fullest extent permitted by applicable law, the Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of the Guaranteed Obligation and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligation shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between the Parent Parties and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under no obligation to pursue such rights and remedies it may have against the Parent Parties or any other Person for the Guaranteed Obligation or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue such other rights or remedies or to collect any payments from the Parent Parties or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of the Parent Parties or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guaranteed Party.
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(d) To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, acceptance hereof, presentment, demand for payment, notice of non-performance, default, dishonor and protest, any notice not provided for herein, all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of any Parent Party or any other person interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligation that are available to the Parent Parties under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated under the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits.
(e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that the Parent Parties become subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantor's obligation hereunder. In the event that any payment to the Guaranteed Party in respect of the Guaranteed Obligation is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to the Guaranteed Obligation as if such payment had not been made so long as this Limited Guarantee has not terminated in accordance with its terms.
3. Sole Remedy; No Recourse. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party further agrees that neither it nor any other Person (including, without limitation, the Guaranteed Party's equityholders, Affiliates and subsidiaries) has any right of recovery against, and no personal liability shall attach to, the Guarantor, any former, current or future, director, officer, employee, agent or Affiliate of the Guarantor, any former, current or future, direct or indirect holder of any equity interests or securities of the Guarantor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or representative any of the foregoing (each such Person, a "Related Person"), through any Parent Party or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of any Parent Party against the Guarantor or any Related Person (except for any claim to compel Holdco and/or Parent to enforce the Equity Commitment Letter in accordance with the terms thereof), or otherwise, except for its rights against the Guarantor under this Limited Guarantee and the Escrow Agreement. Recourse against the Guarantor under this Limited Guarantee and the Escrow Agreement and the Guaranteed Party's rights under the Equity Commitment Letter shall be the sole and exclusive remedy of (i) the Guaranteed Party and (ii) all of the Guaranteed Party's equityholders, Affiliates and subsidiaries against the Guarantor and any Related Person (other than the Parent Parties and their respective successors and assigns) in respect of any liabilities or obligations arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby, including by piercing the corporate, limited liability company or limited partnership veil or by a claim by or on behalf of any Parent Party. The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Affiliates and subsidiaries not to institute, any proceeding or bring any other claim arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby (or the failure of such to be consummated), against the Guarantor or any Related Person, except for (A) claims of the Guaranteed Party against the Guarantor under and in accordance with this Limited Guarantee and the Escrow Agreement, (B) claims of the Guaranteed Party against the Parent Parties (and their respective successors and assigns) under and in accordance with the Merger Agreement and the Escrow Agreement, and (C) the exercise of the Guaranteed Party's rights under and in accordance with the Equity Commitment Letter, and the Guaranteed Party hereby, on behalf of itself and its Affiliates and subsidiaries, waives any and all claims arising under, or in connection with, the Merger Agreement, this Limited Guarantee, the Equity Commitment Letter, the Escrow Agreement or, in each case, the transactions contemplated hereby or thereby against the Guarantor or any Related Person and releases such Persons from such claims, in each case, except for claims described in clauses (A), (B) and (C) of this sentence (each, a "Permitted Claim"). Nothing set forth in this Limited Guarantee shall confer or give or shall be construed to confer or give to any Person (including any Person acting in a representative capacity) other than the Guaranteed Party any rights or remedies against any Person, including the Guarantor, except as expressly set forth herein.
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4. Subrogation. The Guarantor will not exercise against any Parent Party any rights of subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by reason of any payment by it pursuant to the provisions of Section 1 hereof unless and until the Guaranteed Obligation and all other amounts payable under this Limited Guarantee have been paid in full.
5. Termination. This Limited Guarantee shall terminate (and the Guarantor shall have no further obligations hereunder) upon the earliest to occur of (a) the Effective Time, (b) the payment in full of the Guaranteed Obligation and the obligation under Section 1(c), (c) the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would not be required pursuant to the terms and subject to the conditions of the Merger Agreement to make any payment of any Guaranteed Obligation; and (d) six months after the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would be required pursuant to the terms and subject to the conditions of the Merger Agreement to make a payment of the Guaranteed Obligation, unless by the end of such six-month period, the Guaranteed Party shall have initiated a claim or proceeding in accordance with the terms of the Merger Agreement for payment of any of the Guaranteed Obligations; provided that if the Guaranteed Party has initiated a claim or proceeding by the end of such six-month period, this Limited Guarantee shall terminate upon the date such claim or proceeding is finally satisfied or otherwise resolved by agreement of the parties hereto or pursuant to Section 12. In the event that the Guaranteed Party or any of its Affiliates or subsidiaries asserts in any litigation or other proceeding relating to this Limited Guarantee or the Merger Agreement (i) that the provisions hereof (including, without limitation, Section 1 hereof limiting the Guarantor's aggregate liability to the Maximum Amount or Section 3 hereof relating to the sole and exclusive remedies of the Guaranteed Party and its equityholders, Affiliates and subsidiaries against the Guarantor or any Related Person) are illegal, invalid or unenforceable, in whole or in part, or (ii) any theory of liability against the Guarantor or any Related Person or any other Guarantor under the other Limited Guarantees dated as of the date hereof or any Related Person of any such other Guarantor with respect to the transactions contemplated by this Limited Guarantee, the Equity Commitment Letter or the Merger Agreement other than any Permitted Claim, then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and be null and void, (y) if the Guarantor has previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments from the Guaranteed Party and (z) neither the Guarantor nor any Related Person (other than the Parent Parties and their respective successors and assigns) shall have any liability to the Guaranteed Party or any of its equityholders, Affiliates or subsidiaries with respect to the Merger Agreement or the transactions contemplated by the Merger Agreement or this Limited Guarantee.
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6. Continuing Guarantee. Except to the extent terminated pursuant to the provisions of Section 5 hereof, this Limited Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed Obligation and the obligation under Section 1(c), shall be binding upon the Guarantor, its successors and assigns, and shall inure to the benefit of, and be enforceable by, the Guaranteed Party and its successors, permitted transferees and permitted assigns; provided that notwithstanding anything to the contrary in this Limited Guarantee, the provisions of this Limited Guarantee that are for the benefit of any Related Person (including the provisions of Sections 3 and 5) shall indefinitely survive any termination of this Limited Guarantee for the benefit of the Guarantor and any Related Persons. All obligation to which this Limited Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
7. Entire Agreement. This Limited Guarantee, the Merger Agreement, the Equity Commitment Letter and the Escrow Agreement constitute the entire agreement with respect to the subject matter hereof, and supersede all other prior agreements and understandings, both written and oral, among the Parent Parties and/or the Guarantor or any of their respective Affiliates, on the one hand, and the Guaranteed Party or any of its Affiliates, on the other hand, regarding the subject matter hereof.
8. Amendments and Waivers. Any provision of this Limited Guarantee may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Guarantor and the Guaranteed Party or, in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by any party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
9. Counterparts. This Limited Guarantee may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
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10. Notices. All notices, requests, claims, demands and other communications hereunder shall be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressee's location on any Business Day after 5:00 p.m. (addressee's local time) shall be deemed to have been received at 9:00 a.m. (addressee's local time) on the next Business Day), by reliable international overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:
if to the Guarantor:
Fortune Fountain (Beijing) Holding Group Co., Ltd.
(沣沅弘 (北京) 控股集团有限公司)
Floor 33, Nanyin Building, East Third Ring North Road No.2
Chaoyang District
Beijing
Facsimile: +86 010-57807831
Attention: Zhen Sun
with copies to:
Kirkland & Ellis
26th Floor, Glouster Tower, The Landmark
15 Queen's Road Central
Hong Kong
Facsimile: +852-3761-3301
Attention: David Zhang and Jesse Sheley
If to the Guaranteed Party, as provided in Section 9.2 of the Merger Agreement.
11. Governing Law. This Limited Guarantee (except for the arbitration agreement in Section 12) shall be governed by and construed in accordance with the Laws of the State of New York without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
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12. Jurisdiction; Waiver of Service of Process.
(a) Jurisdiction. In the event any dispute arises among the parties hereto out of or in relation to this Limited Guarantee, including any dispute regarding its existence, interpretation, performance, breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly consultations within thirty (30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions of this Section 12. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre ("HKIAC") Administered Rules in force when a notice of arbitration is submitted. The seat and venue of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The law of the arbitration agreement shall be Hong Kong law. The appointing authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number, and one arbitrator shall be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from nominating their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within 30 days after such two arbitrators have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any person necessary for the conduct of the arbitration, unless otherwise required by Law or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and any interim or final award, as well as the fact that an arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after the submission of any dispute to arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter agreement, except insofar as the same may relate directly to the matters in dispute. The parties hereby agree that any arbitration award rendered in accordance with the provisions of this Section 12 shall be final and binding upon them, and the parties further agree that such award may be enforced by any court having jurisdiction over the party against which the award has been rendered or the assets of such party wherever the same may be located. In any arbitration proceeding, any legal proceeding to enforce any arbitration award and in any other legal proceeding among the Parties pursuant to or relating to this Agreement, each Party expressly waives the defense of sovereign immunity and any other defense based on the fact or allegation that it is an agency or instrumentality of a sovereign state or is otherwise entitled to immunity.
13. Representations and Warranties. The Guarantor hereby represents and warrants to the Guaranteed Party that:
(a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization;
(b) it has all necessary power and authority to execute, deliver and perform this Limited Guarantee;
(c) the execution, delivery and performance of this Limited Guarantee by the Guarantor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Guarantor are necessary therefor;
(d) all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Limited Guarantee by the Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution, delivery or performance of this Limited Guarantee;
(e) this Limited Guarantee has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the undersigned in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law));
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(f) the execution, delivery and performance by the undersigned of this Limited Guarantee do not and will not violate the organizational documents of the undersigned or violate any applicable law, regulation, rule, decree, order, judgment or contractual restriction binding on the Guarantor or its assets or properties; and
(g) it has the financial capacity to pay and perform its obligations under this Limited Guarantee, and all funds necessary for the Guarantor to fulfill its obligations under this Limited Guarantee shall be available to the Guarantor for so long as this Limited Guarantee shall remain in effect in accordance with Section 6.
14. No Assignment. Neither this Limited Guarantee nor any of the rights, interests or obligations hereunder shall be assignable without the prior written consent of the Guaranteed Party (in the case of an assignment by the Guarantor) or the Guarantor (in the case of an assignment by the Guaranteed Party).
15. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LIMITED GUARANTEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 15.
16. Severability. Any term or provision of this Limited Guarantee which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Limited Guarantee in any jurisdiction and, if any provision of this Limited Guarantee is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Maximum Amount provided in Section 1 hereof and to the provisions of Sections 3 and 5 hereof. No party hereto shall assert, and each party shall cause its respective Affiliates and subsidiaries not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.
17. Headings. Headings of the Sections of this Limited Guarantee are for convenience only and shall be given no substantive or interpretive effect whatsoever.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Fortune Fountain (Beijing) Holding Group Co., Ltd. | ||
| (沣沅弘 (北京) 控股集团有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Wong Ning Nick | |
| Name: Wong Ning Nick | ||
| Title: Managing Director | ||
[Signature Page to Limited Guarantee]
IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Limited Guarantee]
Exhibit 99.88
Execution Version
LIMITED GUARANTEE
This Limited Guarantee, dated as of December 18, 2015 (this "Limited Guarantee"), is made by Beijing ZGC Trinitas Venture Capital Investment Center (Limited Partnership) (北京中关村国盛创业投资中心( 有限合伙) ) , a limited partnership formed under the laws of the People’s Republic of China (including its successors and permitted assigns, the "Guarantor"), in favor of Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Guaranteed Party"). Reference is hereby made to the Agreement and Plan of Merger, dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), and the Guaranteed Party. Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Merger Agreement.
1. Limited Guarantee.
(a) To induce the Guaranteed Party to enter into the Merger Agreement, the Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, subject to the terms and conditions hereof, the due and punctual payment and performance when due of 1.61% of the Parent Parties' obligation (the "Guaranteed Obligation") to pay to the Guaranteed Party (i) the Parent Termination Fee if and when required pursuant to Section 8.2(c) of the Merger Agreement, and (ii) the payment obligations of the Parent Parties pursuant to Section 6.6 of the Merger Agreement; provided that the maximum aggregate liability of the Guarantor hereunder shall not exceed USD7,245,370 (the "Maximum Amount").
(b) The Guaranteed Party hereby agrees that (a) the Guarantor shall in no event be required to pay more than the Maximum Amount under or in respect of this Guarantee and (b) the Guarantor shall not have any obligation or liability to any Person (including, without limitation, to the Guaranteed Party's equity holders, Affiliates and/or subsidiaries) relating to, arising out of or in connection with this Limited Guarantee, the Merger Agreement, or the Equity Commitment Letter (as defined below) other than as expressly set forth herein or in the Equity Commitment Letter or the Escrow Agreement (as defined in the Equity Commitment Letter).
(c) The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by the Guaranteed Party in connection with the enforcement of its rights hereunder and under the Merger Agreement, including, without limitation, in the event that (i) the Guarantor asserts in any arbitration, litigation or other proceeding that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms and the Guaranteed Party prevails in such arbitration, litigation or other proceeding, or (ii) the Guarantor fails or refuses to make any payment to the Guaranteed Party hereunder when due and payable and it is determined judicially or by arbitration that the Guarantor is required to make such payment hereunder.
(d) The Guarantor promises and undertakes to make all payments hereunder free and clear of any deduction, offset, defense, claim or counterclaim of any kind. If the Parent Parties fail to pay or cause to be paid the Guaranteed Obligation as and when due and payable pursuant to Section 8.2(c) of the Merger Agreement, as applicable, then the Guarantor's liabilities to the Guaranteed Party hereunder in respect of such Guaranteed Obligation shall become immediately due and payable and the Guaranteed Party may at any time and from time to time, at the Guaranteed Party's option, and so long as the Parent Parties remain in breach of its Guaranteed Obligation, take any and all actions available hereunder or under applicable Law to collect the Guaranteed Obligation from the Guarantor subject to the Maximum Amount as applicable.
2. Terms of Limited Guarantee.
(a) This Limited Guarantee is a primary and original obligation of the Guarantor and is one of payment, not collection, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against any Parent Party or any other Person or whether any Parent Party or any other Person is joined in any such action or actions. Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantor under this Limited Guarantee and of the other guarantors under the other Limited Guarantees dated as of the date hereof ("Other Guarantors") shall be several and not joint.
(b) The liability of the Guarantor under this Limited Guarantee shall, to the fullest extent permitted under applicable law, be absolute, irrevocable and unconditional, irrespective of:
(i) the value, genuineness, validity, illegality or enforceability of the Merger Agreement or the letter agreement dated as of the date hereof between the Guarantor, on the one hand, and Holdco and Parent, on the other hand, pursuant to which the Guarantor has agreed to make a certain equity contribution to Holdco and Parent (the "Equity Commitment Letter") or any other agreement or instrument referred to herein or therein;
(ii) any change in the corporate existence, structure or ownership of any Parent Party or any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting any Parent Party, any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor) or any of their respective assets;
(iii) any amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof;
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(iv) the existence of any claim, set-off or other right that the Guarantor may have at any time against any Parent Party or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise;
(v) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against any Parent Party or the Guarantor or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation (other than as and if required by Section 2(a));
(vi) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of the Guaranteed Obligation;
(vii) any other act or omission that may in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment in full of the Guaranteed Obligation in accordance with their terms); or
(viii) the addition, substitution, discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Guaranteed Obligation as a result of payment in full of the Guaranteed Obligation in accordance with their terms) of any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor),
other than in each case with respect to (A) defenses to the payment of the Guaranteed Obligation that are available to any Parent Party under the Merger Agreement or (B) breach by the Guaranteed Party of this Limited Guarantee, including, without limitation, the limitations set forth in Section 3 below), and, notwithstanding any other provision of this Limited Guarantee to the contrary, the Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that any Parent Party could assert against the Company under the terms of, or with respect to, the Merger Agreement that would relieve each of the Parent Parties of its obligations under the Merger Agreement.
(c) To the fullest extent permitted by applicable law, the Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of the Guaranteed Obligation and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligation shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between the Parent Parties and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under no obligation to pursue such rights and remedies it may have against the Parent Parties or any other Person for the Guaranteed Obligation or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue such other rights or remedies or to collect any payments from the Parent Parties or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of the Parent Parties or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guaranteed Party.
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(d) To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, acceptance hereof, presentment, demand for payment, notice of non-performance, default, dishonor and protest, any notice not provided for herein, all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of any Parent Party or any other person interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligation that are available to the Parent Parties under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated under the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits.
(e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that the Parent Parties become subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantor's obligation hereunder. In the event that any payment to the Guaranteed Party in respect of the Guaranteed Obligation is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to the Guaranteed Obligation as if such payment had not been made so long as this Limited Guarantee has not terminated in accordance with its terms.
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3. Sole Remedy; No Recourse. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party further agrees that neither it nor any other Person (including, without limitation, the Guaranteed Party's equityholders, Affiliates and subsidiaries) has any right of recovery against, and no personal liability shall attach to, the Guarantor, any former, current or future, director, officer, employee, agent or Affiliate of the Guarantor, any former, current or future, direct or indirect holder of any equity interests or securities of the Guarantor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or representative any of the foregoing (each such Person, a "Related Person"), through any Parent Party or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of any Parent Party against the Guarantor or any Related Person (except for any claim to compel Holdco and/or Parent to enforce the Equity Commitment Letter in accordance with the terms thereof), or otherwise, except for its rights against the Guarantor under this Limited Guarantee and the Escrow Agreement. Recourse against the Guarantor under this Limited Guarantee and the Escrow Agreement and the Guaranteed Party's rights under the Equity Commitment Letter shall be the sole and exclusive remedy of (i) the Guaranteed Party and (ii) all of the Guaranteed Party's equityholders, Affiliates and subsidiaries against the Guarantor and any Related Person (other than the Parent Parties and their respective successors and assigns) in respect of any liabilities or obligations arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby, including by piercing the corporate, limited liability company or limited partnership veil or by a claim by or on behalf of any Parent Party. The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Affiliates and subsidiaries not to institute, any proceeding or bring any other claim arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby (or the failure of such to be consummated), against the Guarantor or any Related Person, except for (A) claims of the Guaranteed Party against the Guarantor under and in accordance with this Limited Guarantee and the Escrow Agreement, (B) claims of the Guaranteed Party against the Parent Parties (and their respective successors and assigns) under and in accordance with the Merger Agreement and the Escrow Agreement, and (C) the exercise of the Guaranteed Party's rights under and in accordance with the Equity Commitment Letter, and the Guaranteed Party hereby, on behalf of itself and its Affiliates and subsidiaries, waives any and all claims arising under, or in connection with, the Merger Agreement, this Limited Guarantee, the Equity Commitment Letter, the Escrow Agreement or, in each case, the transactions contemplated hereby or thereby against the Guarantor or any Related Person and releases such Persons from such claims, in each case, except for claims described in clauses (A), (B) and (C) of this sentence (each, a "Permitted Claim"). Nothing set forth in this Limited Guarantee shall confer or give or shall be construed to confer or give to any Person (including any Person acting in a representative capacity) other than the Guaranteed Party any rights or remedies against any Person, including the Guarantor, except as expressly set forth herein.
4. Subrogation. The Guarantor will not exercise against any Parent Party any rights of subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by reason of any payment by it pursuant to the provisions of Section 1 hereof unless and until the Guaranteed Obligation and all other amounts payable under this Limited Guarantee have been paid in full.
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5. Termination. This Limited Guarantee shall terminate (and the Guarantor shall have no further obligations hereunder) upon the earliest to occur of (a) the Effective Time, (b) the payment in full of the Guaranteed Obligation and the obligation under Section 1(c), (c) the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would not be required pursuant to the terms and subject to the conditions of the Merger Agreement to make any payment of any Guaranteed Obligation; and (d) six months after the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would be required pursuant to the terms and subject to the conditions of the Merger Agreement to make a payment of the Guaranteed Obligation, unless by the end of such six-month period, the Guaranteed Party shall have initiated a claim or proceeding in accordance with the terms of the Merger Agreement for payment of any of the Guaranteed Obligations; provided that if the Guaranteed Party has initiated a claim or proceeding by the end of such six-month period, this Limited Guarantee shall terminate upon the date such claim or proceeding is finally satisfied or otherwise resolved by agreement of the parties hereto or pursuant to Section 12. In the event that the Guaranteed Party or any of its Affiliates or subsidiaries asserts in any litigation or other proceeding relating to this Limited Guarantee or the Merger Agreement (i) that the provisions hereof (including, without limitation, Section 1 hereof limiting the Guarantor's aggregate liability to the Maximum Amount or Section 3 hereof relating to the sole and exclusive remedies of the Guaranteed Party and its equityholders, Affiliates and subsidiaries against the Guarantor or any Related Person) are illegal, invalid or unenforceable, in whole or in part, or (ii) any theory of liability against the Guarantor or any Related Person or any other Guarantor under the other Limited Guarantees dated as of the date hereof or any Related Person of any such other Guarantor with respect to the transactions contemplated by this Limited Guarantee, the Equity Commitment Letter or the Merger Agreement other than any Permitted Claim, then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and be null and void, (y) if the Guarantor has previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments from the Guaranteed Party and (z) neither the Guarantor nor any Related Person (other than the Parent Parties and their respective successors and assigns) shall have any liability to the Guaranteed Party or any of its equityholders, Affiliates or subsidiaries with respect to the Merger Agreement or the transactions contemplated by the Merger Agreement or this Limited Guarantee.
6. Continuing Guarantee. Except to the extent terminated pursuant to the provisions of Section 5 hereof, this Limited Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed Obligation and the obligation under Section 1(c), shall be binding upon the Guarantor, its successors and assigns, and shall inure to the benefit of, and be enforceable by, the Guaranteed Party and its successors, permitted transferees and permitted assigns; provided that notwithstanding anything to the contrary in this Limited Guarantee, the provisions of this Limited Guarantee that are for the benefit of any Related Person (including the provisions of Sections 3 and 5) shall indefinitely survive any termination of this Limited Guarantee for the benefit of the Guarantor and any Related Persons. All obligation to which this Limited Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
7. Entire Agreement. This Limited Guarantee, the Merger Agreement, the Equity Commitment Letter and the Escrow Agreement constitute the entire agreement with respect to the subject matter hereof, and supersede all other prior agreements and understandings, both written and oral, among the Parent Parties and/or the Guarantor or any of their respective Affiliates, on the one hand, and the Guaranteed Party or any of its Affiliates, on the other hand, regarding the subject matter hereof.
8. Amendments and Waivers. Any provision of this Limited Guarantee may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Guarantor and the Guaranteed Party or, in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by any party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
9. Counterparts. This Limited Guarantee may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
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10. Notices. All notices, requests, claims, demands and other communications hereunder shall be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressee's location on any Business Day after 5:00 p.m. (addressee's local time) shall be deemed to have been received at 9:00 a.m. (addressee's local time) on the next Business Day), by reliable international overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:
if to the Guarantor:
Beijing ZGC Guosheng Venture Capital Investment Center
(Limited Partnership)
(北京中关村国盛创业投资中心 ( 有限合伙) )
710-133, 6/F NO. 8 North 2nd Street, Haidian District
Beijing China
Facsimile: 86-10-57842011
Attention: Bing Han
with copies to:
Kirkland & Ellis
26th Floor, Glouster Tower, The Landmark
15 Queen's Road Central
Hong Kong
Facsimile: +852-3761-3301
Attention: David Zhang and Jesse Sheley
If to the Guaranteed Party, as provided in Section 9.2 of the Merger Agreement.
11. Governing Law. This Limited Guarantee (except for the arbitration agreement in Section 12) shall be governed by and construed in accordance with the Laws of the State of New York without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
12. Jurisdiction; Waiver of Service of Process.
(a) Jurisdiction. In the event any dispute arises among the parties hereto out of or in relation to this Limited Guarantee, including any dispute regarding its existence, interpretation, performance, breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly consultations within thirty (30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions of this Section 12. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre ("HKIAC") Administered Rules in force when a notice of arbitration is submitted. The seat and venue of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The law of the arbitration agreement shall be Hong Kong law. The appointing authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number, and one arbitrator shall be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from nominating their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within 30 days after such two arbitrators have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any person necessary for the conduct of the arbitration, unless otherwise required by Law or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and any interim or final award, as well as the fact that an arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after the submission of any dispute to arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter agreement, except insofar as the same may relate directly to the matters in dispute. The parties hereby agree that any arbitration award rendered in accordance with the provisions of this Section 12 shall be final and binding upon them, and the parties further agree that such award may be enforced by any court having jurisdiction over the party against which the award has been rendered or the assets of such party wherever the same may be located. In any arbitration proceeding, any legal proceeding to enforce any arbitration award and in any other legal proceeding among the Parties pursuant to or relating to this Agreement, each Party expressly waives the defense of sovereign immunity and any other defense based on the fact or allegation that it is an agency or instrumentality of a sovereign state or is otherwise entitled to immunity.
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13. Representations and Warranties. The Guarantor hereby represents and warrants to the Guaranteed Party that:
(a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization;
(b) it has all necessary power and authority to execute, deliver and perform this Limited Guarantee;
(c) the execution, delivery and performance of this Limited Guarantee by the Guarantor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Guarantor are necessary therefor;
(d) all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Limited Guarantee by the Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution, delivery or performance of this Limited Guarantee;
(e) this Limited Guarantee has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the undersigned in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law));
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(f) the execution, delivery and performance by the undersigned of this Limited Guarantee do not and will not violate the organizational documents of the undersigned or violate any applicable law, regulation, rule, decree, order, judgment or contractual restriction binding on the Guarantor or its assets or properties; and
(g) it has the financial capacity to pay and perform its obligations under this Limited Guarantee, and all funds necessary for the Guarantor to fulfill its obligations under this Limited Guarantee shall be available to the Guarantor for so long as this Limited Guarantee shall remain in effect in accordance with Section 6.
14. No Assignment. Neither this Limited Guarantee nor any of the rights, interests or obligations hereunder shall be assignable without the prior written consent of the Guaranteed Party (in the case of an assignment by the Guarantor) or the Guarantor (in the case of an assignment by the Guaranteed Party).
15. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LIMITED GUARANTEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 15.
16. Severability. Any term or provision of this Limited Guarantee which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Limited Guarantee in any jurisdiction and, if any provision of this Limited Guarantee is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Maximum Amount provided in Section 1 hereof and to the provisions of Sections 3 and 5 hereof. No party hereto shall assert, and each party shall cause its respective Affiliates and subsidiaries not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.
17. Headings. Headings of the Sections of this Limited Guarantee are for convenience only and shall be given no substantive or interpretive effect whatsoever.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Beijing ZGC Trinitas Venture Capital Investment Center (Limited Partnership) | ||
| (北京中关村国盛创业投资中心 ( 有限合伙) ) | ||
| [Company chop is affixed] | ||
| By: | /s/ ZHOU, CHENG | |
| Name: | ZHOU, CHENG (周骋) | |
| Title: | Founding Partner | |
[Signature Page to Limited Guarantee]
IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: | Eric X. Chen | |
| Title: | Director | |
[Signature Page to Limited Guarantee]
Exhibit 99.89
Execution Version
LIMITED GUARANTEE
This Limited Guarantee, dated as of December 18, 2015 (this "Limited Guarantee"), is made by Shanghai Mango Creative Equity Investment Fund (芒果文创 (上海) 股权投资基金合伙企业(有限合伙) ), a limited partnership formed under the laws of the People’s Republic of China (including its successors and permitted assigns, the "Guarantor"), in favor of Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Guaranteed Party"). Reference is hereby made to the Agreement and Plan of Merger, dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), and the Guaranteed Party. Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Merger Agreement.
1. Limited Guarantee.
(a) To induce the Guaranteed Party to enter into the Merger Agreement, the Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, subject to the terms and conditions hereof, the due and punctual payment and performance when due of 1.24% of the Parent Parties' obligation (the "Guaranteed Obligation") to pay to the Guaranteed Party (i) the Parent Termination Fee if and when required pursuant to Section 8.2(c) of the Merger Agreement, and (ii) the payment obligations of the Parent Parties pursuant to Section 6.6 of the Merger Agreement; provided that the maximum aggregate liability of the Guarantor hereunder shall not exceed USD 5,573,361 (the "Maximum Amount").
(b) The Guaranteed Party hereby agrees that (a) the Guarantor shall in no event be required to pay more than the Maximum Amount under or in respect of this Guarantee and (b) the Guarantor shall not have any obligation or liability to any Person (including, without limitation, to the Guaranteed Party's equity holders, Affiliates and/or subsidiaries) relating to, arising out of or in connection with this Limited Guarantee, the Merger Agreement, or the Equity Commitment Letter (as defined below) other than as expressly set forth herein or in the Equity Commitment Letter or the Escrow Agreement (as defined in the Equity Commitment Letter).
(c) The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by the Guaranteed Party in connection with the enforcement of its rights hereunder and under the Merger Agreement, including, without limitation, in the event that (i) the Guarantor asserts in any arbitration, litigation or other proceeding that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms and the Guaranteed Party prevails in such arbitration, litigation or other proceeding, or (ii) the Guarantor fails or refuses to make any payment to the Guaranteed Party hereunder when due and payable and it is determined judicially or by arbitration that the Guarantor is required to make such payment hereunder.
(d) The Guarantor promises and undertakes to make all payments hereunder free and clear of any deduction, offset, defense, claim or counterclaim of any kind. If the Parent Parties fail to pay or cause to be paid the Guaranteed Obligation as and when due and payable pursuant to Section 8.2(c) of the Merger Agreement, as applicable, then the Guarantor's liabilities to the Guaranteed Party hereunder in respect of such Guaranteed Obligation shall become immediately due and payable and the Guaranteed Party may at any time and from time to time, at the Guaranteed Party's option, and so long as the Parent Parties remain in breach of its Guaranteed Obligation, take any and all actions available hereunder or under applicable Law to collect the Guaranteed Obligation from the Guarantor subject to the Maximum Amount as applicable.
2. Terms of Limited Guarantee.
(a) This Limited Guarantee is a primary and original obligation of the Guarantor and is one of payment, not collection, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against any Parent Party or any other Person or whether any Parent Party or any other Person is joined in any such action or actions. Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantor under this Limited Guarantee and of the other guarantors under the other Limited Guarantees dated as of the date hereof ("Other Guarantors") shall be several and not joint.
(b) The liability of the Guarantor under this Limited Guarantee shall, to the fullest extent permitted under applicable law, be absolute, irrevocable and unconditional, irrespective of:
(i) the value, genuineness, validity, illegality or enforceability of the Merger Agreement or the letter agreement dated as of the date hereof between the Guarantor, on the one hand, and Holdco and Parent, on the other hand, pursuant to which the Guarantor has agreed to make a certain equity contribution to Holdco and Parent (the "Equity Commitment Letter") or any other agreement or instrument referred to herein or therein;
(ii) any change in the corporate existence, structure or ownership of any Parent Party or any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting any Parent Party, any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor) or any of their respective assets;
(iii) any amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof;
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(iv) the existence of any claim, set-off or other right that the Guarantor may have at any time against any Parent Party or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise;
(v) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against any Parent Party or the Guarantor or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation (other than as and if required by Section 2(a));
(vi) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of the Guaranteed Obligation;
(vii) any other act or omission that may in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment in full of the Guaranteed Obligation in accordance with their terms); or
(viii) the addition, substitution, discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Guaranteed Obligation as a result of payment in full of the Guaranteed Obligation in accordance with their terms) of any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor),
other than in each case with respect to (A) defenses to the payment of the Guaranteed Obligation that are available to any Parent Party under the Merger Agreement or (B) breach by the Guaranteed Party of this Limited Guarantee, including, without limitation, the limitations set forth in Section 3 below), and, notwithstanding any other provision of this Limited Guarantee to the contrary, the Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that any Parent Party could assert against the Company under the terms of, or with respect to, the Merger Agreement that would relieve each of the Parent Parties of its obligations under the Merger Agreement.
(c) To the fullest extent permitted by applicable law, the Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of the Guaranteed Obligation and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligation shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between the Parent Parties and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under no obligation to pursue such rights and remedies it may have against the Parent Parties or any other Person for the Guaranteed Obligation or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue such other rights or remedies or to collect any payments from the Parent Parties or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of the Parent Parties or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guaranteed Party.
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(d) To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, acceptance hereof, presentment, demand for payment, notice of non-performance, default, dishonor and protest, any notice not provided for herein, all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of any Parent Party or any other person interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligation that are available to the Parent Parties under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated under the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits.
(e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that the Parent Parties become subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantor's obligation hereunder. In the event that any payment to the Guaranteed Party in respect of the Guaranteed Obligation is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to the Guaranteed Obligation as if such payment had not been made so long as this Limited Guarantee has not terminated in accordance with its terms.
3. Sole Remedy; No Recourse. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party further agrees that neither it nor any other Person (including, without limitation, the Guaranteed Party's equityholders, Affiliates and subsidiaries) has any right of recovery against, and no personal liability shall attach to, the Guarantor, any former, current or future, director, officer, employee, agent or Affiliate of the Guarantor, any former, current or future, direct or indirect holder of any equity interests or securities of the Guarantor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or representative any of the foregoing (each such Person, a "Related Person"), through any Parent Party or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of any Parent Party against the Guarantor or any Related Person (except for any claim to compel Holdco and/or Parent to enforce the Equity Commitment Letter in accordance with the terms thereof), or otherwise, except for its rights against the Guarantor under this Limited Guarantee and the Escrow Agreement. Recourse against the Guarantor under this Limited Guarantee and the Escrow Agreement and the Guaranteed Party's rights under the Equity Commitment Letter shall be the sole and exclusive remedy of (i) the Guaranteed Party and (ii) all of the Guaranteed Party's equityholders, Affiliates and subsidiaries against the Guarantor and any Related Person (other than the Parent Parties and their respective successors and assigns) in respect of any liabilities or obligations arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby, including by piercing the corporate, limited liability company or limited partnership veil or by a claim by or on behalf of any Parent Party. The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Affiliates and subsidiaries not to institute, any proceeding or bring any other claim arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby (or the failure of such to be consummated), against the Guarantor or any Related Person, except for (A) claims of the Guaranteed Party against the Guarantor under and in accordance with this Limited Guarantee and the Escrow Agreement, (B) claims of the Guaranteed Party against the Parent Parties (and their respective successors and assigns) under and in accordance with the Merger Agreement and the Escrow Agreement, and (C) the exercise of the Guaranteed Party's rights under and in accordance with the Equity Commitment Letter, and the Guaranteed Party hereby, on behalf of itself and its Affiliates and subsidiaries, waives any and all claims arising under, or in connection with, the Merger Agreement, this Limited Guarantee, the Equity Commitment Letter, the Escrow Agreement or, in each case, the transactions contemplated hereby or thereby against the Guarantor or any Related Person and releases such Persons from such claims, in each case, except for claims described in clauses (A), (B) and (C) of this sentence (each, a "Permitted Claim"). Nothing set forth in this Limited Guarantee shall confer or give or shall be construed to confer or give to any Person (including any Person acting in a representative capacity) other than the Guaranteed Party any rights or remedies against any Person, including the Guarantor, except as expressly set forth herein.
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4. Subrogation. The Guarantor will not exercise against any Parent Party any rights of subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by reason of any payment by it pursuant to the provisions of Section 1 hereof unless and until the Guaranteed Obligation and all other amounts payable under this Limited Guarantee have been paid in full.
5. Termination. This Limited Guarantee shall terminate (and the Guarantor shall have no further obligations hereunder) upon the earliest to occur of (a) the Effective Time, (b) the payment in full of the Guaranteed Obligation and the obligation under Section 1(c), (c) the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would not be required pursuant to the terms and subject to the conditions of the Merger Agreement to make any payment of any Guaranteed Obligation; and (d) six months after the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would be required pursuant to the terms and subject to the conditions of the Merger Agreement to make a payment of the Guaranteed Obligation, unless by the end of such six-month period, the Guaranteed Party shall have initiated a claim or proceeding in accordance with the terms of the Merger Agreement for payment of any of the Guaranteed Obligations; provided that if the Guaranteed Party has initiated a claim or proceeding by the end of such six-month period, this Limited Guarantee shall terminate upon the date such claim or proceeding is finally satisfied or otherwise resolved by agreement of the parties hereto or pursuant to Section 12. In the event that the Guaranteed Party or any of its Affiliates or subsidiaries asserts in any litigation or other proceeding relating to this Limited Guarantee or the Merger Agreement (i) that the provisions hereof (including, without limitation, Section 1 hereof limiting the Guarantor's aggregate liability to the Maximum Amount or Section 3 hereof relating to the sole and exclusive remedies of the Guaranteed Party and its equityholders, Affiliates and subsidiaries against the Guarantor or any Related Person) are illegal, invalid or unenforceable, in whole or in part, or (ii) any theory of liability against the Guarantor or any Related Person or any other Guarantor under the other Limited Guarantees dated as of the date hereof or any Related Person of any such other Guarantor with respect to the transactions contemplated by this Limited Guarantee, the Equity Commitment Letter or the Merger Agreement other than any Permitted Claim, then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and be null and void, (y) if the Guarantor has previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments from the Guaranteed Party and (z) neither the Guarantor nor any Related Person (other than the Parent Parties and their respective successors and assigns) shall have any liability to the Guaranteed Party or any of its equityholders, Affiliates or subsidiaries with respect to the Merger Agreement or the transactions contemplated by the Merger Agreement or this Limited Guarantee.
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6. Continuing Guarantee. Except to the extent terminated pursuant to the provisions of Section 5 hereof, this Limited Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed Obligation and the obligation under Section 1(c), shall be binding upon the Guarantor, its successors and assigns, and shall inure to the benefit of, and be enforceable by, the Guaranteed Party and its successors, permitted transferees and permitted assigns; provided that notwithstanding anything to the contrary in this Limited Guarantee, the provisions of this Limited Guarantee that are for the benefit of any Related Person (including the provisions of Sections 3 and 5) shall indefinitely survive any termination of this Limited Guarantee for the benefit of the Guarantor and any Related Persons. All obligation to which this Limited Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
7. Entire Agreement. This Limited Guarantee, the Merger Agreement, the Equity Commitment Letter and the Escrow Agreement constitute the entire agreement with respect to the subject matter hereof, and supersede all other prior agreements and understandings, both written and oral, among the Parent Parties and/or the Guarantor or any of their respective Affiliates, on the one hand, and the Guaranteed Party or any of its Affiliates, on the other hand, regarding the subject matter hereof.
8. Amendments and Waivers. Any provision of this Limited Guarantee may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Guarantor and the Guaranteed Party or, in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by any party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
9. Counterparts. This Limited Guarantee may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
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10. Notices. All notices, requests, claims, demands and other communications hereunder shall be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressee's location on any Business Day after 5:00 p.m. (addressee's local time) shall be deemed to have been received at 9:00 a.m. (addressee's local time) on the next Business Day), by reliable international overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:
if to the Guarantor:
Shanghai Mango Creative Equity Investment Fund
芒果文创 (上海) 股权投资基金合伙企业 (有限合伙)
Hunan People's Radio Station, Av. Sany
Changsha Hunan China
Facsimile: 0731-88966228
Attention: Weibin Li
with copies to:
Kirkland & Ellis
26th Floor, Glouster Tower, The Landmark
15 Queen's Road Central
Hong Kong
Facsimile: +852-3761-3301
Attention: David Zhang and Jesse Sheley
If to the Guaranteed Party, as provided in Section 9.2 of the Merger Agreement.
11. Governing Law. This Limited Guarantee (except for the arbitration agreement in Section 12) shall be governed by and construed in accordance with the Laws of the State of New York without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
12. Jurisdiction; Waiver of Service of Process.
(a) Jurisdiction. In the event any dispute arises among the parties hereto out of or in relation to this Limited Guarantee, including any dispute regarding its existence, interpretation, performance, breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly consultations within thirty (30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions of this Section 12. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre ("HKIAC") Administered Rules in force when a notice of arbitration is submitted. The seat and venue of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The law of the arbitration agreement shall be Hong Kong law. The appointing authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number, and one arbitrator shall be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from nominating their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within 30 days after such two arbitrators have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any person necessary for the conduct of the arbitration, unless otherwise required by Law or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and any interim or final award, as well as the fact that an arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after the submission of any dispute to arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter agreement, except insofar as the same may relate directly to the matters in dispute. The parties hereby agree that any arbitration award rendered in accordance with the provisions of this Section 12 shall be final and binding upon them, and the parties further agree that such award may be enforced by any court having jurisdiction over the party against which the award has been rendered or the assets of such party wherever the same may be located. In any arbitration proceeding, any legal proceeding to enforce any arbitration award and in any other legal proceeding among the Parties pursuant to or relating to this Agreement, each Party expressly waives the defense of sovereign immunity and any other defense based on the fact or allegation that it is an agency or instrumentality of a sovereign state or is otherwise entitled to immunity.
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13. Representations and Warranties. The Guarantor hereby represents and warrants to the Guaranteed Party that:
(a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization;
(b) it has all necessary power and authority to execute, deliver and perform this Limited Guarantee;
(c) the execution, delivery and performance of this Limited Guarantee by the Guarantor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Guarantor are necessary therefor;
(d) all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Limited Guarantee by the Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution, delivery or performance of this Limited Guarantee;
(e) this Limited Guarantee has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the undersigned in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law));
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(f) the execution, delivery and performance by the undersigned of this Limited Guarantee do not and will not violate the organizational documents of the undersigned or violate any applicable law, regulation, rule, decree, order, judgment or contractual restriction binding on the Guarantor or its assets or properties; and
(g) it has the financial capacity to pay and perform its obligations under this Limited Guarantee, and all funds necessary for the Guarantor to fulfill its obligations under this Limited Guarantee shall be available to the Guarantor for so long as this Limited Guarantee shall remain in effect in accordance with Section 6.
14. No Assignment. Neither this Limited Guarantee nor any of the rights, interests or obligations hereunder shall be assignable without the prior written consent of the Guaranteed Party (in the case of an assignment by the Guarantor) or the Guarantor (in the case of an assignment by the Guaranteed Party).
15. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LIMITED GUARANTEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 15.
16. Severability. Any term or provision of this Limited Guarantee which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Limited Guarantee in any jurisdiction and, if any provision of this Limited Guarantee is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Maximum Amount provided in Section 1 hereof and to the provisions of Sections 3 and 5 hereof. No party hereto shall assert, and each party shall cause its respective Affiliates and subsidiaries not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.
17. Headings. Headings of the Sections of this Limited Guarantee are for convenience only and shall be given no substantive or interpretive effect whatsoever.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Shanghai Mango Creative Equity Investment Fund | ||
| 芒果文创 (上海) 股权投资基金合伙企业 (有限合伙) | ||
| [Company chop is affixed] | ||
| By: | /s/ Cai Huaijun | |
| Name: | Cai Huaijun (蔡怀军) | |
| Title: | Representative | |
[Signature Page to Limited Guarantee]
IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Xhen | |
| Name: | Eric X. Chen | |
| Title: | Director | |
[Signature Page to Limited Guarantee]
Exhibit 99.90
Execution Version
LIMITED GUARANTEE
This Limited Guarantee, dated as of December 18, 2015 (this "Limited Guarantee"), is made by Qiancai NO.1 Equity Investment Limited Partnership Enterprise (千采壹号(象山)股权投资合伙企业 ( 有限合伙) ), a limited partnership formed under the laws of the People’s Republic of China (including its successors and permitted assigns, the "Guarantor"), in favor of Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Guaranteed Party"). Reference is hereby made to the Agreement and Plan of Merger, dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), and the Guaranteed Party. Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Merger Agreement.
1. Limited Guarantee.
(a) To induce the Guaranteed Party to enter into the Merger Agreement, the Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, subject to the terms and conditions hereof, the due and punctual payment and performance when due of 0.37% of the Parent Parties' obligation (the "Guaranteed Obligation") to pay to the Guaranteed Party (i) the Parent Termination Fee if and when required pursuant to Section 8.2(c) of the Merger Agreement, and (ii) the payment obligations of the Parent Parties pursuant to Section 6.6 of the Merger Agreement; provided that the maximum aggregate liability of the Guarantor hereunder shall not exceed USD1,672,008 (the "Maximum Amount").
(b) The Guaranteed Party hereby agrees that (a) the Guarantor shall in no event be required to pay more than the Maximum Amount under or in respect of this Guarantee and (b) the Guarantor shall not have any obligation or liability to any Person (including, without limitation, to the Guaranteed Party's equity holders, Affiliates and/or subsidiaries) relating to, arising out of or in connection with this Limited Guarantee, the Merger Agreement, or the Equity Commitment Letter (as defined below) other than as expressly set forth herein or in the Equity Commitment Letter or the Escrow Agreement (as defined in the Equity Commitment Letter).
(c) The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by the Guaranteed Party in connection with the enforcement of its rights hereunder and under the Merger Agreement, including, without limitation, in the event that (i) the Guarantor asserts in any arbitration, litigation or other proceeding that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms and the Guaranteed Party prevails in such arbitration, litigation or other proceeding, or (ii) the Guarantor fails or refuses to make any payment to the Guaranteed Party hereunder when due and payable and it is determined judicially or by arbitration that the Guarantor is required to make such payment hereunder.
(d) The Guarantor promises and undertakes to make all payments hereunder free and clear of any deduction, offset, defense, claim or counterclaim of any kind. If the Parent Parties fail to pay or cause to be paid the Guaranteed Obligation as and when due and payable pursuant to Section 8.2(c) of the Merger Agreement, as applicable, then the Guarantor's liabilities to the Guaranteed Party hereunder in respect of such Guaranteed Obligation shall become immediately due and payable and the Guaranteed Party may at any time and from time to time, at the Guaranteed Party's option, and so long as the Parent Parties remain in breach of its Guaranteed Obligation, take any and all actions available hereunder or under applicable Law to collect the Guaranteed Obligation from the Guarantor subject to the Maximum Amount as applicable.
2. Terms of Limited Guarantee.
(a) This Limited Guarantee is a primary and original obligation of the Guarantor and is one of payment, not collection, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against any Parent Party or any other Person or whether any Parent Party or any other Person is joined in any such action or actions. Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantor under this Limited Guarantee and of the other guarantors under the other Limited Guarantees dated as of the date hereof ("Other Guarantors") shall be several and not joint.
(b) The liability of the Guarantor under this Limited Guarantee shall, to the fullest extent permitted under applicable law, be absolute, irrevocable and unconditional, irrespective of:
(i) the value, genuineness, validity, illegality or enforceability of the Merger Agreement or the letter agreement dated as of the date hereof between the Guarantor, on the one hand, and Holdco and Parent, on the other hand, pursuant to which the Guarantor has agreed to make a certain equity contribution to Holdco and Parent (the "Equity Commitment Letter") or any other agreement or instrument referred to herein or therein;
(ii) any change in the corporate existence, structure or ownership of any Parent Party or any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting any Parent Party, any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor) or any of their respective assets;
(iii) any amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof;
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(iv) the existence of any claim, set-off or other right that the Guarantor may have at any time against any Parent Party or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise;
(v) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against any Parent Party or the Guarantor or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation (other than as and if required by Section 2(a));
(vi) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of the Guaranteed Obligation;
(vii) any other act or omission that may in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment in full of the Guaranteed Obligation in accordance with their terms); or
(viii) the addition, substitution, discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Guaranteed Obligation as a result of payment in full of the Guaranteed Obligation in accordance with their terms) of any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor),
other than in each case with respect to (A) defenses to the payment of the Guaranteed Obligation that are available to any Parent Party under the Merger Agreement or (B) breach by the Guaranteed Party of this Limited Guarantee, including, without limitation, the limitations set forth in Section 3 below), and, notwithstanding any other provision of this Limited Guarantee to the contrary, the Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that any Parent Party could assert against the Company under the terms of, or with respect to, the Merger Agreement that would relieve each of the Parent Parties of its obligations under the Merger Agreement.
(c) To the fullest extent permitted by applicable law, the Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of the Guaranteed Obligation and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligation shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between the Parent Parties and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under no obligation to pursue such rights and remedies it may have against the Parent Parties or any other Person for the Guaranteed Obligation or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue such other rights or remedies or to collect any payments from the Parent Parties or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of the Parent Parties or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guaranteed Party.
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(d) To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, acceptance hereof, presentment, demand for payment, notice of non-performance, default, dishonor and protest, any notice not provided for herein, all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of any Parent Party or any other person interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligation that are available to the Parent Parties under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated under the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits.
(e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that the Parent Parties become subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantor's obligation hereunder. In the event that any payment to the Guaranteed Party in respect of the Guaranteed Obligation is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to the Guaranteed Obligation as if such payment had not been made so long as this Limited Guarantee has not terminated in accordance with its terms.
3. Sole Remedy; No Recourse. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party further agrees that neither it nor any other Person (including, without limitation, the Guaranteed Party's equityholders, Affiliates and subsidiaries) has any right of recovery against, and no personal liability shall attach to, the Guarantor, any former, current or future, director, officer, employee, agent or Affiliate of the Guarantor, any former, current or future, direct or indirect holder of any equity interests or securities of the Guarantor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or representative any of the foregoing (each such Person, a "Related Person"), through any Parent Party or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of any Parent Party against the Guarantor or any Related Person (except for any claim to compel Holdco and/or Parent to enforce the Equity Commitment Letter in accordance with the terms thereof), or otherwise, except for its rights against the Guarantor under this Limited Guarantee and the Escrow Agreement. Recourse against the Guarantor under this Limited Guarantee and the Escrow Agreement and the Guaranteed Party's rights under the Equity Commitment Letter shall be the sole and exclusive remedy of (i) the Guaranteed Party and (ii) all of the Guaranteed Party's equityholders, Affiliates and subsidiaries against the Guarantor and any Related Person (other than the Parent Parties and their respective successors and assigns) in respect of any liabilities or obligations arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby, including by piercing the corporate, limited liability company or limited partnership veil or by a claim by or on behalf of any Parent Party. The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Affiliates and subsidiaries not to institute, any proceeding or bring any other claim arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby (or the failure of such to be consummated), against the Guarantor or any Related Person, except for (A) claims of the Guaranteed Party against the Guarantor under and in accordance with this Limited Guarantee and the Escrow Agreement, (B) claims of the Guaranteed Party against the Parent Parties (and their respective successors and assigns) under and in accordance with the Merger Agreement and the Escrow Agreement, and (C) the exercise of the Guaranteed Party's rights under and in accordance with the Equity Commitment Letter, and the Guaranteed Party hereby, on behalf of itself and its Affiliates and subsidiaries, waives any and all claims arising under, or in connection with, the Merger Agreement, this Limited Guarantee, the Equity Commitment Letter, the Escrow Agreement or, in each case, the transactions contemplated hereby or thereby against the Guarantor or any Related Person and releases such Persons from such claims, in each case, except for claims described in clauses (A), (B) and (C) of this sentence (each, a "Permitted Claim"). Nothing set forth in this Limited Guarantee shall confer or give or shall be construed to confer or give to any Person (including any Person acting in a representative capacity) other than the Guaranteed Party any rights or remedies against any Person, including the Guarantor, except as expressly set forth herein.
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4. Subrogation. The Guarantor will not exercise against any Parent Party any rights of subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by reason of any payment by it pursuant to the provisions of Section 1 hereof unless and until the Guaranteed Obligation and all other amounts payable under this Limited Guarantee have been paid in full.
5. Termination. This Limited Guarantee shall terminate (and the Guarantor shall have no further obligations hereunder) upon the earliest to occur of (a) the Effective Time, (b) the payment in full of the Guaranteed Obligation and the obligation under Section 1(c), (c) the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would not be required pursuant to the terms and subject to the conditions of the Merger Agreement to make any payment of any Guaranteed Obligation; and (d) six months after the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would be required pursuant to the terms and subject to the conditions of the Merger Agreement to make a payment of the Guaranteed Obligation, unless by the end of such six-month period, the Guaranteed Party shall have initiated a claim or proceeding in accordance with the terms of the Merger Agreement for payment of any of the Guaranteed Obligations; provided that if the Guaranteed Party has initiated a claim or proceeding by the end of such six-month period, this Limited Guarantee shall terminate upon the date such claim or proceeding is finally satisfied or otherwise resolved by agreement of the parties hereto or pursuant to Section 12. In the event that the Guaranteed Party or any of its Affiliates or subsidiaries asserts in any litigation or other proceeding relating to this Limited Guarantee or the Merger Agreement (i) that the provisions hereof (including, without limitation, Section 1 hereof limiting the Guarantor's aggregate liability to the Maximum Amount or Section 3 hereof relating to the sole and exclusive remedies of the Guaranteed Party and its equityholders, Affiliates and subsidiaries against the Guarantor or any Related Person) are illegal, invalid or unenforceable, in whole or in part, or (ii) any theory of liability against the Guarantor or any Related Person or any other Guarantor under the other Limited Guarantees dated as of the date hereof or any Related Person of any such other Guarantor with respect to the transactions contemplated by this Limited Guarantee, the Equity Commitment Letter or the Merger Agreement other than any Permitted Claim, then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and be null and void, (y) if the Guarantor has previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments from the Guaranteed Party and (z) neither the Guarantor nor any Related Person (other than the Parent Parties and their respective successors and assigns) shall have any liability to the Guaranteed Party or any of its equityholders, Affiliates or subsidiaries with respect to the Merger Agreement or the transactions contemplated by the Merger Agreement or this Limited Guarantee.
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6. Continuing Guarantee. Except to the extent terminated pursuant to the provisions of Section 5 hereof, this Limited Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed Obligation and the obligation under Section 1(c), shall be binding upon the Guarantor, its successors and assigns, and shall inure to the benefit of, and be enforceable by, the Guaranteed Party and its successors, permitted transferees and permitted assigns; provided that notwithstanding anything to the contrary in this Limited Guarantee, the provisions of this Limited Guarantee that are for the benefit of any Related Person (including the provisions of Sections 3 and 5) shall indefinitely survive any termination of this Limited Guarantee for the benefit of the Guarantor and any Related Persons. All obligation to which this Limited Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
7. Entire Agreement. This Limited Guarantee, the Merger Agreement, the Equity Commitment Letter and the Escrow Agreement constitute the entire agreement with respect to the subject matter hereof, and supersede all other prior agreements and understandings, both written and oral, among the Parent Parties and/or the Guarantor or any of their respective Affiliates, on the one hand, and the Guaranteed Party or any of its Affiliates, on the other hand, regarding the subject matter hereof.
8. Amendments and Waivers. Any provision of this Limited Guarantee may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Guarantor and the Guaranteed Party or, in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by any party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
9. Counterparts. This Limited Guarantee may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
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10. Notices. All notices, requests, claims, demands and other communications hereunder shall be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressee's location on any Business Day after 5:00 p.m. (addressee's local time) shall be deemed to have been received at 9:00 a.m. (addressee's local time) on the next Business Day), by reliable international overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:
if to the Guarantor:
Qiancai NO.1 Equity investment Limited partnership enterprise
千采壹号(象山)股权投资合伙企业 ( 有限合伙)
NO.69, Chengxing Road
Hangzhou China
Facsimile: 0571-28801783
Attention: Lianghui Zhou
with copies to:
Kirkland & Ellis
26th Floor, Glouster Tower, The Landmark
15 Queen's Road Central
Hong Kong
Facsimile: +852-3761-3301
Attention: David Zhang and Jesse Sheley
If to the Guaranteed Party, as provided in Section 9.2 of the Merger Agreement.
11. Governing Law. This Limited Guarantee (except for the arbitration agreement in Section 12) shall be governed by and construed in accordance with the Laws of the State of New York without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
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12. Jurisdiction; Waiver of Service of Process.
(a) Jurisdiction. In the event any dispute arises among the parties hereto out of or in relation to this Limited Guarantee, including any dispute regarding its existence, interpretation, performance, breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly consultations within thirty (30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions of this Section 12. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre ("HKIAC") Administered Rules in force when a notice of arbitration is submitted. The seat and venue of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The law of the arbitration agreement shall be Hong Kong law. The appointing authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number, and one arbitrator shall be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from nominating their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within 30 days after such two arbitrators have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any person necessary for the conduct of the arbitration, unless otherwise required by Law or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and any interim or final award, as well as the fact that an arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after the submission of any dispute to arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter agreement, except insofar as the same may relate directly to the matters in dispute. The parties hereby agree that any arbitration award rendered in accordance with the provisions of this Section 12 shall be final and binding upon them, and the parties further agree that such award may be enforced by any court having jurisdiction over the party against which the award has been rendered or the assets of such party wherever the same may be located. In any arbitration proceeding, any legal proceeding to enforce any arbitration award and in any other legal proceeding among the Parties pursuant to or relating to this Agreement, each Party expressly waives the defense of sovereign immunity and any other defense based on the fact or allegation that it is an agency or instrumentality of a sovereign state or is otherwise entitled to immunity.
13. Representations and Warranties. The Guarantor hereby represents and warrants to the Guaranteed Party that:
(a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization;
(b) it has all necessary power and authority to execute, deliver and perform this Limited Guarantee;
(c) the execution, delivery and performance of this Limited Guarantee by the Guarantor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Guarantor are necessary therefor;
(d) all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Limited Guarantee by the Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution, delivery or performance of this Limited Guarantee;
(e) this Limited Guarantee has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the undersigned in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law));
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(f) the execution, delivery and performance by the undersigned of this Limited Guarantee do not and will not violate the organizational documents of the undersigned or violate any applicable law, regulation, rule, decree, order, judgment or contractual restriction binding on the Guarantor or its assets or properties; and
(g) it has the financial capacity to pay and perform its obligations under this Limited Guarantee, and all funds necessary for the Guarantor to fulfill its obligations under this Limited Guarantee shall be available to the Guarantor for so long as this Limited Guarantee shall remain in effect in accordance with Section 6.
14. No Assignment. Neither this Limited Guarantee nor any of the rights, interests or obligations hereunder shall be assignable without the prior written consent of the Guaranteed Party (in the case of an assignment by the Guarantor) or the Guarantor (in the case of an assignment by the Guaranteed Party).
15. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LIMITED GUARANTEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 15.
16. Severability. Any term or provision of this Limited Guarantee which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Limited Guarantee in any jurisdiction and, if any provision of this Limited Guarantee is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Maximum Amount provided in Section 1 hereof and to the provisions of Sections 3 and 5 hereof. No party hereto shall assert, and each party shall cause its respective Affiliates and subsidiaries not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.
17. Headings. Headings of the Sections of this Limited Guarantee are for convenience only and shall be given no substantive or interpretive effect whatsoever.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Qiancai NO.1 Equity Investment Limited Partnership Enterprise | ||
| 千采壹号(象山)股权投资合伙企业 | ||
| ( 有限合伙 ) | ||
| [Company chop is affixed] | ||
| By: | /s/ Dayong Yang | |
| Name: | Dayong Yang | |
| Title: | Representative of The General Partner | |
| of Qiancai NO.1 Equity Investment Limited | ||
| Partnership Enterprise (执行事务合伙人委派代表) | ||
[Signature Page to Limited Guarantee]
IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: | Eric X. Chen | |
| Title: | Director | |
[Signature Page to Limited Guarantee]
Exhibit 99.91
Execution Version
LIMITED GUARANTEE
This Limited Guarantee, dated as of December 18, 2015 (this "Limited Guarantee"), is made by Pearl River Life Insurance Co., Ltd.(珠江人寿保险股份有限公司), a limited liability company incorporated under the laws of the People’s Republic of China (including its successors and permitted assigns, the "Guarantor"), in favor of Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Guaranteed Party"). Reference is hereby made to the Agreement and Plan of Merger, dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), and the Guaranteed Party. Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Merger Agreement.
1. Limited Guarantee.
(a) To induce the Guaranteed Party to enter into the Merger Agreement, the Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, subject to the terms and conditions hereof, the due and punctual payment and performance when due of 1.24% of the Parent Parties' obligation (the "Guaranteed Obligation") to pay to the Guaranteed Party (i) the Parent Termination Fee if and when required pursuant to Section 8.2(c) of the Merger Agreement, and (ii) the payment obligations of the Parent Parties pursuant to Section 6.6 of the Merger Agreement; provided that the maximum aggregate liability of the Guarantor hereunder shall not exceed US$ 5,573,361 (the "Maximum Amount").
(b) The Guaranteed Party hereby agrees that (a) the Guarantor shall in no event be required to pay more than the Maximum Amount under or in respect of this Guarantee and (b) the Guarantor shall not have any obligation or liability to any Person (including, without limitation, to the Guaranteed Party's equity holders, Affiliates and/or subsidiaries) relating to, arising out of or in connection with this Limited Guarantee, the Merger Agreement, or the Equity Commitment Letter (as defined below) other than as expressly set forth herein or in the Equity Commitment Letter or the Escrow Agreement (as defined in the Equity Commitment Letter).
(c) The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by the Guaranteed Party in connection with the enforcement of its rights hereunder and under the Merger Agreement, including, without limitation, in the event that (i) the Guarantor asserts in any arbitration, litigation or other proceeding that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms and the Guaranteed Party prevails in such arbitration, litigation or other proceeding, or (ii) the Guarantor fails or refuses to make any payment to the Guaranteed Party hereunder when due and payable and it is determined judicially or by arbitration that the Guarantor is required to make such payment hereunder.
(d) The Guarantor promises and undertakes to make all payments hereunder free and clear of any deduction, offset, defense, claim or counterclaim of any kind. If the Parent Parties fail to pay or cause to be paid the Guaranteed Obligation as and when due and payable pursuant to Section 8.2(c) of the Merger Agreement, as applicable, then the Guarantor's liabilities to the Guaranteed Party hereunder in respect of such Guaranteed Obligation shall become immediately due and payable and the Guaranteed Party may at any time and from time to time, at the Guaranteed Party's option, and so long as the Parent Parties remain in breach of its Guaranteed Obligation, take any and all actions available hereunder or under applicable Law to collect the Guaranteed Obligation from the Guarantor subject to the Maximum Amount as applicable.
2. Terms of Limited Guarantee.
(a) This Limited Guarantee is a primary and original obligation of the Guarantor and is one of payment, not collection, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against any Parent Party or any other Person or whether any Parent Party or any other Person is joined in any such action or actions. Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantor under this Limited Guarantee and of the other guarantors under the other Limited Guarantees dated as of the date hereof ("Other Guarantors") shall be several and not joint.
(b) The liability of the Guarantor under this Limited Guarantee shall, to the fullest extent permitted under applicable law, be absolute, irrevocable and unconditional, irrespective of:
(i) the value, genuineness, validity, illegality or enforceability of the Merger Agreement or the letter agreement dated as of the date hereof between the Guarantor, on the one hand, and Holdco and Parent, on the other hand, pursuant to which the Guarantor has agreed to make a certain equity contribution to Holdco and Parent (the "Equity Commitment Letter") or any other agreement or instrument referred to herein or therein;
(ii) any change in the corporate existence, structure or ownership of any Parent Party or any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting any Parent Party, any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor) or any of their respective assets;
(iii) any amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof;
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(iv) the existence of any claim, set-off or other right that the Guarantor may have at any time against any Parent Party or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise;
(v) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against any Parent Party or the Guarantor or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation (other than as and if required by Section 2(a));
(vi) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of the Guaranteed Obligation;
(vii) any other act or omission that may in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment in full of the Guaranteed Obligation in accordance with their terms); or
(viii) the addition, substitution, discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Guaranteed Obligation as a result of payment in full of the Guaranteed Obligation in accordance with their terms) of any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor),
other than in each case with respect to (A) defenses to the payment of the Guaranteed Obligation that are available to any Parent Party under the Merger Agreement or (B) breach by the Guaranteed Party of this Limited Guarantee, including, without limitation, the limitations set forth in Section 3 below), and, notwithstanding any other provision of this Limited Guarantee to the contrary, the Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that any Parent Party could assert against the Company under the terms of, or with respect to, the Merger Agreement that would relieve each of the Parent Parties of its obligations under the Merger Agreement.
(c) To the fullest extent permitted by applicable law, the Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of the Guaranteed Obligation and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligation shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between the Parent Parties and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under no obligation to pursue such rights and remedies it may have against the Parent Parties or any other Person for the Guaranteed Obligation or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue such other rights or remedies or to collect any payments from the Parent Parties or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of the Parent Parties or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guaranteed Party.
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(d) To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, acceptance hereof, presentment, demand for payment, notice of non-performance, default, dishonor and protest, any notice not provided for herein, all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of any Parent Party or any other person interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligation that are available to the Parent Parties under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated under the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits.
(e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that the Parent Parties become subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantor's obligation hereunder. In the event that any payment to the Guaranteed Party in respect of the Guaranteed Obligation is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to the Guaranteed Obligation as if such payment had not been made so long as this Limited Guarantee has not terminated in accordance with its terms.
3. Sole Remedy; No Recourse. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party further agrees that neither it nor any other Person (including, without limitation, the Guaranteed Party's equityholders, Affiliates and subsidiaries) has any right of recovery against, and no personal liability shall attach to, the Guarantor, any former, current or future, director, officer, employee, agent or Affiliate of the Guarantor, any former, current or future, direct or indirect holder of any equity interests or securities of the Guarantor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or representative any of the foregoing (each such Person, a "Related Person"), through any Parent Party or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of any Parent Party against the Guarantor or any Related Person (except for any claim to compel Holdco and/or Parent to enforce the Equity Commitment Letter in accordance with the terms thereof), or otherwise, except for its rights against the Guarantor under this Limited Guarantee and the Escrow Agreement. Recourse against the Guarantor under this Limited Guarantee and the Escrow Agreement and the Guaranteed Party's rights under the Equity Commitment Letter shall be the sole and exclusive remedy of (i) the Guaranteed Party and (ii) all of the Guaranteed Party's equityholders, Affiliates and subsidiaries against the Guarantor and any Related Person (other than the Parent Parties and their respective successors and assigns) in respect of any liabilities or obligations arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby, including by piercing the corporate, limited liability company or limited partnership veil or by a claim by or on behalf of any Parent Party. The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Affiliates and subsidiaries not to institute, any proceeding or bring any other claim arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby (or the failure of such to be consummated), against the Guarantor or any Related Person, except for (A) claims of the Guaranteed Party against the Guarantor under and in accordance with this Limited Guarantee and the Escrow Agreement, (B) claims of the Guaranteed Party against the Parent Parties (and their respective successors and assigns) under and in accordance with the Merger Agreement and the Escrow Agreement, and (C) the exercise of the Guaranteed Party's rights under and in accordance with the Equity Commitment Letter, and the Guaranteed Party hereby, on behalf of itself and its Affiliates and subsidiaries, waives any and all claims arising under, or in connection with, the Merger Agreement, this Limited Guarantee, the Equity Commitment Letter, the Escrow Agreement or, in each case, the transactions contemplated hereby or thereby against the Guarantor or any Related Person and releases such Persons from such claims, in each case, except for claims described in clauses (A), (B) and (C) of this sentence (each, a "Permitted Claim"). Nothing set forth in this Limited Guarantee shall confer or give or shall be construed to confer or give to any Person (including any Person acting in a representative capacity) other than the Guaranteed Party any rights or remedies against any Person, including the Guarantor, except as expressly set forth herein.
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4. Subrogation. The Guarantor will not exercise against any Parent Party any rights of subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by reason of any payment by it pursuant to the provisions of Section 1 hereof unless and until the Guaranteed Obligation and all other amounts payable under this Limited Guarantee have been paid in full.
5. Termination. This Limited Guarantee shall terminate (and the Guarantor shall have no further obligations hereunder) upon the earliest to occur of (a) the Effective Time, (b) the payment in full of the Guaranteed Obligation and the obligation under Section 1(c), (c) the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would not be required pursuant to the terms and subject to the conditions of the Merger Agreement to make any payment of any Guaranteed Obligation; and (d) six months after the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would be required pursuant to the terms and subject to the conditions of the Merger Agreement to make a payment of the Guaranteed Obligation, unless by the end of such six-month period, the Guaranteed Party shall have initiated a claim or proceeding in accordance with the terms of the Merger Agreement for payment of any of the Guaranteed Obligations; provided that if the Guaranteed Party has initiated a claim or proceeding by the end of such six-month period, this Limited Guarantee shall terminate upon the date such claim or proceeding is finally satisfied or otherwise resolved by agreement of the parties hereto or pursuant to Section 12. In the event that the Guaranteed Party or any of its Affiliates or subsidiaries asserts in any litigation or other proceeding relating to this Limited Guarantee or the Merger Agreement (i) that the provisions hereof (including, without limitation, Section 1 hereof limiting the Guarantor's aggregate liability to the Maximum Amount or Section 3 hereof relating to the sole and exclusive remedies of the Guaranteed Party and its equityholders, Affiliates and subsidiaries against the Guarantor or any Related Person) are illegal, invalid or unenforceable, in whole or in part, or (ii) any theory of liability against the Guarantor or any Related Person or any other Guarantor under the other Limited Guarantees dated as of the date hereof or any Related Person of any such other Guarantor with respect to the transactions contemplated by this Limited Guarantee, the Equity Commitment Letter or the Merger Agreement other than any Permitted Claim, then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and be null and void, (y) if the Guarantor has previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments from the Guaranteed Party and (z) neither the Guarantor nor any Related Person (other than the Parent Parties and their respective successors and assigns) shall have any liability to the Guaranteed Party or any of its equityholders, Affiliates or subsidiaries with respect to the Merger Agreement or the transactions contemplated by the Merger Agreement or this Limited Guarantee.
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6. Continuing Guarantee. Except to the extent terminated pursuant to the provisions of Section 5 hereof, this Limited Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed Obligation and the obligation under Section 1(c), shall be binding upon the Guarantor, its successors and assigns, and shall inure to the benefit of, and be enforceable by, the Guaranteed Party and its successors, permitted transferees and permitted assigns; provided that notwithstanding anything to the contrary in this Limited Guarantee, the provisions of this Limited Guarantee that are for the benefit of any Related Person (including the provisions of Sections 3 and 5) shall indefinitely survive any termination of this Limited Guarantee for the benefit of the Guarantor and any Related Persons. All obligation to which this Limited Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
7. Entire Agreement. This Limited Guarantee, the Merger Agreement, the Equity Commitment Letter and the Escrow Agreement constitute the entire agreement with respect to the subject matter hereof, and supersede all other prior agreements and understandings, both written and oral, among the Parent Parties and/or the Guarantor or any of their respective Affiliates, on the one hand, and the Guaranteed Party or any of its Affiliates, on the other hand, regarding the subject matter hereof.
8. Amendments and Waivers. Any provision of this Limited Guarantee may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Guarantor and the Guaranteed Party or, in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by any party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
9. Counterparts. This Limited Guarantee may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
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10. Notices. All notices, requests, claims, demands and other communications hereunder shall be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressee's location on any Business Day after 5:00 p.m. (addressee's local time) shall be deemed to have been received at 9:00 a.m. (addressee's local time) on the next Business Day), by reliable international overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:
if to the Guarantor:
Pearl River Life Insurance Co., Ltd.(珠江人寿保险股份有限公司)
Floor 4, Pearl River Investment Building, 421, Zhujiang Road East,
Zhujiang New Town,
Guangzhou, China
Facsimile: 020-23389075
Attention: Fei Liu
with copies to:
Kirkland & Ellis
26th Floor, Glouster Tower, The Landmark
15 Queen's Road Central
Hong Kong
Facsimile: +852-3761-3301
Attention: David Zhang and Jesse Sheley
If to the Guaranteed Party, as provided in Section 9.2 of the Merger Agreement.
11. Governing Law. This Limited Guarantee (except for the arbitration agreement in Section 12) shall be governed by and construed in accordance with the Laws of the State of New York without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
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12. Jurisdiction; Waiver of Service of Process.
(a) Jurisdiction. In the event any dispute arises among the parties hereto out of or in relation to this Limited Guarantee, including any dispute regarding its existence, interpretation, performance, breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly consultations within thirty (30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions of this Section 12. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre ("HKIAC") Administered Rules in force when a notice of arbitration is submitted. The seat and venue of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The law of the arbitration agreement shall be Hong Kong law. The appointing authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number, and one arbitrator shall be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from nominating their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within 30 days after such two arbitrators have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any person necessary for the conduct of the arbitration, unless otherwise required by Law or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and any interim or final award, as well as the fact that an arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after the submission of any dispute to arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter agreement, except insofar as the same may relate directly to the matters in dispute. The parties hereby agree that any arbitration award rendered in accordance with the provisions of this Section 12 shall be final and binding upon them, and the parties further agree that such award may be enforced by any court having jurisdiction over the party against which the award has been rendered or the assets of such party wherever the same may be located. In any arbitration proceeding, any legal proceeding to enforce any arbitration award and in any other legal proceeding among the Parties pursuant to or relating to this Agreement, each Party expressly waives the defense of sovereign immunity and any other defense based on the fact or allegation that it is an agency or instrumentality of a sovereign state or is otherwise entitled to immunity.
13. Representations and Warranties. The Guarantor hereby represents and warrants to the Guaranteed Party that:
(a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization;
(b) it has all necessary power and authority to execute, deliver and perform this Limited Guarantee;
(c) the execution, delivery and performance of this Limited Guarantee by the Guarantor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Guarantor are necessary therefor;
(d) all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Limited Guarantee by the Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution, delivery or performance of this Limited Guarantee;
(e) this Limited Guarantee has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the undersigned in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law));
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(f) the execution, delivery and performance by the undersigned of this Limited Guarantee do not and will not violate the organizational documents of the undersigned or violate any applicable law, regulation, rule, decree, order, judgment or contractual restriction binding on the Guarantor or its assets or properties; and
(g) it has the financial capacity to pay and perform its obligations under this Limited Guarantee, and all funds necessary for the Guarantor to fulfill its obligations under this Limited Guarantee shall be available to the Guarantor for so long as this Limited Guarantee shall remain in effect in accordance with Section 6.
14. No Assignment. Neither this Limited Guarantee nor any of the rights, interests or obligations hereunder shall be assignable without the prior written consent of the Guaranteed Party (in the case of an assignment by the Guarantor) or the Guarantor (in the case of an assignment by the Guaranteed Party).
15. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LIMITED GUARANTEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 15.
16. Severability. Any term or provision of this Limited Guarantee which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Limited Guarantee in any jurisdiction and, if any provision of this Limited Guarantee is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Maximum Amount provided in Section 1 hereof and to the provisions of Sections 3 and 5 hereof. No party hereto shall assert, and each party shall cause its respective Affiliates and subsidiaries not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.
17. Headings. Headings of the Sections of this Limited Guarantee are for convenience only and shall be given no substantive or interpretive effect whatsoever.
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IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
Pearl River Life Insurance Co., Ltd. | ||
(珠江人寿保险股份有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Guoping Hu | |
| Name: Guoping Hu | ||
| Title: President | ||
[Signature Page to Limited Guarantee]
IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Limited Guarantee]
Exhibit 99.92
Execution Version
LIMITED GUARANTEE
This Limited Guarantee, dated as of December 18, 2015 (this "Limited Guarantee"), is made by Hengdian Group Holdings Limited (横店集团控股有限公司), a limited liability company incorporated under the laws of the People’s Republic of China (including its successors and permitted assigns, the "Guarantor"), in favor of Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Guaranteed Party"). Reference is hereby made to the Agreement and Plan of Merger, dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), and the Guaranteed Party. Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Merger Agreement.
1. Limited Guarantee.
(a) To induce the Guaranteed Party to enter into the Merger Agreement, the Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, subject to the terms and conditions hereof, the due and punctual payment and performance when due of 1.24% of the Parent Parties' obligation (the "Guaranteed Obligation") to pay to the Guaranteed Party (i) the Parent Termination Fee if and when required pursuant to Section 8.2(c) of the Merger Agreement, and (ii) the payment obligations of the Parent Parties pursuant to Section 6.6 of the Merger Agreement; provided that the maximum aggregate liability of the Guarantor hereunder shall not exceed US$ 5,573,361 (the "Maximum Amount").
(b) The Guaranteed Party hereby agrees that (a) the Guarantor shall in no event be required to pay more than the Maximum Amount under or in respect of this Guarantee and (b) the Guarantor shall not have any obligation or liability to any Person (including, without limitation, to the Guaranteed Party's equity holders, Affiliates and/or subsidiaries) relating to, arising out of or in connection with this Limited Guarantee, the Merger Agreement, or the Equity Commitment Letter (as defined below) other than as expressly set forth herein or in the Equity Commitment Letter or the Escrow Agreement (as defined in the Equity Commitment Letter).
(c) The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by the Guaranteed Party in connection with the enforcement of its rights hereunder and under the Merger Agreement, including, without limitation, in the event that (i) the Guarantor asserts in any arbitration, litigation or other proceeding that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms and the Guaranteed Party prevails in such arbitration, litigation or other proceeding, or (ii) the Guarantor fails or refuses to make any payment to the Guaranteed Party hereunder when due and payable and it is determined judicially or by arbitration that the Guarantor is required to make such payment hereunder.
(d) The Guarantor promises and undertakes to make all payments hereunder free and clear of any deduction, offset, defense, claim or counterclaim of any kind. If the Parent Parties fail to pay or cause to be paid the Guaranteed Obligation as and when due and payable pursuant to Section 8.2(c) of the Merger Agreement, as applicable, then the Guarantor's liabilities to the Guaranteed Party hereunder in respect of such Guaranteed Obligation shall become immediately due and payable and the Guaranteed Party may at any time and from time to time, at the Guaranteed Party's option, and so long as the Parent Parties remain in breach of its Guaranteed Obligation, take any and all actions available hereunder or under applicable Law to collect the Guaranteed Obligation from the Guarantor subject to the Maximum Amount as applicable.
2. Terms of Limited Guarantee.
(a) This Limited Guarantee is a primary and original obligation of the Guarantor and is one of payment, not collection, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against any Parent Party or any other Person or whether any Parent Party or any other Person is joined in any such action or actions. Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantor under this Limited Guarantee and of the other guarantors under the other Limited Guarantees dated as of the date hereof ("Other Guarantors") shall be several and not joint.
(b) The liability of the Guarantor under this Limited Guarantee shall, to the fullest extent permitted under applicable law, be absolute, irrevocable and unconditional, irrespective of:
(i) the value, genuineness, validity, illegality or enforceability of the Merger Agreement or the letter agreement dated as of the date hereof between the Guarantor, on the one hand, and Holdco and Parent, on the other hand, pursuant to which the Guarantor has agreed to make a certain equity contribution to Holdco and Parent (the "Equity Commitment Letter") or any other agreement or instrument referred to herein or therein;
(ii) any change in the corporate existence, structure or ownership of any Parent Party or any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting any Parent Party, any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor) or any of their respective assets;
(iii) any amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof;
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(iv) the existence of any claim, set-off or other right that the Guarantor may have at any time against any Parent Party or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise;
(v) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against any Parent Party or the Guarantor or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation (other than as and if required by Section 2(a));
(vi) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of the Guaranteed Obligation;
(vii) any other act or omission that may in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment in full of the Guaranteed Obligation in accordance with their terms); or
(viii) the addition, substitution, discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Guaranteed Obligation as a result of payment in full of the Guaranteed Obligation in accordance with their terms) of any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor),
other than in each case with respect to (A) defenses to the payment of the Guaranteed Obligation that are available to any Parent Party under the Merger Agreement or (B) breach by the Guaranteed Party of this Limited Guarantee, including, without limitation, the limitations set forth in Section 3 below), and, notwithstanding any other provision of this Limited Guarantee to the contrary, the Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that any Parent Party could assert against the Company under the terms of, or with respect to, the Merger Agreement that would relieve each of the Parent Parties of its obligations under the Merger Agreement.
(c) To the fullest extent permitted by applicable law, the Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of the Guaranteed Obligation and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligation shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between the Parent Parties and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under no obligation to pursue such rights and remedies it may have against the Parent Parties or any other Person for the Guaranteed Obligation or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue such other rights or remedies or to collect any payments from the Parent Parties or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of the Parent Parties or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guaranteed Party.
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(d) To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, acceptance hereof, presentment, demand for payment, notice of non-performance, default, dishonor and protest, any notice not provided for herein, all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of any Parent Party or any other person interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligation that are available to the Parent Parties under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated under the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits.
(e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that the Parent Parties become subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantor's obligation hereunder. In the event that any payment to the Guaranteed Party in respect of the Guaranteed Obligation is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to the Guaranteed Obligation as if such payment had not been made so long as this Limited Guarantee has not terminated in accordance with its terms.
3. Sole Remedy; No Recourse. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party further agrees that neither it nor any other Person (including, without limitation, the Guaranteed Party's equityholders, Affiliates and subsidiaries) has any right of recovery against, and no personal liability shall attach to, the Guarantor, any former, current or future, director, officer, employee, agent or Affiliate of the Guarantor, any former, current or future, direct or indirect holder of any equity interests or securities of the Guarantor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or representative any of the foregoing (each such Person, a "Related Person"), through any Parent Party or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of any Parent Party against the Guarantor or any Related Person (except for any claim to compel Holdco and/or Parent to enforce the Equity Commitment Letter in accordance with the terms thereof), or otherwise, except for its rights against the Guarantor under this Limited Guarantee and the Escrow Agreement. Recourse against the Guarantor under this Limited Guarantee and the Escrow Agreement and the Guaranteed Party's rights under the Equity Commitment Letter shall be the sole and exclusive remedy of (i) the Guaranteed Party and (ii) all of the Guaranteed Party's equityholders, Affiliates and subsidiaries against the Guarantor and any Related Person (other than the Parent Parties and their respective successors and assigns) in respect of any liabilities or obligations arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby, including by piercing the corporate, limited liability company or limited partnership veil or by a claim by or on behalf of any Parent Party. The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Affiliates and subsidiaries not to institute, any proceeding or bring any other claim arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby (or the failure of such to be consummated), against the Guarantor or any Related Person, except for (A) claims of the Guaranteed Party against the Guarantor under and in accordance with this Limited Guarantee and the Escrow Agreement, (B) claims of the Guaranteed Party against the Parent Parties (and their respective successors and assigns) under and in accordance with the Merger Agreement and the Escrow Agreement, and (C) the exercise of the Guaranteed Party's rights under and in accordance with the Equity Commitment Letter, and the Guaranteed Party hereby, on behalf of itself and its Affiliates and subsidiaries, waives any and all claims arising under, or in connection with, the Merger Agreement, this Limited Guarantee, the Equity Commitment Letter, the Escrow Agreement or, in each case, the transactions contemplated hereby or thereby against the Guarantor or any Related Person and releases such Persons from such claims, in each case, except for claims described in clauses (A), (B) and (C) of this sentence (each, a "Permitted Claim"). Nothing set forth in this Limited Guarantee shall confer or give or shall be construed to confer or give to any Person (including any Person acting in a representative capacity) other than the Guaranteed Party any rights or remedies against any Person, including the Guarantor, except as expressly set forth herein.
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4. Subrogation. The Guarantor will not exercise against any Parent Party any rights of subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by reason of any payment by it pursuant to the provisions of Section 1 hereof unless and until the Guaranteed Obligation and all other amounts payable under this Limited Guarantee have been paid in full.
5. Termination. This Limited Guarantee shall terminate (and the Guarantor shall have no further obligations hereunder) upon the earliest to occur of (a) the Effective Time, (b) the payment in full of the Guaranteed Obligation and the obligation under Section 1(c), (c) the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would not be required pursuant to the terms and subject to the conditions of the Merger Agreement to make any payment of any Guaranteed Obligation; and (d) six months after the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would be required pursuant to the terms and subject to the conditions of the Merger Agreement to make a payment of the Guaranteed Obligation, unless by the end of such six-month period, the Guaranteed Party shall have initiated a claim or proceeding in accordance with the terms of the Merger Agreement for payment of any of the Guaranteed Obligations; provided that if the Guaranteed Party has initiated a claim or proceeding by the end of such six-month period, this Limited Guarantee shall terminate upon the date such claim or proceeding is finally satisfied or otherwise resolved by agreement of the parties hereto or pursuant to Section 12. In the event that the Guaranteed Party or any of its Affiliates or subsidiaries asserts in any litigation or other proceeding relating to this Limited Guarantee or the Merger Agreement (i) that the provisions hereof (including, without limitation, Section 1 hereof limiting the Guarantor's aggregate liability to the Maximum Amount or Section 3 hereof relating to the sole and exclusive remedies of the Guaranteed Party and its equityholders, Affiliates and subsidiaries against the Guarantor or any Related Person) are illegal, invalid or unenforceable, in whole or in part, or (ii) any theory of liability against the Guarantor or any Related Person or any other Guarantor under the other Limited Guarantees dated as of the date hereof or any Related Person of any such other Guarantor with respect to the transactions contemplated by this Limited Guarantee, the Equity Commitment Letter or the Merger Agreement other than any Permitted Claim, then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and be null and void, (y) if the Guarantor has previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments from the Guaranteed Party and (z) neither the Guarantor nor any Related Person (other than the Parent Parties and their respective successors and assigns) shall have any liability to the Guaranteed Party or any of its equityholders, Affiliates or subsidiaries with respect to the Merger Agreement or the transactions contemplated by the Merger Agreement or this Limited Guarantee.
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6. Continuing Guarantee. Except to the extent terminated pursuant to the provisions of Section 5 hereof, this Limited Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed Obligation and the obligation under Section 1(c), shall be binding upon the Guarantor, its successors and assigns, and shall inure to the benefit of, and be enforceable by, the Guaranteed Party and its successors, permitted transferees and permitted assigns; provided that notwithstanding anything to the contrary in this Limited Guarantee, the provisions of this Limited Guarantee that are for the benefit of any Related Person (including the provisions of Sections 3 and 5) shall indefinitely survive any termination of this Limited Guarantee for the benefit of the Guarantor and any Related Persons. All obligation to which this Limited Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
7. Entire Agreement. This Limited Guarantee, the Merger Agreement, the Equity Commitment Letter and the Escrow Agreement constitute the entire agreement with respect to the subject matter hereof, and supersede all other prior agreements and understandings, both written and oral, among the Parent Parties and/or the Guarantor or any of their respective Affiliates, on the one hand, and the Guaranteed Party or any of its Affiliates, on the other hand, regarding the subject matter hereof.
8. Amendments and Waivers. Any provision of this Limited Guarantee may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Guarantor and the Guaranteed Party or, in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by any party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
9. Counterparts. This Limited Guarantee may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
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10. Notices. All notices, requests, claims, demands and other communications hereunder shall be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressee's location on any Business Day after 5:00 p.m. (addressee's local time) shall be deemed to have been received at 9:00 a.m. (addressee's local time) on the next Business Day), by reliable international overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:
if to the Guarantor:
HENGDIAN GROUP HOLDINGS LIMITED
(横店集团控股有限公司)
No.42 Wansheng Street, Hengdian, Dongyang, Zhejiang
Facsimile: 0579-86596100
Attention: Xiangying Ye
with copies to:
Kirkland & Ellis
26th Floor, Glouster Tower, The Landmark
15 Queen's Road Central
Hong Kong
Facsimile: +852-3761-3301
Attention: David Zhang and Jesse Sheley
If to the Guaranteed Party, as provided in Section 9.2 of the Merger Agreement.
11. Governing Law. This Limited Guarantee (except for the arbitration agreement in Section 12) shall be governed by and construed in accordance with the Laws of the State of New York without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
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12. Jurisdiction; Waiver of Service of Process.
(a) Jurisdiction. In the event any dispute arises among the parties hereto out of or in relation to this Limited Guarantee, including any dispute regarding its existence, interpretation, performance, breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly consultations within thirty (30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions of this Section 12. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre ("HKIAC") Administered Rules in force when a notice of arbitration is submitted. The seat and venue of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The law of the arbitration agreement shall be Hong Kong law. The appointing authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number, and one arbitrator shall be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from nominating their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within 30 days after such two arbitrators have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any person necessary for the conduct of the arbitration, unless otherwise required by Law or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and any interim or final award, as well as the fact that an arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after the submission of any dispute to arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter agreement, except insofar as the same may relate directly to the matters in dispute. The parties hereby agree that any arbitration award rendered in accordance with the provisions of this Section 12 shall be final and binding upon them, and the parties further agree that such award may be enforced by any court having jurisdiction over the party against which the award has been rendered or the assets of such party wherever the same may be located. In any arbitration proceeding, any legal proceeding to enforce any arbitration award and in any other legal proceeding among the Parties pursuant to or relating to this Agreement, each Party expressly waives the defense of sovereign immunity and any other defense based on the fact or allegation that it is an agency or instrumentality of a sovereign state or is otherwise entitled to immunity.
13. Representations and Warranties. The Guarantor hereby represents and warrants to the Guaranteed Party that:
(a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization;
(b) it has all necessary power and authority to execute, deliver and perform this Limited Guarantee;
(c) the execution, delivery and performance of this Limited Guarantee by the Guarantor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Guarantor are necessary therefor;
(d) all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Limited Guarantee by the Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution, delivery or performance of this Limited Guarantee;
(e) this Limited Guarantee has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the undersigned in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law));
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(f) the execution, delivery and performance by the undersigned of this Limited Guarantee do not and will not violate the organizational documents of the undersigned or violate any applicable law, regulation, rule, decree, order, judgment or contractual restriction binding on the Guarantor or its assets or properties; and
(g) it has the financial capacity to pay and perform its obligations under this Limited Guarantee, and all funds necessary for the Guarantor to fulfill its obligations under this Limited Guarantee shall be available to the Guarantor for so long as this Limited Guarantee shall remain in effect in accordance with Section 6.
14. No Assignment. Neither this Limited Guarantee nor any of the rights, interests or obligations hereunder shall be assignable without the prior written consent of the Guaranteed Party (in the case of an assignment by the Guarantor) or the Guarantor (in the case of an assignment by the Guaranteed Party).
15. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LIMITED GUARANTEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 15.
16. Severability. Any term or provision of this Limited Guarantee which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Limited Guarantee in any jurisdiction and, if any provision of this Limited Guarantee is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Maximum Amount provided in Section 1 hereof and to the provisions of Sections 3 and 5 hereof. No party hereto shall assert, and each party shall cause its respective Affiliates and subsidiaries not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.
17. Headings. Headings of the Sections of this Limited Guarantee are for convenience only and shall be given no substantive or interpretive effect whatsoever.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
Hengdian Group Holdings Limited | ||
(横店集团控股有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Yong’an Xu | |
| Name: Yong’an Xu (徐永安) | ||
| Title: Chairman & President | ||
[Signature Page to Limited Guarantee]
IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Limited Guarantee]
Exhibit 99.93
Execution Version
LIMITED GUARANTEE
This Limited Guarantee, dated as of December 18, 2015 (this "Limited Guarantee"), is made by Jiangsu Gaoli Group (江苏高力集团有限公司), a limited liability company incorporated under the laws of the People’s Republic of China (including its successors and permitted assigns, the "Guarantor"), in favor of Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Guaranteed Party"). Reference is hereby made to the Agreement and Plan of Merger, dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), and the Guaranteed Party. Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Merger Agreement.
1. Limited Guarantee.
(a) To induce the Guaranteed Party to enter into the Merger Agreement, the Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, subject to the terms and conditions hereof, the due and punctual payment and performance when due of 0.62% of the Parent Parties' obligation (the "Guaranteed Obligation") to pay to the Guaranteed Party (i) the Parent Termination Fee if and when required pursuant to Section 8.2(c) of the Merger Agreement, and (ii) the payment obligations of the Parent Parties pursuant to Section 6.6 of the Merger Agreement; provided that the maximum aggregate liability of the Guarantor hereunder shall not exceed US$ 2,786,681 (the "Maximum Amount").
(b) The Guaranteed Party hereby agrees that (a) the Guarantor shall in no event be required to pay more than the Maximum Amount under or in respect of this Guarantee and (b) the Guarantor shall not have any obligation or liability to any Person (including, without limitation, to the Guaranteed Party's equity holders, Affiliates and/or subsidiaries) relating to, arising out of or in connection with this Limited Guarantee, the Merger Agreement, or the Equity Commitment Letter (as defined below) other than as expressly set forth herein or in the Equity Commitment Letter or the Escrow Agreement (as defined in the Equity Commitment Letter).
(c) The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by the Guaranteed Party in connection with the enforcement of its rights hereunder and under the Merger Agreement, including, without limitation, in the event that (i) the Guarantor asserts in any arbitration, litigation or other proceeding that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms and the Guaranteed Party prevails in such arbitration, litigation or other proceeding, or (ii) the Guarantor fails or refuses to make any payment to the Guaranteed Party hereunder when due and payable and it is determined judicially or by arbitration that the Guarantor is required to make such payment hereunder.
(d) The Guarantor promises and undertakes to make all payments hereunder free and clear of any deduction, offset, defense, claim or counterclaim of any kind. If the Parent Parties fail to pay or cause to be paid the Guaranteed Obligation as and when due and payable pursuant to Section 8.2(c) of the Merger Agreement, as applicable, then the Guarantor's liabilities to the Guaranteed Party hereunder in respect of such Guaranteed Obligation shall become immediately due and payable and the Guaranteed Party may at any time and from time to time, at the Guaranteed Party's option, and so long as the Parent Parties remain in breach of its Guaranteed Obligation, take any and all actions available hereunder or under applicable Law to collect the Guaranteed Obligation from the Guarantor subject to the Maximum Amount as applicable.
2. Terms of Limited Guarantee.
(a) This Limited Guarantee is a primary and original obligation of the Guarantor and is one of payment, not collection, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against any Parent Party or any other Person or whether any Parent Party or any other Person is joined in any such action or actions. Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantor under this Limited Guarantee and of the other guarantors under the other Limited Guarantees dated as of the date hereof ("Other Guarantors") shall be several and not joint.
(b) The liability of the Guarantor under this Limited Guarantee shall, to the fullest extent permitted under applicable law, be absolute, irrevocable and unconditional, irrespective of:
(i) the value, genuineness, validity, illegality or enforceability of the Merger Agreement or the letter agreement dated as of the date hereof between the Guarantor, on the one hand, and Holdco and Parent, on the other hand, pursuant to which the Guarantor has agreed to make a certain equity contribution to Holdco and Parent (the "Equity Commitment Letter") or any other agreement or instrument referred to herein or therein;
(ii) any change in the corporate existence, structure or ownership of any Parent Party or any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting any Parent Party, any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor) or any of their respective assets;
(iii) any amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof;
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(iv) the existence of any claim, set-off or other right that the Guarantor may have at any time against any Parent Party or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise;
(v) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against any Parent Party or the Guarantor or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation (other than as and if required by Section 2(a));
(vi) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of the Guaranteed Obligation;
(vii) any other act or omission that may in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment in full of the Guaranteed Obligation in accordance with their terms); or
(viii) the addition, substitution, discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Guaranteed Obligation as a result of payment in full of the Guaranteed Obligation in accordance with their terms) of any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor),
other than in each case with respect to (A) defenses to the payment of the Guaranteed Obligation that are available to any Parent Party under the Merger Agreement or (B) breach by the Guaranteed Party of this Limited Guarantee, including, without limitation, the limitations set forth in Section 3 below), and, notwithstanding any other provision of this Limited Guarantee to the contrary, the Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that any Parent Party could assert against the Company under the terms of, or with respect to, the Merger Agreement that would relieve each of the Parent Parties of its obligations under the Merger Agreement.
(c) To the fullest extent permitted by applicable law, the Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of the Guaranteed Obligation and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligation shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between the Parent Parties and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under no obligation to pursue such rights and remedies it may have against the Parent Parties or any other Person for the Guaranteed Obligation or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue such other rights or remedies or to collect any payments from the Parent Parties or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of the Parent Parties or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guaranteed Party.
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(d) To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, acceptance hereof, presentment, demand for payment, notice of non-performance, default, dishonor and protest, any notice not provided for herein, all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of any Parent Party or any other person interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligation that are available to the Parent Parties under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated under the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits.
(e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that the Parent Parties become subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantor's obligation hereunder. In the event that any payment to the Guaranteed Party in respect of the Guaranteed Obligation is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to the Guaranteed Obligation as if such payment had not been made so long as this Limited Guarantee has not terminated in accordance with its terms.
3. Sole Remedy; No Recourse. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party further agrees that neither it nor any other Person (including, without limitation, the Guaranteed Party's equityholders, Affiliates and subsidiaries) has any right of recovery against, and no personal liability shall attach to, the Guarantor, any former, current or future, director, officer, employee, agent or Affiliate of the Guarantor, any former, current or future, direct or indirect holder of any equity interests or securities of the Guarantor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or representative any of the foregoing (each such Person, a "Related Person"), through any Parent Party or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of any Parent Party against the Guarantor or any Related Person (except for any claim to compel Holdco and/or Parent to enforce the Equity Commitment Letter in accordance with the terms thereof), or otherwise, except for its rights against the Guarantor under this Limited Guarantee and the Escrow Agreement. Recourse against the Guarantor under this Limited Guarantee and the Escrow Agreement and the Guaranteed Party's rights under the Equity Commitment Letter shall be the sole and exclusive remedy of (i) the Guaranteed Party and (ii) all of the Guaranteed Party's equityholders, Affiliates and subsidiaries against the Guarantor and any Related Person (other than the Parent Parties and their respective successors and assigns) in respect of any liabilities or obligations arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby, including by piercing the corporate, limited liability company or limited partnership veil or by a claim by or on behalf of any Parent Party. The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Affiliates and subsidiaries not to institute, any proceeding or bring any other claim arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby (or the failure of such to be consummated), against the Guarantor or any Related Person, except for (A) claims of the Guaranteed Party against the Guarantor under and in accordance with this Limited Guarantee and the Escrow Agreement, (B) claims of the Guaranteed Party against the Parent Parties (and their respective successors and assigns) under and in accordance with the Merger Agreement and the Escrow Agreement, and (C) the exercise of the Guaranteed Party's rights under and in accordance with the Equity Commitment Letter, and the Guaranteed Party hereby, on behalf of itself and its Affiliates and subsidiaries, waives any and all claims arising under, or in connection with, the Merger Agreement, this Limited Guarantee, the Equity Commitment Letter, the Escrow Agreement or, in each case, the transactions contemplated hereby or thereby against the Guarantor or any Related Person and releases such Persons from such claims, in each case, except for claims described in clauses (A), (B) and (C) of this sentence (each, a "Permitted Claim"). Nothing set forth in this Limited Guarantee shall confer or give or shall be construed to confer or give to any Person (including any Person acting in a representative capacity) other than the Guaranteed Party any rights or remedies against any Person, including the Guarantor, except as expressly set forth herein.
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4. Subrogation. The Guarantor will not exercise against any Parent Party any rights of subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by reason of any payment by it pursuant to the provisions of Section 1 hereof unless and until the Guaranteed Obligation and all other amounts payable under this Limited Guarantee have been paid in full.
5. Termination. This Limited Guarantee shall terminate (and the Guarantor shall have no further obligations hereunder) upon the earliest to occur of (a) the Effective Time, (b) the payment in full of the Guaranteed Obligation and the obligation under Section 1(c), (c) the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would not be required pursuant to the terms and subject to the conditions of the Merger Agreement to make any payment of any Guaranteed Obligation; and (d) six months after the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would be required pursuant to the terms and subject to the conditions of the Merger Agreement to make a payment of the Guaranteed Obligation, unless by the end of such six-month period, the Guaranteed Party shall have initiated a claim or proceeding in accordance with the terms of the Merger Agreement for payment of any of the Guaranteed Obligations; provided that if the Guaranteed Party has initiated a claim or proceeding by the end of such six-month period, this Limited Guarantee shall terminate upon the date such claim or proceeding is finally satisfied or otherwise resolved by agreement of the parties hereto or pursuant to Section 12. In the event that the Guaranteed Party or any of its Affiliates or subsidiaries asserts in any litigation or other proceeding relating to this Limited Guarantee or the Merger Agreement (i) that the provisions hereof (including, without limitation, Section 1 hereof limiting the Guarantor's aggregate liability to the Maximum Amount or Section 3 hereof relating to the sole and exclusive remedies of the Guaranteed Party and its equityholders, Affiliates and subsidiaries against the Guarantor or any Related Person) are illegal, invalid or unenforceable, in whole or in part, or (ii) any theory of liability against the Guarantor or any Related Person or any other Guarantor under the other Limited Guarantees dated as of the date hereof or any Related Person of any such other Guarantor with respect to the transactions contemplated by this Limited Guarantee, the Equity Commitment Letter or the Merger Agreement other than any Permitted Claim, then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and be null and void, (y) if the Guarantor has previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments from the Guaranteed Party and (z) neither the Guarantor nor any Related Person (other than the Parent Parties and their respective successors and assigns) shall have any liability to the Guaranteed Party or any of its equityholders, Affiliates or subsidiaries with respect to the Merger Agreement or the transactions contemplated by the Merger Agreement or this Limited Guarantee.
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6. Continuing Guarantee. Except to the extent terminated pursuant to the provisions of Section 5 hereof, this Limited Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed Obligation and the obligation under Section 1(c), shall be binding upon the Guarantor, its successors and assigns, and shall inure to the benefit of, and be enforceable by, the Guaranteed Party and its successors, permitted transferees and permitted assigns; provided that notwithstanding anything to the contrary in this Limited Guarantee, the provisions of this Limited Guarantee that are for the benefit of any Related Person (including the provisions of Sections 3 and 5) shall indefinitely survive any termination of this Limited Guarantee for the benefit of the Guarantor and any Related Persons. All obligation to which this Limited Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
7. Entire Agreement. This Limited Guarantee, the Merger Agreement, the Equity Commitment Letter and the Escrow Agreement constitute the entire agreement with respect to the subject matter hereof, and supersede all other prior agreements and understandings, both written and oral, among the Parent Parties and/or the Guarantor or any of their respective Affiliates, on the one hand, and the Guaranteed Party or any of its Affiliates, on the other hand, regarding the subject matter hereof.
8. Amendments and Waivers. Any provision of this Limited Guarantee may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Guarantor and the Guaranteed Party or, in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by any party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
9. Counterparts. This Limited Guarantee may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
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10. Notices. All notices, requests, claims, demands and other communications hereunder shall be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressee's location on any Business Day after 5:00 p.m. (addressee's local time) shall be deemed to have been received at 9:00 a.m. (addressee's local time) on the next Business Day), by reliable international overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:
if to the Guarantor:
Jiangsu Gaoli Group Co., Ltd.
(江苏高力集团有限公司)
8 Xixia Street, Nanjing, Jiangsu
Facsimile: 025 66665933
Attention: Ran Wei
with copies to:
Kirkland & Ellis
26th Floor, Glouster Tower, The Landmark
15 Queen's Road Central
Hong Kong
Facsimile: +852-3761-3301
Attention: David Zhang and Jesse Sheley
If to the Guaranteed Party, as provided in Section 9.2 of the Merger Agreement.
11. Governing Law. This Limited Guarantee (except for the arbitration agreement in Section 12) shall be governed by and construed in accordance with the Laws of the State of New York without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
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12. Jurisdiction; Waiver of Service of Process.
(a) Jurisdiction. In the event any dispute arises among the parties hereto out of or in relation to this Limited Guarantee, including any dispute regarding its existence, interpretation, performance, breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly consultations within thirty (30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions of this Section 12. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre ("HKIAC") Administered Rules in force when a notice of arbitration is submitted. The seat and venue of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The law of the arbitration agreement shall be Hong Kong law. The appointing authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number, and one arbitrator shall be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from nominating their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within 30 days after such two arbitrators have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any person necessary for the conduct of the arbitration, unless otherwise required by Law or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and any interim or final award, as well as the fact that an arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after the submission of any dispute to arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter agreement, except insofar as the same may relate directly to the matters in dispute. The parties hereby agree that any arbitration award rendered in accordance with the provisions of this Section 12 shall be final and binding upon them, and the parties further agree that such award may be enforced by any court having jurisdiction over the party against which the award has been rendered or the assets of such party wherever the same may be located. In any arbitration proceeding, any legal proceeding to enforce any arbitration award and in any other legal proceeding among the Parties pursuant to or relating to this Agreement, each Party expressly waives the defense of sovereign immunity and any other defense based on the fact or allegation that it is an agency or instrumentality of a sovereign state or is otherwise entitled to immunity.
13. Representations and Warranties. The Guarantor hereby represents and warrants to the Guaranteed Party that:
(a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization;
(b) it has all necessary power and authority to execute, deliver and perform this Limited Guarantee;
(c) the execution, delivery and performance of this Limited Guarantee by the Guarantor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Guarantor are necessary therefor;
(d) all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Limited Guarantee by the Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution, delivery or performance of this Limited Guarantee;
(e) this Limited Guarantee has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the undersigned in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law));
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(f) the execution, delivery and performance by the undersigned of this Limited Guarantee do not and will not violate the organizational documents of the undersigned or violate any applicable law, regulation, rule, decree, order, judgment or contractual restriction binding on the Guarantor or its assets or properties; and
(g) it has the financial capacity to pay and perform its obligations under this Limited Guarantee, and all funds necessary for the Guarantor to fulfill its obligations under this Limited Guarantee shall be available to the Guarantor for so long as this Limited Guarantee shall remain in effect in accordance with Section 6.
14. No Assignment. Neither this Limited Guarantee nor any of the rights, interests or obligations hereunder shall be assignable without the prior written consent of the Guaranteed Party (in the case of an assignment by the Guarantor) or the Guarantor (in the case of an assignment by the Guaranteed Party).
15. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LIMITED GUARANTEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 15.
16. Severability. Any term or provision of this Limited Guarantee which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Limited Guarantee in any jurisdiction and, if any provision of this Limited Guarantee is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Maximum Amount provided in Section 1 hereof and to the provisions of Sections 3 and 5 hereof. No party hereto shall assert, and each party shall cause its respective Affiliates and subsidiaries not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.
17. Headings. Headings of the Sections of this Limited Guarantee are for convenience only and shall be given no substantive or interpretive effect whatsoever.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Jiangsu Gaoli Group | ||
| (江苏高力集团有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Shijun Gao | |
| Name: Shijun Gao (高仕军) | ||
| Title: President | ||
[Signature Page to Limited Guarantee]
IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Limited Guarantee]
Exhibit 99.94
Execution Version
LIMITED GUARANTEE
This Limited Guarantee, dated as of December 18, 2015 (this "Limited Guarantee"), is made by Minsheng Royal Asset Management Co., Ltd. (民生加银资产管理有限公司), a limited liability company incorporated under the laws of the People’s Republic of China (including its successors and permitted assigns, the "Guarantor"), in favor of Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Guaranteed Party"). Reference is hereby made to the Agreement and Plan of Merger, dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), and the Guaranteed Party. Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Merger Agreement.
1. Limited Guarantee.
(a) To induce the Guaranteed Party to enter into the Merger Agreement, the Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, subject to the terms and conditions hereof, the due and punctual payment and performance when due of 1.24% of the Parent Parties' obligation (the "Guaranteed Obligation") to pay to the Guaranteed Party (i) the Parent Termination Fee if and when required pursuant to Section 8.2(c) of the Merger Agreement, and (ii) the payment obligations of the Parent Parties pursuant to Section 6.6 of the Merger Agreement; provided that the maximum aggregate liability of the Guarantor hereunder shall not exceed US$ 5,573,361 (the "Maximum Amount").
(b) The Guaranteed Party hereby agrees that (a) the Guarantor shall in no event be required to pay more than the Maximum Amount under or in respect of this Guarantee and (b) the Guarantor shall not have any obligation or liability to any Person (including, without limitation, to the Guaranteed Party's equity holders, Affiliates and/or subsidiaries) relating to, arising out of or in connection with this Limited Guarantee, the Merger Agreement, or the Equity Commitment Letter (as defined below) other than as expressly set forth herein or in the Equity Commitment Letter or the Escrow Agreement (as defined in the Equity Commitment Letter).
(c) The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by the Guaranteed Party in connection with the enforcement of its rights hereunder and under the Merger Agreement, including, without limitation, in the event that (i) the Guarantor asserts in any arbitration, litigation or other proceeding that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms and the Guaranteed Party prevails in such arbitration, litigation or other proceeding, or (ii) the Guarantor fails or refuses to make any payment to the Guaranteed Party hereunder when due and payable and it is determined judicially or by arbitration that the Guarantor is required to make such payment hereunder.
(d) The Guarantor promises and undertakes to make all payments hereunder free and clear of any deduction, offset, defense, claim or counterclaim of any kind. If the Parent Parties fail to pay or cause to be paid the Guaranteed Obligation as and when due and payable pursuant to Section 8.2(c) of the Merger Agreement, as applicable, then the Guarantor's liabilities to the Guaranteed Party hereunder in respect of such Guaranteed Obligation shall become immediately due and payable and the Guaranteed Party may at any time and from time to time, at the Guaranteed Party's option, and so long as the Parent Parties remain in breach of its Guaranteed Obligation, take any and all actions available hereunder or under applicable Law to collect the Guaranteed Obligation from the Guarantor subject to the Maximum Amount as applicable.
2. Terms of Limited Guarantee.
(a) This Limited Guarantee is a primary and original obligation of the Guarantor and is one of payment, not collection, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against any Parent Party or any other Person or whether any Parent Party or any other Person is joined in any such action or actions. Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantor under this Limited Guarantee and of the other guarantors under the other Limited Guarantees dated as of the date hereof ("Other Guarantors") shall be several and not joint.
(b) The liability of the Guarantor under this Limited Guarantee shall, to the fullest extent permitted under applicable law, be absolute, irrevocable and unconditional, irrespective of:
(i) the value, genuineness, validity, illegality or enforceability of the Merger Agreement or the letter agreement dated as of the date hereof between the Guarantor, on the one hand, and Holdco and Parent, on the other hand, pursuant to which the Guarantor has agreed to make a certain equity contribution to Holdco and Parent (the "Equity Commitment Letter") or any other agreement or instrument referred to herein or therein;
(ii) any change in the corporate existence, structure or ownership of any Parent Party or any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting any Parent Party, any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor) or any of their respective assets;
(iii) any amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof;
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(iv) the existence of any claim, set-off or other right that the Guarantor may have at any time against any Parent Party or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise;
(v) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against any Parent Party or the Guarantor or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation (other than as and if required by Section 2(a));
(vi) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of the Guaranteed Obligation;
(vii) any other act or omission that may in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment in full of the Guaranteed Obligation in accordance with their terms); or
(viii) the addition, substitution, discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Guaranteed Obligation as a result of payment in full of the Guaranteed Obligation in accordance with their terms) of any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor),
other than in each case with respect to (A) defenses to the payment of the Guaranteed Obligation that are available to any Parent Party under the Merger Agreement or (B) breach by the Guaranteed Party of this Limited Guarantee, including, without limitation, the limitations set forth in Section 3 below), and, notwithstanding any other provision of this Limited Guarantee to the contrary, the Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that any Parent Party could assert against the Company under the terms of, or with respect to, the Merger Agreement that would relieve each of the Parent Parties of its obligations under the Merger Agreement.
(c) To the fullest extent permitted by applicable law, the Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of the Guaranteed Obligation and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligation shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between the Parent Parties and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under no obligation to pursue such rights and remedies it may have against the Parent Parties or any other Person for the Guaranteed Obligation or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue such other rights or remedies or to collect any payments from the Parent Parties or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of the Parent Parties or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guaranteed Party.
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(d) To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, acceptance hereof, presentment, demand for payment, notice of non-performance, default, dishonor and protest, any notice not provided for herein, all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of any Parent Party or any other person interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligation that are available to the Parent Parties under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated under the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits.
(e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that the Parent Parties become subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantor's obligation hereunder. In the event that any payment to the Guaranteed Party in respect of the Guaranteed Obligation is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to the Guaranteed Obligation as if such payment had not been made so long as this Limited Guarantee has not terminated in accordance with its terms.
3. Sole Remedy; No Recourse. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party further agrees that neither it nor any other Person (including, without limitation, the Guaranteed Party's equityholders, Affiliates and subsidiaries) has any right of recovery against, and no personal liability shall attach to, the Guarantor, any former, current or future, director, officer, employee, agent or Affiliate of the Guarantor, any former, current or future, direct or indirect holder of any equity interests or securities of the Guarantor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or representative any of the foregoing (each such Person, a "Related Person"), through any Parent Party or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of any Parent Party against the Guarantor or any Related Person (except for any claim to compel Holdco and/or Parent to enforce the Equity Commitment Letter in accordance with the terms thereof), or otherwise, except for its rights against the Guarantor under this Limited Guarantee and the Escrow Agreement. Recourse against the Guarantor under this Limited Guarantee and the Escrow Agreement and the Guaranteed Party's rights under the Equity Commitment Letter shall be the sole and exclusive remedy of (i) the Guaranteed Party and (ii) all of the Guaranteed Party's equityholders, Affiliates and subsidiaries against the Guarantor and any Related Person (other than the Parent Parties and their respective successors and assigns) in respect of any liabilities or obligations arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby, including by piercing the corporate, limited liability company or limited partnership veil or by a claim by or on behalf of any Parent Party. The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Affiliates and subsidiaries not to institute, any proceeding or bring any other claim arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby (or the failure of such to be consummated), against the Guarantor or any Related Person, except for (A) claims of the Guaranteed Party against the Guarantor under and in accordance with this Limited Guarantee and the Escrow Agreement, (B) claims of the Guaranteed Party against the Parent Parties (and their respective successors and assigns) under and in accordance with the Merger Agreement and the Escrow Agreement, and (C) the exercise of the Guaranteed Party's rights under and in accordance with the Equity Commitment Letter, and the Guaranteed Party hereby, on behalf of itself and its Affiliates and subsidiaries, waives any and all claims arising under, or in connection with, the Merger Agreement, this Limited Guarantee, the Equity Commitment Letter, the Escrow Agreement or, in each case, the transactions contemplated hereby or thereby against the Guarantor or any Related Person and releases such Persons from such claims, in each case, except for claims described in clauses (A), (B) and (C) of this sentence (each, a "Permitted Claim"). Nothing set forth in this Limited Guarantee shall confer or give or shall be construed to confer or give to any Person (including any Person acting in a representative capacity) other than the Guaranteed Party any rights or remedies against any Person, including the Guarantor, except as expressly set forth herein.
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4. Subrogation. The Guarantor will not exercise against any Parent Party any rights of subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by reason of any payment by it pursuant to the provisions of Section 1 hereof unless and until the Guaranteed Obligation and all other amounts payable under this Limited Guarantee have been paid in full.
5. Termination. This Limited Guarantee shall terminate (and the Guarantor shall have no further obligations hereunder) upon the earliest to occur of (a) the Effective Time, (b) the payment in full of the Guaranteed Obligation and the obligation under Section 1(c), (c) the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would not be required pursuant to the terms and subject to the conditions of the Merger Agreement to make any payment of any Guaranteed Obligation; and (d) six months after the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would be required pursuant to the terms and subject to the conditions of the Merger Agreement to make a payment of the Guaranteed Obligation, unless by the end of such six-month period, the Guaranteed Party shall have initiated a claim or proceeding in accordance with the terms of the Merger Agreement for payment of any of the Guaranteed Obligations; provided that if the Guaranteed Party has initiated a claim or proceeding by the end of such six-month period, this Limited Guarantee shall terminate upon the date such claim or proceeding is finally satisfied or otherwise resolved by agreement of the parties hereto or pursuant to Section 12. In the event that the Guaranteed Party or any of its Affiliates or subsidiaries asserts in any litigation or other proceeding relating to this Limited Guarantee or the Merger Agreement (i) that the provisions hereof (including, without limitation, Section 1 hereof limiting the Guarantor's aggregate liability to the Maximum Amount or Section 3 hereof relating to the sole and exclusive remedies of the Guaranteed Party and its equityholders, Affiliates and subsidiaries against the Guarantor or any Related Person) are illegal, invalid or unenforceable, in whole or in part, or (ii) any theory of liability against the Guarantor or any Related Person or any other Guarantor under the other Limited Guarantees dated as of the date hereof or any Related Person of any such other Guarantor with respect to the transactions contemplated by this Limited Guarantee, the Equity Commitment Letter or the Merger Agreement other than any Permitted Claim, then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and be null and void, (y) if the Guarantor has previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments from the Guaranteed Party and (z) neither the Guarantor nor any Related Person (other than the Parent Parties and their respective successors and assigns) shall have any liability to the Guaranteed Party or any of its equityholders, Affiliates or subsidiaries with respect to the Merger Agreement or the transactions contemplated by the Merger Agreement or this Limited Guarantee.
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6. Continuing Guarantee. Except to the extent terminated pursuant to the provisions of Section 5 hereof, this Limited Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed Obligation and the obligation under Section 1(c), shall be binding upon the Guarantor, its successors and assigns, and shall inure to the benefit of, and be enforceable by, the Guaranteed Party and its successors, permitted transferees and permitted assigns; provided that notwithstanding anything to the contrary in this Limited Guarantee, the provisions of this Limited Guarantee that are for the benefit of any Related Person (including the provisions of Sections 3 and 5) shall indefinitely survive any termination of this Limited Guarantee for the benefit of the Guarantor and any Related Persons. All obligation to which this Limited Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
7. Entire Agreement. This Limited Guarantee, the Merger Agreement, the Equity Commitment Letter and the Escrow Agreement constitute the entire agreement with respect to the subject matter hereof, and supersede all other prior agreements and understandings, both written and oral, among the Parent Parties and/or the Guarantor or any of their respective Affiliates, on the one hand, and the Guaranteed Party or any of its Affiliates, on the other hand, regarding the subject matter hereof.
8. Amendments and Waivers. Any provision of this Limited Guarantee may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Guarantor and the Guaranteed Party or, in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by any party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
9. Counterparts. This Limited Guarantee may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
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10. Notices. All notices, requests, claims, demands and other communications hereunder shall be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressee's location on any Business Day after 5:00 p.m. (addressee's local time) shall be deemed to have been received at 9:00 a.m. (addressee's local time) on the next Business Day), by reliable international overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:
if to the Guarantor:
Minsheng Royal Asset Management Co., Ltd.
(民生加银资产管理有限公司)
Floor 8, Dacheng Plaza, No. A127 Xuanwumen West Street
Xicheng District, Beijing, China
Attention: Kan Meng
with copies to:
Kirkland & Ellis
26th Floor, Glouster Tower, The Landmark
15 Queen's Road Central
Hong Kong
Facsimile: +852-3761-3301
Attention: David Zhang and Jesse Sheley
If to the Guaranteed Party, as provided in Section 9.2 of the Merger Agreement.
11. Governing Law. This Limited Guarantee (except for the arbitration agreement in Section 12) shall be governed by and construed in accordance with the Laws of the State of New York without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
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12. Jurisdiction; Waiver of Service of Process.
(a) Jurisdiction. In the event any dispute arises among the parties hereto out of or in relation to this Limited Guarantee, including any dispute regarding its existence, interpretation, performance, breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly consultations within thirty (30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions of this Section 12. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre ("HKIAC") Administered Rules in force when a notice of arbitration is submitted. The seat and venue of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The law of the arbitration agreement shall be Hong Kong law. The appointing authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number, and one arbitrator shall be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from nominating their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within 30 days after such two arbitrators have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any person necessary for the conduct of the arbitration, unless otherwise required by Law or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and any interim or final award, as well as the fact that an arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after the submission of any dispute to arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter agreement, except insofar as the same may relate directly to the matters in dispute. The parties hereby agree that any arbitration award rendered in accordance with the provisions of this Section 12 shall be final and binding upon them, and the parties further agree that such award may be enforced by any court having jurisdiction over the party against which the award has been rendered or the assets of such party wherever the same may be located. In any arbitration proceeding, any legal proceeding to enforce any arbitration award and in any other legal proceeding among the Parties pursuant to or relating to this Agreement, each Party expressly waives the defense of sovereign immunity and any other defense based on the fact or allegation that it is an agency or instrumentality of a sovereign state or is otherwise entitled to immunity.
13. Representations and Warranties. The Guarantor hereby represents and warrants to the Guaranteed Party that:
(a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization;
(b) it has all necessary power and authority to execute, deliver and perform this Limited Guarantee;
(c) the execution, delivery and performance of this Limited Guarantee by the Guarantor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Guarantor are necessary therefor;
(d) all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Limited Guarantee by the Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution, delivery or performance of this Limited Guarantee;
(e) this Limited Guarantee has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the undersigned in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law));
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(f) the execution, delivery and performance by the undersigned of this Limited Guarantee do not and will not violate the organizational documents of the undersigned or violate any applicable law, regulation, rule, decree, order, judgment or contractual restriction binding on the Guarantor or its assets or properties; and
(g) it has the financial capacity to pay and perform its obligations under this Limited Guarantee, and all funds necessary for the Guarantor to fulfill its obligations under this Limited Guarantee shall be available to the Guarantor for so long as this Limited Guarantee shall remain in effect in accordance with Section 6.
14. No Assignment. Neither this Limited Guarantee nor any of the rights, interests or obligations hereunder shall be assignable without the prior written consent of the Guaranteed Party (in the case of an assignment by the Guarantor) or the Guarantor (in the case of an assignment by the Guaranteed Party).
15. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LIMITED GUARANTEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 15.
16. Severability. Any term or provision of this Limited Guarantee which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Limited Guarantee in any jurisdiction and, if any provision of this Limited Guarantee is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Maximum Amount provided in Section 1 hereof and to the provisions of Sections 3 and 5 hereof. No party hereto shall assert, and each party shall cause its respective Affiliates and subsidiaries not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.
17. Headings. Headings of the Sections of this Limited Guarantee are for convenience only and shall be given no substantive or interpretive effect whatsoever.
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IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Minsheng Royal Asset Management Co., Ltd. | ||
| (民生加银资产管理有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Zhixiang Jiang | |
| Name: Zhixiang Jiang | ||
| Title: General Manager | ||
[Signature Page to Limited Guarantee]
IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Limited Guarantee]
Exhibit 99.95
Execution Version
LIMITED GUARANTEE
This Limited Guarantee, dated as of December 18, 2015 (this "Limited Guarantee"), is made by CCB International Capital Management (Tianjin) Ltd. (建银国际资本管理(天津)有限公司), a limited liability company incorporated under the laws of the People’s Republic of China (including its successors and permitted assigns, the "Guarantor"), in favor of Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Guaranteed Party"). Reference is hereby made to the Agreement and Plan of Merger, dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), and the Guaranteed Party. Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Merger Agreement.
1. Limited Guarantee.
(a) To induce the Guaranteed Party to enter into the Merger Agreement, the Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, subject to the terms and conditions hereof, the due and punctual payment and performance when due of 1.24% of the Parent Parties' obligation (the "Guaranteed Obligation") to pay to the Guaranteed Party (i) the Parent Termination Fee if and when required pursuant to Section 8.2(c) of the Merger Agreement, and (ii) the payment obligations of the Parent Parties pursuant to Section 6.6 of the Merger Agreement; provided that the maximum aggregate liability of the Guarantor hereunder shall not exceed US$ 5,573,361 (the "Maximum Amount").
(b) The Guaranteed Party hereby agrees that (a) the Guarantor shall in no event be required to pay more than the Maximum Amount under or in respect of this Guarantee and (b) the Guarantor shall not have any obligation or liability to any Person (including, without limitation, to the Guaranteed Party's equity holders, Affiliates and/or subsidiaries) relating to, arising out of or in connection with this Limited Guarantee, the Merger Agreement, or the Equity Commitment Letter (as defined below) other than as expressly set forth herein or in the Equity Commitment Letter or the Escrow Agreement (as defined in the Equity Commitment Letter).
(c) The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by the Guaranteed Party in connection with the enforcement of its rights hereunder and under the Merger Agreement, including, without limitation, in the event that (i) the Guarantor asserts in any arbitration, litigation or other proceeding that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms and the Guaranteed Party prevails in such arbitration, litigation or other proceeding, or (ii) the Guarantor fails or refuses to make any payment to the Guaranteed Party hereunder when due and payable and it is determined judicially or by arbitration that the Guarantor is required to make such payment hereunder.
(d) The Guarantor promises and undertakes to make all payments hereunder free and clear of any deduction, offset, defense, claim or counterclaim of any kind. If the Parent Parties fail to pay or cause to be paid the Guaranteed Obligation as and when due and payable pursuant to Section 8.2(c) of the Merger Agreement, as applicable, then the Guarantor's liabilities to the Guaranteed Party hereunder in respect of such Guaranteed Obligation shall become immediately due and payable and the Guaranteed Party may at any time and from time to time, at the Guaranteed Party's option, and so long as the Parent Parties remain in breach of its Guaranteed Obligation, take any and all actions available hereunder or under applicable Law to collect the Guaranteed Obligation from the Guarantor subject to the Maximum Amount as applicable.
2. Terms of Limited Guarantee.
(a) This Limited Guarantee is a primary and original obligation of the Guarantor and is one of payment, not collection, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against any Parent Party or any other Person or whether any Parent Party or any other Person is joined in any such action or actions. Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantor under this Limited Guarantee and of the other guarantors under the other Limited Guarantees dated as of the date hereof ("Other Guarantors") shall be several and not joint.
(b) The liability of the Guarantor under this Limited Guarantee shall, to the fullest extent permitted under applicable law, be absolute, irrevocable and unconditional, irrespective of:
(i) the value, genuineness, validity, illegality or enforceability of the Merger Agreement or the letter agreement dated as of the date hereof between the Guarantor, on the one hand, and Holdco and Parent, on the other hand, pursuant to which the Guarantor has agreed to make a certain equity contribution to Holdco and Parent (the "Equity Commitment Letter") or any other agreement or instrument referred to herein or therein;
(ii) any change in the corporate existence, structure or ownership of any Parent Party or any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting any Parent Party, any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor) or any of their respective assets;
(iii) any amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof;
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(iv) the existence of any claim, set-off or other right that the Guarantor may have at any time against any Parent Party or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise;
(v) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against any Parent Party or the Guarantor or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation (other than as and if required by Section 2(a));
(vi) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of the Guaranteed Obligation;
(vii) any other act or omission that may in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment in full of the Guaranteed Obligation in accordance with their terms); or
(viii) the addition, substitution, discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Guaranteed Obligation as a result of payment in full of the Guaranteed Obligation in accordance with their terms) of any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor),
other than in each case with respect to (A) defenses to the payment of the Guaranteed Obligation that are available to any Parent Party under the Merger Agreement or (B) breach by the Guaranteed Party of this Limited Guarantee, including, without limitation, the limitations set forth in Section 3 below), and, notwithstanding any other provision of this Limited Guarantee to the contrary, the Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that any Parent Party could assert against the Company under the terms of, or with respect to, the Merger Agreement that would relieve each of the Parent Parties of its obligations under the Merger Agreement.
(c) To the fullest extent permitted by applicable law, the Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of the Guaranteed Obligation and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligation shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between the Parent Parties and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under no obligation to pursue such rights and remedies it may have against the Parent Parties or any other Person for the Guaranteed Obligation or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue such other rights or remedies or to collect any payments from the Parent Parties or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of the Parent Parties or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guaranteed Party.
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(d) To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, acceptance hereof, presentment, demand for payment, notice of non-performance, default, dishonor and protest, any notice not provided for herein, all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of any Parent Party or any other person interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligation that are available to the Parent Parties under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated under the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits.
(e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that the Parent Parties become subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantor's obligation hereunder. In the event that any payment to the Guaranteed Party in respect of the Guaranteed Obligation is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to the Guaranteed Obligation as if such payment had not been made so long as this Limited Guarantee has not terminated in accordance with its terms.
3. Sole Remedy; No Recourse. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party further agrees that neither it nor any other Person (including, without limitation, the Guaranteed Party's equityholders, Affiliates and subsidiaries) has any right of recovery against, and no personal liability shall attach to, the Guarantor, any former, current or future, director, officer, employee, agent or Affiliate of the Guarantor, any former, current or future, direct or indirect holder of any equity interests or securities of the Guarantor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or representative any of the foregoing (each such Person, a "Related Person"), through any Parent Party or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of any Parent Party against the Guarantor or any Related Person (except for any claim to compel Holdco and/or Parent to enforce the Equity Commitment Letter in accordance with the terms thereof), or otherwise, except for its rights against the Guarantor under this Limited Guarantee and the Escrow Agreement. Recourse against the Guarantor under this Limited Guarantee and the Escrow Agreement and the Guaranteed Party's rights under the Equity Commitment Letter shall be the sole and exclusive remedy of (i) the Guaranteed Party and (ii) all of the Guaranteed Party's equityholders, Affiliates and subsidiaries against the Guarantor and any Related Person (other than the Parent Parties and their respective successors and assigns) in respect of any liabilities or obligations arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby, including by piercing the corporate, limited liability company or limited partnership veil or by a claim by or on behalf of any Parent Party. The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Affiliates and subsidiaries not to institute, any proceeding or bring any other claim arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby (or the failure of such to be consummated), against the Guarantor or any Related Person, except for (A) claims of the Guaranteed Party against the Guarantor under and in accordance with this Limited Guarantee and the Escrow Agreement, (B) claims of the Guaranteed Party against the Parent Parties (and their respective successors and assigns) under and in accordance with the Merger Agreement and the Escrow Agreement, and (C) the exercise of the Guaranteed Party's rights under and in accordance with the Equity Commitment Letter, and the Guaranteed Party hereby, on behalf of itself and its Affiliates and subsidiaries, waives any and all claims arising under, or in connection with, the Merger Agreement, this Limited Guarantee, the Equity Commitment Letter, the Escrow Agreement or, in each case, the transactions contemplated hereby or thereby against the Guarantor or any Related Person and releases such Persons from such claims, in each case, except for claims described in clauses (A), (B) and (C) of this sentence (each, a "Permitted Claim"). Nothing set forth in this Limited Guarantee shall confer or give or shall be construed to confer or give to any Person (including any Person acting in a representative capacity) other than the Guaranteed Party any rights or remedies against any Person, including the Guarantor, except as expressly set forth herein.
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4. Subrogation. The Guarantor will not exercise against any Parent Party any rights of subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by reason of any payment by it pursuant to the provisions of Section 1 hereof unless and until the Guaranteed Obligation and all other amounts payable under this Limited Guarantee have been paid in full.
5. Termination. This Limited Guarantee shall terminate (and the Guarantor shall have no further obligations hereunder) upon the earliest to occur of (a) the Effective Time, (b) the payment in full of the Guaranteed Obligation and the obligation under Section 1(c), (c) the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would not be required pursuant to the terms and subject to the conditions of the Merger Agreement to make any payment of any Guaranteed Obligation; and (d) six months after the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would be required pursuant to the terms and subject to the conditions of the Merger Agreement to make a payment of the Guaranteed Obligation, unless by the end of such six-month period, the Guaranteed Party shall have initiated a claim or proceeding in accordance with the terms of the Merger Agreement for payment of any of the Guaranteed Obligations; provided that if the Guaranteed Party has initiated a claim or proceeding by the end of such six-month period, this Limited Guarantee shall terminate upon the date such claim or proceeding is finally satisfied or otherwise resolved by agreement of the parties hereto or pursuant to Section 12. In the event that the Guaranteed Party or any of its Affiliates or subsidiaries asserts in any litigation or other proceeding relating to this Limited Guarantee or the Merger Agreement (i) that the provisions hereof (including, without limitation, Section 1 hereof limiting the Guarantor's aggregate liability to the Maximum Amount or Section 3 hereof relating to the sole and exclusive remedies of the Guaranteed Party and its equityholders, Affiliates and subsidiaries against the Guarantor or any Related Person) are illegal, invalid or unenforceable, in whole or in part, or (ii) any theory of liability against the Guarantor or any Related Person or any other Guarantor under the other Limited Guarantees dated as of the date hereof or any Related Person of any such other Guarantor with respect to the transactions contemplated by this Limited Guarantee, the Equity Commitment Letter or the Merger Agreement other than any Permitted Claim, then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and be null and void, (y) if the Guarantor has previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments from the Guaranteed Party and (z) neither the Guarantor nor any Related Person (other than the Parent Parties and their respective successors and assigns) shall have any liability to the Guaranteed Party or any of its equityholders, Affiliates or subsidiaries with respect to the Merger Agreement or the transactions contemplated by the Merger Agreement or this Limited Guarantee.
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6. Continuing Guarantee. Except to the extent terminated pursuant to the provisions of Section 5 hereof, this Limited Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed Obligation and the obligation under Section 1(c), shall be binding upon the Guarantor, its successors and assigns, and shall inure to the benefit of, and be enforceable by, the Guaranteed Party and its successors, permitted transferees and permitted assigns; provided that notwithstanding anything to the contrary in this Limited Guarantee, the provisions of this Limited Guarantee that are for the benefit of any Related Person (including the provisions of Sections 3 and 5) shall indefinitely survive any termination of this Limited Guarantee for the benefit of the Guarantor and any Related Persons. All obligation to which this Limited Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
7. Entire Agreement. This Limited Guarantee, the Merger Agreement, the Equity Commitment Letter and the Escrow Agreement constitute the entire agreement with respect to the subject matter hereof, and supersede all other prior agreements and understandings, both written and oral, among the Parent Parties and/or the Guarantor or any of their respective Affiliates, on the one hand, and the Guaranteed Party or any of its Affiliates, on the other hand, regarding the subject matter hereof.
8. Amendments and Waivers. Any provision of this Limited Guarantee may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Guarantor and the Guaranteed Party or, in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by any party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
9. Counterparts. This Limited Guarantee may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
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10. Notices. All notices, requests, claims, demands and other communications hereunder shall be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressee's location on any Business Day after 5:00 p.m. (addressee's local time) shall be deemed to have been received at 9:00 a.m. (addressee's local time) on the next Business Day), by reliable international overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:
if to the Guarantor:
CCB International Capital Management (Tianjin) Ltd.
(建银国际资本管理(天津)有限公司)
F8, TowerB, Fortune Capital International Center, No. 20, Fengsheng Hutong, Xicheng District, Beijing, China
Facsimile: (010) 56302746
Attention: Lin Shi
with copies to:
Kirkland & Ellis
26th Floor, Glouster Tower, The Landmark
15 Queen's Road Central
Hong Kong
Facsimile: +852-3761-3301
Attention: David Zhang and Jesse Sheley
If to the Guaranteed Party, as provided in Section 9.2 of the Merger Agreement.
11. Governing Law. This Limited Guarantee (except for the arbitration agreement in Section 12) shall be governed by and construed in accordance with the Laws of the State of New York without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
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12. Jurisdiction; Waiver of Service of Process.
(a) Jurisdiction. In the event any dispute arises among the parties hereto out of or in relation to this Limited Guarantee, including any dispute regarding its existence, interpretation, performance, breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly consultations within thirty (30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions of this Section 12. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre ("HKIAC") Administered Rules in force when a notice of arbitration is submitted. The seat and venue of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The law of the arbitration agreement shall be Hong Kong law. The appointing authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number, and one arbitrator shall be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from nominating their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within 30 days after such two arbitrators have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any person necessary for the conduct of the arbitration, unless otherwise required by Law or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and any interim or final award, as well as the fact that an arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after the submission of any dispute to arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter agreement, except insofar as the same may relate directly to the matters in dispute. The parties hereby agree that any arbitration award rendered in accordance with the provisions of this Section 12 shall be final and binding upon them, and the parties further agree that such award may be enforced by any court having jurisdiction over the party against which the award has been rendered or the assets of such party wherever the same may be located. In any arbitration proceeding, any legal proceeding to enforce any arbitration award and in any other legal proceeding among the Parties pursuant to or relating to this Agreement, each Party expressly waives the defense of sovereign immunity and any other defense based on the fact or allegation that it is an agency or instrumentality of a sovereign state or is otherwise entitled to immunity.
13. Representations and Warranties. The Guarantor hereby represents and warrants to the Guaranteed Party that:
(a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization;
(b) it has all necessary power and authority to execute, deliver and perform this Limited Guarantee;
(c) the execution, delivery and performance of this Limited Guarantee by the Guarantor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Guarantor are necessary therefor;
(d) all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Limited Guarantee by the Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution, delivery or performance of this Limited Guarantee;
(e) this Limited Guarantee has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the undersigned in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law));
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(f) the execution, delivery and performance by the undersigned of this Limited Guarantee do not and will not violate the organizational documents of the undersigned or violate any applicable law, regulation, rule, decree, order, judgment or contractual restriction binding on the Guarantor or its assets or properties; and
(g) it has the financial capacity to pay and perform its obligations under this Limited Guarantee, and all funds necessary for the Guarantor to fulfill its obligations under this Limited Guarantee shall be available to the Guarantor for so long as this Limited Guarantee shall remain in effect in accordance with Section 6.
14. No Assignment. Neither this Limited Guarantee nor any of the rights, interests or obligations hereunder shall be assignable without the prior written consent of the Guaranteed Party (in the case of an assignment by the Guarantor) or the Guarantor (in the case of an assignment by the Guaranteed Party).
15. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LIMITED GUARANTEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 15.
16. Severability. Any term or provision of this Limited Guarantee which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Limited Guarantee in any jurisdiction and, if any provision of this Limited Guarantee is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Maximum Amount provided in Section 1 hereof and to the provisions of Sections 3 and 5 hereof. No party hereto shall assert, and each party shall cause its respective Affiliates and subsidiaries not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.
17. Headings. Headings of the Sections of this Limited Guarantee are for convenience only and shall be given no substantive or interpretive effect whatsoever.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| CCB International Capital Management (Tianjin) Ltd. | ||
| (建银国际资本管理(天津)有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Cheng Jing Dong | |
| Name: Cheng Jing Dong | ||
| Title: General Manager | ||
[Signature Page to Limited Guarantee]
IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Limited Guarantee]
Exhibit 99.96
Execution Version
LIMITED GUARANTEE
This Limited Guarantee, dated as of December 18, 2015 (this "Limited Guarantee"), is made by China Merchants Wealth Asset Management CO., Ltd (招商财富资产管理有限公司), a limited liability company incorporated under the laws of the People’s Republic of China (including its successors and permitted assigns, the "Guarantor"), in favor of Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Guaranteed Party"). Reference is hereby made to the Agreement and Plan of Merger, dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), and the Guaranteed Party. Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Merger Agreement.
1. Limited Guarantee.
(a) To induce the Guaranteed Party to enter into the Merger Agreement, the Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, subject to the terms and conditions hereof, the due and punctual payment and performance when due of 1.24% of the Parent Parties' obligation (the "Guaranteed Obligation") to pay to the Guaranteed Party (i) the Parent Termination Fee if and when required pursuant to Section 8.2(c) of the Merger Agreement, and (ii) the payment obligations of the Parent Parties pursuant to Section 6.6 of the Merger Agreement; provided that the maximum aggregate liability of the Guarantor hereunder shall not exceed US$ 5,573,361 (the "Maximum Amount").
(b) The Guaranteed Party hereby agrees that (a) the Guarantor shall in no event be required to pay more than the Maximum Amount under or in respect of this Guarantee and (b) the Guarantor shall not have any obligation or liability to any Person (including, without limitation, to the Guaranteed Party's equity holders, Affiliates and/or subsidiaries) relating to, arising out of or in connection with this Limited Guarantee, the Merger Agreement, or the Equity Commitment Letter (as defined below) other than as expressly set forth herein or in the Equity Commitment Letter or the Escrow Agreement (as defined in the Equity Commitment Letter).
(c) The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by the Guaranteed Party in connection with the enforcement of its rights hereunder and under the Merger Agreement, including, without limitation, in the event that (i) the Guarantor asserts in any arbitration, litigation or other proceeding that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms and the Guaranteed Party prevails in such arbitration, litigation or other proceeding, or (ii) the Guarantor fails or refuses to make any payment to the Guaranteed Party hereunder when due and payable and it is determined judicially or by arbitration that the Guarantor is required to make such payment hereunder.
(d) The Guarantor promises and undertakes to make all payments hereunder free and clear of any deduction, offset, defense, claim or counterclaim of any kind. If the Parent Parties fail to pay or cause to be paid the Guaranteed Obligation as and when due and payable pursuant to Section 8.2(c) of the Merger Agreement, as applicable, then the Guarantor's liabilities to the Guaranteed Party hereunder in respect of such Guaranteed Obligation shall become immediately due and payable and the Guaranteed Party may at any time and from time to time, at the Guaranteed Party's option, and so long as the Parent Parties remain in breach of its Guaranteed Obligation, take any and all actions available hereunder or under applicable Law to collect the Guaranteed Obligation from the Guarantor subject to the Maximum Amount as applicable.
2. Terms of Limited Guarantee.
(a) This Limited Guarantee is a primary and original obligation of the Guarantor and is one of payment, not collection, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against any Parent Party or any other Person or whether any Parent Party or any other Person is joined in any such action or actions. Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantor under this Limited Guarantee and of the other guarantors under the other Limited Guarantees dated as of the date hereof ("Other Guarantors") shall be several and not joint.
(b) The liability of the Guarantor under this Limited Guarantee shall, to the fullest extent permitted under applicable law, be absolute, irrevocable and unconditional, irrespective of:
(i) the value, genuineness, validity, illegality or enforceability of the Merger Agreement or the letter agreement dated as of the date hereof between the Guarantor, on the one hand, and Holdco and Parent, on the other hand, pursuant to which the Guarantor has agreed to make a certain equity contribution to Holdco and Parent (the "Equity Commitment Letter") or any other agreement or instrument referred to herein or therein;
(ii) any change in the corporate existence, structure or ownership of any Parent Party or any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting any Parent Party, any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor) or any of their respective assets;
(iii) any amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof;
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(iv) the existence of any claim, set-off or other right that the Guarantor may have at any time against any Parent Party or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise;
(v) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against any Parent Party or the Guarantor or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation (other than as and if required by Section 2(a));
(vi) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of the Guaranteed Obligation;
(vii) any other act or omission that may in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment in full of the Guaranteed Obligation in accordance with their terms); or
(viii) the addition, substitution, discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Guaranteed Obligation as a result of payment in full of the Guaranteed Obligation in accordance with their terms) of any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor),
other than in each case with respect to (A) defenses to the payment of the Guaranteed Obligation that are available to any Parent Party under the Merger Agreement or (B) breach by the Guaranteed Party of this Limited Guarantee, including, without limitation, the limitations set forth in Section 3 below), and, notwithstanding any other provision of this Limited Guarantee to the contrary, the Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that any Parent Party could assert against the Company under the terms of, or with respect to, the Merger Agreement that would relieve each of the Parent Parties of its obligations under the Merger Agreement.
(c) To the fullest extent permitted by applicable law, the Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of the Guaranteed Obligation and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligation shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between the Parent Parties and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under no obligation to pursue such rights and remedies it may have against the Parent Parties or any other Person for the Guaranteed Obligation or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue such other rights or remedies or to collect any payments from the Parent Parties or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of the Parent Parties or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guaranteed Party.
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(d) To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, acceptance hereof, presentment, demand for payment, notice of non-performance, default, dishonor and protest, any notice not provided for herein, all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of any Parent Party or any other person interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligation that are available to the Parent Parties under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated under the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits.
(e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that the Parent Parties become subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantor's obligation hereunder. In the event that any payment to the Guaranteed Party in respect of the Guaranteed Obligation is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to the Guaranteed Obligation as if such payment had not been made so long as this Limited Guarantee has not terminated in accordance with its terms.
3. Sole Remedy; No Recourse. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party further agrees that neither it nor any other Person (including, without limitation, the Guaranteed Party's equityholders, Affiliates and subsidiaries) has any right of recovery against, and no personal liability shall attach to, the Guarantor, any former, current or future, director, officer, employee, agent or Affiliate of the Guarantor, any former, current or future, direct or indirect holder of any equity interests or securities of the Guarantor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or representative any of the foregoing (each such Person, a "Related Person"), through any Parent Party or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of any Parent Party against the Guarantor or any Related Person (except for any claim to compel Holdco and/or Parent to enforce the Equity Commitment Letter in accordance with the terms thereof), or otherwise, except for its rights against the Guarantor under this Limited Guarantee and the Escrow Agreement. Recourse against the Guarantor under this Limited Guarantee and the Escrow Agreement and the Guaranteed Party's rights under the Equity Commitment Letter shall be the sole and exclusive remedy of (i) the Guaranteed Party and (ii) all of the Guaranteed Party's equityholders, Affiliates and subsidiaries against the Guarantor and any Related Person (other than the Parent Parties and their respective successors and assigns) in respect of any liabilities or obligations arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby, including by piercing the corporate, limited liability company or limited partnership veil or by a claim by or on behalf of any Parent Party. The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Affiliates and subsidiaries not to institute, any proceeding or bring any other claim arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby (or the failure of such to be consummated), against the Guarantor or any Related Person, except for (A) claims of the Guaranteed Party against the Guarantor under and in accordance with this Limited Guarantee and the Escrow Agreement, (B) claims of the Guaranteed Party against the Parent Parties (and their respective successors and assigns) under and in accordance with the Merger Agreement and the Escrow Agreement, and (C) the exercise of the Guaranteed Party's rights under and in accordance with the Equity Commitment Letter, and the Guaranteed Party hereby, on behalf of itself and its Affiliates and subsidiaries, waives any and all claims arising under, or in connection with, the Merger Agreement, this Limited Guarantee, the Equity Commitment Letter, the Escrow Agreement or, in each case, the transactions contemplated hereby or thereby against the Guarantor or any Related Person and releases such Persons from such claims, in each case, except for claims described in clauses (A), (B) and (C) of this sentence (each, a "Permitted Claim"). Nothing set forth in this Limited Guarantee shall confer or give or shall be construed to confer or give to any Person (including any Person acting in a representative capacity) other than the Guaranteed Party any rights or remedies against any Person, including the Guarantor, except as expressly set forth herein.
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4. Subrogation. The Guarantor will not exercise against any Parent Party any rights of subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by reason of any payment by it pursuant to the provisions of Section 1 hereof unless and until the Guaranteed Obligation and all other amounts payable under this Limited Guarantee have been paid in full.
5. Termination. This Limited Guarantee shall terminate (and the Guarantor shall have no further obligations hereunder) upon the earliest to occur of (a) the Effective Time, (b) the payment in full of the Guaranteed Obligation and the obligation under Section 1(c), (c) the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would not be required pursuant to the terms and subject to the conditions of the Merger Agreement to make any payment of any Guaranteed Obligation; and (d) six months after the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would be required pursuant to the terms and subject to the conditions of the Merger Agreement to make a payment of the Guaranteed Obligation, unless by the end of such six-month period, the Guaranteed Party shall have initiated a claim or proceeding in accordance with the terms of the Merger Agreement for payment of any of the Guaranteed Obligations; provided that if the Guaranteed Party has initiated a claim or proceeding by the end of such six-month period, this Limited Guarantee shall terminate upon the date such claim or proceeding is finally satisfied or otherwise resolved by agreement of the parties hereto or pursuant to Section 12. In the event that the Guaranteed Party or any of its Affiliates or subsidiaries asserts in any litigation or other proceeding relating to this Limited Guarantee or the Merger Agreement (i) that the provisions hereof (including, without limitation, Section 1 hereof limiting the Guarantor's aggregate liability to the Maximum Amount or Section 3 hereof relating to the sole and exclusive remedies of the Guaranteed Party and its equityholders, Affiliates and subsidiaries against the Guarantor or any Related Person) are illegal, invalid or unenforceable, in whole or in part, or (ii) any theory of liability against the Guarantor or any Related Person or any other Guarantor under the other Limited Guarantees dated as of the date hereof or any Related Person of any such other Guarantor with respect to the transactions contemplated by this Limited Guarantee, the Equity Commitment Letter or the Merger Agreement other than any Permitted Claim, then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and be null and void, (y) if the Guarantor has previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments from the Guaranteed Party and (z) neither the Guarantor nor any Related Person (other than the Parent Parties and their respective successors and assigns) shall have any liability to the Guaranteed Party or any of its equityholders, Affiliates or subsidiaries with respect to the Merger Agreement or the transactions contemplated by the Merger Agreement or this Limited Guarantee.
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6. Continuing Guarantee. Except to the extent terminated pursuant to the provisions of Section 5 hereof, this Limited Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed Obligation and the obligation under Section 1(c), shall be binding upon the Guarantor, its successors and assigns, and shall inure to the benefit of, and be enforceable by, the Guaranteed Party and its successors, permitted transferees and permitted assigns; provided that notwithstanding anything to the contrary in this Limited Guarantee, the provisions of this Limited Guarantee that are for the benefit of any Related Person (including the provisions of Sections 3 and 5) shall indefinitely survive any termination of this Limited Guarantee for the benefit of the Guarantor and any Related Persons. All obligation to which this Limited Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
7. Entire Agreement. This Limited Guarantee, the Merger Agreement, the Equity Commitment Letter and the Escrow Agreement constitute the entire agreement with respect to the subject matter hereof, and supersede all other prior agreements and understandings, both written and oral, among the Parent Parties and/or the Guarantor or any of their respective Affiliates, on the one hand, and the Guaranteed Party or any of its Affiliates, on the other hand, regarding the subject matter hereof.
8. Amendments and Waivers. Any provision of this Limited Guarantee may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Guarantor and the Guaranteed Party or, in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by any party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
9. Counterparts. This Limited Guarantee may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
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10. Notices. All notices, requests, claims, demands and other communications hereunder shall be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressee's location on any Business Day after 5:00 p.m. (addressee's local time) shall be deemed to have been received at 9:00 a.m. (addressee's local time) on the next Business Day), by reliable international overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:
if to the Guarantor:
China Merchants Wealth Asset Management CO., Ltd
(招商财富资产管理有限公司)
3/F, Tower B, East Pacific International Center
7888 Shennan Road
Shenzhen, P.R.China
Facsimile: 0755-23986935
Attention: Zhangfu Lai
with copies to:
Kirkland & Ellis
26th Floor, Glouster Tower, The Landmark
15 Queen's Road Central
Hong Kong
Facsimile: +852-3761-3301
Attention: David Zhang and Jesse Sheley
If to the Guaranteed Party, as provided in Section 9.2 of the Merger Agreement.
11. Governing Law. This Limited Guarantee (except for the arbitration agreement in Section 12) shall be governed by and construed in accordance with the Laws of the State of New York without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
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12. Jurisdiction; Waiver of Service of Process.
(a) Jurisdiction. In the event any dispute arises among the parties hereto out of or in relation to this Limited Guarantee, including any dispute regarding its existence, interpretation, performance, breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly consultations within thirty (30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions of this Section 12. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre ("HKIAC") Administered Rules in force when a notice of arbitration is submitted. The seat and venue of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The law of the arbitration agreement shall be Hong Kong law. The appointing authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number, and one arbitrator shall be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from nominating their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within 30 days after such two arbitrators have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any person necessary for the conduct of the arbitration, unless otherwise required by Law or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and any interim or final award, as well as the fact that an arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after the submission of any dispute to arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter agreement, except insofar as the same may relate directly to the matters in dispute. The parties hereby agree that any arbitration award rendered in accordance with the provisions of this Section 12 shall be final and binding upon them, and the parties further agree that such award may be enforced by any court having jurisdiction over the party against which the award has been rendered or the assets of such party wherever the same may be located. In any arbitration proceeding, any legal proceeding to enforce any arbitration award and in any other legal proceeding among the Parties pursuant to or relating to this Agreement, each Party expressly waives the defense of sovereign immunity and any other defense based on the fact or allegation that it is an agency or instrumentality of a sovereign state or is otherwise entitled to immunity.
13. Representations and Warranties. The Guarantor hereby represents and warrants to the Guaranteed Party that:
(a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization;
(b) it has all necessary power and authority to execute, deliver and perform this Limited Guarantee;
(c) the execution, delivery and performance of this Limited Guarantee by the Guarantor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Guarantor are necessary therefor;
(d) all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Limited Guarantee by the Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution, delivery or performance of this Limited Guarantee;
(e) this Limited Guarantee has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the undersigned in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law));
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(f) the execution, delivery and performance by the undersigned of this Limited Guarantee do not and will not violate the organizational documents of the undersigned or violate any applicable law, regulation, rule, decree, order, judgment or contractual restriction binding on the Guarantor or its assets or properties; and
(g) it has the financial capacity to pay and perform its obligations under this Limited Guarantee, and all funds necessary for the Guarantor to fulfill its obligations under this Limited Guarantee shall be available to the Guarantor for so long as this Limited Guarantee shall remain in effect in accordance with Section 6.
14. No Assignment. Neither this Limited Guarantee nor any of the rights, interests or obligations hereunder shall be assignable without the prior written consent of the Guaranteed Party (in the case of an assignment by the Guarantor) or the Guarantor (in the case of an assignment by the Guaranteed Party).
15. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LIMITED GUARANTEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 15.
16. Severability. Any term or provision of this Limited Guarantee which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Limited Guarantee in any jurisdiction and, if any provision of this Limited Guarantee is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Maximum Amount provided in Section 1 hereof and to the provisions of Sections 3 and 5 hereof. No party hereto shall assert, and each party shall cause its respective Affiliates and subsidiaries not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.
17. Headings. Headings of the Sections of this Limited Guarantee are for convenience only and shall be given no substantive or interpretive effect whatsoever.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| China Merchants Wealth Asset Management Co., Ltd | ||
| (招商财富资产管理有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Shengzhang Zhao | |
| Name: Shengzhang Zhao | ||
| Title: Legal Representative and General Manager | ||
[Signature Page to Limited Guarantee]
IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Limited Guarantee]
Exhibit 99.97
Execution Version
LIMITED GUARANTEE
This Limited Guarantee, dated as of December 18, 2015 (this "Limited Guarantee"), is made by Huarong Ruize Investment Management Co., Ltd. (华融瑞泽投资管理有限公司), a limited liability company incorporated under the laws of the People’s Republic of China (including its successors and permitted assigns, the "Guarantor"), in favor of Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Guaranteed Party"). Reference is hereby made to the Agreement and Plan of Merger, dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), and the Guaranteed Party. Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Merger Agreement.
1. Limited Guarantee.
(a) To induce the Guaranteed Party to enter into the Merger Agreement, the Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, subject to the terms and conditions hereof, the due and punctual payment and performance when due of 1.61% of the Parent Parties' obligation (the "Guaranteed Obligation") to pay to the Guaranteed Party (i) the Parent Termination Fee if and when required pursuant to Section 8.2(c) of the Merger Agreement, and (ii) the payment obligations of the Parent Parties pursuant to Section 6.6 of the Merger Agreement; provided that the maximum aggregate liability of the Guarantor hereunder shall not exceed US$ 7,245,370 (the "Maximum Amount").
(b) The Guaranteed Party hereby agrees that (a) the Guarantor shall in no event be required to pay more than the Maximum Amount under or in respect of this Guarantee and (b) the Guarantor shall not have any obligation or liability to any Person (including, without limitation, to the Guaranteed Party's equity holders, Affiliates and/or subsidiaries) relating to, arising out of or in connection with this Limited Guarantee, the Merger Agreement, or the Equity Commitment Letter (as defined below) other than as expressly set forth herein or in the Equity Commitment Letter or the Escrow Agreement (as defined in the Equity Commitment Letter).
(c) The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by the Guaranteed Party in connection with the enforcement of its rights hereunder and under the Merger Agreement, including, without limitation, in the event that (i) the Guarantor asserts in any arbitration, litigation or other proceeding that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms and the Guaranteed Party prevails in such arbitration, litigation or other proceeding, or (ii) the Guarantor fails or refuses to make any payment to the Guaranteed Party hereunder when due and payable and it is determined judicially or by arbitration that the Guarantor is required to make such payment hereunder.
(d) The Guarantor promises and undertakes to make all payments hereunder free and clear of any deduction, offset, defense, claim or counterclaim of any kind. If the Parent Parties fail to pay or cause to be paid the Guaranteed Obligation as and when due and payable pursuant to Section 8.2(c) of the Merger Agreement, as applicable, then the Guarantor's liabilities to the Guaranteed Party hereunder in respect of such Guaranteed Obligation shall become immediately due and payable and the Guaranteed Party may at any time and from time to time, at the Guaranteed Party's option, and so long as the Parent Parties remain in breach of its Guaranteed Obligation, take any and all actions available hereunder or under applicable Law to collect the Guaranteed Obligation from the Guarantor subject to the Maximum Amount as applicable.
2. Terms of Limited Guarantee.
(a) This Limited Guarantee is a primary and original obligation of the Guarantor and is one of payment, not collection, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against any Parent Party or any other Person or whether any Parent Party or any other Person is joined in any such action or actions. Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantor under this Limited Guarantee and of the other guarantors under the other Limited Guarantees dated as of the date hereof ("Other Guarantors") shall be several and not joint.
(b) The liability of the Guarantor under this Limited Guarantee shall, to the fullest extent permitted under applicable law, be absolute, irrevocable and unconditional, irrespective of:
(i) the value, genuineness, validity, illegality or enforceability of the Merger Agreement or the letter agreement dated as of the date hereof between the Guarantor, on the one hand, and Holdco and Parent, on the other hand, pursuant to which the Guarantor has agreed to make a certain equity contribution to Holdco and Parent (the "Equity Commitment Letter") or any other agreement or instrument referred to herein or therein;
(ii) any change in the corporate existence, structure or ownership of any Parent Party or any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting any Parent Party, any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor) or any of their respective assets;
(iii) any amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof;
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(iv) the existence of any claim, set-off or other right that the Guarantor may have at any time against any Parent Party or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise;
(v) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against any Parent Party or the Guarantor or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation (other than as and if required by Section 2(a));
(vi) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of the Guaranteed Obligation;
(vii) any other act or omission that may in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment in full of the Guaranteed Obligation in accordance with their terms); or
(viii) the addition, substitution, discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Guaranteed Obligation as a result of payment in full of the Guaranteed Obligation in accordance with their terms) of any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor),
other than in each case with respect to (A) defenses to the payment of the Guaranteed Obligation that are available to any Parent Party under the Merger Agreement or (B) breach by the Guaranteed Party of this Limited Guarantee, including, without limitation, the limitations set forth in Section 3 below), and, notwithstanding any other provision of this Limited Guarantee to the contrary, the Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that any Parent Party could assert against the Company under the terms of, or with respect to, the Merger Agreement that would relieve each of the Parent Parties of its obligations under the Merger Agreement.
(c) To the fullest extent permitted by applicable law, the Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of the Guaranteed Obligation and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligation shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between the Parent Parties and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under no obligation to pursue such rights and remedies it may have against the Parent Parties or any other Person for the Guaranteed Obligation or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue such other rights or remedies or to collect any payments from the Parent Parties or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of the Parent Parties or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guaranteed Party.
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(d) To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, acceptance hereof, presentment, demand for payment, notice of non-performance, default, dishonor and protest, any notice not provided for herein, all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of any Parent Party or any other person interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligation that are available to the Parent Parties under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated under the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits.
(e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that the Parent Parties become subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantor's obligation hereunder. In the event that any payment to the Guaranteed Party in respect of the Guaranteed Obligation is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to the Guaranteed Obligation as if such payment had not been made so long as this Limited Guarantee has not terminated in accordance with its terms.
3. Sole Remedy; No Recourse. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party further agrees that neither it nor any other Person (including, without limitation, the Guaranteed Party's equityholders, Affiliates and subsidiaries) has any right of recovery against, and no personal liability shall attach to, the Guarantor, any former, current or future, director, officer, employee, agent or Affiliate of the Guarantor, any former, current or future, direct or indirect holder of any equity interests or securities of the Guarantor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or representative any of the foregoing (each such Person, a "Related Person"), through any Parent Party or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of any Parent Party against the Guarantor or any Related Person (except for any claim to compel Holdco and/or Parent to enforce the Equity Commitment Letter in accordance with the terms thereof), or otherwise, except for its rights against the Guarantor under this Limited Guarantee and the Escrow Agreement. Recourse against the Guarantor under this Limited Guarantee and the Escrow Agreement and the Guaranteed Party's rights under the Equity Commitment Letter shall be the sole and exclusive remedy of (i) the Guaranteed Party and (ii) all of the Guaranteed Party's equityholders, Affiliates and subsidiaries against the Guarantor and any Related Person (other than the Parent Parties and their respective successors and assigns) in respect of any liabilities or obligations arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby, including by piercing the corporate, limited liability company or limited partnership veil or by a claim by or on behalf of any Parent Party. The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Affiliates and subsidiaries not to institute, any proceeding or bring any other claim arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby (or the failure of such to be consummated), against the Guarantor or any Related Person, except for (A) claims of the Guaranteed Party against the Guarantor under and in accordance with this Limited Guarantee and the Escrow Agreement, (B) claims of the Guaranteed Party against the Parent Parties (and their respective successors and assigns) under and in accordance with the Merger Agreement and the Escrow Agreement, and (C) the exercise of the Guaranteed Party's rights under and in accordance with the Equity Commitment Letter, and the Guaranteed Party hereby, on behalf of itself and its Affiliates and subsidiaries, waives any and all claims arising under, or in connection with, the Merger Agreement, this Limited Guarantee, the Equity Commitment Letter, the Escrow Agreement or, in each case, the transactions contemplated hereby or thereby against the Guarantor or any Related Person and releases such Persons from such claims, in each case, except for claims described in clauses (A), (B) and (C) of this sentence (each, a "Permitted Claim"). Nothing set forth in this Limited Guarantee shall confer or give or shall be construed to confer or give to any Person (including any Person acting in a representative capacity) other than the Guaranteed Party any rights or remedies against any Person, including the Guarantor, except as expressly set forth herein.
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4. Subrogation. The Guarantor will not exercise against any Parent Party any rights of subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by reason of any payment by it pursuant to the provisions of Section 1 hereof unless and until the Guaranteed Obligation and all other amounts payable under this Limited Guarantee have been paid in full.
5. Termination. This Limited Guarantee shall terminate (and the Guarantor shall have no further obligations hereunder) upon the earliest to occur of (a) the Effective Time, (b) the payment in full of the Guaranteed Obligation and the obligation under Section 1(c), (c) the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would not be required pursuant to the terms and subject to the conditions of the Merger Agreement to make any payment of any Guaranteed Obligation; and (d) six months after the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would be required pursuant to the terms and subject to the conditions of the Merger Agreement to make a payment of the Guaranteed Obligation, unless by the end of such six-month period, the Guaranteed Party shall have initiated a claim or proceeding in accordance with the terms of the Merger Agreement for payment of any of the Guaranteed Obligations; provided that if the Guaranteed Party has initiated a claim or proceeding by the end of such six-month period, this Limited Guarantee shall terminate upon the date such claim or proceeding is finally satisfied or otherwise resolved by agreement of the parties hereto or pursuant to Section 12. In the event that the Guaranteed Party or any of its Affiliates or subsidiaries asserts in any litigation or other proceeding relating to this Limited Guarantee or the Merger Agreement (i) that the provisions hereof (including, without limitation, Section 1 hereof limiting the Guarantor's aggregate liability to the Maximum Amount or Section 3 hereof relating to the sole and exclusive remedies of the Guaranteed Party and its equityholders, Affiliates and subsidiaries against the Guarantor or any Related Person) are illegal, invalid or unenforceable, in whole or in part, or (ii) any theory of liability against the Guarantor or any Related Person or any other Guarantor under the other Limited Guarantees dated as of the date hereof or any Related Person of any such other Guarantor with respect to the transactions contemplated by this Limited Guarantee, the Equity Commitment Letter or the Merger Agreement other than any Permitted Claim, then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and be null and void, (y) if the Guarantor has previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments from the Guaranteed Party and (z) neither the Guarantor nor any Related Person (other than the Parent Parties and their respective successors and assigns) shall have any liability to the Guaranteed Party or any of its equityholders, Affiliates or subsidiaries with respect to the Merger Agreement or the transactions contemplated by the Merger Agreement or this Limited Guarantee.
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6. Continuing Guarantee. Except to the extent terminated pursuant to the provisions of Section 5 hereof, this Limited Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed Obligation and the obligation under Section 1(c), shall be binding upon the Guarantor, its successors and assigns, and shall inure to the benefit of, and be enforceable by, the Guaranteed Party and its successors, permitted transferees and permitted assigns; provided that notwithstanding anything to the contrary in this Limited Guarantee, the provisions of this Limited Guarantee that are for the benefit of any Related Person (including the provisions of Sections 3 and 5) shall indefinitely survive any termination of this Limited Guarantee for the benefit of the Guarantor and any Related Persons. All obligation to which this Limited Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
7. Entire Agreement. This Limited Guarantee, the Merger Agreement, the Equity Commitment Letter and the Escrow Agreement constitute the entire agreement with respect to the subject matter hereof, and supersede all other prior agreements and understandings, both written and oral, among the Parent Parties and/or the Guarantor or any of their respective Affiliates, on the one hand, and the Guaranteed Party or any of its Affiliates, on the other hand, regarding the subject matter hereof.
8. Amendments and Waivers. Any provision of this Limited Guarantee may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Guarantor and the Guaranteed Party or, in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by any party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
9. Counterparts. This Limited Guarantee may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
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10. Notices. All notices, requests, claims, demands and other communications hereunder shall be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressee's location on any Business Day after 5:00 p.m. (addressee's local time) shall be deemed to have been received at 9:00 a.m. (addressee's local time) on the next Business Day), by reliable international overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:
if to the Guarantor:
HUARONG RUIZE INVESTMENT MANAGERMENT CO.,LTD
(华融瑞泽投资管理公司)
C/O Chaoyang District, Beijing Chaoyang Gate North Street
China PICC Life Insurance Building, 16th floor, 18
with copies to:
Kirkland & Ellis
26th Floor, Glouster Tower, The Landmark
15 Queen's Road Central
Hong Kong
Facsimile: +852-3761-3301
Attention: David Zhang and Jesse Sheley
If to the Guaranteed Party, as provided in Section 9.2 of the Merger Agreement.
11. Governing Law. This Limited Guarantee (except for the arbitration agreement in Section 12) shall be governed by and construed in accordance with the Laws of the State of New York without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
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12. Jurisdiction; Waiver of Service of Process.
(a) Jurisdiction. In the event any dispute arises among the parties hereto out of or in relation to this Limited Guarantee, including any dispute regarding its existence, interpretation, performance, breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly consultations within thirty (30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions of this Section 12. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre ("HKIAC") Administered Rules in force when a notice of arbitration is submitted. The seat and venue of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The law of the arbitration agreement shall be Hong Kong law. The appointing authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number, and one arbitrator shall be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from nominating their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within 30 days after such two arbitrators have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any person necessary for the conduct of the arbitration, unless otherwise required by Law or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and any interim or final award, as well as the fact that an arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after the submission of any dispute to arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter agreement, except insofar as the same may relate directly to the matters in dispute. The parties hereby agree that any arbitration award rendered in accordance with the provisions of this Section 12 shall be final and binding upon them, and the parties further agree that such award may be enforced by any court having jurisdiction over the party against which the award has been rendered or the assets of such party wherever the same may be located. In any arbitration proceeding, any legal proceeding to enforce any arbitration award and in any other legal proceeding among the Parties pursuant to or relating to this Agreement, each Party expressly waives the defense of sovereign immunity and any other defense based on the fact or allegation that it is an agency or instrumentality of a sovereign state or is otherwise entitled to immunity.
13. Representations and Warranties. The Guarantor hereby represents and warrants to the Guaranteed Party that:
(a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization;
(b) it has all necessary power and authority to execute, deliver and perform this Limited Guarantee;
(c) the execution, delivery and performance of this Limited Guarantee by the Guarantor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Guarantor are necessary therefor;
(d) all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Limited Guarantee by the Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution, delivery or performance of this Limited Guarantee;
(e) this Limited Guarantee has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the undersigned in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law));
(f) the execution, delivery and performance by the undersigned of this Limited Guarantee do not and will not violate the organizational documents of the undersigned or violate any applicable law, regulation, rule, decree, order, judgment or contractual restriction binding on the Guarantor or its assets or properties; and
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(g) it has the financial capacity to pay and perform its obligations under this Limited Guarantee, and all funds necessary for the Guarantor to fulfill its obligations under this Limited Guarantee shall be available to the Guarantor for so long as this Limited Guarantee shall remain in effect in accordance with Section 6.
14. No Assignment. Neither this Limited Guarantee nor any of the rights, interests or obligations hereunder shall be assignable without the prior written consent of the Guaranteed Party (in the case of an assignment by the Guarantor) or the Guarantor (in the case of an assignment by the Guaranteed Party).
15. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LIMITED GUARANTEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 15.
16. Severability. Any term or provision of this Limited Guarantee which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Limited Guarantee in any jurisdiction and, if any provision of this Limited Guarantee is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Maximum Amount provided in Section 1 hereof and to the provisions of Sections 3 and 5 hereof. No party hereto shall assert, and each party shall cause its respective Affiliates and subsidiaries not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.
17. Headings. Headings of the Sections of this Limited Guarantee are for convenience only and shall be given no substantive or interpretive effect whatsoever.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| HUARONG RUIZE INVESTMENT MANAGEMENT CO., LTD. | ||
| (华融瑞泽投资管理有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Xiaomao Yuan | |
| Name: Xiaomao Yuan | ||
| Title: General Manager | ||
[Signature Page to Limited Guarantee]
IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Limited Guarantee]
Exhibit 99.98
Execution Version
LIMITED GUARANTEE
This Limited Guarantee, dated as of December 18, 2015 (this "Limited Guarantee"), is made by Beijing Sequoia Yi Yuan Equity Investment Center (Limited Partnership) (北京红杉懿远股权投资中心 (有限合伙)), a limited partnership formed under the laws of the People’s Republic of China (including its successors and permitted assigns, the "Guarantor"), in favor of Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Guaranteed Party"). Reference is hereby made to the Agreement and Plan of Merger, dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), and the Guaranteed Party. Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Merger Agreement.
1. Limited Guarantee.
(a) To induce the Guaranteed Party to enter into the Merger Agreement, the Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, subject to the terms and conditions hereof, the due and punctual payment and performance when due of 4.33% of the Parent Parties' obligation (the "Guaranteed Obligation") to pay to the Guaranteed Party (i) the Parent Termination Fee if and when required pursuant to Section 8.2(c) of the Merger Agreement, and (ii) the payment obligations of the Parent Parties pursuant to Section 6.6 of the Merger Agreement; provided that the maximum aggregate liability of the Guarantor hereunder shall not exceed US$ 19,506,764 (the "Maximum Amount").
(b) The Guaranteed Party hereby agrees that (a) the Guarantor shall in no event be required to pay more than the Maximum Amount under or in respect of this Guarantee and (b) the Guarantor shall not have any obligation or liability to any Person (including, without limitation, to the Guaranteed Party's equity holders, Affiliates and/or subsidiaries) relating to, arising out of or in connection with this Limited Guarantee, the Merger Agreement, or the Equity Commitment Letter (as defined below) other than as expressly set forth herein or in the Equity Commitment Letter or the Escrow Agreement (as defined in the Equity Commitment Letter).
(c) The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by the Guaranteed Party in connection with the enforcement of its rights hereunder and under the Merger Agreement, including, without limitation, in the event that (i) the Guarantor asserts in any arbitration, litigation or other proceeding that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms and the Guaranteed Party prevails in such arbitration, litigation or other proceeding, or (ii) the Guarantor fails or refuses to make any payment to the Guaranteed Party hereunder when due and payable and it is determined judicially or by arbitration that the Guarantor is required to make such payment hereunder.
(d) The Guarantor promises and undertakes to make all payments hereunder free and clear of any deduction, offset, defense, claim or counterclaim of any kind. If the Parent Parties fail to pay or cause to be paid the Guaranteed Obligation as and when due and payable pursuant to Section 8.2(c) of the Merger Agreement, as applicable, then the Guarantor's liabilities to the Guaranteed Party hereunder in respect of such Guaranteed Obligation shall become immediately due and payable and the Guaranteed Party may at any time and from time to time, at the Guaranteed Party's option, and so long as the Parent Parties remain in breach of its Guaranteed Obligation, take any and all actions available hereunder or under applicable Law to collect the Guaranteed Obligation from the Guarantor subject to the Maximum Amount as applicable.
2. Terms of Limited Guarantee.
(a) This Limited Guarantee is a primary and original obligation of the Guarantor and is one of payment, not collection, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against any Parent Party or any other Person or whether any Parent Party or any other Person is joined in any such action or actions. Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantor under this Limited Guarantee and of the other guarantors under the other Limited Guarantees dated as of the date hereof ("Other Guarantors") shall be several and not joint.
(b) The liability of the Guarantor under this Limited Guarantee shall, to the fullest extent permitted under applicable law, be absolute, irrevocable and unconditional, irrespective of:
(i) the value, genuineness, validity, illegality or enforceability of the Merger Agreement or the letter agreement dated as of the date hereof between the Guarantor, on the one hand, and Holdco and Parent, on the other hand, pursuant to which the Guarantor has agreed to make a certain equity contribution to Holdco and Parent (the "Equity Commitment Letter") or any other agreement or instrument referred to herein or therein;
(ii) any change in the corporate existence, structure or ownership of any Parent Party or any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting any Parent Party, any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor) or any of their respective assets;
(iii) any amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof;
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(iv) the existence of any claim, set-off or other right that the Guarantor may have at any time against any Parent Party or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise;
(v) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against any Parent Party or the Guarantor or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation (other than as and if required by Section 2(a));
(vi) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of the Guaranteed Obligation;
(vii) any other act or omission that may in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment in full of the Guaranteed Obligation in accordance with their terms); or
(viii) the addition, substitution, discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Guaranteed Obligation as a result of payment in full of the Guaranteed Obligation in accordance with their terms) of any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor),
other than in each case with respect to (A) defenses to the payment of the Guaranteed Obligation that are available to any Parent Party under the Merger Agreement or (B) breach by the Guaranteed Party of this Limited Guarantee, including, without limitation, the limitations set forth in Section 3 below), and, notwithstanding any other provision of this Limited Guarantee to the contrary, the Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that any Parent Party could assert against the Company under the terms of, or with respect to, the Merger Agreement that would relieve each of the Parent Parties of its obligations under the Merger Agreement.
(c) To the fullest extent permitted by applicable law, the Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of the Guaranteed Obligation and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligation shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between the Parent Parties and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under no obligation to pursue such rights and remedies it may have against the Parent Parties or any other Person for the Guaranteed Obligation or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue such other rights or remedies or to collect any payments from the Parent Parties or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of the Parent Parties or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guaranteed Party.
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(d) To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, acceptance hereof, presentment, demand for payment, notice of non-performance, default, dishonor and protest, any notice not provided for herein, all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of any Parent Party or any other person interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligation that are available to the Parent Parties under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated under the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits.
(e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that the Parent Parties become subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantor's obligation hereunder. In the event that any payment to the Guaranteed Party in respect of the Guaranteed Obligation is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to the Guaranteed Obligation as if such payment had not been made so long as this Limited Guarantee has not terminated in accordance with its terms.
3. Sole Remedy; No Recourse. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party further agrees that neither it nor any other Person (including, without limitation, the Guaranteed Party's equityholders, Affiliates and subsidiaries) has any right of recovery against, and no personal liability shall attach to, the Guarantor, any former, current or future, director, officer, employee, agent or Affiliate of the Guarantor, any former, current or future, direct or indirect holder of any equity interests or securities of the Guarantor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or representative any of the foregoing (each such Person, a "Related Person"), through any Parent Party or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of any Parent Party against the Guarantor or any Related Person (except for any claim to compel Holdco and/or Parent to enforce the Equity Commitment Letter in accordance with the terms thereof), or otherwise, except for its rights against the Guarantor under this Limited Guarantee and the Escrow Agreement. Recourse against the Guarantor under this Limited Guarantee and the Escrow Agreement and the Guaranteed Party's rights under the Equity Commitment Letter shall be the sole and exclusive remedy of (i) the Guaranteed Party and (ii) all of the Guaranteed Party's equityholders, Affiliates and subsidiaries against the Guarantor and any Related Person (other than the Parent Parties and their respective successors and assigns) in respect of any liabilities or obligations arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby, including by piercing the corporate, limited liability company or limited partnership veil or by a claim by or on behalf of any Parent Party. The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Affiliates and subsidiaries not to institute, any proceeding or bring any other claim arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby (or the failure of such to be consummated), against the Guarantor or any Related Person, except for (A) claims of the Guaranteed Party against the Guarantor under and in accordance with this Limited Guarantee and the Escrow Agreement, (B) claims of the Guaranteed Party against the Parent Parties (and their respective successors and assigns) under and in accordance with the Merger Agreement and the Escrow Agreement, and (C) the exercise of the Guaranteed Party's rights under and in accordance with the Equity Commitment Letter, and the Guaranteed Party hereby, on behalf of itself and its Affiliates and subsidiaries, waives any and all claims arising under, or in connection with, the Merger Agreement, this Limited Guarantee, the Equity Commitment Letter, the Escrow Agreement or, in each case, the transactions contemplated hereby or thereby against the Guarantor or any Related Person and releases such Persons from such claims, in each case, except for claims described in clauses (A), (B) and (C) of this sentence (each, a "Permitted Claim"). Nothing set forth in this Limited Guarantee shall confer or give or shall be construed to confer or give to any Person (including any Person acting in a representative capacity) other than the Guaranteed Party any rights or remedies against any Person, including the Guarantor, except as expressly set forth herein.
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4. Subrogation. The Guarantor will not exercise against any Parent Party any rights of subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by reason of any payment by it pursuant to the provisions of Section 1 hereof unless and until the Guaranteed Obligation and all other amounts payable under this Limited Guarantee have been paid in full.
5. Termination. This Limited Guarantee shall terminate (and the Guarantor shall have no further obligations hereunder) upon the earliest to occur of (a) the Effective Time, (b) the payment in full of the Guaranteed Obligation and the obligation under Section 1(c), (c) the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would not be required pursuant to the terms and subject to the conditions of the Merger Agreement to make any payment of any Guaranteed Obligation; and (d) six months after the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would be required pursuant to the terms and subject to the conditions of the Merger Agreement to make a payment of the Guaranteed Obligation, unless by the end of such six-month period, the Guaranteed Party shall have initiated a claim or proceeding in accordance with the terms of the Merger Agreement for payment of any of the Guaranteed Obligations; provided that if the Guaranteed Party has initiated a claim or proceeding by the end of such six-month period, this Limited Guarantee shall terminate upon the date such claim or proceeding is finally satisfied or otherwise resolved by agreement of the parties hereto or pursuant to Section 12. In the event that the Guaranteed Party or any of its Affiliates or subsidiaries asserts in any litigation or other proceeding relating to this Limited Guarantee or the Merger Agreement (i) that the provisions hereof (including, without limitation, Section 1 hereof limiting the Guarantor's aggregate liability to the Maximum Amount or Section 3 hereof relating to the sole and exclusive remedies of the Guaranteed Party and its equityholders, Affiliates and subsidiaries against the Guarantor or any Related Person) are illegal, invalid or unenforceable, in whole or in part, or (ii) any theory of liability against the Guarantor or any Related Person or any other Guarantor under the other Limited Guarantees dated as of the date hereof or any Related Person of any such other Guarantor with respect to the transactions contemplated by this Limited Guarantee, the Equity Commitment Letter or the Merger Agreement other than any Permitted Claim, then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and be null and void, (y) if the Guarantor has previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments from the Guaranteed Party and (z) neither the Guarantor nor any Related Person (other than the Parent Parties and their respective successors and assigns) shall have any liability to the Guaranteed Party or any of its equityholders, Affiliates or subsidiaries with respect to the Merger Agreement or the transactions contemplated by the Merger Agreement or this Limited Guarantee.
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6. Continuing Guarantee. Except to the extent terminated pursuant to the provisions of Section 5 hereof, this Limited Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed Obligation and the obligation under Section 1(c), shall be binding upon the Guarantor, its successors and assigns, and shall inure to the benefit of, and be enforceable by, the Guaranteed Party and its successors, permitted transferees and permitted assigns; provided that notwithstanding anything to the contrary in this Limited Guarantee, the provisions of this Limited Guarantee that are for the benefit of any Related Person (including the provisions of Sections 3 and 5) shall indefinitely survive any termination of this Limited Guarantee for the benefit of the Guarantor and any Related Persons. All obligation to which this Limited Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
7. Entire Agreement. This Limited Guarantee, the Merger Agreement, the Equity Commitment Letter and the Escrow Agreement constitute the entire agreement with respect to the subject matter hereof, and supersede all other prior agreements and understandings, both written and oral, among the Parent Parties and/or the Guarantor or any of their respective Affiliates, on the one hand, and the Guaranteed Party or any of its Affiliates, on the other hand, regarding the subject matter hereof.
8. Amendments and Waivers. Any provision of this Limited Guarantee may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Guarantor and the Guaranteed Party or, in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by any party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
9. Counterparts. This Limited Guarantee may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
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10. Notices. All notices, requests, claims, demands and other communications hereunder shall be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressee's location on any Business Day after 5:00 p.m. (addressee's local time) shall be deemed to have been received at 9:00 a.m. (addressee's local time) on the next Business Day), by reliable international overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:
if to the Guarantor:
Beijing Sequoia Yi Yuan Equity Investment Center (Limited Partnership)
(北京红杉懿远股权投资中心 (有限合伙))
Room 3606, China Central Place Tower 3
77 Jianguo Road, Beijing 100025, China
Facsimile: 010-84475669
Attention: Robert Zhang
with copies to:
Kirkland & Ellis
26th Floor, Glouster Tower, The Landmark
15 Queen's Road Central
Hong Kong
Facsimile: +852-3761-3301
Attention: David Zhang and Jesse Sheley
If to the Guaranteed Party, as provided in Section 9.2 of the Merger Agreement.
11. Governing Law. This Limited Guarantee (except for the arbitration agreement in Section 12) shall be governed by and construed in accordance with the Laws of the State of New York without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
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12. Jurisdiction; Waiver of Service of Process.
(a) Jurisdiction. In the event any dispute arises among the parties hereto out of or in relation to this Limited Guarantee, including any dispute regarding its existence, interpretation, performance, breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly consultations within thirty (30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions of this Section 12. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre ("HKIAC") Administered Rules in force when a notice of arbitration is submitted. The seat and venue of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The law of the arbitration agreement shall be Hong Kong law. The appointing authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number, and one arbitrator shall be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from nominating their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within 30 days after such two arbitrators have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any person necessary for the conduct of the arbitration, unless otherwise required by Law or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and any interim or final award, as well as the fact that an arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after the submission of any dispute to arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter agreement, except insofar as the same may relate directly to the matters in dispute. The parties hereby agree that any arbitration award rendered in accordance with the provisions of this Section 12 shall be final and binding upon them, and the parties further agree that such award may be enforced by any court having jurisdiction over the party against which the award has been rendered or the assets of such party wherever the same may be located. In any arbitration proceeding, any legal proceeding to enforce any arbitration award and in any other legal proceeding among the Parties pursuant to or relating to this Agreement, each Party expressly waives the defense of sovereign immunity and any other defense based on the fact or allegation that it is an agency or instrumentality of a sovereign state or is otherwise entitled to immunity.
13. Representations and Warranties. The Guarantor hereby represents and warrants to the Guaranteed Party that:
(a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization;
(b) it has all necessary power and authority to execute, deliver and perform this Limited Guarantee;
(c) the execution, delivery and performance of this Limited Guarantee by the Guarantor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Guarantor are necessary therefor;
(d) all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Limited Guarantee by the Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution, delivery or performance of this Limited Guarantee;
(e) this Limited Guarantee has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the undersigned in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law));
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(f) the execution, delivery and performance by the undersigned of this Limited Guarantee do not and will not violate the organizational documents of the undersigned or violate any applicable law, regulation, rule, decree, order, judgment or contractual restriction binding on the Guarantor or its assets or properties; and
(g) it has the financial capacity to pay and perform its obligations under this Limited Guarantee, and all funds necessary for the Guarantor to fulfill its obligations under this Limited Guarantee shall be available to the Guarantor for so long as this Limited Guarantee shall remain in effect in accordance with Section 6.
14. No Assignment. Neither this Limited Guarantee nor any of the rights, interests or obligations hereunder shall be assignable without the prior written consent of the Guaranteed Party (in the case of an assignment by the Guarantor) or the Guarantor (in the case of an assignment by the Guaranteed Party).
15. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LIMITED GUARANTEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 15.
16. Severability. Any term or provision of this Limited Guarantee which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Limited Guarantee in any jurisdiction and, if any provision of this Limited Guarantee is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Maximum Amount provided in Section 1 hereof and to the provisions of Sections 3 and 5 hereof. No party hereto shall assert, and each party shall cause its respective Affiliates and subsidiaries not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.
17. Headings. Headings of the Sections of this Limited Guarantee are for convenience only and shall be given no substantive or interpretive effect whatsoever.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Beijing Sequoia Yi Yuan Equity Investment Center (Limited Partnership) | ||
| (北京红杉懿远股权投资中心 (有限合伙)) | ||
| [Company chop is affixed] | ||
| By: | /s/ Kui Zhou | |
| Name: Kui Zhou | ||
| Title: Authorized Representative of Executive Partner | ||
[Signature Page to Limited Guarantee]
IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Limited Guarantee]
Exhibit 99.99
Execution Version
LIMITED GUARANTEE
This Limited Guarantee, dated as of December 18, 2015 (this "Limited Guarantee"), is made by Golden Brick Silk Road Investment (Shenzhen) LLP (金砖丝路投资 (深圳) 合伙企业 (有限合伙)), a limited partnership formed under the laws of the People’s Republic of China (including its successors and permitted assigns, the "Guarantor"), in favor of Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Guaranteed Party"). Reference is hereby made to the Agreement and Plan of Merger, dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), and the Guaranteed Party. Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Merger Agreement.
1. Limited Guarantee.
(a) To induce the Guaranteed Party to enter into the Merger Agreement, the Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, subject to the terms and conditions hereof, the due and punctual payment and performance when due of 4.33% of the Parent Parties' obligation (the "Guaranteed Obligation") to pay to the Guaranteed Party (i) the Parent Termination Fee if and when required pursuant to Section 8.2(c) of the Merger Agreement, and (ii) the payment obligations of the Parent Parties pursuant to Section 6.6 of the Merger Agreement; provided that the maximum aggregate liability of the Guarantor hereunder shall not exceed US$ 19,506,764 (the "Maximum Amount").
(b) The Guaranteed Party hereby agrees that (a) the Guarantor shall in no event be required to pay more than the Maximum Amount under or in respect of this Guarantee and (b) the Guarantor shall not have any obligation or liability to any Person (including, without limitation, to the Guaranteed Party's equity holders, Affiliates and/or subsidiaries) relating to, arising out of or in connection with this Limited Guarantee, the Merger Agreement, or the Equity Commitment Letter (as defined below) other than as expressly set forth herein or in the Equity Commitment Letter or the Escrow Agreement (as defined in the Equity Commitment Letter).
(c) The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by the Guaranteed Party in connection with the enforcement of its rights hereunder and under the Merger Agreement, including, without limitation, in the event that (i) the Guarantor asserts in any arbitration, litigation or other proceeding that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms and the Guaranteed Party prevails in such arbitration, litigation or other proceeding, or (ii) the Guarantor fails or refuses to make any payment to the Guaranteed Party hereunder when due and payable and it is determined judicially or by arbitration that the Guarantor is required to make such payment hereunder.
(d) The Guarantor promises and undertakes to make all payments hereunder free and clear of any deduction, offset, defense, claim or counterclaim of any kind. If the Parent Parties fail to pay or cause to be paid the Guaranteed Obligation as and when due and payable pursuant to Section 8.2(c) of the Merger Agreement, as applicable, then the Guarantor's liabilities to the Guaranteed Party hereunder in respect of such Guaranteed Obligation shall become immediately due and payable and the Guaranteed Party may at any time and from time to time, at the Guaranteed Party's option, and so long as the Parent Parties remain in breach of its Guaranteed Obligation, take any and all actions available hereunder or under applicable Law to collect the Guaranteed Obligation from the Guarantor subject to the Maximum Amount as applicable.
2. Terms of Limited Guarantee.
(a) This Limited Guarantee is a primary and original obligation of the Guarantor and is one of payment, not collection, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against any Parent Party or any other Person or whether any Parent Party or any other Person is joined in any such action or actions. Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantor under this Limited Guarantee and of the other guarantors under the other Limited Guarantees dated as of the date hereof ("Other Guarantors") shall be several and not joint.
(b) The liability of the Guarantor under this Limited Guarantee shall, to the fullest extent permitted under applicable law, be absolute, irrevocable and unconditional, irrespective of:
(i) the value, genuineness, validity, illegality or enforceability of the Merger Agreement or the letter agreement dated as of the date hereof between the Guarantor, on the one hand, and Holdco and Parent, on the other hand, pursuant to which the Guarantor has agreed to make a certain equity contribution to Holdco and Parent (the "Equity Commitment Letter") or any other agreement or instrument referred to herein or therein;
(ii) any change in the corporate existence, structure or ownership of any Parent Party or any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting any Parent Party, any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor) or any of their respective assets;
(iii) any amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof;
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(iv) the existence of any claim, set-off or other right that the Guarantor may have at any time against any Parent Party or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise;
(v) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against any Parent Party or the Guarantor or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation (other than as and if required by Section 2(a));
(vi) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of the Guaranteed Obligation;
(vii) any other act or omission that may in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment in full of the Guaranteed Obligation in accordance with their terms); or
(viii) the addition, substitution, discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Guaranteed Obligation as a result of payment in full of the Guaranteed Obligation in accordance with their terms) of any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor),
other than in each case with respect to (A) defenses to the payment of the Guaranteed Obligation that are available to any Parent Party under the Merger Agreement or (B) breach by the Guaranteed Party of this Limited Guarantee, including, without limitation, the limitations set forth in Section 3 below), and, notwithstanding any other provision of this Limited Guarantee to the contrary, the Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that any Parent Party could assert against the Company under the terms of, or with respect to, the Merger Agreement that would relieve each of the Parent Parties of its obligations under the Merger Agreement.
(c) To the fullest extent permitted by applicable law, the Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of the Guaranteed Obligation and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligation shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between the Parent Parties and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under no obligation to pursue such rights and remedies it may have against the Parent Parties or any other Person for the Guaranteed Obligation or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue such other rights or remedies or to collect any payments from the Parent Parties or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of the Parent Parties or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guaranteed Party.
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(d) To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, acceptance hereof, presentment, demand for payment, notice of non-performance, default, dishonor and protest, any notice not provided for herein, all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of any Parent Party or any other person interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligation that are available to the Parent Parties under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated under the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits.
(e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that the Parent Parties become subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantor's obligation hereunder. In the event that any payment to the Guaranteed Party in respect of the Guaranteed Obligation is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to the Guaranteed Obligation as if such payment had not been made so long as this Limited Guarantee has not terminated in accordance with its terms.
3. Sole Remedy; No Recourse. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party further agrees that neither it nor any other Person (including, without limitation, the Guaranteed Party's equityholders, Affiliates and subsidiaries) has any right of recovery against, and no personal liability shall attach to, the Guarantor, any former, current or future, director, officer, employee, agent or Affiliate of the Guarantor, any former, current or future, direct or indirect holder of any equity interests or securities of the Guarantor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or representative any of the foregoing (each such Person, a "Related Person"), through any Parent Party or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of any Parent Party against the Guarantor or any Related Person (except for any claim to compel Holdco and/or Parent to enforce the Equity Commitment Letter in accordance with the terms thereof), or otherwise, except for its rights against the Guarantor under this Limited Guarantee and the Escrow Agreement. Recourse against the Guarantor under this Limited Guarantee and the Escrow Agreement and the Guaranteed Party's rights under the Equity Commitment Letter shall be the sole and exclusive remedy of (i) the Guaranteed Party and (ii) all of the Guaranteed Party's equityholders, Affiliates and subsidiaries against the Guarantor and any Related Person (other than the Parent Parties and their respective successors and assigns) in respect of any liabilities or obligations arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby, including by piercing the corporate, limited liability company or limited partnership veil or by a claim by or on behalf of any Parent Party. The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Affiliates and subsidiaries not to institute, any proceeding or bring any other claim arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby (or the failure of such to be consummated), against the Guarantor or any Related Person, except for (A) claims of the Guaranteed Party against the Guarantor under and in accordance with this Limited Guarantee and the Escrow Agreement, (B) claims of the Guaranteed Party against the Parent Parties (and their respective successors and assigns) under and in accordance with the Merger Agreement and the Escrow Agreement, and (C) the exercise of the Guaranteed Party's rights under and in accordance with the Equity Commitment Letter, and the Guaranteed Party hereby, on behalf of itself and its Affiliates and subsidiaries, waives any and all claims arising under, or in connection with, the Merger Agreement, this Limited Guarantee, the Equity Commitment Letter, the Escrow Agreement or, in each case, the transactions contemplated hereby or thereby against the Guarantor or any Related Person and releases such Persons from such claims, in each case, except for claims described in clauses (A), (B) and (C) of this sentence (each, a "Permitted Claim"). Nothing set forth in this Limited Guarantee shall confer or give or shall be construed to confer or give to any Person (including any Person acting in a representative capacity) other than the Guaranteed Party any rights or remedies against any Person, including the Guarantor, except as expressly set forth herein.
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4. Subrogation. The Guarantor will not exercise against any Parent Party any rights of subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by reason of any payment by it pursuant to the provisions of Section 1 hereof unless and until the Guaranteed Obligation and all other amounts payable under this Limited Guarantee have been paid in full.
5. Termination. This Limited Guarantee shall terminate (and the Guarantor shall have no further obligations hereunder) upon the earliest to occur of (a) the Effective Time, (b) the payment in full of the Guaranteed Obligation and the obligation under Section 1(c), (c) the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would not be required pursuant to the terms and subject to the conditions of the Merger Agreement to make any payment of any Guaranteed Obligation; and (d) six months after the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would be required pursuant to the terms and subject to the conditions of the Merger Agreement to make a payment of the Guaranteed Obligation, unless by the end of such six-month period, the Guaranteed Party shall have initiated a claim or proceeding in accordance with the terms of the Merger Agreement for payment of any of the Guaranteed Obligations; provided that if the Guaranteed Party has initiated a claim or proceeding by the end of such six-month period, this Limited Guarantee shall terminate upon the date such claim or proceeding is finally satisfied or otherwise resolved by agreement of the parties hereto or pursuant to Section 12. In the event that the Guaranteed Party or any of its Affiliates or subsidiaries asserts in any litigation or other proceeding relating to this Limited Guarantee or the Merger Agreement (i) that the provisions hereof (including, without limitation, Section 1 hereof limiting the Guarantor's aggregate liability to the Maximum Amount or Section 3 hereof relating to the sole and exclusive remedies of the Guaranteed Party and its equityholders, Affiliates and subsidiaries against the Guarantor or any Related Person) are illegal, invalid or unenforceable, in whole or in part, or (ii) any theory of liability against the Guarantor or any Related Person or any other Guarantor under the other Limited Guarantees dated as of the date hereof or any Related Person of any such other Guarantor with respect to the transactions contemplated by this Limited Guarantee, the Equity Commitment Letter or the Merger Agreement other than any Permitted Claim, then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and be null and void, (y) if the Guarantor has previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments from the Guaranteed Party and (z) neither the Guarantor nor any Related Person (other than the Parent Parties and their respective successors and assigns) shall have any liability to the Guaranteed Party or any of its equityholders, Affiliates or subsidiaries with respect to the Merger Agreement or the transactions contemplated by the Merger Agreement or this Limited Guarantee.
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6. Continuing Guarantee. Except to the extent terminated pursuant to the provisions of Section 5 hereof, this Limited Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed Obligation and the obligation under Section 1(c), shall be binding upon the Guarantor, its successors and assigns, and shall inure to the benefit of, and be enforceable by, the Guaranteed Party and its successors, permitted transferees and permitted assigns; provided that notwithstanding anything to the contrary in this Limited Guarantee, the provisions of this Limited Guarantee that are for the benefit of any Related Person (including the provisions of Sections 3 and 5) shall indefinitely survive any termination of this Limited Guarantee for the benefit of the Guarantor and any Related Persons. All obligation to which this Limited Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
7. Entire Agreement. This Limited Guarantee, the Merger Agreement, the Equity Commitment Letter and the Escrow Agreement constitute the entire agreement with respect to the subject matter hereof, and supersede all other prior agreements and understandings, both written and oral, among the Parent Parties and/or the Guarantor or any of their respective Affiliates, on the one hand, and the Guaranteed Party or any of its Affiliates, on the other hand, regarding the subject matter hereof.
8. Amendments and Waivers. Any provision of this Limited Guarantee may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Guarantor and the Guaranteed Party or, in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by any party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
9. Counterparts. This Limited Guarantee may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
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10. Notices. All notices, requests, claims, demands and other communications hereunder shall be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressee's location on any Business Day after 5:00 p.m. (addressee's local time) shall be deemed to have been received at 9:00 a.m. (addressee's local time) on the next Business Day), by reliable international overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:
if to the Guarantor:
Golden Brick Silk Road (Shenzhen) Equity Investment Fund LLP
(金砖丝路 (深圳) 股权投资合伙企业 (有限合伙))
12/F, Tower A, Ping An International Finance Center
No. 1-3 Xinyuan Road South
Chaoyang District, Beijing
Facsimile: (10) 57351999
Attention: Yuping He
with copies to:
Kirkland & Ellis
26th Floor, Glouster Tower, The Landmark
15 Queen's Road Central
Hong Kong
Facsimile: +852-3761-3301
Attention: David Zhang and Jesse Sheley
If to the Guaranteed Party, as provided in Section 9.2 of the Merger Agreement.
11. Governing Law. This Limited Guarantee (except for the arbitration agreement in Section 12) shall be governed by and construed in accordance with the Laws of the State of New York without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
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12. Jurisdiction; Waiver of Service of Process.
(a) Jurisdiction. In the event any dispute arises among the parties hereto out of or in relation to this Limited Guarantee, including any dispute regarding its existence, interpretation, performance, breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly consultations within thirty (30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions of this Section 12. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre ("HKIAC") Administered Rules in force when a notice of arbitration is submitted. The seat and venue of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The law of the arbitration agreement shall be Hong Kong law. The appointing authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number, and one arbitrator shall be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from nominating their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within 30 days after such two arbitrators have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any person necessary for the conduct of the arbitration, unless otherwise required by Law or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and any interim or final award, as well as the fact that an arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after the submission of any dispute to arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter agreement, except insofar as the same may relate directly to the matters in dispute. The parties hereby agree that any arbitration award rendered in accordance with the provisions of this Section 12 shall be final and binding upon them, and the parties further agree that such award may be enforced by any court having jurisdiction over the party against which the award has been rendered or the assets of such party wherever the same may be located. In any arbitration proceeding, any legal proceeding to enforce any arbitration award and in any other legal proceeding among the Parties pursuant to or relating to this Agreement, each Party expressly waives the defense of sovereign immunity and any other defense based on the fact or allegation that it is an agency or instrumentality of a sovereign state or is otherwise entitled to immunity.
13. Representations and Warranties. The Guarantor hereby represents and warrants to the Guaranteed Party that:
(a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization;
(b) it has all necessary power and authority to execute, deliver and perform this Limited Guarantee;
(c) the execution, delivery and performance of this Limited Guarantee by the Guarantor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Guarantor are necessary therefor;
(d) all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Limited Guarantee by the Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution, delivery or performance of this Limited Guarantee;
(e) this Limited Guarantee has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the undersigned in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law));
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(f) the execution, delivery and performance by the undersigned of this Limited Guarantee do not and will not violate the organizational documents of the undersigned or violate any applicable law, regulation, rule, decree, order, judgment or contractual restriction binding on the Guarantor or its assets or properties; and
(g) it has the financial capacity to pay and perform its obligations under this Limited Guarantee, and all funds necessary for the Guarantor to fulfill its obligations under this Limited Guarantee shall be available to the Guarantor for so long as this Limited Guarantee shall remain in effect in accordance with Section 6.
14. No Assignment. Neither this Limited Guarantee nor any of the rights, interests or obligations hereunder shall be assignable without the prior written consent of the Guaranteed Party (in the case of an assignment by the Guarantor) or the Guarantor (in the case of an assignment by the Guaranteed Party).
15. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LIMITED GUARANTEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 15.
16. Severability. Any term or provision of this Limited Guarantee which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Limited Guarantee in any jurisdiction and, if any provision of this Limited Guarantee is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Maximum Amount provided in Section 1 hereof and to the provisions of Sections 3 and 5 hereof. No party hereto shall assert, and each party shall cause its respective Affiliates and subsidiaries not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.
17. Headings. Headings of the Sections of this Limited Guarantee are for convenience only and shall be given no substantive or interpretive effect whatsoever.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Golden Brick Silk Road Investment (Shenzhen) LLP | ||
| (金砖丝路投资 (深圳) 合伙企业 | ||
| (有限合伙)) | ||
| [Company chop is affixed] | ||
| By: | /s/ Yuping He | |
| Name: Yuping He | ||
| Title: COO | ||
| Golden Brick Silk Road Capital (Shenzhen) Holding Limited | ||
| (金砖资本控股有限公司 (深圳) 有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Shunxi Yue | |
| Name: Shunxi Yue | ||
[Signature Page to Limited Guarantee]
IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Limited Guarantee]
Exhibit 99.100
Execution Version
LIMITED GUARANTEE
This Limited Guarantee, dated as of December 18, 2015 (this "Limited Guarantee"), is made by CICC Jiatai (Tianjin) Equity Investment Fund, L.P (中金佳泰 (天津) 股权投资基金合伙企业 (有限合伙)), a limited partnership formed under the laws of the People’s Republic of China (including its successors and permitted assigns, the "Guarantor"), in favor of Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Guaranteed Party"). Reference is hereby made to the Agreement and Plan of Merger, dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), and the Guaranteed Party. Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Merger Agreement.
1. Limited Guarantee.
(a) To induce the Guaranteed Party to enter into the Merger Agreement, the Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, subject to the terms and conditions hereof, the due and punctual payment and performance when due of 0.62% of the Parent Parties' obligation (the "Guaranteed Obligation") to pay to the Guaranteed Party (i) the Parent Termination Fee if and when required pursuant to Section 8.2(c) of the Merger Agreement, and (ii) the payment obligations of the Parent Parties pursuant to Section 6.6 of the Merger Agreement; provided that the maximum aggregate liability of the Guarantor hereunder shall not exceed US$ 2,786,681 (the "Maximum Amount").
(b) The Guaranteed Party hereby agrees that (a) the Guarantor shall in no event be required to pay more than the Maximum Amount under or in respect of this Guarantee and (b) the Guarantor shall not have any obligation or liability to any Person (including, without limitation, to the Guaranteed Party's equity holders, Affiliates and/or subsidiaries) relating to, arising out of or in connection with this Limited Guarantee, the Merger Agreement, or the Equity Commitment Letter (as defined below) other than as expressly set forth herein or in the Equity Commitment Letter or the Escrow Agreement (as defined in the Equity Commitment Letter).
(c) The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by the Guaranteed Party in connection with the enforcement of its rights hereunder and under the Merger Agreement, including, without limitation, in the event that (i) the Guarantor asserts in any arbitration, litigation or other proceeding that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms and the Guaranteed Party prevails in such arbitration, litigation or other proceeding, or (ii) the Guarantor fails or refuses to make any payment to the Guaranteed Party hereunder when due and payable and it is determined judicially or by arbitration that the Guarantor is required to make such payment hereunder.
(d) The Guarantor promises and undertakes to make all payments hereunder free and clear of any deduction, offset, defense, claim or counterclaim of any kind. If the Parent Parties fail to pay or cause to be paid the Guaranteed Obligation as and when due and payable pursuant to Section 8.2(c) of the Merger Agreement, as applicable, then the Guarantor's liabilities to the Guaranteed Party hereunder in respect of such Guaranteed Obligation shall become immediately due and payable and the Guaranteed Party may at any time and from time to time, at the Guaranteed Party's option, and so long as the Parent Parties remain in breach of its Guaranteed Obligation, take any and all actions available hereunder or under applicable Law to collect the Guaranteed Obligation from the Guarantor subject to the Maximum Amount as applicable.
2. Terms of Limited Guarantee.
(a) This Limited Guarantee is a primary and original obligation of the Guarantor and is one of payment, not collection, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against any Parent Party or any other Person or whether any Parent Party or any other Person is joined in any such action or actions. Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantor under this Limited Guarantee and of the other guarantors under the other Limited Guarantees dated as of the date hereof ("Other Guarantors") shall be several and not joint.
(b) The liability of the Guarantor under this Limited Guarantee shall, to the fullest extent permitted under applicable law, be absolute, irrevocable and unconditional, irrespective of:
(i) the value, genuineness, validity, illegality or enforceability of the Merger Agreement or the letter agreement dated as of the date hereof between the Guarantor, on the one hand, and Holdco and Parent, on the other hand, pursuant to which the Guarantor has agreed to make a certain equity contribution to Holdco and Parent (the "Equity Commitment Letter") or any other agreement or instrument referred to herein or therein;
(ii) any change in the corporate existence, structure or ownership of any Parent Party or any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting any Parent Party, any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor) or any of their respective assets;
(iii) any amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof;
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(iv) the existence of any claim, set-off or other right that the Guarantor may have at any time against any Parent Party or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise;
(v) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against any Parent Party or the Guarantor or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation (other than as and if required by Section 2(a));
(vi) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of the Guaranteed Obligation;
(vii) any other act or omission that may in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment in full of the Guaranteed Obligation in accordance with their terms); or
(viii) the addition, substitution, discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Guaranteed Obligation as a result of payment in full of the Guaranteed Obligation in accordance with their terms) of any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor),
other than in each case with respect to (A) defenses to the payment of the Guaranteed Obligation that are available to any Parent Party under the Merger Agreement or (B) breach by the Guaranteed Party of this Limited Guarantee, including, without limitation, the limitations set forth in Section 3 below), and, notwithstanding any other provision of this Limited Guarantee to the contrary, the Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that any Parent Party could assert against the Company under the terms of, or with respect to, the Merger Agreement that would relieve each of the Parent Parties of its obligations under the Merger Agreement.
(c) To the fullest extent permitted by applicable law, the Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of the Guaranteed Obligation and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligation shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between the Parent Parties and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under no obligation to pursue such rights and remedies it may have against the Parent Parties or any other Person for the Guaranteed Obligation or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue such other rights or remedies or to collect any payments from the Parent Parties or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of the Parent Parties or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guaranteed Party.
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(d) To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, acceptance hereof, presentment, demand for payment, notice of non-performance, default, dishonor and protest, any notice not provided for herein, all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of any Parent Party or any other person interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligation that are available to the Parent Parties under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated under the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits.
(e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that the Parent Parties become subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantor's obligation hereunder. In the event that any payment to the Guaranteed Party in respect of the Guaranteed Obligation is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to the Guaranteed Obligation as if such payment had not been made so long as this Limited Guarantee has not terminated in accordance with its terms.
3. Sole Remedy; No Recourse. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party further agrees that neither it nor any other Person (including, without limitation, the Guaranteed Party's equityholders, Affiliates and subsidiaries) has any right of recovery against, and no personal liability shall attach to, the Guarantor, any former, current or future, director, officer, employee, agent or Affiliate of the Guarantor, any former, current or future, direct or indirect holder of any equity interests or securities of the Guarantor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or representative any of the foregoing (each such Person, a "Related Person"), through any Parent Party or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of any Parent Party against the Guarantor or any Related Person (except for any claim to compel Holdco and/or Parent to enforce the Equity Commitment Letter in accordance with the terms thereof), or otherwise, except for its rights against the Guarantor under this Limited Guarantee and the Escrow Agreement. Recourse against the Guarantor under this Limited Guarantee and the Escrow Agreement and the Guaranteed Party's rights under the Equity Commitment Letter shall be the sole and exclusive remedy of (i) the Guaranteed Party and (ii) all of the Guaranteed Party's equityholders, Affiliates and subsidiaries against the Guarantor and any Related Person (other than the Parent Parties and their respective successors and assigns) in respect of any liabilities or obligations arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby, including by piercing the corporate, limited liability company or limited partnership veil or by a claim by or on behalf of any Parent Party. The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Affiliates and subsidiaries not to institute, any proceeding or bring any other claim arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby (or the failure of such to be consummated), against the Guarantor or any Related Person, except for (A) claims of the Guaranteed Party against the Guarantor under and in accordance with this Limited Guarantee and the Escrow Agreement, (B) claims of the Guaranteed Party against the Parent Parties (and their respective successors and assigns) under and in accordance with the Merger Agreement and the Escrow Agreement, and (C) the exercise of the Guaranteed Party's rights under and in accordance with the Equity Commitment Letter, and the Guaranteed Party hereby, on behalf of itself and its Affiliates and subsidiaries, waives any and all claims arising under, or in connection with, the Merger Agreement, this Limited Guarantee, the Equity Commitment Letter, the Escrow Agreement or, in each case, the transactions contemplated hereby or thereby against the Guarantor or any Related Person and releases such Persons from such claims, in each case, except for claims described in clauses (A), (B) and (C) of this sentence (each, a "Permitted Claim"). Nothing set forth in this Limited Guarantee shall confer or give or shall be construed to confer or give to any Person (including any Person acting in a representative capacity) other than the Guaranteed Party any rights or remedies against any Person, including the Guarantor, except as expressly set forth herein.
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4. Subrogation. The Guarantor will not exercise against any Parent Party any rights of subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by reason of any payment by it pursuant to the provisions of Section 1 hereof unless and until the Guaranteed Obligation and all other amounts payable under this Limited Guarantee have been paid in full.
5. Termination. This Limited Guarantee shall terminate (and the Guarantor shall have no further obligations hereunder) upon the earliest to occur of (a) the Effective Time, (b) the payment in full of the Guaranteed Obligation and the obligation under Section 1(c), (c) the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would not be required pursuant to the terms and subject to the conditions of the Merger Agreement to make any payment of any Guaranteed Obligation; and (d) six months after the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would be required pursuant to the terms and subject to the conditions of the Merger Agreement to make a payment of the Guaranteed Obligation, unless by the end of such six-month period, the Guaranteed Party shall have initiated a claim or proceeding in accordance with the terms of the Merger Agreement for payment of any of the Guaranteed Obligations; provided that if the Guaranteed Party has initiated a claim or proceeding by the end of such six-month period, this Limited Guarantee shall terminate upon the date such claim or proceeding is finally satisfied or otherwise resolved by agreement of the parties hereto or pursuant to Section 12. In the event that the Guaranteed Party or any of its Affiliates or subsidiaries asserts in any litigation or other proceeding relating to this Limited Guarantee or the Merger Agreement (i) that the provisions hereof (including, without limitation, Section 1 hereof limiting the Guarantor's aggregate liability to the Maximum Amount or Section 3 hereof relating to the sole and exclusive remedies of the Guaranteed Party and its equityholders, Affiliates and subsidiaries against the Guarantor or any Related Person) are illegal, invalid or unenforceable, in whole or in part, or (ii) any theory of liability against the Guarantor or any Related Person or any other Guarantor under the other Limited Guarantees dated as of the date hereof or any Related Person of any such other Guarantor with respect to the transactions contemplated by this Limited Guarantee, the Equity Commitment Letter or the Merger Agreement other than any Permitted Claim, then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and be null and void, (y) if the Guarantor has previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments from the Guaranteed Party and (z) neither the Guarantor nor any Related Person (other than the Parent Parties and their respective successors and assigns) shall have any liability to the Guaranteed Party or any of its equityholders, Affiliates or subsidiaries with respect to the Merger Agreement or the transactions contemplated by the Merger Agreement or this Limited Guarantee.
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6. Continuing Guarantee. Except to the extent terminated pursuant to the provisions of Section 5 hereof, this Limited Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed Obligation and the obligation under Section 1(c), shall be binding upon the Guarantor, its successors and assigns, and shall inure to the benefit of, and be enforceable by, the Guaranteed Party and its successors, permitted transferees and permitted assigns; provided that notwithstanding anything to the contrary in this Limited Guarantee, the provisions of this Limited Guarantee that are for the benefit of any Related Person (including the provisions of Sections 3 and 5) shall indefinitely survive any termination of this Limited Guarantee for the benefit of the Guarantor and any Related Persons. All obligation to which this Limited Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
7. Entire Agreement. This Limited Guarantee, the Merger Agreement, the Equity Commitment Letter and the Escrow Agreement constitute the entire agreement with respect to the subject matter hereof, and supersede all other prior agreements and understandings, both written and oral, among the Parent Parties and/or the Guarantor or any of their respective Affiliates, on the one hand, and the Guaranteed Party or any of its Affiliates, on the other hand, regarding the subject matter hereof.
8. Amendments and Waivers. Any provision of this Limited Guarantee may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Guarantor and the Guaranteed Party or, in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by any party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
9. Counterparts. This Limited Guarantee may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
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10. Notices. All notices, requests, claims, demands and other communications hereunder shall be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressee's location on any Business Day after 5:00 p.m. (addressee's local time) shall be deemed to have been received at 9:00 a.m. (addressee's local time) on the next Business Day), by reliable international overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:
if to the Guarantor:
CICC Jiatai (Tianjin) Equity Investment Fund, L.P
(中金佳泰 (天津) 股权投资基金合伙企业 (有限合伙)
36th Floor, China World Office 2
No 1 Jian Guo Men Wai Avenue
Beijing, 100004, China
with copies to:
Kirkland & Ellis
26th Floor, Glouster Tower, The Landmark
15 Queen's Road Central
Hong Kong
Facsimile: +852-3761-3301
Attention: David Zhang and Jesse Sheley
If to the Guaranteed Party, as provided in Section 9.2 of the Merger Agreement.
11. Governing Law. This Limited Guarantee (except for the arbitration agreement in Section 12) shall be governed by and construed in accordance with the Laws of the State of New York without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
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12. Jurisdiction; Waiver of Service of Process.
(a) Jurisdiction. In the event any dispute arises among the parties hereto out of or in relation to this Limited Guarantee, including any dispute regarding its existence, interpretation, performance, breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly consultations within thirty (30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions of this Section 12. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre ("HKIAC") Administered Rules in force when a notice of arbitration is submitted. The seat and venue of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The law of the arbitration agreement shall be Hong Kong law. The appointing authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number, and one arbitrator shall be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from nominating their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within 30 days after such two arbitrators have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any person necessary for the conduct of the arbitration, unless otherwise required by Law or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and any interim or final award, as well as the fact that an arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after the submission of any dispute to arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter agreement, except insofar as the same may relate directly to the matters in dispute. The parties hereby agree that any arbitration award rendered in accordance with the provisions of this Section 12 shall be final and binding upon them, and the parties further agree that such award may be enforced by any court having jurisdiction over the party against which the award has been rendered or the assets of such party wherever the same may be located. In any arbitration proceeding, any legal proceeding to enforce any arbitration award and in any other legal proceeding among the Parties pursuant to or relating to this Agreement, each Party expressly waives the defense of sovereign immunity and any other defense based on the fact or allegation that it is an agency or instrumentality of a sovereign state or is otherwise entitled to immunity.
13. Representations and Warranties. The Guarantor hereby represents and warrants to the Guaranteed Party that:
(a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization;
(b) it has all necessary power and authority to execute, deliver and perform this Limited Guarantee;
(c) the execution, delivery and performance of this Limited Guarantee by the Guarantor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Guarantor are necessary therefor;
(d) all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Limited Guarantee by the Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution, delivery or performance of this Limited Guarantee;
(e) this Limited Guarantee has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the undersigned in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law));
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(f) the execution, delivery and performance by the undersigned of this Limited Guarantee do not and will not violate the organizational documents of the undersigned or violate any applicable law, regulation, rule, decree, order, judgment or contractual restriction binding on the Guarantor or its assets or properties; and
(g) it has the financial capacity to pay and perform its obligations under this Limited Guarantee, and all funds necessary for the Guarantor to fulfill its obligations under this Limited Guarantee shall be available to the Guarantor for so long as this Limited Guarantee shall remain in effect in accordance with Section 6.
14. No Assignment. Neither this Limited Guarantee nor any of the rights, interests or obligations hereunder shall be assignable without the prior written consent of the Guaranteed Party (in the case of an assignment by the Guarantor) or the Guarantor (in the case of an assignment by the Guaranteed Party).
15. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LIMITED GUARANTEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 15.
16. Severability. Any term or provision of this Limited Guarantee which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Limited Guarantee in any jurisdiction and, if any provision of this Limited Guarantee is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Maximum Amount provided in Section 1 hereof and to the provisions of Sections 3 and 5 hereof. No party hereto shall assert, and each party shall cause its respective Affiliates and subsidiaries not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.
17. Headings. Headings of the Sections of this Limited Guarantee are for convenience only and shall be given no substantive or interpretive effect whatsoever.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| CICC Jiatai (Tianjin) Equity Investment Fund, L.P | ||
| (中金佳泰 (天津) 股权投资基金合伙企业 (有限合伙)) | ||
| [Company chop is affixed] | ||
| By: | /s/ ZHANG QING | |
| Name: 張清 ZHANG QING | ||
| Title: 委派代表 Authorized Representative | ||
[Signature Page to Limited Guarantee]
IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Limited Guarantee]
Exhibit 99.101
Execution Version
LIMITED GUARANTEE
This Limited Guarantee, dated as of December 18, 2015 (this "Limited Guarantee"), is made by Shanghai Huasheng Lingfei Equity Investment (Limited Partnership) (上海华晟领飞股权投资合伙企业 (有限合伙)), a limited partnership formed under the laws of the People’s Republic of China (including its successors and permitted assigns, the "Guarantor"), in favor of Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Guaranteed Party"). Reference is hereby made to the Agreement and Plan of Merger, dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), and the Guaranteed Party. Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Merger Agreement.
1. Limited Guarantee.
(a) To induce the Guaranteed Party to enter into the Merger Agreement, the Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, subject to the terms and conditions hereof, the due and punctual payment and performance when due of 2.23% of the Parent Parties' obligation (the "Guaranteed Obligation") to pay to the Guaranteed Party (i) the Parent Termination Fee if and when required pursuant to Section 8.2(c) of the Merger Agreement, and (ii) the payment obligations of the Parent Parties pursuant to Section 6.6 of the Merger Agreement; provided that the maximum aggregate liability of the Guarantor hereunder shall not exceed US$ 10,032,050 (the "Maximum Amount").
(b) The Guaranteed Party hereby agrees that (a) the Guarantor shall in no event be required to pay more than the Maximum Amount under or in respect of this Guarantee and (b) the Guarantor shall not have any obligation or liability to any Person (including, without limitation, to the Guaranteed Party's equity holders, Affiliates and/or subsidiaries) relating to, arising out of or in connection with this Limited Guarantee, the Merger Agreement, or the Equity Commitment Letter (as defined below) other than as expressly set forth herein or in the Equity Commitment Letter or the Escrow Agreement (as defined in the Equity Commitment Letter).
(c) The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by the Guaranteed Party in connection with the enforcement of its rights hereunder and under the Merger Agreement, including, without limitation, in the event that (i) the Guarantor asserts in any arbitration, litigation or other proceeding that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms and the Guaranteed Party prevails in such arbitration, litigation or other proceeding, or (ii) the Guarantor fails or refuses to make any payment to the Guaranteed Party hereunder when due and payable and it is determined judicially or by arbitration that the Guarantor is required to make such payment hereunder.
(d) The Guarantor promises and undertakes to make all payments hereunder free and clear of any deduction, offset, defense, claim or counterclaim of any kind. If the Parent Parties fail to pay or cause to be paid the Guaranteed Obligation as and when due and payable pursuant to Section 8.2(c) of the Merger Agreement, as applicable, then the Guarantor's liabilities to the Guaranteed Party hereunder in respect of such Guaranteed Obligation shall become immediately due and payable and the Guaranteed Party may at any time and from time to time, at the Guaranteed Party's option, and so long as the Parent Parties remain in breach of its Guaranteed Obligation, take any and all actions available hereunder or under applicable Law to collect the Guaranteed Obligation from the Guarantor subject to the Maximum Amount as applicable.
2. Terms of Limited Guarantee.
(a) This Limited Guarantee is a primary and original obligation of the Guarantor and is one of payment, not collection, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against any Parent Party or any other Person or whether any Parent Party or any other Person is joined in any such action or actions. Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantor under this Limited Guarantee and of the other guarantors under the other Limited Guarantees dated as of the date hereof ("Other Guarantors") shall be several and not joint.
(b) The liability of the Guarantor under this Limited Guarantee shall, to the fullest extent permitted under applicable law, be absolute, irrevocable and unconditional, irrespective of:
(i) the value, genuineness, validity, illegality or enforceability of the Merger Agreement or the letter agreement dated as of the date hereof between the Guarantor, on the one hand, and Holdco and Parent, on the other hand, pursuant to which the Guarantor has agreed to make a certain equity contribution to Holdco and Parent (the "Equity Commitment Letter") or any other agreement or instrument referred to herein or therein;
(ii) any change in the corporate existence, structure or ownership of any Parent Party or any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting any Parent Party, any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor) or any of their respective assets;
(iii) any amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof;
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(iv) the existence of any claim, set-off or other right that the Guarantor may have at any time against any Parent Party or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise;
(v) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against any Parent Party or the Guarantor or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation (other than as and if required by Section 2(a));
(vi) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of the Guaranteed Obligation;
(vii) any other act or omission that may in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment in full of the Guaranteed Obligation in accordance with their terms); or
(viii) the addition, substitution, discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Guaranteed Obligation as a result of payment in full of the Guaranteed Obligation in accordance with their terms) of any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor),
other than in each case with respect to (A) defenses to the payment of the Guaranteed Obligation that are available to any Parent Party under the Merger Agreement or (B) breach by the Guaranteed Party of this Limited Guarantee, including, without limitation, the limitations set forth in Section 3 below), and, notwithstanding any other provision of this Limited Guarantee to the contrary, the Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that any Parent Party could assert against the Company under the terms of, or with respect to, the Merger Agreement that would relieve each of the Parent Parties of its obligations under the Merger Agreement.
(c) To the fullest extent permitted by applicable law, the Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of the Guaranteed Obligation and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligation shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between the Parent Parties and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under no obligation to pursue such rights and remedies it may have against the Parent Parties or any other Person for the Guaranteed Obligation or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue such other rights or remedies or to collect any payments from the Parent Parties or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of the Parent Parties or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guaranteed Party.
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(d) To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, acceptance hereof, presentment, demand for payment, notice of non-performance, default, dishonor and protest, any notice not provided for herein, all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of any Parent Party or any other person interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligation that are available to the Parent Parties under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated under the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits.
(e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that the Parent Parties become subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantor's obligation hereunder. In the event that any payment to the Guaranteed Party in respect of the Guaranteed Obligation is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to the Guaranteed Obligation as if such payment had not been made so long as this Limited Guarantee has not terminated in accordance with its terms.
3. Sole Remedy; No Recourse. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party further agrees that neither it nor any other Person (including, without limitation, the Guaranteed Party's equityholders, Affiliates and subsidiaries) has any right of recovery against, and no personal liability shall attach to, the Guarantor, any former, current or future, director, officer, employee, agent or Affiliate of the Guarantor, any former, current or future, direct or indirect holder of any equity interests or securities of the Guarantor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or representative any of the foregoing (each such Person, a "Related Person"), through any Parent Party or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of any Parent Party against the Guarantor or any Related Person (except for any claim to compel Holdco and/or Parent to enforce the Equity Commitment Letter in accordance with the terms thereof), or otherwise, except for its rights against the Guarantor under this Limited Guarantee and the Escrow Agreement. Recourse against the Guarantor under this Limited Guarantee and the Escrow Agreement and the Guaranteed Party's rights under the Equity Commitment Letter shall be the sole and exclusive remedy of (i) the Guaranteed Party and (ii) all of the Guaranteed Party's equityholders, Affiliates and subsidiaries against the Guarantor and any Related Person (other than the Parent Parties and their respective successors and assigns) in respect of any liabilities or obligations arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby, including by piercing the corporate, limited liability company or limited partnership veil or by a claim by or on behalf of any Parent Party. The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Affiliates and subsidiaries not to institute, any proceeding or bring any other claim arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby (or the failure of such to be consummated), against the Guarantor or any Related Person, except for (A) claims of the Guaranteed Party against the Guarantor under and in accordance with this Limited Guarantee and the Escrow Agreement, (B) claims of the Guaranteed Party against the Parent Parties (and their respective successors and assigns) under and in accordance with the Merger Agreement and the Escrow Agreement, and (C) the exercise of the Guaranteed Party's rights under and in accordance with the Equity Commitment Letter, and the Guaranteed Party hereby, on behalf of itself and its Affiliates and subsidiaries, waives any and all claims arising under, or in connection with, the Merger Agreement, this Limited Guarantee, the Equity Commitment Letter, the Escrow Agreement or, in each case, the transactions contemplated hereby or thereby against the Guarantor or any Related Person and releases such Persons from such claims, in each case, except for claims described in clauses (A), (B) and (C) of this sentence (each, a "Permitted Claim"). Nothing set forth in this Limited Guarantee shall confer or give or shall be construed to confer or give to any Person (including any Person acting in a representative capacity) other than the Guaranteed Party any rights or remedies against any Person, including the Guarantor, except as expressly set forth herein.
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4. Subrogation. The Guarantor will not exercise against any Parent Party any rights of subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by reason of any payment by it pursuant to the provisions of Section 1 hereof unless and until the Guaranteed Obligation and all other amounts payable under this Limited Guarantee have been paid in full.
5. Termination. This Limited Guarantee shall terminate (and the Guarantor shall have no further obligations hereunder) upon the earliest to occur of (a) the Effective Time, (b) the payment in full of the Guaranteed Obligation and the obligation under Section 1(c), (c) the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would not be required pursuant to the terms and subject to the conditions of the Merger Agreement to make any payment of any Guaranteed Obligation; and (d) six months after the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would be required pursuant to the terms and subject to the conditions of the Merger Agreement to make a payment of the Guaranteed Obligation, unless by the end of such six-month period, the Guaranteed Party shall have initiated a claim or proceeding in accordance with the terms of the Merger Agreement for payment of any of the Guaranteed Obligations; provided that if the Guaranteed Party has initiated a claim or proceeding by the end of such six-month period, this Limited Guarantee shall terminate upon the date such claim or proceeding is finally satisfied or otherwise resolved by agreement of the parties hereto or pursuant to Section 12. In the event that the Guaranteed Party or any of its Affiliates or subsidiaries asserts in any litigation or other proceeding relating to this Limited Guarantee or the Merger Agreement (i) that the provisions hereof (including, without limitation, Section 1 hereof limiting the Guarantor's aggregate liability to the Maximum Amount or Section 3 hereof relating to the sole and exclusive remedies of the Guaranteed Party and its equityholders, Affiliates and subsidiaries against the Guarantor or any Related Person) are illegal, invalid or unenforceable, in whole or in part, or (ii) any theory of liability against the Guarantor or any Related Person or any other Guarantor under the other Limited Guarantees dated as of the date hereof or any Related Person of any such other Guarantor with respect to the transactions contemplated by this Limited Guarantee, the Equity Commitment Letter or the Merger Agreement other than any Permitted Claim, then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and be null and void, (y) if the Guarantor has previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments from the Guaranteed Party and (z) neither the Guarantor nor any Related Person (other than the Parent Parties and their respective successors and assigns) shall have any liability to the Guaranteed Party or any of its equityholders, Affiliates or subsidiaries with respect to the Merger Agreement or the transactions contemplated by the Merger Agreement or this Limited Guarantee.
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6. Continuing Guarantee. Except to the extent terminated pursuant to the provisions of Section 5 hereof, this Limited Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed Obligation and the obligation under Section 1(c), shall be binding upon the Guarantor, its successors and assigns, and shall inure to the benefit of, and be enforceable by, the Guaranteed Party and its successors, permitted transferees and permitted assigns; provided that notwithstanding anything to the contrary in this Limited Guarantee, the provisions of this Limited Guarantee that are for the benefit of any Related Person (including the provisions of Sections 3 and 5) shall indefinitely survive any termination of this Limited Guarantee for the benefit of the Guarantor and any Related Persons. All obligation to which this Limited Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
7. Entire Agreement. This Limited Guarantee, the Merger Agreement, the Equity Commitment Letter and the Escrow Agreement constitute the entire agreement with respect to the subject matter hereof, and supersede all other prior agreements and understandings, both written and oral, among the Parent Parties and/or the Guarantor or any of their respective Affiliates, on the one hand, and the Guaranteed Party or any of its Affiliates, on the other hand, regarding the subject matter hereof.
8. Amendments and Waivers. Any provision of this Limited Guarantee may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Guarantor and the Guaranteed Party or, in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by any party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
9. Counterparts. This Limited Guarantee may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
10. Notices. All notices, requests, claims, demands and other communications hereunder shall be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressee's location on any Business Day after 5:00 p.m. (addressee's local time) shall be deemed to have been received at 9:00 a.m. (addressee's local time) on the next Business Day), by reliable international overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:
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if to the Guarantor:
Shanghai Huasheng Lingfei Equity Investment (Limited Partnership)
(上海华晟领飞股权投资合伙企业 (有限合伙))
43th Floor, 1000 Lujiazui Ring Road, Pudong New Area,
Shanghai, 200120 ,China
with copies to:
Kirkland & Ellis
26th Floor, Glouster Tower, The Landmark
15 Queen's Road Central
Hong Kong
Facsimile: +852-3761-3301
Attention: David Zhang and Jesse Sheley
If to the Guaranteed Party, as provided in Section 9.2 of the Merger Agreement.
11. Governing Law. This Limited Guarantee (except for the arbitration agreement in Section 12) shall be governed by and construed in accordance with the Laws of the State of New York without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
12. Jurisdiction; Waiver of Service of Process.
(a) Jurisdiction. In the event any dispute arises among the parties hereto out of or in relation to this Limited Guarantee, including any dispute regarding its existence, interpretation, performance, breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly consultations within thirty (30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions of this Section 12. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre ("HKIAC") Administered Rules in force when a notice of arbitration is submitted. The seat and venue of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The law of the arbitration agreement shall be Hong Kong law. The appointing authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number, and one arbitrator shall be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from nominating their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within 30 days after such two arbitrators have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any person necessary for the conduct of the arbitration, unless otherwise required by Law or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and any interim or final award, as well as the fact that an arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after the submission of any dispute to arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter agreement, except insofar as the same may relate directly to the matters in dispute. The parties hereby agree that any arbitration award rendered in accordance with the provisions of this Section 12 shall be final and binding upon them, and the parties further agree that such award may be enforced by any court having jurisdiction over the party against which the award has been rendered or the assets of such party wherever the same may be located. In any arbitration proceeding, any legal proceeding to enforce any arbitration award and in any other legal proceeding among the Parties pursuant to or relating to this Agreement, each Party expressly waives the defense of sovereign immunity and any other defense based on the fact or allegation that it is an agency or instrumentality of a sovereign state or is otherwise entitled to immunity.
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13. Representations and Warranties. The Guarantor hereby represents and warrants to the Guaranteed Party that:
(a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization;
(b) it has all necessary power and authority to execute, deliver and perform this Limited Guarantee;
(c) the execution, delivery and performance of this Limited Guarantee by the Guarantor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Guarantor are necessary therefor;
(d) all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Limited Guarantee by the Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution, delivery or performance of this Limited Guarantee;
(e) this Limited Guarantee has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the undersigned in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law));
(f) the execution, delivery and performance by the undersigned of this Limited Guarantee do not and will not violate the organizational documents of the undersigned or violate any applicable law, regulation, rule, decree, order, judgment or contractual restriction binding on the Guarantor or its assets or properties; and
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(g) it has the financial capacity to pay and perform its obligations under this Limited Guarantee, and all funds necessary for the Guarantor to fulfill its obligations under this Limited Guarantee shall be available to the Guarantor for so long as this Limited Guarantee shall remain in effect in accordance with Section 6.
14. No Assignment. Neither this Limited Guarantee nor any of the rights, interests or obligations hereunder shall be assignable without the prior written consent of the Guaranteed Party (in the case of an assignment by the Guarantor) or the Guarantor (in the case of an assignment by the Guaranteed Party).
15. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LIMITED GUARANTEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 15.
16. Severability. Any term or provision of this Limited Guarantee which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Limited Guarantee in any jurisdiction and, if any provision of this Limited Guarantee is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Maximum Amount provided in Section 1 hereof and to the provisions of Sections 3 and 5 hereof. No party hereto shall assert, and each party shall cause its respective Affiliates and subsidiaries not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.
17. Headings. Headings of the Sections of this Limited Guarantee are for convenience only and shall be given no substantive or interpretive effect whatsoever.
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IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Shanghai Huasheng Lingfei Equity Investment (Limited Partnership) | ||
| (上海华晟领飞股权投资合伙企业 (有限合伙)) | ||
| By: | /s/ Xinwei Wang | |
| Name: Xinwei Wang | ||
| Title: Authorized Representative of Executive Partner | ||
[Signature Page to Limited Guarantee]
IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Limited Guarantee]
Exhibit 99.102
Execution Version
LIMITED GUARANTEE
This Limited Guarantee, dated as of December 18, 2015 (this "Limited Guarantee"), is made by BR Wiston Capital (宁波博睿维森股权投资合伙企业 (有限合伙), a limited partnership formed under the laws of the People’s Republic of China (including its successors and permitted assigns, the "Guarantor"), in favor of Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Guaranteed Party"). Reference is hereby made to the Agreement and Plan of Merger, dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), and the Guaranteed Party. Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Merger Agreement.
1. Limited Guarantee.
(a) To induce the Guaranteed Party to enter into the Merger Agreement, the Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, subject to the terms and conditions hereof, the due and punctual payment and performance when due of 2.48% of the Parent Parties' obligation (the "Guaranteed Obligation") to pay to the Guaranteed Party (i) the Parent Termination Fee if and when required pursuant to Section 8.2(c) of the Merger Agreement, and (ii) the payment obligations of the Parent Parties pursuant to Section 6.6 of the Merger Agreement; provided that the maximum aggregate liability of the Guarantor hereunder shall not exceed US$ 11,146,723(the "Maximum Amount").
(b) The Guaranteed Party hereby agrees that (a) the Guarantor shall in no event be required to pay more than the Maximum Amount under or in respect of this Guarantee and (b) the Guarantor shall not have any obligation or liability to any Person (including, without limitation, to the Guaranteed Party's equity holders, Affiliates and/or subsidiaries) relating to, arising out of or in connection with this Limited Guarantee, the Merger Agreement, or the Equity Commitment Letter (as defined below) other than as expressly set forth herein or in the Equity Commitment Letter or the Escrow Agreement (as defined in the Equity Commitment Letter).
(c) The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by the Guaranteed Party in connection with the enforcement of its rights hereunder and under the Merger Agreement, including, without limitation, in the event that (i) the Guarantor asserts in any arbitration, litigation or other proceeding that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms and the Guaranteed Party prevails in such arbitration, litigation or other proceeding, or (ii) the Guarantor fails or refuses to make any payment to the Guaranteed Party hereunder when due and payable and it is determined judicially or by arbitration that the Guarantor is required to make such payment hereunder.
(d) The Guarantor promises and undertakes to make all payments hereunder free and clear of any deduction, offset, defense, claim or counterclaim of any kind. If the Parent Parties fail to pay or cause to be paid the Guaranteed Obligation as and when due and payable pursuant to Section 8.2(c) of the Merger Agreement, as applicable, then the Guarantor's liabilities to the Guaranteed Party hereunder in respect of such Guaranteed Obligation shall become immediately due and payable and the Guaranteed Party may at any time and from time to time, at the Guaranteed Party's option, and so long as the Parent Parties remain in breach of its Guaranteed Obligation, take any and all actions available hereunder or under applicable Law to collect the Guaranteed Obligation from the Guarantor subject to the Maximum Amount as applicable.
2. Terms of Limited Guarantee.
(a) This Limited Guarantee is a primary and original obligation of the Guarantor and is one of payment, not collection, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against any Parent Party or any other Person or whether any Parent Party or any other Person is joined in any such action or actions. Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantor under this Limited Guarantee and of the other guarantors under the other Limited Guarantees dated as of the date hereof ("Other Guarantors") shall be several and not joint.
(b) The liability of the Guarantor under this Limited Guarantee shall, to the fullest extent permitted under applicable law, be absolute, irrevocable and unconditional, irrespective of:
(i) the value, genuineness, validity, illegality or enforceability of the Merger Agreement or the letter agreement dated as of the date hereof between the Guarantor, on the one hand, and Holdco and Parent, on the other hand, pursuant to which the Guarantor has agreed to make a certain equity contribution to Holdco and Parent (the "Equity Commitment Letter") or any other agreement or instrument referred to herein or therein;
(ii) any change in the corporate existence, structure or ownership of any Parent Party or any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting any Parent Party, any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor) or any of their respective assets;
(iii) any amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof;
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(iv) the existence of any claim, set-off or other right that the Guarantor may have at any time against any Parent Party or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise;
(v) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against any Parent Party or the Guarantor or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation (other than as and if required by Section 2(a));
(vi) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of the Guaranteed Obligation;
(vii) any other act or omission that may in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment in full of the Guaranteed Obligation in accordance with their terms); or
(viii) the addition, substitution, discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Guaranteed Obligation as a result of payment in full of the Guaranteed Obligation in accordance with their terms) of any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor),
other than in each case with respect to (A) defenses to the payment of the Guaranteed Obligation that are available to any Parent Party under the Merger Agreement or (B) breach by the Guaranteed Party of this Limited Guarantee, including, without limitation, the limitations set forth in Section 3 below), and, notwithstanding any other provision of this Limited Guarantee to the contrary, the Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that any Parent Party could assert against the Company under the terms of, or with respect to, the Merger Agreement that would relieve each of the Parent Parties of its obligations under the Merger Agreement.
(c) To the fullest extent permitted by applicable law, the Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of the Guaranteed Obligation and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligation shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between the Parent Parties and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under no obligation to pursue such rights and remedies it may have against the Parent Parties or any other Person for the Guaranteed Obligation or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue such other rights or remedies or to collect any payments from the Parent Parties or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of the Parent Parties or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guaranteed Party.
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(d) To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, acceptance hereof, presentment, demand for payment, notice of non-performance, default, dishonor and protest, any notice not provided for herein, all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of any Parent Party or any other person interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligation that are available to the Parent Parties under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated under the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits.
(e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that the Parent Parties become subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantor's obligation hereunder. In the event that any payment to the Guaranteed Party in respect of the Guaranteed Obligation is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to the Guaranteed Obligation as if such payment had not been made so long as this Limited Guarantee has not terminated in accordance with its terms.
3. Sole Remedy; No Recourse. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party further agrees that neither it nor any other Person (including, without limitation, the Guaranteed Party's equityholders, Affiliates and subsidiaries) has any right of recovery against, and no personal liability shall attach to, the Guarantor, any former, current or future, director, officer, employee, agent or Affiliate of the Guarantor, any former, current or future, direct or indirect holder of any equity interests or securities of the Guarantor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or representative any of the foregoing (each such Person, a "Related Person"), through any Parent Party or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of any Parent Party against the Guarantor or any Related Person (except for any claim to compel Holdco and/or Parent to enforce the Equity Commitment Letter in accordance with the terms thereof), or otherwise, except for its rights against the Guarantor under this Limited Guarantee and the Escrow Agreement. Recourse against the Guarantor under this Limited Guarantee and the Escrow Agreement and the Guaranteed Party's rights under the Equity Commitment Letter shall be the sole and exclusive remedy of (i) the Guaranteed Party and (ii) all of the Guaranteed Party's equityholders, Affiliates and subsidiaries against the Guarantor and any Related Person (other than the Parent Parties and their respective successors and assigns) in respect of any liabilities or obligations arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby, including by piercing the corporate, limited liability company or limited partnership veil or by a claim by or on behalf of any Parent Party. The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Affiliates and subsidiaries not to institute, any proceeding or bring any other claim arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby (or the failure of such to be consummated), against the Guarantor or any Related Person, except for (A) claims of the Guaranteed Party against the Guarantor under and in accordance with this Limited Guarantee and the Escrow Agreement, (B) claims of the Guaranteed Party against the Parent Parties (and their respective successors and assigns) under and in accordance with the Merger Agreement and the Escrow Agreement, and (C) the exercise of the Guaranteed Party's rights under and in accordance with the Equity Commitment Letter, and the Guaranteed Party hereby, on behalf of itself and its Affiliates and subsidiaries, waives any and all claims arising under, or in connection with, the Merger Agreement, this Limited Guarantee, the Equity Commitment Letter, the Escrow Agreement or, in each case, the transactions contemplated hereby or thereby against the Guarantor or any Related Person and releases such Persons from such claims, in each case, except for claims described in clauses (A), (B) and (C) of this sentence (each, a "Permitted Claim"). Nothing set forth in this Limited Guarantee shall confer or give or shall be construed to confer or give to any Person (including any Person acting in a representative capacity) other than the Guaranteed Party any rights or remedies against any Person, including the Guarantor, except as expressly set forth herein.
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4. Subrogation. The Guarantor will not exercise against any Parent Party any rights of subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by reason of any payment by it pursuant to the provisions of Section 1 hereof unless and until the Guaranteed Obligation and all other amounts payable under this Limited Guarantee have been paid in full.
5. Termination. This Limited Guarantee shall terminate (and the Guarantor shall have no further obligations hereunder) upon the earliest to occur of (a) the Effective Time, (b) the payment in full of the Guaranteed Obligation and the obligation under Section 1(c), (c) the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would not be required pursuant to the terms and subject to the conditions of the Merger Agreement to make any payment of any Guaranteed Obligation; and (d) six months after the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would be required pursuant to the terms and subject to the conditions of the Merger Agreement to make a payment of the Guaranteed Obligation, unless by the end of such six-month period, the Guaranteed Party shall have initiated a claim or proceeding in accordance with the terms of the Merger Agreement for payment of any of the Guaranteed Obligations; provided that if the Guaranteed Party has initiated a claim or proceeding by the end of such six-month period, this Limited Guarantee shall terminate upon the date such claim or proceeding is finally satisfied or otherwise resolved by agreement of the parties hereto or pursuant to Section 12. In the event that the Guaranteed Party or any of its Affiliates or subsidiaries asserts in any litigation or other proceeding relating to this Limited Guarantee or the Merger Agreement (i) that the provisions hereof (including, without limitation, Section 1 hereof limiting the Guarantor's aggregate liability to the Maximum Amount or Section 3 hereof relating to the sole and exclusive remedies of the Guaranteed Party and its equityholders, Affiliates and subsidiaries against the Guarantor or any Related Person) are illegal, invalid or unenforceable, in whole or in part, or (ii) any theory of liability against the Guarantor or any Related Person or any other Guarantor under the other Limited Guarantees dated as of the date hereof or any Related Person of any such other Guarantor with respect to the transactions contemplated by this Limited Guarantee, the Equity Commitment Letter or the Merger Agreement other than any Permitted Claim, then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and be null and void, (y) if the Guarantor has previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments from the Guaranteed Party and (z) neither the Guarantor nor any Related Person (other than the Parent Parties and their respective successors and assigns) shall have any liability to the Guaranteed Party or any of its equityholders, Affiliates or subsidiaries with respect to the Merger Agreement or the transactions contemplated by the Merger Agreement or this Limited Guarantee.
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6. Continuing Guarantee. Except to the extent terminated pursuant to the provisions of Section 5 hereof, this Limited Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed Obligation and the obligation under Section 1(c), shall be binding upon the Guarantor, its successors and assigns, and shall inure to the benefit of, and be enforceable by, the Guaranteed Party and its successors, permitted transferees and permitted assigns; provided that notwithstanding anything to the contrary in this Limited Guarantee, the provisions of this Limited Guarantee that are for the benefit of any Related Person (including the provisions of Sections 3 and 5) shall indefinitely survive any termination of this Limited Guarantee for the benefit of the Guarantor and any Related Persons. All obligation to which this Limited Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
7. Entire Agreement. This Limited Guarantee, the Merger Agreement, the Equity Commitment Letter and the Escrow Agreement constitute the entire agreement with respect to the subject matter hereof, and supersede all other prior agreements and understandings, both written and oral, among the Parent Parties and/or the Guarantor or any of their respective Affiliates, on the one hand, and the Guaranteed Party or any of its Affiliates, on the other hand, regarding the subject matter hereof.
8. Amendments and Waivers. Any provision of this Limited Guarantee may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Guarantor and the Guaranteed Party or, in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by any party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
9. Counterparts. This Limited Guarantee may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
10. Notices. All notices, requests, claims, demands and other communications hereunder shall be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressee's location on any Business Day after 5:00 p.m. (addressee's local time) shall be deemed to have been received at 9:00 a.m. (addressee's local time) on the next Business Day), by reliable international overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:
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if to the Guarantor:
BR Wiston Capital
(宁波博睿维森股权投资合伙企业 (有限合伙))
Suite 906, Jin Bao Tower, 89 Jin Bao Street,
Beijing, 100005, China
Facsimile: 89508416
Attention: Yanqiu Tang
with copies to:
Kirkland & Ellis
26th Floor, Glouster Tower, The Landmark
15 Queen's Road Central
Hong Kong
Facsimile: +852-3761-3301
Attention: David Zhang and Jesse Sheley
If to the Guaranteed Party, as provided in Section 9.2 of the Merger Agreement.
11. Governing Law. This Limited Guarantee (except for the arbitration agreement in Section 12) shall be governed by and construed in accordance with the Laws of the State of New York without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
12. Jurisdiction; Waiver of Service of Process.
(a) Jurisdiction. In the event any dispute arises among the parties hereto out of or in relation to this Limited Guarantee, including any dispute regarding its existence, interpretation, performance, breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly consultations within thirty (30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions of this Section 12. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre ("HKIAC") Administered Rules in force when a notice of arbitration is submitted. The seat and venue of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The law of the arbitration agreement shall be Hong Kong law. The appointing authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number, and one arbitrator shall be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from nominating their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within 30 days after such two arbitrators have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any person necessary for the conduct of the arbitration, unless otherwise required by Law or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and any interim or final award, as well as the fact that an arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after the submission of any dispute to arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter agreement, except insofar as the same may relate directly to the matters in dispute. The parties hereby agree that any arbitration award rendered in accordance with the provisions of this Section 12 shall be final and binding upon them, and the parties further agree that such award may be enforced by any court having jurisdiction over the party against which the award has been rendered or the assets of such party wherever the same may be located. In any arbitration proceeding, any legal proceeding to enforce any arbitration award and in any other legal proceeding among the Parties pursuant to or relating to this Agreement, each Party expressly waives the defense of sovereign immunity and any other defense based on the fact or allegation that it is an agency or instrumentality of a sovereign state or is otherwise entitled to immunity.
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13. Representations and Warranties. The Guarantor hereby represents and warrants to the Guaranteed Party that:
(a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization;
(b) it has all necessary power and authority to execute, deliver and perform this Limited Guarantee;
(c) the execution, delivery and performance of this Limited Guarantee by the Guarantor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Guarantor are necessary therefor;
(d) all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Limited Guarantee by the Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution, delivery or performance of this Limited Guarantee;
(e) this Limited Guarantee has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the undersigned in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law));
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(f) the execution, delivery and performance by the undersigned of this Limited Guarantee do not and will not violate the organizational documents of the undersigned or violate any applicable law, regulation, rule, decree, order, judgment or contractual restriction binding on the Guarantor or its assets or properties; and
(g) it has the financial capacity to pay and perform its obligations under this Limited Guarantee, and all funds necessary for the Guarantor to fulfill its obligations under this Limited Guarantee shall be available to the Guarantor for so long as this Limited Guarantee shall remain in effect in accordance with Section 6.
14. No Assignment. Neither this Limited Guarantee nor any of the rights, interests or obligations hereunder shall be assignable without the prior written consent of the Guaranteed Party (in the case of an assignment by the Guarantor) or the Guarantor (in the case of an assignment by the Guaranteed Party).
15. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LIMITED GUARANTEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 15.
16. Severability. Any term or provision of this Limited Guarantee which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Limited Guarantee in any jurisdiction and, if any provision of this Limited Guarantee is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Maximum Amount provided in Section 1 hereof and to the provisions of Sections 3 and 5 hereof. No party hereto shall assert, and each party shall cause its respective Affiliates and subsidiaries not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.
17. Headings. Headings of the Sections of this Limited Guarantee are for convenience only and shall be given no substantive or interpretive effect whatsoever.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| BR Wiston Capital | ||
| (宁波博睿维森股权投资合伙企业 | ||
| (有限合伙)) | ||
| [Company chop is affixed] | ||
| By: | /s/ Sun Peng | |
| Name: Sun Peng 孙鹏 | ||
| Title: 执行事务合伙人委派代表 | ||
[Signature Page to Limited Guarantee]
IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Limited Guarantee]
Exhibit 99.103
Execution Version
LIMITED GUARANTEE
This Limited Guarantee, dated as of December 18, 2015 (this "Limited Guarantee"), is made by Yi Capital Qiyuan Fund, L.P. (宁波执一奇元股权投资中心 (有限合伙)), a limited partnership formed under the laws of the People’s Republic of China (including its successors and permitted assigns, the "Guarantor"), in favor of Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Guaranteed Party"). Reference is hereby made to the Agreement and Plan of Merger, dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), and the Guaranteed Party. Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Merger Agreement.
1. Limited Guarantee.
(a) To induce the Guaranteed Party to enter into the Merger Agreement, the Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, subject to the terms and conditions hereof, the due and punctual payment and performance when due of 1.24% of the Parent Parties' obligation (the "Guaranteed Obligation") to pay to the Guaranteed Party (i) the Parent Termination Fee if and when required pursuant to Section 8.2(c) of the Merger Agreement, and (ii) the payment obligations of the Parent Parties pursuant to Section 6.6 of the Merger Agreement; provided that the maximum aggregate liability of the Guarantor hereunder shall not exceed US$ 5,573,361 (the "Maximum Amount").
(b) The Guaranteed Party hereby agrees that (a) the Guarantor shall in no event be required to pay more than the Maximum Amount under or in respect of this Guarantee and (b) the Guarantor shall not have any obligation or liability to any Person (including, without limitation, to the Guaranteed Party's equity holders, Affiliates and/or subsidiaries) relating to, arising out of or in connection with this Limited Guarantee, the Merger Agreement, or the Equity Commitment Letter (as defined below) other than as expressly set forth herein or in the Equity Commitment Letter or the Escrow Agreement (as defined in the Equity Commitment Letter).
(c) The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by the Guaranteed Party in connection with the enforcement of its rights hereunder and under the Merger Agreement, including, without limitation, in the event that (i) the Guarantor asserts in any arbitration, litigation or other proceeding that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms and the Guaranteed Party prevails in such arbitration, litigation or other proceeding, or (ii) the Guarantor fails or refuses to make any payment to the Guaranteed Party hereunder when due and payable and it is determined judicially or by arbitration that the Guarantor is required to make such payment hereunder.
(d) The Guarantor promises and undertakes to make all payments hereunder free and clear of any deduction, offset, defense, claim or counterclaim of any kind. If the Parent Parties fail to pay or cause to be paid the Guaranteed Obligation as and when due and payable pursuant to Section 8.2(c) of the Merger Agreement, as applicable, then the Guarantor's liabilities to the Guaranteed Party hereunder in respect of such Guaranteed Obligation shall become immediately due and payable and the Guaranteed Party may at any time and from time to time, at the Guaranteed Party's option, and so long as the Parent Parties remain in breach of its Guaranteed Obligation, take any and all actions available hereunder or under applicable Law to collect the Guaranteed Obligation from the Guarantor subject to the Maximum Amount as applicable.
2. Terms of Limited Guarantee.
(a) This Limited Guarantee is a primary and original obligation of the Guarantor and is one of payment, not collection, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against any Parent Party or any other Person or whether any Parent Party or any other Person is joined in any such action or actions. Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantor under this Limited Guarantee and of the other guarantors under the other Limited Guarantees dated as of the date hereof ("Other Guarantors") shall be several and not joint.
(b) The liability of the Guarantor under this Limited Guarantee shall, to the fullest extent permitted under applicable law, be absolute, irrevocable and unconditional, irrespective of:
(i) the value, genuineness, validity, illegality or enforceability of the Merger Agreement or the letter agreement dated as of the date hereof between the Guarantor, on the one hand, and Holdco and Parent, on the other hand, pursuant to which the Guarantor has agreed to make a certain equity contribution to Holdco and Parent (the "Equity Commitment Letter") or any other agreement or instrument referred to herein or therein;
(ii) any change in the corporate existence, structure or ownership of any Parent Party or any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting any Parent Party, any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor) or any of their respective assets;
(iii) any amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof;
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(iv) the existence of any claim, set-off or other right that the Guarantor may have at any time against any Parent Party or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise;
(v) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against any Parent Party or the Guarantor or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation (other than as and if required by Section 2(a));
(vi) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of the Guaranteed Obligation;
(vii) any other act or omission that may in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment in full of the Guaranteed Obligation in accordance with their terms); or
(viii) the addition, substitution, discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Guaranteed Obligation as a result of payment in full of the Guaranteed Obligation in accordance with their terms) of any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor),
other than in each case with respect to (A) defenses to the payment of the Guaranteed Obligation that are available to any Parent Party under the Merger Agreement or (B) breach by the Guaranteed Party of this Limited Guarantee, including, without limitation, the limitations set forth in Section 3 below), and, notwithstanding any other provision of this Limited Guarantee to the contrary, the Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that any Parent Party could assert against the Company under the terms of, or with respect to, the Merger Agreement that would relieve each of the Parent Parties of its obligations under the Merger Agreement.
(c) To the fullest extent permitted by applicable law, the Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of the Guaranteed Obligation and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligation shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between the Parent Parties and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under no obligation to pursue such rights and remedies it may have against the Parent Parties or any other Person for the Guaranteed Obligation or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue such other rights or remedies or to collect any payments from the Parent Parties or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of the Parent Parties or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guaranteed Party.
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(d) To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, acceptance hereof, presentment, demand for payment, notice of non-performance, default, dishonor and protest, any notice not provided for herein, all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of any Parent Party or any other person interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligation that are available to the Parent Parties under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated under the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits.
(e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that the Parent Parties become subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantor's obligation hereunder. In the event that any payment to the Guaranteed Party in respect of the Guaranteed Obligation is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to the Guaranteed Obligation as if such payment had not been made so long as this Limited Guarantee has not terminated in accordance with its terms.
3. Sole Remedy; No Recourse. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party further agrees that neither it nor any other Person (including, without limitation, the Guaranteed Party's equityholders, Affiliates and subsidiaries) has any right of recovery against, and no personal liability shall attach to, the Guarantor, any former, current or future, director, officer, employee, agent or Affiliate of the Guarantor, any former, current or future, direct or indirect holder of any equity interests or securities of the Guarantor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or representative any of the foregoing (each such Person, a "Related Person"), through any Parent Party or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of any Parent Party against the Guarantor or any Related Person (except for any claim to compel Holdco and/or Parent to enforce the Equity Commitment Letter in accordance with the terms thereof), or otherwise, except for its rights against the Guarantor under this Limited Guarantee and the Escrow Agreement. Recourse against the Guarantor under this Limited Guarantee and the Escrow Agreement and the Guaranteed Party's rights under the Equity Commitment Letter shall be the sole and exclusive remedy of (i) the Guaranteed Party and (ii) all of the Guaranteed Party's equityholders, Affiliates and subsidiaries against the Guarantor and any Related Person (other than the Parent Parties and their respective successors and assigns) in respect of any liabilities or obligations arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby, including by piercing the corporate, limited liability company or limited partnership veil or by a claim by or on behalf of any Parent Party. The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Affiliates and subsidiaries not to institute, any proceeding or bring any other claim arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby (or the failure of such to be consummated), against the Guarantor or any Related Person, except for (A) claims of the Guaranteed Party against the Guarantor under and in accordance with this Limited Guarantee and the Escrow Agreement, (B) claims of the Guaranteed Party against the Parent Parties (and their respective successors and assigns) under and in accordance with the Merger Agreement and the Escrow Agreement, and (C) the exercise of the Guaranteed Party's rights under and in accordance with the Equity Commitment Letter, and the Guaranteed Party hereby, on behalf of itself and its Affiliates and subsidiaries, waives any and all claims arising under, or in connection with, the Merger Agreement, this Limited Guarantee, the Equity Commitment Letter, the Escrow Agreement or, in each case, the transactions contemplated hereby or thereby against the Guarantor or any Related Person and releases such Persons from such claims, in each case, except for claims described in clauses (A), (B) and (C) of this sentence (each, a "Permitted Claim"). Nothing set forth in this Limited Guarantee shall confer or give or shall be construed to confer or give to any Person (including any Person acting in a representative capacity) other than the Guaranteed Party any rights or remedies against any Person, including the Guarantor, except as expressly set forth herein.
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4. Subrogation. The Guarantor will not exercise against any Parent Party any rights of subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by reason of any payment by it pursuant to the provisions of Section 1 hereof unless and until the Guaranteed Obligation and all other amounts payable under this Limited Guarantee have been paid in full.
5. Termination. This Limited Guarantee shall terminate (and the Guarantor shall have no further obligations hereunder) upon the earliest to occur of (a) the Effective Time, (b) the payment in full of the Guaranteed Obligation and the obligation under Section 1(c), (c) the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would not be required pursuant to the terms and subject to the conditions of the Merger Agreement to make any payment of any Guaranteed Obligation; and (d) six months after the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would be required pursuant to the terms and subject to the conditions of the Merger Agreement to make a payment of the Guaranteed Obligation, unless by the end of such six-month period, the Guaranteed Party shall have initiated a claim or proceeding in accordance with the terms of the Merger Agreement for payment of any of the Guaranteed Obligations; provided that if the Guaranteed Party has initiated a claim or proceeding by the end of such six-month period, this Limited Guarantee shall terminate upon the date such claim or proceeding is finally satisfied or otherwise resolved by agreement of the parties hereto or pursuant to Section 12. In the event that the Guaranteed Party or any of its Affiliates or subsidiaries asserts in any litigation or other proceeding relating to this Limited Guarantee or the Merger Agreement (i) that the provisions hereof (including, without limitation, Section 1 hereof limiting the Guarantor's aggregate liability to the Maximum Amount or Section 3 hereof relating to the sole and exclusive remedies of the Guaranteed Party and its equityholders, Affiliates and subsidiaries against the Guarantor or any Related Person) are illegal, invalid or unenforceable, in whole or in part, or (ii) any theory of liability against the Guarantor or any Related Person or any other Guarantor under the other Limited Guarantees dated as of the date hereof or any Related Person of any such other Guarantor with respect to the transactions contemplated by this Limited Guarantee, the Equity Commitment Letter or the Merger Agreement other than any Permitted Claim, then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and be null and void, (y) if the Guarantor has previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments from the Guaranteed Party and (z) neither the Guarantor nor any Related Person (other than the Parent Parties and their respective successors and assigns) shall have any liability to the Guaranteed Party or any of its equityholders, Affiliates or subsidiaries with respect to the Merger Agreement or the transactions contemplated by the Merger Agreement or this Limited Guarantee.
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6. Continuing Guarantee. Except to the extent terminated pursuant to the provisions of Section 5 hereof, this Limited Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed Obligation and the obligation under Section 1(c), shall be binding upon the Guarantor, its successors and assigns, and shall inure to the benefit of, and be enforceable by, the Guaranteed Party and its successors, permitted transferees and permitted assigns; provided that notwithstanding anything to the contrary in this Limited Guarantee, the provisions of this Limited Guarantee that are for the benefit of any Related Person (including the provisions of Sections 3 and 5) shall indefinitely survive any termination of this Limited Guarantee for the benefit of the Guarantor and any Related Persons. All obligation to which this Limited Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
7. Entire Agreement. This Limited Guarantee, the Merger Agreement, the Equity Commitment Letter and the Escrow Agreement constitute the entire agreement with respect to the subject matter hereof, and supersede all other prior agreements and understandings, both written and oral, among the Parent Parties and/or the Guarantor or any of their respective Affiliates, on the one hand, and the Guaranteed Party or any of its Affiliates, on the other hand, regarding the subject matter hereof.
8. Amendments and Waivers. Any provision of this Limited Guarantee may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Guarantor and the Guaranteed Party or, in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by any party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
9. Counterparts. This Limited Guarantee may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
10. Notices. All notices, requests, claims, demands and other communications hereunder shall be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressee's location on any Business Day after 5:00 p.m. (addressee's local time) shall be deemed to have been received at 9:00 a.m. (addressee's local time) on the next Business Day), by reliable international overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:
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if to the Guarantor:
Yi Capital Qiyuan Fund, L.P.
(宁波执一奇元股权投资中心 (有限合伙))
2105A, Tower A, Pingan International Financial Centre,
Xinyuan South Road, Beijing, 100027, China
Attention: Guoqing Sun
with copies to:
Kirkland & Ellis
26th Floor, Glouster Tower, The Landmark
15 Queen's Road Central
Hong Kong
Facsimile: +852-3761-3301
Attention: David Zhang and Jesse Sheley
If to the Guaranteed Party, as provided in Section 9.2 of the Merger Agreement.
11. Governing Law. This Limited Guarantee (except for the arbitration agreement in Section 12) shall be governed by and construed in accordance with the Laws of the State of New York without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
12. Jurisdiction; Waiver of Service of Process.
(a) Jurisdiction. In the event any dispute arises among the parties hereto out of or in relation to this Limited Guarantee, including any dispute regarding its existence, interpretation, performance, breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly consultations within thirty (30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions of this Section 12. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre ("HKIAC") Administered Rules in force when a notice of arbitration is submitted. The seat and venue of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The law of the arbitration agreement shall be Hong Kong law. The appointing authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number, and one arbitrator shall be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from nominating their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within 30 days after such two arbitrators have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any person necessary for the conduct of the arbitration, unless otherwise required by Law or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and any interim or final award, as well as the fact that an arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after the submission of any dispute to arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter agreement, except insofar as the same may relate directly to the matters in dispute. The parties hereby agree that any arbitration award rendered in accordance with the provisions of this Section 12 shall be final and binding upon them, and the parties further agree that such award may be enforced by any court having jurisdiction over the party against which the award has been rendered or the assets of such party wherever the same may be located. In any arbitration proceeding, any legal proceeding to enforce any arbitration award and in any other legal proceeding among the Parties pursuant to or relating to this Agreement, each Party expressly waives the defense of sovereign immunity and any other defense based on the fact or allegation that it is an agency or instrumentality of a sovereign state or is otherwise entitled to immunity.
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13. Representations and Warranties. The Guarantor hereby represents and warrants to the Guaranteed Party that:
(a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization;
(b) it has all necessary power and authority to execute, deliver and perform this Limited Guarantee;
(c) the execution, delivery and performance of this Limited Guarantee by the Guarantor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Guarantor are necessary therefor;
(d) all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Limited Guarantee by the Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution, delivery or performance of this Limited Guarantee;
(e) this Limited Guarantee has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the undersigned in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law));
(f) the execution, delivery and performance by the undersigned of this Limited Guarantee do not and will not violate the organizational documents of the undersigned or violate any applicable law, regulation, rule, decree, order, judgment or contractual restriction binding on the Guarantor or its assets or properties; and
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(g) it has the financial capacity to pay and perform its obligations under this Limited Guarantee, and all funds necessary for the Guarantor to fulfill its obligations under this Limited Guarantee shall be available to the Guarantor for so long as this Limited Guarantee shall remain in effect in accordance with Section 6.
14. No Assignment. Neither this Limited Guarantee nor any of the rights, interests or obligations hereunder shall be assignable without the prior written consent of the Guaranteed Party (in the case of an assignment by the Guarantor) or the Guarantor (in the case of an assignment by the Guaranteed Party).
15. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LIMITED GUARANTEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 15.
16. Severability. Any term or provision of this Limited Guarantee which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Limited Guarantee in any jurisdiction and, if any provision of this Limited Guarantee is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Maximum Amount provided in Section 1 hereof and to the provisions of Sections 3 and 5 hereof. No party hereto shall assert, and each party shall cause its respective Affiliates and subsidiaries not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.
17. Headings. Headings of the Sections of this Limited Guarantee are for convenience only and shall be given no substantive or interpretive effect whatsoever.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Yi Capital Qiyuan Fund, L.P. | ||
| (宁波执一奇元股权投资中心 (有限合伙)) | ||
| [Company chop is affixed] | ||
| By: | /s/ Wenjiang Chen | |
| Name: Wenjiang Chen (陈文江) | ||
| Title: Representative of the General Partner of Yi Capital Qiyuan Fung, L.P. (执行事务合伙人委派代表) | ||
[Signature Page to Limited Guarantee]
IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Limited Guarantee]
Exhibit 99.104
Execution Version
LIMITED GUARANTEE
This Limited Guarantee, dated as of December 18, 2015 (this "Limited Guarantee"), is made by Jiaxingyingfei Investment Center (Limited Partnership) (嘉兴英飞投资中心 (有限合伙)), a limited partnership formed under the laws of the People’s Republic of China (including its successors and permitted assigns, the "Guarantor"), in favor of Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Guaranteed Party"). Reference is hereby made to the Agreement and Plan of Merger, dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), and the Guaranteed Party. Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Merger Agreement.
1. Limited Guarantee.
(a) To induce the Guaranteed Party to enter into the Merger Agreement, the Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, subject to the terms and conditions hereof, the due and punctual payment and performance when due of 0.56% of the Parent Parties' obligation (the "Guaranteed Obligation") to pay to the Guaranteed Party (i) the Parent Termination Fee if and when required pursuant to Section 8.2(c) of the Merger Agreement, and (ii) the payment obligations of the Parent Parties pursuant to Section 6.6 of the Merger Agreement; provided that the maximum aggregate liability of the Guarantor hereunder shall not exceed US$ 2,508,013 (the "Maximum Amount").
(b) The Guaranteed Party hereby agrees that (a) the Guarantor shall in no event be required to pay more than the Maximum Amount under or in respect of this Guarantee and (b) the Guarantor shall not have any obligation or liability to any Person (including, without limitation, to the Guaranteed Party's equity holders, Affiliates and/or subsidiaries) relating to, arising out of or in connection with this Limited Guarantee, the Merger Agreement, or the Equity Commitment Letter (as defined below) other than as expressly set forth herein or in the Equity Commitment Letter or the Escrow Agreement (as defined in the Equity Commitment Letter).
(c) The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by the Guaranteed Party in connection with the enforcement of its rights hereunder and under the Merger Agreement, including, without limitation, in the event that (i) the Guarantor asserts in any arbitration, litigation or other proceeding that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms and the Guaranteed Party prevails in such arbitration, litigation or other proceeding, or (ii) the Guarantor fails or refuses to make any payment to the Guaranteed Party hereunder when due and payable and it is determined judicially or by arbitration that the Guarantor is required to make such payment hereunder.
(d) The Guarantor promises and undertakes to make all payments hereunder free and clear of any deduction, offset, defense, claim or counterclaim of any kind. If the Parent Parties fail to pay or cause to be paid the Guaranteed Obligation as and when due and payable pursuant to Section 8.2(c) of the Merger Agreement, as applicable, then the Guarantor's liabilities to the Guaranteed Party hereunder in respect of such Guaranteed Obligation shall become immediately due and payable and the Guaranteed Party may at any time and from time to time, at the Guaranteed Party's option, and so long as the Parent Parties remain in breach of its Guaranteed Obligation, take any and all actions available hereunder or under applicable Law to collect the Guaranteed Obligation from the Guarantor subject to the Maximum Amount as applicable.
2. Terms of Limited Guarantee.
(a) This Limited Guarantee is a primary and original obligation of the Guarantor and is one of payment, not collection, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against any Parent Party or any other Person or whether any Parent Party or any other Person is joined in any such action or actions. Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantor under this Limited Guarantee and of the other guarantors under the other Limited Guarantees dated as of the date hereof ("Other Guarantors") shall be several and not joint.
(b) The liability of the Guarantor under this Limited Guarantee shall, to the fullest extent permitted under applicable law, be absolute, irrevocable and unconditional, irrespective of:
(i) the value, genuineness, validity, illegality or enforceability of the Merger Agreement or the letter agreement dated as of the date hereof between the Guarantor, on the one hand, and Holdco and Parent, on the other hand, pursuant to which the Guarantor has agreed to make a certain equity contribution to Holdco and Parent (the "Equity Commitment Letter") or any other agreement or instrument referred to herein or therein;
(ii) any change in the corporate existence, structure or ownership of any Parent Party or any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting any Parent Party, any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor) or any of their respective assets;
(iii) any amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof;
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(iv) the existence of any claim, set-off or other right that the Guarantor may have at any time against any Parent Party or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise;
(v) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against any Parent Party or the Guarantor or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation (other than as and if required by Section 2(a));
(vi) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of the Guaranteed Obligation;
(vii) any other act or omission that may in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment in full of the Guaranteed Obligation in accordance with their terms); or
(viii) the addition, substitution, discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Guaranteed Obligation as a result of payment in full of the Guaranteed Obligation in accordance with their terms) of any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor),
other than in each case with respect to (A) defenses to the payment of the Guaranteed Obligation that are available to any Parent Party under the Merger Agreement or (B) breach by the Guaranteed Party of this Limited Guarantee, including, without limitation, the limitations set forth in Section 3 below), and, notwithstanding any other provision of this Limited Guarantee to the contrary, the Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that any Parent Party could assert against the Company under the terms of, or with respect to, the Merger Agreement that would relieve each of the Parent Parties of its obligations under the Merger Agreement.
(c) To the fullest extent permitted by applicable law, the Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of the Guaranteed Obligation and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligation shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between the Parent Parties and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under no obligation to pursue such rights and remedies it may have against the Parent Parties or any other Person for the Guaranteed Obligation or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue such other rights or remedies or to collect any payments from the Parent Parties or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of the Parent Parties or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guaranteed Party.
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(d) To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, acceptance hereof, presentment, demand for payment, notice of non-performance, default, dishonor and protest, any notice not provided for herein, all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of any Parent Party or any other person interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligation that are available to the Parent Parties under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated under the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits.
(e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that the Parent Parties become subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantor's obligation hereunder. In the event that any payment to the Guaranteed Party in respect of the Guaranteed Obligation is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to the Guaranteed Obligation as if such payment had not been made so long as this Limited Guarantee has not terminated in accordance with its terms.
3. Sole Remedy; No Recourse. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party further agrees that neither it nor any other Person (including, without limitation, the Guaranteed Party's equityholders, Affiliates and subsidiaries) has any right of recovery against, and no personal liability shall attach to, the Guarantor, any former, current or future, director, officer, employee, agent or Affiliate of the Guarantor, any former, current or future, direct or indirect holder of any equity interests or securities of the Guarantor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or representative any of the foregoing (each such Person, a "Related Person"), through any Parent Party or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of any Parent Party against the Guarantor or any Related Person (except for any claim to compel Holdco and/or Parent to enforce the Equity Commitment Letter in accordance with the terms thereof), or otherwise, except for its rights against the Guarantor under this Limited Guarantee and the Escrow Agreement. Recourse against the Guarantor under this Limited Guarantee and the Escrow Agreement and the Guaranteed Party's rights under the Equity Commitment Letter shall be the sole and exclusive remedy of (i) the Guaranteed Party and (ii) all of the Guaranteed Party's equityholders, Affiliates and subsidiaries against the Guarantor and any Related Person (other than the Parent Parties and their respective successors and assigns) in respect of any liabilities or obligations arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby, including by piercing the corporate, limited liability company or limited partnership veil or by a claim by or on behalf of any Parent Party. The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Affiliates and subsidiaries not to institute, any proceeding or bring any other claim arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby (or the failure of such to be consummated), against the Guarantor or any Related Person, except for (A) claims of the Guaranteed Party against the Guarantor under and in accordance with this Limited Guarantee and the Escrow Agreement, (B) claims of the Guaranteed Party against the Parent Parties (and their respective successors and assigns) under and in accordance with the Merger Agreement and the Escrow Agreement, and (C) the exercise of the Guaranteed Party's rights under and in accordance with the Equity Commitment Letter, and the Guaranteed Party hereby, on behalf of itself and its Affiliates and subsidiaries, waives any and all claims arising under, or in connection with, the Merger Agreement, this Limited Guarantee, the Equity Commitment Letter, the Escrow Agreement or, in each case, the transactions contemplated hereby or thereby against the Guarantor or any Related Person and releases such Persons from such claims, in each case, except for claims described in clauses (A), (B) and (C) of this sentence (each, a "Permitted Claim"). Nothing set forth in this Limited Guarantee shall confer or give or shall be construed to confer or give to any Person (including any Person acting in a representative capacity) other than the Guaranteed Party any rights or remedies against any Person, including the Guarantor, except as expressly set forth herein.
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4. Subrogation. The Guarantor will not exercise against any Parent Party any rights of subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by reason of any payment by it pursuant to the provisions of Section 1 hereof unless and until the Guaranteed Obligation and all other amounts payable under this Limited Guarantee have been paid in full.
5. Termination. This Limited Guarantee shall terminate (and the Guarantor shall have no further obligations hereunder) upon the earliest to occur of (a) the Effective Time, (b) the payment in full of the Guaranteed Obligation and the obligation under Section 1(c), (c) the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would not be required pursuant to the terms and subject to the conditions of the Merger Agreement to make any payment of any Guaranteed Obligation; and (d) six months after the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would be required pursuant to the terms and subject to the conditions of the Merger Agreement to make a payment of the Guaranteed Obligation, unless by the end of such six-month period, the Guaranteed Party shall have initiated a claim or proceeding in accordance with the terms of the Merger Agreement for payment of any of the Guaranteed Obligations; provided that if the Guaranteed Party has initiated a claim or proceeding by the end of such six-month period, this Limited Guarantee shall terminate upon the date such claim or proceeding is finally satisfied or otherwise resolved by agreement of the parties hereto or pursuant to Section 12. In the event that the Guaranteed Party or any of its Affiliates or subsidiaries asserts in any litigation or other proceeding relating to this Limited Guarantee or the Merger Agreement (i) that the provisions hereof (including, without limitation, Section 1 hereof limiting the Guarantor's aggregate liability to the Maximum Amount or Section 3 hereof relating to the sole and exclusive remedies of the Guaranteed Party and its equityholders, Affiliates and subsidiaries against the Guarantor or any Related Person) are illegal, invalid or unenforceable, in whole or in part, or (ii) any theory of liability against the Guarantor or any Related Person or any other Guarantor under the other Limited Guarantees dated as of the date hereof or any Related Person of any such other Guarantor with respect to the transactions contemplated by this Limited Guarantee, the Equity Commitment Letter or the Merger Agreement other than any Permitted Claim, then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and be null and void, (y) if the Guarantor has previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments from the Guaranteed Party and (z) neither the Guarantor nor any Related Person (other than the Parent Parties and their respective successors and assigns) shall have any liability to the Guaranteed Party or any of its equityholders, Affiliates or subsidiaries with respect to the Merger Agreement or the transactions contemplated by the Merger Agreement or this Limited Guarantee.
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6. Continuing Guarantee. Except to the extent terminated pursuant to the provisions of Section 5 hereof, this Limited Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed Obligation and the obligation under Section 1(c), shall be binding upon the Guarantor, its successors and assigns, and shall inure to the benefit of, and be enforceable by, the Guaranteed Party and its successors, permitted transferees and permitted assigns; provided that notwithstanding anything to the contrary in this Limited Guarantee, the provisions of this Limited Guarantee that are for the benefit of any Related Person (including the provisions of Sections 3 and 5) shall indefinitely survive any termination of this Limited Guarantee for the benefit of the Guarantor and any Related Persons. All obligation to which this Limited Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
7. Entire Agreement. This Limited Guarantee, the Merger Agreement, the Equity Commitment Letter and the Escrow Agreement constitute the entire agreement with respect to the subject matter hereof, and supersede all other prior agreements and understandings, both written and oral, among the Parent Parties and/or the Guarantor or any of their respective Affiliates, on the one hand, and the Guaranteed Party or any of its Affiliates, on the other hand, regarding the subject matter hereof.
8. Amendments and Waivers. Any provision of this Limited Guarantee may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Guarantor and the Guaranteed Party or, in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by any party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
9. Counterparts. This Limited Guarantee may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
10. Notices. All notices, requests, claims, demands and other communications hereunder shall be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressee's location on any Business Day after 5:00 p.m. (addressee's local time) shall be deemed to have been received at 9:00 a.m. (addressee's local time) on the next Business Day), by reliable international overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:
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if to the Guarantor:
Jiaxingyingfei Investment Center (Limited Partnership)
(嘉兴英飞投资中心 (有限合伙))
A-2303,Jianwai SOHO,39 East 3rd-Ring Road,
Chaoyang District,Beijing,100022, P.R.C
Facsimile: 010-58695409
Attention: Ying Zhao
with copies to:
Kirkland & Ellis
26th Floor, Glouster Tower, The Landmark
15 Queen's Road Central
Hong Kong
Facsimile: +852-3761-3301
Attention: David Zhang and Jesse Sheley
If to the Guaranteed Party, as provided in Section 9.2 of the Merger Agreement.
11. Governing Law. This Limited Guarantee (except for the arbitration agreement in Section 12) shall be governed by and construed in accordance with the Laws of the State of New York without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
12. Jurisdiction; Waiver of Service of Process.
(a) Jurisdiction. In the event any dispute arises among the parties hereto out of or in relation to this Limited Guarantee, including any dispute regarding its existence, interpretation, performance, breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly consultations within thirty (30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions of this Section 12. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre ("HKIAC") Administered Rules in force when a notice of arbitration is submitted. The seat and venue of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The law of the arbitration agreement shall be Hong Kong law. The appointing authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number, and one arbitrator shall be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from nominating their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within 30 days after such two arbitrators have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any person necessary for the conduct of the arbitration, unless otherwise required by Law or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and any interim or final award, as well as the fact that an arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after the submission of any dispute to arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter agreement, except insofar as the same may relate directly to the matters in dispute. The parties hereby agree that any arbitration award rendered in accordance with the provisions of this Section 12 shall be final and binding upon them, and the parties further agree that such award may be enforced by any court having jurisdiction over the party against which the award has been rendered or the assets of such party wherever the same may be located. In any arbitration proceeding, any legal proceeding to enforce any arbitration award and in any other legal proceeding among the Parties pursuant to or relating to this Agreement, each Party expressly waives the defense of sovereign immunity and any other defense based on the fact or allegation that it is an agency or instrumentality of a sovereign state or is otherwise entitled to immunity.
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13. Representations and Warranties. The Guarantor hereby represents and warrants to the Guaranteed Party that:
(a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization;
(b) it has all necessary power and authority to execute, deliver and perform this Limited Guarantee;
(c) the execution, delivery and performance of this Limited Guarantee by the Guarantor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Guarantor are necessary therefor;
(d) all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Limited Guarantee by the Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution, delivery or performance of this Limited Guarantee;
(e) this Limited Guarantee has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the undersigned in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law));
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(f) the execution, delivery and performance by the undersigned of this Limited Guarantee do not and will not violate the organizational documents of the undersigned or violate any applicable law, regulation, rule, decree, order, judgment or contractual restriction binding on the Guarantor or its assets or properties; and
(g) it has the financial capacity to pay and perform its obligations under this Limited Guarantee, and all funds necessary for the Guarantor to fulfill its obligations under this Limited Guarantee shall be available to the Guarantor for so long as this Limited Guarantee shall remain in effect in accordance with Section 6.
14. No Assignment. Neither this Limited Guarantee nor any of the rights, interests or obligations hereunder shall be assignable without the prior written consent of the Guaranteed Party (in the case of an assignment by the Guarantor) or the Guarantor (in the case of an assignment by the Guaranteed Party).
15. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LIMITED GUARANTEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 15.
16. Severability. Any term or provision of this Limited Guarantee which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Limited Guarantee in any jurisdiction and, if any provision of this Limited Guarantee is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Maximum Amount provided in Section 1 hereof and to the provisions of Sections 3 and 5 hereof. No party hereto shall assert, and each party shall cause its respective Affiliates and subsidiaries not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.
17. Headings. Headings of the Sections of this Limited Guarantee are for convenience only and shall be given no substantive or interpretive effect whatsoever.
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IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Jiaxingyingfei Investment Center (Limited Partnership) | ||
| (嘉兴英飞投资中心 (有限合伙)) | ||
| [Company chop is affixed] | ||
| By: | /s/ Xiuzhen Wang | |
| Name: Xiuzhen Wang | ||
| Title: Managing Partner | ||
| 执行事务合伙人 | ||
[Signature Page to Limited Guarantee]
IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Limited Guarantee]
Exhibit 99.105
Execution Version
LIMITED GUARANTEE
This Limited Guarantee, dated as of December 18, 2015 (this "Limited Guarantee"), is made by Jiaxing Yun Qi Internet Plus Venture Partners LLP (嘉兴云启网加创业投资合伙企业 (有限合伙)), a limited partnership formed under the laws of the People’s Republic of China (including its successors and permitted assigns, the "Guarantor"), in favor of Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Guaranteed Party"). Reference is hereby made to the Agreement and Plan of Merger, dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), and the Guaranteed Party. Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Merger Agreement.
1. Limited Guarantee.
(a) To induce the Guaranteed Party to enter into the Merger Agreement, the Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, subject to the terms and conditions hereof, the due and punctual payment and performance when due of 0.56% of the Parent Parties' obligation (the "Guaranteed Obligation") to pay to the Guaranteed Party (i) the Parent Termination Fee if and when required pursuant to Section 8.2(c) of the Merger Agreement, and (ii) the payment obligations of the Parent Parties pursuant to Section 6.6 of the Merger Agreement; provided that the maximum aggregate liability of the Guarantor hereunder shall not exceed US$ 2,508,013 (the "Maximum Amount").
(b) The Guaranteed Party hereby agrees that (a) the Guarantor shall in no event be required to pay more than the Maximum Amount under or in respect of this Guarantee and (b) the Guarantor shall not have any obligation or liability to any Person (including, without limitation, to the Guaranteed Party's equity holders, Affiliates and/or subsidiaries) relating to, arising out of or in connection with this Limited Guarantee, the Merger Agreement, or the Equity Commitment Letter (as defined below) other than as expressly set forth herein or in the Equity Commitment Letter or the Escrow Agreement (as defined in the Equity Commitment Letter).
(c) The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by the Guaranteed Party in connection with the enforcement of its rights hereunder and under the Merger Agreement, including, without limitation, in the event that (i) the Guarantor asserts in any arbitration, litigation or other proceeding that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms and the Guaranteed Party prevails in such arbitration, litigation or other proceeding, or (ii) the Guarantor fails or refuses to make any payment to the Guaranteed Party hereunder when due and payable and it is determined judicially or by arbitration that the Guarantor is required to make such payment hereunder.
(d) The Guarantor promises and undertakes to make all payments hereunder free and clear of any deduction, offset, defense, claim or counterclaim of any kind. If the Parent Parties fail to pay or cause to be paid the Guaranteed Obligation as and when due and payable pursuant to Section 8.2(c) of the Merger Agreement, as applicable, then the Guarantor's liabilities to the Guaranteed Party hereunder in respect of such Guaranteed Obligation shall become immediately due and payable and the Guaranteed Party may at any time and from time to time, at the Guaranteed Party's option, and so long as the Parent Parties remain in breach of its Guaranteed Obligation, take any and all actions available hereunder or under applicable Law to collect the Guaranteed Obligation from the Guarantor subject to the Maximum Amount as applicable.
2. Terms of Limited Guarantee.
(a) This Limited Guarantee is a primary and original obligation of the Guarantor and is one of payment, not collection, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against any Parent Party or any other Person or whether any Parent Party or any other Person is joined in any such action or actions. Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantor under this Limited Guarantee and of the other guarantors under the other Limited Guarantees dated as of the date hereof ("Other Guarantors") shall be several and not joint.
(b) The liability of the Guarantor under this Limited Guarantee shall, to the fullest extent permitted under applicable law, be absolute, irrevocable and unconditional, irrespective of:
(i) the value, genuineness, validity, illegality or enforceability of the Merger Agreement or the letter agreement dated as of the date hereof between the Guarantor, on the one hand, and Holdco and Parent, on the other hand, pursuant to which the Guarantor has agreed to make a certain equity contribution to Holdco and Parent (the "Equity Commitment Letter") or any other agreement or instrument referred to herein or therein;
(ii) any change in the corporate existence, structure or ownership of any Parent Party or any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting any Parent Party, any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor) or any of their respective assets;
(iii) any amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof;
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(iv) the existence of any claim, set-off or other right that the Guarantor may have at any time against any Parent Party or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise;
(v) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against any Parent Party or the Guarantor or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation (other than as and if required by Section 2(a));
(vi) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of the Guaranteed Obligation;
(vii) any other act or omission that may in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment in full of the Guaranteed Obligation in accordance with their terms); or
(viii) the addition, substitution, discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Guaranteed Obligation as a result of payment in full of the Guaranteed Obligation in accordance with their terms) of any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor),
other than in each case with respect to (A) defenses to the payment of the Guaranteed Obligation that are available to any Parent Party under the Merger Agreement or (B) breach by the Guaranteed Party of this Limited Guarantee, including, without limitation, the limitations set forth in Section 3 below), and, notwithstanding any other provision of this Limited Guarantee to the contrary, the Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that any Parent Party could assert against the Company under the terms of, or with respect to, the Merger Agreement that would relieve each of the Parent Parties of its obligations under the Merger Agreement.
(c) To the fullest extent permitted by applicable law, the Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of the Guaranteed Obligation and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligation shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between the Parent Parties and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under no obligation to pursue such rights and remedies it may have against the Parent Parties or any other Person for the Guaranteed Obligation or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue such other rights or remedies or to collect any payments from the Parent Parties or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of the Parent Parties or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guaranteed Party.
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(d) To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, acceptance hereof, presentment, demand for payment, notice of non-performance, default, dishonor and protest, any notice not provided for herein, all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of any Parent Party or any other person interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligation that are available to the Parent Parties under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated under the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits.
(e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that the Parent Parties become subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantor's obligation hereunder. In the event that any payment to the Guaranteed Party in respect of the Guaranteed Obligation is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to the Guaranteed Obligation as if such payment had not been made so long as this Limited Guarantee has not terminated in accordance with its terms.
3. Sole Remedy; No Recourse. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party further agrees that neither it nor any other Person (including, without limitation, the Guaranteed Party's equityholders, Affiliates and subsidiaries) has any right of recovery against, and no personal liability shall attach to, the Guarantor, any former, current or future, director, officer, employee, agent or Affiliate of the Guarantor, any former, current or future, direct or indirect holder of any equity interests or securities of the Guarantor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or representative any of the foregoing (each such Person, a "Related Person"), through any Parent Party or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of any Parent Party against the Guarantor or any Related Person (except for any claim to compel Holdco and/or Parent to enforce the Equity Commitment Letter in accordance with the terms thereof), or otherwise, except for its rights against the Guarantor under this Limited Guarantee and the Escrow Agreement. Recourse against the Guarantor under this Limited Guarantee and the Escrow Agreement and the Guaranteed Party's rights under the Equity Commitment Letter shall be the sole and exclusive remedy of (i) the Guaranteed Party and (ii) all of the Guaranteed Party's equityholders, Affiliates and subsidiaries against the Guarantor and any Related Person (other than the Parent Parties and their respective successors and assigns) in respect of any liabilities or obligations arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby, including by piercing the corporate, limited liability company or limited partnership veil or by a claim by or on behalf of any Parent Party. The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Affiliates and subsidiaries not to institute, any proceeding or bring any other claim arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby (or the failure of such to be consummated), against the Guarantor or any Related Person, except for (A) claims of the Guaranteed Party against the Guarantor under and in accordance with this Limited Guarantee and the Escrow Agreement, (B) claims of the Guaranteed Party against the Parent Parties (and their respective successors and assigns) under and in accordance with the Merger Agreement and the Escrow Agreement, and (C) the exercise of the Guaranteed Party's rights under and in accordance with the Equity Commitment Letter, and the Guaranteed Party hereby, on behalf of itself and its Affiliates and subsidiaries, waives any and all claims arising under, or in connection with, the Merger Agreement, this Limited Guarantee, the Equity Commitment Letter, the Escrow Agreement or, in each case, the transactions contemplated hereby or thereby against the Guarantor or any Related Person and releases such Persons from such claims, in each case, except for claims described in clauses (A), (B) and (C) of this sentence (each, a "Permitted Claim"). Nothing set forth in this Limited Guarantee shall confer or give or shall be construed to confer or give to any Person (including any Person acting in a representative capacity) other than the Guaranteed Party any rights or remedies against any Person, including the Guarantor, except as expressly set forth herein.
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4. Subrogation. The Guarantor will not exercise against any Parent Party any rights of subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by reason of any payment by it pursuant to the provisions of Section 1 hereof unless and until the Guaranteed Obligation and all other amounts payable under this Limited Guarantee have been paid in full.
5. Termination. This Limited Guarantee shall terminate (and the Guarantor shall have no further obligations hereunder) upon the earliest to occur of (a) the Effective Time, (b) the payment in full of the Guaranteed Obligation and the obligation under Section 1(c), (c) the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would not be required pursuant to the terms and subject to the conditions of the Merger Agreement to make any payment of any Guaranteed Obligation; and (d) six months after the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would be required pursuant to the terms and subject to the conditions of the Merger Agreement to make a payment of the Guaranteed Obligation, unless by the end of such six-month period, the Guaranteed Party shall have initiated a claim or proceeding in accordance with the terms of the Merger Agreement for payment of any of the Guaranteed Obligations; provided that if the Guaranteed Party has initiated a claim or proceeding by the end of such six-month period, this Limited Guarantee shall terminate upon the date such claim or proceeding is finally satisfied or otherwise resolved by agreement of the parties hereto or pursuant to Section 12. In the event that the Guaranteed Party or any of its Affiliates or subsidiaries asserts in any litigation or other proceeding relating to this Limited Guarantee or the Merger Agreement (i) that the provisions hereof (including, without limitation, Section 1 hereof limiting the Guarantor's aggregate liability to the Maximum Amount or Section 3 hereof relating to the sole and exclusive remedies of the Guaranteed Party and its equityholders, Affiliates and subsidiaries against the Guarantor or any Related Person) are illegal, invalid or unenforceable, in whole or in part, or (ii) any theory of liability against the Guarantor or any Related Person or any other Guarantor under the other Limited Guarantees dated as of the date hereof or any Related Person of any such other Guarantor with respect to the transactions contemplated by this Limited Guarantee, the Equity Commitment Letter or the Merger Agreement other than any Permitted Claim, then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and be null and void, (y) if the Guarantor has previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments from the Guaranteed Party and (z) neither the Guarantor nor any Related Person (other than the Parent Parties and their respective successors and assigns) shall have any liability to the Guaranteed Party or any of its equityholders, Affiliates or subsidiaries with respect to the Merger Agreement or the transactions contemplated by the Merger Agreement or this Limited Guarantee.
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6. Continuing Guarantee. Except to the extent terminated pursuant to the provisions of Section 5 hereof, this Limited Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed Obligation and the obligation under Section 1(c), shall be binding upon the Guarantor, its successors and assigns, and shall inure to the benefit of, and be enforceable by, the Guaranteed Party and its successors, permitted transferees and permitted assigns; provided that notwithstanding anything to the contrary in this Limited Guarantee, the provisions of this Limited Guarantee that are for the benefit of any Related Person (including the provisions of Sections 3 and 5) shall indefinitely survive any termination of this Limited Guarantee for the benefit of the Guarantor and any Related Persons. All obligation to which this Limited Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
7. Entire Agreement. This Limited Guarantee, the Merger Agreement, the Equity Commitment Letter and the Escrow Agreement constitute the entire agreement with respect to the subject matter hereof, and supersede all other prior agreements and understandings, both written and oral, among the Parent Parties and/or the Guarantor or any of their respective Affiliates, on the one hand, and the Guaranteed Party or any of its Affiliates, on the other hand, regarding the subject matter hereof.
8. Amendments and Waivers. Any provision of this Limited Guarantee may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Guarantor and the Guaranteed Party or, in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by any party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
9. Counterparts. This Limited Guarantee may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
10. Notices. All notices, requests, claims, demands and other communications hereunder shall be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressee's location on any Business Day after 5:00 p.m. (addressee's local time) shall be deemed to have been received at 9:00 a.m. (addressee's local time) on the next Business Day), by reliable international overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:
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if to the Guarantor:
Jiaxing Yun Qi Internet Plus Venture Partners LLP
(嘉兴云启网加创业投资合伙企业 (有限合伙))
Lane 249,Anfu Road No. 5, Xuhui District,
Shanghai, 200031,China
Attention: Chengyu Mao
with copies to:
Kirkland & Ellis
26th Floor, Glouster Tower, The Landmark
15 Queen's Road Central
Hong Kong
Facsimile: +852-3761-3301
Attention: David Zhang and Jesse Sheley
If to the Guaranteed Party, as provided in Section 9.2 of the Merger Agreement.
11. Governing Law. This Limited Guarantee (except for the arbitration agreement in Section 12) shall be governed by and construed in accordance with the Laws of the State of New York without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
12. Jurisdiction; Waiver of Service of Process.
(a) Jurisdiction. In the event any dispute arises among the parties hereto out of or in relation to this Limited Guarantee, including any dispute regarding its existence, interpretation, performance, breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly consultations within thirty (30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions of this Section 12. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre ("HKIAC") Administered Rules in force when a notice of arbitration is submitted. The seat and venue of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The law of the arbitration agreement shall be Hong Kong law. The appointing authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number, and one arbitrator shall be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from nominating their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within 30 days after such two arbitrators have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any person necessary for the conduct of the arbitration, unless otherwise required by Law or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and any interim or final award, as well as the fact that an arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after the submission of any dispute to arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter agreement, except insofar as the same may relate directly to the matters in dispute. The parties hereby agree that any arbitration award rendered in accordance with the provisions of this Section 12 shall be final and binding upon them, and the parties further agree that such award may be enforced by any court having jurisdiction over the party against which the award has been rendered or the assets of such party wherever the same may be located. In any arbitration proceeding, any legal proceeding to enforce any arbitration award and in any other legal proceeding among the Parties pursuant to or relating to this Agreement, each Party expressly waives the defense of sovereign immunity and any other defense based on the fact or allegation that it is an agency or instrumentality of a sovereign state or is otherwise entitled to immunity.
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13. Representations and Warranties. The Guarantor hereby represents and warrants to the Guaranteed Party that:
(a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization;
(b) it has all necessary power and authority to execute, deliver and perform this Limited Guarantee;
(c) the execution, delivery and performance of this Limited Guarantee by the Guarantor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Guarantor are necessary therefor;
(d) all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Limited Guarantee by the Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution, delivery or performance of this Limited Guarantee;
(e) this Limited Guarantee has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the undersigned in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law));
(f) the execution, delivery and performance by the undersigned of this Limited Guarantee do not and will not violate the organizational documents of the undersigned or violate any applicable law, regulation, rule, decree, order, judgment or contractual restriction binding on the Guarantor or its assets or properties; and
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(g) it has the financial capacity to pay and perform its obligations under this Limited Guarantee, and all funds necessary for the Guarantor to fulfill its obligations under this Limited Guarantee shall be available to the Guarantor for so long as this Limited Guarantee shall remain in effect in accordance with Section 6.
14. No Assignment. Neither this Limited Guarantee nor any of the rights, interests or obligations hereunder shall be assignable without the prior written consent of the Guaranteed Party (in the case of an assignment by the Guarantor) or the Guarantor (in the case of an assignment by the Guaranteed Party).
15. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LIMITED GUARANTEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 15.
16. Severability. Any term or provision of this Limited Guarantee which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Limited Guarantee in any jurisdiction and, if any provision of this Limited Guarantee is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Maximum Amount provided in Section 1 hereof and to the provisions of Sections 3 and 5 hereof. No party hereto shall assert, and each party shall cause its respective Affiliates and subsidiaries not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.
17. Headings. Headings of the Sections of this Limited Guarantee are for convenience only and shall be given no substantive or interpretive effect whatsoever.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Jiaxing Yun Qi Internet Plus Venture | ||
| Partners LLP | ||
| (嘉兴云启网加创业投资合伙企业 | ||
| (有限合伙)) | ||
| [Company chop is affixed] | ||
| By: | /s/ MAO Chengyu | |
| Name: MAO Chengyu (毛丞宇) | ||
| Title: Authorized Signatory | ||
[Signature Page to Limited Guarantee]
IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Limited Guarantee]
Exhibit 99.106
Execution Version
LIMITED GUARANTEE
This Limited Guarantee, dated as of December 18, 2015 (this "Limited Guarantee"), is made by Ruipu Wenhua (Tianjin) Investment Center (Limited Partnership) ( 锐普文华(天津)投资中心 (有限合伙)), a limited partnership formed under the law of the People’s Republic of China (including its successors and permitted assigns, the "Guarantor"), in favor of Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Guaranteed Party"). Reference is hereby made to the Agreement and Plan of Merger, dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), and the Guaranteed Party. Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Merger Agreement.
1. Limited Guarantee.
(a) To induce the Guaranteed Party to enter into the Merger Agreement, the Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, subject to the terms and conditions hereof, the due and punctual payment and performance when due of 0.99% of the Parent Parties' obligation (the "Guaranteed Obligation") to pay to the Guaranteed Party (i) the Parent Termination Fee if and when required pursuant to Section 8.2(c) of the Merger Agreement, and (ii) the payment obligations of the Parent Parties pursuant to Section 6.6 of the Merger Agreement; provided that the maximum aggregate liability of the Guarantor hereunder shall not exceed US$ 4,458,689 (the "Maximum Amount").
(b) The Guaranteed Party hereby agrees that (a) the Guarantor shall in no event be required to pay more than the Maximum Amount under or in respect of this Guarantee and (b) the Guarantor shall not have any obligation or liability to any Person (including, without limitation, to the Guaranteed Party's equity holders, Affiliates and/or subsidiaries) relating to, arising out of or in connection with this Limited Guarantee, the Merger Agreement, or the Equity Commitment Letter (as defined below) other than as expressly set forth herein or in the Equity Commitment Letter or the Escrow Agreement (as defined in the Equity Commitment Letter).
(c) The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by the Guaranteed Party in connection with the enforcement of its rights hereunder and under the Merger Agreement, including, without limitation, in the event that (i) the Guarantor asserts in any arbitration, litigation or other proceeding that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms and the Guaranteed Party prevails in such arbitration, litigation or other proceeding, or (ii) the Guarantor fails or refuses to make any payment to the Guaranteed Party hereunder when due and payable and it is determined judicially or by arbitration that the Guarantor is required to make such payment hereunder.
(d) The Guarantor promises and undertakes to make all payments hereunder free and clear of any deduction, offset, defense, claim or counterclaim of any kind. If the Parent Parties fail to pay or cause to be paid the Guaranteed Obligation as and when due and payable pursuant to Section 8.2(c) of the Merger Agreement, as applicable, then the Guarantor's liabilities to the Guaranteed Party hereunder in respect of such Guaranteed Obligation shall become immediately due and payable and the Guaranteed Party may at any time and from time to time, at the Guaranteed Party's option, and so long as the Parent Parties remain in breach of its Guaranteed Obligation, take any and all actions available hereunder or under applicable Law to collect the Guaranteed Obligation from the Guarantor subject to the Maximum Amount as applicable.
2. Terms of Limited Guarantee.
(a) This Limited Guarantee is a primary and original obligation of the Guarantor and is one of payment, not collection, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against any Parent Party or any other Person or whether any Parent Party or any other Person is joined in any such action or actions. Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantor under this Limited Guarantee and of the other guarantors under the other Limited Guarantees dated as of the date hereof ("Other Guarantors") shall be several and not joint.
(b) The liability of the Guarantor under this Limited Guarantee shall, to the fullest extent permitted under applicable law, be absolute, irrevocable and unconditional, irrespective of:
(i) the value, genuineness, validity, illegality or enforceability of the Merger Agreement or the letter agreement dated as of the date hereof between the Guarantor, on the one hand, and Holdco and Parent, on the other hand, pursuant to which the Guarantor has agreed to make a certain equity contribution to Holdco and Parent (the "Equity Commitment Letter") or any other agreement or instrument referred to herein or therein;
(ii) any change in the corporate existence, structure or ownership of any Parent Party or any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting any Parent Party, any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor) or any of their respective assets;
(iii) any amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof;
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(iv) the existence of any claim, set-off or other right that the Guarantor may have at any time against any Parent Party or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise;
(v) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against any Parent Party or the Guarantor or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation (other than as and if required by Section 2(a));
(vi) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of the Guaranteed Obligation;
(vii) any other act or omission that may in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment in full of the Guaranteed Obligation in accordance with their terms); or
(viii) the addition, substitution, discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Guaranteed Obligation as a result of payment in full of the Guaranteed Obligation in accordance with their terms) of any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor),
other than in each case with respect to (A) defenses to the payment of the Guaranteed Obligation that are available to any Parent Party under the Merger Agreement or (B) breach by the Guaranteed Party of this Limited Guarantee, including, without limitation, the limitations set forth in Section 3 below), and, notwithstanding any other provision of this Limited Guarantee to the contrary, the Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that any Parent Party could assert against the Company under the terms of, or with respect to, the Merger Agreement that would relieve each of the Parent Parties of its obligations under the Merger Agreement.
(c) To the fullest extent permitted by applicable law, the Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of the Guaranteed Obligation and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligation shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between the Parent Parties and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under no obligation to pursue such rights and remedies it may have against the Parent Parties or any other Person for the Guaranteed Obligation or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue such other rights or remedies or to collect any payments from the Parent Parties or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of the Parent Parties or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guaranteed Party.
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(d) To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, acceptance hereof, presentment, demand for payment, notice of non-performance, default, dishonor and protest, any notice not provided for herein, all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of any Parent Party or any other person interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligation that are available to the Parent Parties under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated under the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits.
(e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that the Parent Parties become subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantor's obligation hereunder. In the event that any payment to the Guaranteed Party in respect of the Guaranteed Obligation is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to the Guaranteed Obligation as if such payment had not been made so long as this Limited Guarantee has not terminated in accordance with its terms.
3. Sole Remedy; No Recourse. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party further agrees that neither it nor any other Person (including, without limitation, the Guaranteed Party's equityholders, Affiliates and subsidiaries) has any right of recovery against, and no personal liability shall attach to, the Guarantor, any former, current or future, director, officer, employee, agent or Affiliate of the Guarantor, any former, current or future, direct or indirect holder of any equity interests or securities of the Guarantor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or representative any of the foregoing (each such Person, a "Related Person"), through any Parent Party or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of any Parent Party against the Guarantor or any Related Person (except for any claim to compel Holdco and/or Parent to enforce the Equity Commitment Letter in accordance with the terms thereof), or otherwise, except for its rights against the Guarantor under this Limited Guarantee and the Escrow Agreement. Recourse against the Guarantor under this Limited Guarantee and the Escrow Agreement and the Guaranteed Party's rights under the Equity Commitment Letter shall be the sole and exclusive remedy of (i) the Guaranteed Party and (ii) all of the Guaranteed Party's equityholders, Affiliates and subsidiaries against the Guarantor and any Related Person (other than the Parent Parties and their respective successors and assigns) in respect of any liabilities or obligations arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby, including by piercing the corporate, limited liability company or limited partnership veil or by a claim by or on behalf of any Parent Party. The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Affiliates and subsidiaries not to institute, any proceeding or bring any other claim arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby (or the failure of such to be consummated), against the Guarantor or any Related Person, except for (A) claims of the Guaranteed Party against the Guarantor under and in accordance with this Limited Guarantee and the Escrow Agreement, (B) claims of the Guaranteed Party against the Parent Parties (and their respective successors and assigns) under and in accordance with the Merger Agreement and the Escrow Agreement, and (C) the exercise of the Guaranteed Party's rights under and in accordance with the Equity Commitment Letter, and the Guaranteed Party hereby, on behalf of itself and its Affiliates and subsidiaries, waives any and all claims arising under, or in connection with, the Merger Agreement, this Limited Guarantee, the Equity Commitment Letter, the Escrow Agreement or, in each case, the transactions contemplated hereby or thereby against the Guarantor or any Related Person and releases such Persons from such claims, in each case, except for claims described in clauses (A), (B) and (C) of this sentence (each, a "Permitted Claim"). Nothing set forth in this Limited Guarantee shall confer or give or shall be construed to confer or give to any Person (including any Person acting in a representative capacity) other than the Guaranteed Party any rights or remedies against any Person, including the Guarantor, except as expressly set forth herein.
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4. Subrogation. The Guarantor will not exercise against any Parent Party any rights of subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by reason of any payment by it pursuant to the provisions of Section 1 hereof unless and until the Guaranteed Obligation and all other amounts payable under this Limited Guarantee have been paid in full.
5. Termination. This Limited Guarantee shall terminate (and the Guarantor shall have no further obligations hereunder) upon the earliest to occur of (a) the Effective Time, (b) the payment in full of the Guaranteed Obligation and the obligation under Section 1(c), (c) the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would not be required pursuant to the terms and subject to the conditions of the Merger Agreement to make any payment of any Guaranteed Obligation; and (d) six months after the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would be required pursuant to the terms and subject to the conditions of the Merger Agreement to make a payment of the Guaranteed Obligation, unless by the end of such six-month period, the Guaranteed Party shall have initiated a claim or proceeding in accordance with the terms of the Merger Agreement for payment of any of the Guaranteed Obligations; provided that if the Guaranteed Party has initiated a claim or proceeding by the end of such six-month period, this Limited Guarantee shall terminate upon the date such claim or proceeding is finally satisfied or otherwise resolved by agreement of the parties hereto or pursuant to Section 12. In the event that the Guaranteed Party or any of its Affiliates or subsidiaries asserts in any litigation or other proceeding relating to this Limited Guarantee or the Merger Agreement (i) that the provisions hereof (including, without limitation, Section 1 hereof limiting the Guarantor's aggregate liability to the Maximum Amount or Section 3 hereof relating to the sole and exclusive remedies of the Guaranteed Party and its equityholders, Affiliates and subsidiaries against the Guarantor or any Related Person) are illegal, invalid or unenforceable, in whole or in part, or (ii) any theory of liability against the Guarantor or any Related Person or any other Guarantor under the other Limited Guarantees dated as of the date hereof or any Related Person of any such other Guarantor with respect to the transactions contemplated by this Limited Guarantee, the Equity Commitment Letter or the Merger Agreement other than any Permitted Claim, then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and be null and void, (y) if the Guarantor has previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments from the Guaranteed Party and (z) neither the Guarantor nor any Related Person (other than the Parent Parties and their respective successors and assigns) shall have any liability to the Guaranteed Party or any of its equityholders, Affiliates or subsidiaries with respect to the Merger Agreement or the transactions contemplated by the Merger Agreement or this Limited Guarantee.
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6. Continuing Guarantee. Except to the extent terminated pursuant to the provisions of Section 5 hereof, this Limited Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed Obligation and the obligation under Section 1(c), shall be binding upon the Guarantor, its successors and assigns, and shall inure to the benefit of, and be enforceable by, the Guaranteed Party and its successors, permitted transferees and permitted assigns; provided that notwithstanding anything to the contrary in this Limited Guarantee, the provisions of this Limited Guarantee that are for the benefit of any Related Person (including the provisions of Sections 3 and 5) shall indefinitely survive any termination of this Limited Guarantee for the benefit of the Guarantor and any Related Persons. All obligation to which this Limited Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
7. Entire Agreement. This Limited Guarantee, the Merger Agreement, the Equity Commitment Letter and the Escrow Agreement constitute the entire agreement with respect to the subject matter hereof, and supersede all other prior agreements and understandings, both written and oral, among the Parent Parties and/or the Guarantor or any of their respective Affiliates, on the one hand, and the Guaranteed Party or any of its Affiliates, on the other hand, regarding the subject matter hereof.
8. Amendments and Waivers. Any provision of this Limited Guarantee may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Guarantor and the Guaranteed Party or, in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by any party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
9. Counterparts. This Limited Guarantee may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
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10. Notices. All notices, requests, claims, demands and other communications hereunder shall be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressee's location on any Business Day after 5:00 p.m. (addressee's local time) shall be deemed to have been received at 9:00 a.m. (addressee's local time) on the next Business Day), by reliable international overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:
if to the Guarantor:
Ruipu Wenhua (Tianjin) Investment Center (Limited Partnership)
(锐普文华(天津)投资中心 (有限合伙))
1539 Nanjing Road West
Kerry Center, Tower 2
Suite 1801
Shanghai, China, 200040
Facsimile: (021) 6288-7797
Attention: Mingchen Zhang
with copies to:
Kirkland & Ellis
26th Floor, Glouster Tower, The Landmark
15 Queen's Road Central
Hong Kong
Facsimile: +852-3761-3301
Attention: David Zhang and Jesse Sheley
If to the Guaranteed Party, as provided in Section 9.2 of the Merger Agreement.
11. Governing Law. This Limited Guarantee (except for the arbitration agreement in Section 12) shall be governed by and construed in accordance with the Laws of the State of New York without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
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12. Jurisdiction; Waiver of Service of Process.
(a) Jurisdiction. In the event any dispute arises among the parties hereto out of or in relation to this Limited Guarantee, including any dispute regarding its existence, interpretation, performance, breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly consultations within thirty (30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions of this Section 12. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre ("HKIAC") Administered Rules in force when a notice of arbitration is submitted. The seat and venue of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The law of the arbitration agreement shall be Hong Kong law. The appointing authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number, and one arbitrator shall be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from nominating their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within 30 days after such two arbitrators have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any person necessary for the conduct of the arbitration, unless otherwise required by Law or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and any interim or final award, as well as the fact that an arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after the submission of any dispute to arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter agreement, except insofar as the same may relate directly to the matters in dispute. The parties hereby agree that any arbitration award rendered in accordance with the provisions of this Section 12 shall be final and binding upon them, and the parties further agree that such award may be enforced by any court having jurisdiction over the party against which the award has been rendered or the assets of such party wherever the same may be located. In any arbitration proceeding, any legal proceeding to enforce any arbitration award and in any other legal proceeding among the Parties pursuant to or relating to this Agreement, each Party expressly waives the defense of sovereign immunity and any other defense based on the fact or allegation that it is an agency or instrumentality of a sovereign state or is otherwise entitled to immunity.
13. Representations and Warranties. The Guarantor hereby represents and warrants to the Guaranteed Party that:
(a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization;
(b) it has all necessary power and authority to execute, deliver and perform this Limited Guarantee;
(c) the execution, delivery and performance of this Limited Guarantee by the Guarantor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Guarantor are necessary therefor;
(d) all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Limited Guarantee by the Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution, delivery or performance of this Limited Guarantee;
(e) this Limited Guarantee has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the undersigned in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law));
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(f) the execution, delivery and performance by the undersigned of this Limited Guarantee do not and will not violate the organizational documents of the undersigned or violate any applicable law, regulation, rule, decree, order, judgment or contractual restriction binding on the Guarantor or its assets or properties; and
(g) it has the financial capacity to pay and perform its obligations under this Limited Guarantee, and all funds necessary for the Guarantor to fulfill its obligations under this Limited Guarantee shall be available to the Guarantor for so long as this Limited Guarantee shall remain in effect in accordance with Section 6.
14. No Assignment. Neither this Limited Guarantee nor any of the rights, interests or obligations hereunder shall be assignable without the prior written consent of the Guaranteed Party (in the case of an assignment by the Guarantor) or the Guarantor (in the case of an assignment by the Guaranteed Party).
15. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LIMITED GUARANTEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 15.
16. Severability. Any term or provision of this Limited Guarantee which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Limited Guarantee in any jurisdiction and, if any provision of this Limited Guarantee is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Maximum Amount provided in Section 1 hereof and to the provisions of Sections 3 and 5 hereof. No party hereto shall assert, and each party shall cause its respective Affiliates and subsidiaries not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.
17. Headings. Headings of the Sections of this Limited Guarantee are for convenience only and shall be given no substantive or interpretive effect whatsoever.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Ruipu Wenhua (Tianjin) Investment Center (Limited Partnership) | ||
| 锐普文华(天津)投资中心(有限合伙) | ||
| By: | /s/ Mingchen Zhang | |
| Name: Mingchen Zhang | ||
| Title: Executive Director | ||
[Signature Page to Limited Guarantee]
IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Limited Guarantee]
Exhibit 99.107
Execution Version
LIMITED GUARANTEE
This Limited Guarantee, dated as of December 18, 2015 (this "Limited Guarantee"), is made by Shanghai Trust Bridge Partners Investment Management LLC (上海挚信投资管理有限公司), a limited liability company incorporated under the laws of the People’s Republic of China (including its successors and permitted assigns, the "Guarantor"), in favor of Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Guaranteed Party"). Reference is hereby made to the Agreement and Plan of Merger, dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), and the Guaranteed Party. Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Merger Agreement.
1. Limited Guarantee.
(a) To induce the Guaranteed Party to enter into the Merger Agreement, the Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, subject to the terms and conditions hereof, the due and punctual payment and performance when due of 1.11% of the Parent Parties' obligation (the "Guaranteed Obligation") to pay to the Guaranteed Party (i) the Parent Termination Fee if and when required pursuant to Section 8.2(c) of the Merger Agreement, and (ii) the payment obligations of the Parent Parties pursuant to Section 6.6 of the Merger Agreement; provided that the maximum aggregate liability of the Guarantor hereunder shall not exceed US$5,016,025 (the "Maximum Amount").
(b) The Guaranteed Party hereby agrees that (a) the Guarantor shall in no event be required to pay more than the Maximum Amount under or in respect of this Guarantee and (b) the Guarantor shall not have any obligation or liability to any Person (including, without limitation, to the Guaranteed Party's equity holders, Affiliates and/or subsidiaries) relating to, arising out of or in connection with this Limited Guarantee, the Merger Agreement, or the Equity Commitment Letter (as defined below) other than as expressly set forth herein or in the Equity Commitment Letter or the Escrow Agreement (as defined in the Equity Commitment Letter).
(c) The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by the Guaranteed Party in connection with the enforcement of its rights hereunder and under the Merger Agreement, including, without limitation, in the event that (i) the Guarantor asserts in any arbitration, litigation or other proceeding that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms and the Guaranteed Party prevails in such arbitration, litigation or other proceeding, or (ii) the Guarantor fails or refuses to make any payment to the Guaranteed Party hereunder when due and payable and it is determined judicially or by arbitration that the Guarantor is required to make such payment hereunder.
(d) The Guarantor promises and undertakes to make all payments hereunder free and clear of any deduction, offset, defense, claim or counterclaim of any kind. If the Parent Parties fail to pay or cause to be paid the Guaranteed Obligation as and when due and payable pursuant to Section 8.2(c) of the Merger Agreement, as applicable, then the Guarantor's liabilities to the Guaranteed Party hereunder in respect of such Guaranteed Obligation shall become immediately due and payable and the Guaranteed Party may at any time and from time to time, at the Guaranteed Party's option, and so long as the Parent Parties remain in breach of its Guaranteed Obligation, take any and all actions available hereunder or under applicable Law to collect the Guaranteed Obligation from the Guarantor subject to the Maximum Amount as applicable.
2. Terms of Limited Guarantee.
(a) This Limited Guarantee is a primary and original obligation of the Guarantor and is one of payment, not collection, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against any Parent Party or any other Person or whether any Parent Party or any other Person is joined in any such action or actions. Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantor under this Limited Guarantee and of the other guarantors under the other Limited Guarantees dated as of the date hereof ("Other Guarantors") shall be several and not joint.
(b) The liability of the Guarantor under this Limited Guarantee shall, to the fullest extent permitted under applicable law, be absolute, irrevocable and unconditional, irrespective of:
(i) the value, genuineness, validity, illegality or enforceability of the Merger Agreement or the letter agreement dated as of the date hereof between the Guarantor, on the one hand, and Holdco and Parent, on the other hand, pursuant to which the Guarantor has agreed to make a certain equity contribution to Holdco and Parent (the "Equity Commitment Letter") or any other agreement or instrument referred to herein or therein;
(ii) any change in the corporate existence, structure or ownership of any Parent Party or any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting any Parent Party, any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor) or any of their respective assets;
(iii) any amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof;
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(iv) the existence of any claim, set-off or other right that the Guarantor may have at any time against any Parent Party or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise;
(v) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against any Parent Party or the Guarantor or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation (other than as and if required by Section 2(a));
(vi) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of the Guaranteed Obligation;
(vii) any other act or omission that may in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment in full of the Guaranteed Obligation in accordance with their terms); or
(viii) the addition, substitution, discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Guaranteed Obligation as a result of payment in full of the Guaranteed Obligation in accordance with their terms) of any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor),
other than in each case with respect to (A) defenses to the payment of the Guaranteed Obligation that are available to any Parent Party under the Merger Agreement or (B) breach by the Guaranteed Party of this Limited Guarantee, including, without limitation, the limitations set forth in Section 3 below), and, notwithstanding any other provision of this Limited Guarantee to the contrary, the Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that any Parent Party could assert against the Company under the terms of, or with respect to, the Merger Agreement that would relieve each of the Parent Parties of its obligations under the Merger Agreement.
(c) To the fullest extent permitted by applicable law, the Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of the Guaranteed Obligation and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligation shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between the Parent Parties and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under no obligation to pursue such rights and remedies it may have against the Parent Parties or any other Person for the Guaranteed Obligation or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue such other rights or remedies or to collect any payments from the Parent Parties or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of the Parent Parties or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guaranteed Party.
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(d) To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, acceptance hereof, presentment, demand for payment, notice of non-performance, default, dishonor and protest, any notice not provided for herein, all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of any Parent Party or any other person interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligation that are available to the Parent Parties under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated under the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits.
(e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that the Parent Parties become subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantor's obligation hereunder. In the event that any payment to the Guaranteed Party in respect of the Guaranteed Obligation is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to the Guaranteed Obligation as if such payment had not been made so long as this Limited Guarantee has not terminated in accordance with its terms.
3. Sole Remedy; No Recourse. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party further agrees that neither it nor any other Person (including, without limitation, the Guaranteed Party's equityholders, Affiliates and subsidiaries) has any right of recovery against, and no personal liability shall attach to, the Guarantor, any former, current or future, director, officer, employee, agent or Affiliate of the Guarantor, any former, current or future, direct or indirect holder of any equity interests or securities of the Guarantor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or representative any of the foregoing (each such Person, a "Related Person"), through any Parent Party or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of any Parent Party against the Guarantor or any Related Person (except for any claim to compel Holdco and/or Parent to enforce the Equity Commitment Letter in accordance with the terms thereof), or otherwise, except for its rights against the Guarantor under this Limited Guarantee and the Escrow Agreement. Recourse against the Guarantor under this Limited Guarantee and the Escrow Agreement and the Guaranteed Party's rights under the Equity Commitment Letter shall be the sole and exclusive remedy of (i) the Guaranteed Party and (ii) all of the Guaranteed Party's equityholders, Affiliates and subsidiaries against the Guarantor and any Related Person (other than the Parent Parties and their respective successors and assigns) in respect of any liabilities or obligations arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby, including by piercing the corporate, limited liability company or limited partnership veil or by a claim by or on behalf of any Parent Party. The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Affiliates and subsidiaries not to institute, any proceeding or bring any other claim arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby (or the failure of such to be consummated), against the Guarantor or any Related Person, except for (A) claims of the Guaranteed Party against the Guarantor under and in accordance with this Limited Guarantee and the Escrow Agreement, (B) claims of the Guaranteed Party against the Parent Parties (and their respective successors and assigns) under and in accordance with the Merger Agreement and the Escrow Agreement, and (C) the exercise of the Guaranteed Party's rights under and in accordance with the Equity Commitment Letter, and the Guaranteed Party hereby, on behalf of itself and its Affiliates and subsidiaries, waives any and all claims arising under, or in connection with, the Merger Agreement, this Limited Guarantee, the Equity Commitment Letter, the Escrow Agreement or, in each case, the transactions contemplated hereby or thereby against the Guarantor or any Related Person and releases such Persons from such claims, in each case, except for claims described in clauses (A), (B) and (C) of this sentence (each, a "Permitted Claim"). Nothing set forth in this Limited Guarantee shall confer or give or shall be construed to confer or give to any Person (including any Person acting in a representative capacity) other than the Guaranteed Party any rights or remedies against any Person, including the Guarantor, except as expressly set forth herein.
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4. Subrogation. The Guarantor will not exercise against any Parent Party any rights of subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by reason of any payment by it pursuant to the provisions of Section 1 hereof unless and until the Guaranteed Obligation and all other amounts payable under this Limited Guarantee have been paid in full.
5. Termination. This Limited Guarantee shall terminate (and the Guarantor shall have no further obligations hereunder) upon the earliest to occur of (a) the Effective Time, (b) the payment in full of the Guaranteed Obligation and the obligation under Section 1(c), (c) the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would not be required pursuant to the terms and subject to the conditions of the Merger Agreement to make any payment of any Guaranteed Obligation; and (d) six months after the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would be required pursuant to the terms and subject to the conditions of the Merger Agreement to make a payment of the Guaranteed Obligation, unless by the end of such six-month period, the Guaranteed Party shall have initiated a claim or proceeding in accordance with the terms of the Merger Agreement for payment of any of the Guaranteed Obligations; provided that if the Guaranteed Party has initiated a claim or proceeding by the end of such six-month period, this Limited Guarantee shall terminate upon the date such claim or proceeding is finally satisfied or otherwise resolved by agreement of the parties hereto or pursuant to Section 12. In the event that the Guaranteed Party or any of its Affiliates or subsidiaries asserts in any litigation or other proceeding relating to this Limited Guarantee or the Merger Agreement (i) that the provisions hereof (including, without limitation, Section 1 hereof limiting the Guarantor's aggregate liability to the Maximum Amount or Section 3 hereof relating to the sole and exclusive remedies of the Guaranteed Party and its equityholders, Affiliates and subsidiaries against the Guarantor or any Related Person) are illegal, invalid or unenforceable, in whole or in part, or (ii) any theory of liability against the Guarantor or any Related Person or any other Guarantor under the other Limited Guarantees dated as of the date hereof or any Related Person of any such other Guarantor with respect to the transactions contemplated by this Limited Guarantee, the Equity Commitment Letter or the Merger Agreement other than any Permitted Claim, then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and be null and void, (y) if the Guarantor has previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments from the Guaranteed Party and (z) neither the Guarantor nor any Related Person (other than the Parent Parties and their respective successors and assigns) shall have any liability to the Guaranteed Party or any of its equityholders, Affiliates or subsidiaries with respect to the Merger Agreement or the transactions contemplated by the Merger Agreement or this Limited Guarantee.
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6. Continuing Guarantee. Except to the extent terminated pursuant to the provisions of Section 5 hereof, this Limited Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed Obligation and the obligation under Section 1(c), shall be binding upon the Guarantor, its successors and assigns, and shall inure to the benefit of, and be enforceable by, the Guaranteed Party and its successors, permitted transferees and permitted assigns; provided that notwithstanding anything to the contrary in this Limited Guarantee, the provisions of this Limited Guarantee that are for the benefit of any Related Person (including the provisions of Sections 3 and 5) shall indefinitely survive any termination of this Limited Guarantee for the benefit of the Guarantor and any Related Persons. All obligation to which this Limited Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
7. Entire Agreement. This Limited Guarantee, the Merger Agreement, the Equity Commitment Letter and the Escrow Agreement constitute the entire agreement with respect to the subject matter hereof, and supersede all other prior agreements and understandings, both written and oral, among the Parent Parties and/or the Guarantor or any of their respective Affiliates, on the one hand, and the Guaranteed Party or any of its Affiliates, on the other hand, regarding the subject matter hereof.
8. Amendments and Waivers. Any provision of this Limited Guarantee may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Guarantor and the Guaranteed Party or, in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by any party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
9. Counterparts. This Limited Guarantee may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
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10. Notices. All notices, requests, claims, demands and other communications hereunder shall be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressee's location on any Business Day after 5:00 p.m. (addressee's local time) shall be deemed to have been received at 9:00 a.m. (addressee's local time) on the next Business Day), by reliable international overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:
if to the Guarantor:
Shanghai Trust Bridge Partners Investment Management LLC
上海挚信投资管理有限公司
68 Yincheng Road Central, Suite 1206, Shanghai, China
Facsimile: 50106162
Attention: Frank Liang, Joan Zhou
with copies to:
Kirkland & Ellis
26th Floor, Glouster Tower, The Landmark
15 Queen's Road Central
Hong Kong
Facsimile: +852-3761-3301
Attention: David Zhang and Jesse Sheley
If to the Guaranteed Party, as provided in Section 9.2 of the Merger Agreement.
11. Governing Law. This Limited Guarantee (except for the arbitration agreement in Section 12) shall be governed by and construed in accordance with the Laws of the State of New York without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
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12. Jurisdiction; Waiver of Service of Process.
(a) Jurisdiction. In the event any dispute arises among the parties hereto out of or in relation to this Limited Guarantee, including any dispute regarding its existence, interpretation, performance, breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly consultations within thirty (30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions of this Section 12. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre ("HKIAC") Administered Rules in force when a notice of arbitration is submitted. The seat and venue of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The law of the arbitration agreement shall be Hong Kong law. The appointing authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number, and one arbitrator shall be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from nominating their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within 30 days after such two arbitrators have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any person necessary for the conduct of the arbitration, unless otherwise required by Law or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and any interim or final award, as well as the fact that an arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after the submission of any dispute to arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter agreement, except insofar as the same may relate directly to the matters in dispute. The parties hereby agree that any arbitration award rendered in accordance with the provisions of this Section 12 shall be final and binding upon them, and the parties further agree that such award may be enforced by any court having jurisdiction over the party against which the award has been rendered or the assets of such party wherever the same may be located. In any arbitration proceeding, any legal proceeding to enforce any arbitration award and in any other legal proceeding among the Parties pursuant to or relating to this Agreement, each Party expressly waives the defense of sovereign immunity and any other defense based on the fact or allegation that it is an agency or instrumentality of a sovereign state or is otherwise entitled to immunity.
13. Representations and Warranties. The Guarantor hereby represents and warrants to the Guaranteed Party that:
(a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization;
(b) it has all necessary power and authority to execute, deliver and perform this Limited Guarantee;
(c) the execution, delivery and performance of this Limited Guarantee by the Guarantor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Guarantor are necessary therefor;
(d) all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Limited Guarantee by the Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution, delivery or performance of this Limited Guarantee;
(e) this Limited Guarantee has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the undersigned in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law));
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(f) the execution, delivery and performance by the undersigned of this Limited Guarantee do not and will not violate the organizational documents of the undersigned or violate any applicable law, regulation, rule, decree, order, judgment or contractual restriction binding on the Guarantor or its assets or properties; and
(g) it has the financial capacity to pay and perform its obligations under this Limited Guarantee, and all funds necessary for the Guarantor to fulfill its obligations under this Limited Guarantee shall be available to the Guarantor for so long as this Limited Guarantee shall remain in effect in accordance with Section 6.
14. No Assignment. Neither this Limited Guarantee nor any of the rights, interests or obligations hereunder shall be assignable without the prior written consent of the Guaranteed Party (in the case of an assignment by the Guarantor) or the Guarantor (in the case of an assignment by the Guaranteed Party).
15. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LIMITED GUARANTEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 15.
16. Severability. Any term or provision of this Limited Guarantee which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Limited Guarantee in any jurisdiction and, if any provision of this Limited Guarantee is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Maximum Amount provided in Section 1 hereof and to the provisions of Sections 3 and 5 hereof. No party hereto shall assert, and each party shall cause its respective Affiliates and subsidiaries not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.
17. Headings. Headings of the Sections of this Limited Guarantee are for convenience only and shall be given no substantive or interpretive effect whatsoever.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Shanghai Trust Bridge Partners Investment Management LLC | ||
| (上海挚信投资管理有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Shujun Li | |
| Name: Shujun Li | ||
| Title: Legal Representative and Executive Director | ||
[Signature Page to Limited Guarantee]
IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Limited Guarantee]
Exhibit 99.108
Execution Version
LIMITED GUARANTEE
This Limited Guarantee, dated as of December 18, 2015 (this "Limited Guarantee"), is made by LTW Chuanfu Investment (Shenzhen) LLP (朗泰传富投资(深圳)合伙企业 (有限合伙)), a limited partnership formed under the laws of the People’s Republic of China (including its successors and permitted assigns, the "Guarantor"), in favor of Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Guaranteed Party"). Reference is hereby made to the Agreement and Plan of Merger, dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), and the Guaranteed Party. Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Merger Agreement.
1. Limited Guarantee.
(a) To induce the Guaranteed Party to enter into the Merger Agreement, the Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, subject to the terms and conditions hereof, the due and punctual payment and performance when due of 0.62% of the Parent Parties' obligation (the "Guaranteed Obligation") to pay to the Guaranteed Party (i) the Parent Termination Fee if and when required pursuant to Section 8.2(c) of the Merger Agreement, and (ii) the payment obligations of the Parent Parties pursuant to Section 6.6 of the Merger Agreement; provided that the maximum aggregate liability of the Guarantor hereunder shall not exceed US$ 2,786,681 (the "Maximum Amount").
(b) The Guaranteed Party hereby agrees that (a) the Guarantor shall in no event be required to pay more than the Maximum Amount under or in respect of this Guarantee and (b) the Guarantor shall not have any obligation or liability to any Person (including, without limitation, to the Guaranteed Party's equity holders, Affiliates and/or subsidiaries) relating to, arising out of or in connection with this Limited Guarantee, the Merger Agreement, or the Equity Commitment Letter (as defined below) other than as expressly set forth herein or in the Equity Commitment Letter or the Escrow Agreement (as defined in the Equity Commitment Letter).
(c) The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by the Guaranteed Party in connection with the enforcement of its rights hereunder and under the Merger Agreement, including, without limitation, in the event that (i) the Guarantor asserts in any arbitration, litigation or other proceeding that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms and the Guaranteed Party prevails in such arbitration, litigation or other proceeding, or (ii) the Guarantor fails or refuses to make any payment to the Guaranteed Party hereunder when due and payable and it is determined judicially or by arbitration that the Guarantor is required to make such payment hereunder.
(d) The Guarantor promises and undertakes to make all payments hereunder free and clear of any deduction, offset, defense, claim or counterclaim of any kind. If the Parent Parties fail to pay or cause to be paid the Guaranteed Obligation as and when due and payable pursuant to Section 8.2(c) of the Merger Agreement, as applicable, then the Guarantor's liabilities to the Guaranteed Party hereunder in respect of such Guaranteed Obligation shall become immediately due and payable and the Guaranteed Party may at any time and from time to time, at the Guaranteed Party's option, and so long as the Parent Parties remain in breach of its Guaranteed Obligation, take any and all actions available hereunder or under applicable Law to collect the Guaranteed Obligation from the Guarantor subject to the Maximum Amount as applicable.
2. Terms of Limited Guarantee.
(a) This Limited Guarantee is a primary and original obligation of the Guarantor and is one of payment, not collection, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against any Parent Party or any other Person or whether any Parent Party or any other Person is joined in any such action or actions. Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantor under this Limited Guarantee and of the other guarantors under the other Limited Guarantees dated as of the date hereof ("Other Guarantors") shall be several and not joint.
(b) The liability of the Guarantor under this Limited Guarantee shall, to the fullest extent permitted under applicable law, be absolute, irrevocable and unconditional, irrespective of:
(i) the value, genuineness, validity, illegality or enforceability of the Merger Agreement or the letter agreement dated as of the date hereof between the Guarantor, on the one hand, and Holdco and Parent, on the other hand, pursuant to which the Guarantor has agreed to make a certain equity contribution to Holdco and Parent (the "Equity Commitment Letter") or any other agreement or instrument referred to herein or therein;
(ii) any change in the corporate existence, structure or ownership of any Parent Party or any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting any Parent Party, any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor) or any of their respective assets;
(iii) any amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof;
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(iv) the existence of any claim, set-off or other right that the Guarantor may have at any time against any Parent Party or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise;
(v) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against any Parent Party or the Guarantor or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation (other than as and if required by Section 2(a));
(vi) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of the Guaranteed Obligation;
(vii) any other act or omission that may in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment in full of the Guaranteed Obligation in accordance with their terms); or
(viii) the addition, substitution, discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Guaranteed Obligation as a result of payment in full of the Guaranteed Obligation in accordance with their terms) of any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor),
other than in each case with respect to (A) defenses to the payment of the Guaranteed Obligation that are available to any Parent Party under the Merger Agreement or (B) breach by the Guaranteed Party of this Limited Guarantee, including, without limitation, the limitations set forth in Section 3 below), and, notwithstanding any other provision of this Limited Guarantee to the contrary, the Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that any Parent Party could assert against the Company under the terms of, or with respect to, the Merger Agreement that would relieve each of the Parent Parties of its obligations under the Merger Agreement.
(c) To the fullest extent permitted by applicable law, the Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of the Guaranteed Obligation and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligation shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between the Parent Parties and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under no obligation to pursue such rights and remedies it may have against the Parent Parties or any other Person for the Guaranteed Obligation or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue such other rights or remedies or to collect any payments from the Parent Parties or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of the Parent Parties or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guaranteed Party.
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(d) To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, acceptance hereof, presentment, demand for payment, notice of non-performance, default, dishonor and protest, any notice not provided for herein, all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of any Parent Party or any other person interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligation that are available to the Parent Parties under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated under the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits.
(e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that the Parent Parties become subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantor's obligation hereunder. In the event that any payment to the Guaranteed Party in respect of the Guaranteed Obligation is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to the Guaranteed Obligation as if such payment had not been made so long as this Limited Guarantee has not terminated in accordance with its terms.
3. Sole Remedy; No Recourse. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party further agrees that neither it nor any other Person (including, without limitation, the Guaranteed Party's equityholders, Affiliates and subsidiaries) has any right of recovery against, and no personal liability shall attach to, the Guarantor, any former, current or future, director, officer, employee, agent or Affiliate of the Guarantor, any former, current or future, direct or indirect holder of any equity interests or securities of the Guarantor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or representative any of the foregoing (each such Person, a "Related Person"), through any Parent Party or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of any Parent Party against the Guarantor or any Related Person (except for any claim to compel Holdco and/or Parent to enforce the Equity Commitment Letter in accordance with the terms thereof), or otherwise, except for its rights against the Guarantor under this Limited Guarantee and the Escrow Agreement. Recourse against the Guarantor under this Limited Guarantee and the Escrow Agreement and the Guaranteed Party's rights under the Equity Commitment Letter shall be the sole and exclusive remedy of (i) the Guaranteed Party and (ii) all of the Guaranteed Party's equityholders, Affiliates and subsidiaries against the Guarantor and any Related Person (other than the Parent Parties and their respective successors and assigns) in respect of any liabilities or obligations arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby, including by piercing the corporate, limited liability company or limited partnership veil or by a claim by or on behalf of any Parent Party. The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Affiliates and subsidiaries not to institute, any proceeding or bring any other claim arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby (or the failure of such to be consummated), against the Guarantor or any Related Person, except for (A) claims of the Guaranteed Party against the Guarantor under and in accordance with this Limited Guarantee and the Escrow Agreement, (B) claims of the Guaranteed Party against the Parent Parties (and their respective successors and assigns) under and in accordance with the Merger Agreement and the Escrow Agreement, and (C) the exercise of the Guaranteed Party's rights under and in accordance with the Equity Commitment Letter, and the Guaranteed Party hereby, on behalf of itself and its Affiliates and subsidiaries, waives any and all claims arising under, or in connection with, the Merger Agreement, this Limited Guarantee, the Equity Commitment Letter, the Escrow Agreement or, in each case, the transactions contemplated hereby or thereby against the Guarantor or any Related Person and releases such Persons from such claims, in each case, except for claims described in clauses (A), (B) and (C) of this sentence (each, a "Permitted Claim"). Nothing set forth in this Limited Guarantee shall confer or give or shall be construed to confer or give to any Person (including any Person acting in a representative capacity) other than the Guaranteed Party any rights or remedies against any Person, including the Guarantor, except as expressly set forth herein.
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4. Subrogation. The Guarantor will not exercise against any Parent Party any rights of subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by reason of any payment by it pursuant to the provisions of Section 1 hereof unless and until the Guaranteed Obligation and all other amounts payable under this Limited Guarantee have been paid in full.
5. Termination. This Limited Guarantee shall terminate (and the Guarantor shall have no further obligations hereunder) upon the earliest to occur of (a) the Effective Time, (b) the payment in full of the Guaranteed Obligation and the obligation under Section 1(c), (c) the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would not be required pursuant to the terms and subject to the conditions of the Merger Agreement to make any payment of any Guaranteed Obligation; and (d) six months after the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would be required pursuant to the terms and subject to the conditions of the Merger Agreement to make a payment of the Guaranteed Obligation, unless by the end of such six-month period, the Guaranteed Party shall have initiated a claim or proceeding in accordance with the terms of the Merger Agreement for payment of any of the Guaranteed Obligations; provided that if the Guaranteed Party has initiated a claim or proceeding by the end of such six-month period, this Limited Guarantee shall terminate upon the date such claim or proceeding is finally satisfied or otherwise resolved by agreement of the parties hereto or pursuant to Section 12. In the event that the Guaranteed Party or any of its Affiliates or subsidiaries asserts in any litigation or other proceeding relating to this Limited Guarantee or the Merger Agreement (i) that the provisions hereof (including, without limitation, Section 1 hereof limiting the Guarantor's aggregate liability to the Maximum Amount or Section 3 hereof relating to the sole and exclusive remedies of the Guaranteed Party and its equityholders, Affiliates and subsidiaries against the Guarantor or any Related Person) are illegal, invalid or unenforceable, in whole or in part, or (ii) any theory of liability against the Guarantor or any Related Person or any other Guarantor under the other Limited Guarantees dated as of the date hereof or any Related Person of any such other Guarantor with respect to the transactions contemplated by this Limited Guarantee, the Equity Commitment Letter or the Merger Agreement other than any Permitted Claim, then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and be null and void, (y) if the Guarantor has previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments from the Guaranteed Party and (z) neither the Guarantor nor any Related Person (other than the Parent Parties and their respective successors and assigns) shall have any liability to the Guaranteed Party or any of its equityholders, Affiliates or subsidiaries with respect to the Merger Agreement or the transactions contemplated by the Merger Agreement or this Limited Guarantee.
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6. Continuing Guarantee. Except to the extent terminated pursuant to the provisions of Section 5 hereof, this Limited Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed Obligation and the obligation under Section 1(c), shall be binding upon the Guarantor, its successors and assigns, and shall inure to the benefit of, and be enforceable by, the Guaranteed Party and its successors, permitted transferees and permitted assigns; provided that notwithstanding anything to the contrary in this Limited Guarantee, the provisions of this Limited Guarantee that are for the benefit of any Related Person (including the provisions of Sections 3 and 5) shall indefinitely survive any termination of this Limited Guarantee for the benefit of the Guarantor and any Related Persons. All obligation to which this Limited Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
7. Entire Agreement. This Limited Guarantee, the Merger Agreement, the Equity Commitment Letter and the Escrow Agreement constitute the entire agreement with respect to the subject matter hereof, and supersede all other prior agreements and understandings, both written and oral, among the Parent Parties and/or the Guarantor or any of their respective Affiliates, on the one hand, and the Guaranteed Party or any of its Affiliates, on the other hand, regarding the subject matter hereof.
8. Amendments and Waivers. Any provision of this Limited Guarantee may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Guarantor and the Guaranteed Party or, in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by any party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
9. Counterparts. This Limited Guarantee may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
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10. Notices. All notices, requests, claims, demands and other communications hereunder shall be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressee's location on any Business Day after 5:00 p.m. (addressee's local time) shall be deemed to have been received at 9:00 a.m. (addressee's local time) on the next Business Day), by reliable international overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:
if to the Guarantor:
LTW Chuanfu Investment (Shenzhen) LLP
(朗泰传富投资(深圳)合伙企业 (有限合伙))
12/F, Tower A, Ping An International Finance Centre
Xinyuan South Road
Chaoyang District, Beijing, 100027, China
Facsimile: +86 10 6241 7177
Attention: Xueliang Chen
with copies to:
Kirkland & Ellis
26th Floor, Glouster Tower, The Landmark
15 Queen's Road Central
Hong Kong
Facsimile: +852-3761-3301
Attention: David Zhang and Jesse Sheley
If to the Guaranteed Party, as provided in Section 9.2 of the Merger Agreement.
11. Governing Law. This Limited Guarantee (except for the arbitration agreement in Section 12) shall be governed by and construed in accordance with the Laws of the State of New York without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
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12. Jurisdiction; Waiver of Service of Process.
(a) Jurisdiction. In the event any dispute arises among the parties hereto out of or in relation to this Limited Guarantee, including any dispute regarding its existence, interpretation, performance, breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly consultations within thirty (30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions of this Section 12. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre ("HKIAC") Administered Rules in force when a notice of arbitration is submitted. The seat and venue of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The law of the arbitration agreement shall be Hong Kong law. The appointing authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number, and one arbitrator shall be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from nominating their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within 30 days after such two arbitrators have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any person necessary for the conduct of the arbitration, unless otherwise required by Law or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and any interim or final award, as well as the fact that an arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after the submission of any dispute to arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter agreement, except insofar as the same may relate directly to the matters in dispute. The parties hereby agree that any arbitration award rendered in accordance with the provisions of this Section 12 shall be final and binding upon them, and the parties further agree that such award may be enforced by any court having jurisdiction over the party against which the award has been rendered or the assets of such party wherever the same may be located. In any arbitration proceeding, any legal proceeding to enforce any arbitration award and in any other legal proceeding among the Parties pursuant to or relating to this Agreement, each Party expressly waives the defense of sovereign immunity and any other defense based on the fact or allegation that it is an agency or instrumentality of a sovereign state or is otherwise entitled to immunity.
13. Representations and Warranties. The Guarantor hereby represents and warrants to the Guaranteed Party that:
(a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization;
(b) it has all necessary power and authority to execute, deliver and perform this Limited Guarantee;
(c) the execution, delivery and performance of this Limited Guarantee by the Guarantor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Guarantor are necessary therefor;
(d) all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Limited Guarantee by the Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution, delivery or performance of this Limited Guarantee;
(e) this Limited Guarantee has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the undersigned in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law));
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(f) the execution, delivery and performance by the undersigned of this Limited Guarantee do not and will not violate the organizational documents of the undersigned or violate any applicable law, regulation, rule, decree, order, judgment or contractual restriction binding on the Guarantor or its assets or properties; and
(g) it has the financial capacity to pay and perform its obligations under this Limited Guarantee, and all funds necessary for the Guarantor to fulfill its obligations under this Limited Guarantee shall be available to the Guarantor for so long as this Limited Guarantee shall remain in effect in accordance with Section 6.
14. No Assignment. Neither this Limited Guarantee nor any of the rights, interests or obligations hereunder shall be assignable without the prior written consent of the Guaranteed Party (in the case of an assignment by the Guarantor) or the Guarantor (in the case of an assignment by the Guaranteed Party).
15. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LIMITED GUARANTEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 15.
16. Severability. Any term or provision of this Limited Guarantee which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Limited Guarantee in any jurisdiction and, if any provision of this Limited Guarantee is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Maximum Amount provided in Section 1 hereof and to the provisions of Sections 3 and 5 hereof. No party hereto shall assert, and each party shall cause its respective Affiliates and subsidiaries not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.
17. Headings. Headings of the Sections of this Limited Guarantee are for convenience only and shall be given no substantive or interpretive effect whatsoever.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| LTW Chuanfu Investment (Shenzhen) LLP | ||
| 朗泰传富投资(深圳)合伙企业(有限合伙) | ||
| [Company chop is affixed] | ||
| By: | /s/ Chen Xueliang | |
| Name: | Chen Xueliang (陈学梁) | |
| Title: | Representative of Executive Partner | |
| 执行事务合伙人委派代表 | ||
[Signature Page to Limited Guarantee]
IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Limited Guarantee]
Exhibit 99.109
Execution Version
LIMITED GUARANTEE
This Limited Guarantee, dated as of December 18, 2015 (this "Limited Guarantee"), is made by Zhejiang Puhua Tianqin Equity Investment Management Co., Ltd. (浙江普华天勤股权投资管理有限公司), a limited liability company incorporated under the laws of the People’s Republic of China (including its successors and permitted assigns, the "Guarantor"), in favor of Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Guaranteed Party"). Reference is hereby made to the Agreement and Plan of Merger, dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), and the Guaranteed Party. Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Merger Agreement.
1. Limited Guarantee.
(a) To induce the Guaranteed Party to enter into the Merger Agreement, the Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, subject to the terms and conditions hereof, the due and punctual payment and performance when due of 0.62% of the Parent Parties' obligation (the "Guaranteed Obligation") to pay to the Guaranteed Party (i) the Parent Termination Fee if and when required pursuant to Section 8.2(c) of the Merger Agreement, and (ii) the payment obligations of the Parent Parties pursuant to Section 6.6 of the Merger Agreement; provided that the maximum aggregate liability of the Guarantor hereunder shall not exceed US$ 2,786,681 (the "Maximum Amount").
(b) The Guaranteed Party hereby agrees that (a) the Guarantor shall in no event be required to pay more than the Maximum Amount under or in respect of this Guarantee and (b) the Guarantor shall not have any obligation or liability to any Person (including, without limitation, to the Guaranteed Party's equity holders, Affiliates and/or subsidiaries) relating to, arising out of or in connection with this Limited Guarantee, the Merger Agreement, or the Equity Commitment Letter (as defined below) other than as expressly set forth herein or in the Equity Commitment Letter or the Escrow Agreement (as defined in the Equity Commitment Letter).
(c) The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by the Guaranteed Party in connection with the enforcement of its rights hereunder and under the Merger Agreement, including, without limitation, in the event that (i) the Guarantor asserts in any arbitration, litigation or other proceeding that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms and the Guaranteed Party prevails in such arbitration, litigation or other proceeding, or (ii) the Guarantor fails or refuses to make any payment to the Guaranteed Party hereunder when due and payable and it is determined judicially or by arbitration that the Guarantor is required to make such payment hereunder.
(d) The Guarantor promises and undertakes to make all payments hereunder free and clear of any deduction, offset, defense, claim or counterclaim of any kind. If the Parent Parties fail to pay or cause to be paid the Guaranteed Obligation as and when due and payable pursuant to Section 8.2(c) of the Merger Agreement, as applicable, then the Guarantor's liabilities to the Guaranteed Party hereunder in respect of such Guaranteed Obligation shall become immediately due and payable and the Guaranteed Party may at any time and from time to time, at the Guaranteed Party's option, and so long as the Parent Parties remain in breach of its Guaranteed Obligation, take any and all actions available hereunder or under applicable Law to collect the Guaranteed Obligation from the Guarantor subject to the Maximum Amount as applicable.
2. Terms of Limited Guarantee.
(a) This Limited Guarantee is a primary and original obligation of the Guarantor and is one of payment, not collection, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against any Parent Party or any other Person or whether any Parent Party or any other Person is joined in any such action or actions. Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantor under this Limited Guarantee and of the other guarantors under the other Limited Guarantees dated as of the date hereof ("Other Guarantors") shall be several and not joint.
(b) The liability of the Guarantor under this Limited Guarantee shall, to the fullest extent permitted under applicable law, be absolute, irrevocable and unconditional, irrespective of:
(i) the value, genuineness, validity, illegality or enforceability of the Merger Agreement or the letter agreement dated as of the date hereof between the Guarantor, on the one hand, and Holdco and Parent, on the other hand, pursuant to which the Guarantor has agreed to make a certain equity contribution to Holdco and Parent (the "Equity Commitment Letter") or any other agreement or instrument referred to herein or therein;
(ii) any change in the corporate existence, structure or ownership of any Parent Party or any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting any Parent Party, any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor) or any of their respective assets;
(iii) any amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof;
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(iv) the existence of any claim, set-off or other right that the Guarantor may have at any time against any Parent Party or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise;
(v) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against any Parent Party or the Guarantor or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation (other than as and if required by Section 2(a));
(vi) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of the Guaranteed Obligation;
(vii) any other act or omission that may in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment in full of the Guaranteed Obligation in accordance with their terms); or
(viii) the addition, substitution, discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Guaranteed Obligation as a result of payment in full of the Guaranteed Obligation in accordance with their terms) of any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor),
other than in each case with respect to (A) defenses to the payment of the Guaranteed Obligation that are available to any Parent Party under the Merger Agreement or (B) breach by the Guaranteed Party of this Limited Guarantee, including, without limitation, the limitations set forth in Section 3 below), and, notwithstanding any other provision of this Limited Guarantee to the contrary, the Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that any Parent Party could assert against the Company under the terms of, or with respect to, the Merger Agreement that would relieve each of the Parent Parties of its obligations under the Merger Agreement.
(c) To the fullest extent permitted by applicable law, the Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of the Guaranteed Obligation and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligation shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between the Parent Parties and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under no obligation to pursue such rights and remedies it may have against the Parent Parties or any other Person for the Guaranteed Obligation or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue such other rights or remedies or to collect any payments from the Parent Parties or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of the Parent Parties or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guaranteed Party.
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(d) To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, acceptance hereof, presentment, demand for payment, notice of non-performance, default, dishonor and protest, any notice not provided for herein, all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of any Parent Party or any other person interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligation that are available to the Parent Parties under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated under the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits.
(e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that the Parent Parties become subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantor's obligation hereunder. In the event that any payment to the Guaranteed Party in respect of the Guaranteed Obligation is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to the Guaranteed Obligation as if such payment had not been made so long as this Limited Guarantee has not terminated in accordance with its terms.
3. Sole Remedy; No Recourse. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party further agrees that neither it nor any other Person (including, without limitation, the Guaranteed Party's equityholders, Affiliates and subsidiaries) has any right of recovery against, and no personal liability shall attach to, the Guarantor, any former, current or future, director, officer, employee, agent or Affiliate of the Guarantor, any former, current or future, direct or indirect holder of any equity interests or securities of the Guarantor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or representative any of the foregoing (each such Person, a "Related Person"), through any Parent Party or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of any Parent Party against the Guarantor or any Related Person (except for any claim to compel Holdco and/or Parent to enforce the Equity Commitment Letter in accordance with the terms thereof), or otherwise, except for its rights against the Guarantor under this Limited Guarantee and the Escrow Agreement. Recourse against the Guarantor under this Limited Guarantee and the Escrow Agreement and the Guaranteed Party's rights under the Equity Commitment Letter shall be the sole and exclusive remedy of (i) the Guaranteed Party and (ii) all of the Guaranteed Party's equityholders, Affiliates and subsidiaries against the Guarantor and any Related Person (other than the Parent Parties and their respective successors and assigns) in respect of any liabilities or obligations arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby, including by piercing the corporate, limited liability company or limited partnership veil or by a claim by or on behalf of any Parent Party. The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Affiliates and subsidiaries not to institute, any proceeding or bring any other claim arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby (or the failure of such to be consummated), against the Guarantor or any Related Person, except for (A) claims of the Guaranteed Party against the Guarantor under and in accordance with this Limited Guarantee and the Escrow Agreement, (B) claims of the Guaranteed Party against the Parent Parties (and their respective successors and assigns) under and in accordance with the Merger Agreement and the Escrow Agreement, and (C) the exercise of the Guaranteed Party's rights under and in accordance with the Equity Commitment Letter, and the Guaranteed Party hereby, on behalf of itself and its Affiliates and subsidiaries, waives any and all claims arising under, or in connection with, the Merger Agreement, this Limited Guarantee, the Equity Commitment Letter, the Escrow Agreement or, in each case, the transactions contemplated hereby or thereby against the Guarantor or any Related Person and releases such Persons from such claims, in each case, except for claims described in clauses (A), (B) and (C) of this sentence (each, a "Permitted Claim"). Nothing set forth in this Limited Guarantee shall confer or give or shall be construed to confer or give to any Person (including any Person acting in a representative capacity) other than the Guaranteed Party any rights or remedies against any Person, including the Guarantor, except as expressly set forth herein.
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4. Subrogation. The Guarantor will not exercise against any Parent Party any rights of subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by reason of any payment by it pursuant to the provisions of Section 1 hereof unless and until the Guaranteed Obligation and all other amounts payable under this Limited Guarantee have been paid in full.
5. Termination. This Limited Guarantee shall terminate (and the Guarantor shall have no further obligations hereunder) upon the earliest to occur of (a) the Effective Time, (b) the payment in full of the Guaranteed Obligation and the obligation under Section 1(c), (c) the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would not be required pursuant to the terms and subject to the conditions of the Merger Agreement to make any payment of any Guaranteed Obligation; and (d) six months after the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would be required pursuant to the terms and subject to the conditions of the Merger Agreement to make a payment of the Guaranteed Obligation, unless by the end of such six-month period, the Guaranteed Party shall have initiated a claim or proceeding in accordance with the terms of the Merger Agreement for payment of any of the Guaranteed Obligations; provided that if the Guaranteed Party has initiated a claim or proceeding by the end of such six-month period, this Limited Guarantee shall terminate upon the date such claim or proceeding is finally satisfied or otherwise resolved by agreement of the parties hereto or pursuant to Section 12. In the event that the Guaranteed Party or any of its Affiliates or subsidiaries asserts in any litigation or other proceeding relating to this Limited Guarantee or the Merger Agreement (i) that the provisions hereof (including, without limitation, Section 1 hereof limiting the Guarantor's aggregate liability to the Maximum Amount or Section 3 hereof relating to the sole and exclusive remedies of the Guaranteed Party and its equityholders, Affiliates and subsidiaries against the Guarantor or any Related Person) are illegal, invalid or unenforceable, in whole or in part, or (ii) any theory of liability against the Guarantor or any Related Person or any other Guarantor under the other Limited Guarantees dated as of the date hereof or any Related Person of any such other Guarantor with respect to the transactions contemplated by this Limited Guarantee, the Equity Commitment Letter or the Merger Agreement other than any Permitted Claim, then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and be null and void, (y) if the Guarantor has previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments from the Guaranteed Party and (z) neither the Guarantor nor any Related Person (other than the Parent Parties and their respective successors and assigns) shall have any liability to the Guaranteed Party or any of its equityholders, Affiliates or subsidiaries with respect to the Merger Agreement or the transactions contemplated by the Merger Agreement or this Limited Guarantee.
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6. Continuing Guarantee. Except to the extent terminated pursuant to the provisions of Section 5 hereof, this Limited Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed Obligation and the obligation under Section 1(c), shall be binding upon the Guarantor, its successors and assigns, and shall inure to the benefit of, and be enforceable by, the Guaranteed Party and its successors, permitted transferees and permitted assigns; provided that notwithstanding anything to the contrary in this Limited Guarantee, the provisions of this Limited Guarantee that are for the benefit of any Related Person (including the provisions of Sections 3 and 5) shall indefinitely survive any termination of this Limited Guarantee for the benefit of the Guarantor and any Related Persons. All obligation to which this Limited Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
7. Entire Agreement. This Limited Guarantee, the Merger Agreement, the Equity Commitment Letter and the Escrow Agreement constitute the entire agreement with respect to the subject matter hereof, and supersede all other prior agreements and understandings, both written and oral, among the Parent Parties and/or the Guarantor or any of their respective Affiliates, on the one hand, and the Guaranteed Party or any of its Affiliates, on the other hand, regarding the subject matter hereof.
8. Amendments and Waivers. Any provision of this Limited Guarantee may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Guarantor and the Guaranteed Party or, in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by any party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
9. Counterparts. This Limited Guarantee may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
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10. Notices. All notices, requests, claims, demands and other communications hereunder shall be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressee's location on any Business Day after 5:00 p.m. (addressee's local time) shall be deemed to have been received at 9:00 a.m. (addressee's local time) on the next Business Day), by reliable international overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:
if to the Guarantor:
Zhejiang Puhua Tianqin Equity Investment Management Co., Ltd.
(浙江普华天勤股权投资管理有限公司)
16A,ZhongTian Mansion, No.173,YuGU Road
HangZhou City, ZheJiang, China
Facsimile: (+86) 571 8775 5559
Attention: Qinhua Shen
with copies to:
Kirkland & Ellis
26th Floor, Glouster Tower, The Landmark
15 Queen's Road Central
Hong Kong
Facsimile: +852-3761-3301
Attention: David Zhang and Jesse Sheley
If to the Guaranteed Party, as provided in Section 9.2 of the Merger Agreement.
11. Governing Law. This Limited Guarantee (except for the arbitration agreement in Section 12) shall be governed by and construed in accordance with the Laws of the State of New York without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
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12. Jurisdiction; Waiver of Service of Process.
(a) Jurisdiction. In the event any dispute arises among the parties hereto out of or in relation to this Limited Guarantee, including any dispute regarding its existence, interpretation, performance, breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly consultations within thirty (30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions of this Section 12. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre ("HKIAC") Administered Rules in force when a notice of arbitration is submitted. The seat and venue of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The law of the arbitration agreement shall be Hong Kong law. The appointing authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number, and one arbitrator shall be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from nominating their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within 30 days after such two arbitrators have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any person necessary for the conduct of the arbitration, unless otherwise required by Law or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and any interim or final award, as well as the fact that an arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after the submission of any dispute to arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter agreement, except insofar as the same may relate directly to the matters in dispute. The parties hereby agree that any arbitration award rendered in accordance with the provisions of this Section 12 shall be final and binding upon them, and the parties further agree that such award may be enforced by any court having jurisdiction over the party against which the award has been rendered or the assets of such party wherever the same may be located. In any arbitration proceeding, any legal proceeding to enforce any arbitration award and in any other legal proceeding among the Parties pursuant to or relating to this Agreement, each Party expressly waives the defense of sovereign immunity and any other defense based on the fact or allegation that it is an agency or instrumentality of a sovereign state or is otherwise entitled to immunity.
13. Representations and Warranties. The Guarantor hereby represents and warrants to the Guaranteed Party that:
(a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization;
(b) it has all necessary power and authority to execute, deliver and perform this Limited Guarantee;
(c) the execution, delivery and performance of this Limited Guarantee by the Guarantor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Guarantor are necessary therefor;
(d) all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Limited Guarantee by the Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution, delivery or performance of this Limited Guarantee;
(e) this Limited Guarantee has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the undersigned in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law));
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(f) the execution, delivery and performance by the undersigned of this Limited Guarantee do not and will not violate the organizational documents of the undersigned or violate any applicable law, regulation, rule, decree, order, judgment or contractual restriction binding on the Guarantor or its assets or properties; and
(g) it has the financial capacity to pay and perform its obligations under this Limited Guarantee, and all funds necessary for the Guarantor to fulfill its obligations under this Limited Guarantee shall be available to the Guarantor for so long as this Limited Guarantee shall remain in effect in accordance with Section 6.
14. No Assignment. Neither this Limited Guarantee nor any of the rights, interests or obligations hereunder shall be assignable without the prior written consent of the Guaranteed Party (in the case of an assignment by the Guarantor) or the Guarantor (in the case of an assignment by the Guaranteed Party).
15. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LIMITED GUARANTEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 15.
16. Severability. Any term or provision of this Limited Guarantee which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Limited Guarantee in any jurisdiction and, if any provision of this Limited Guarantee is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Maximum Amount provided in Section 1 hereof and to the provisions of Sections 3 and 5 hereof. No party hereto shall assert, and each party shall cause its respective Affiliates and subsidiaries not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.
17. Headings. Headings of the Sections of this Limited Guarantee are for convenience only and shall be given no substantive or interpretive effect whatsoever.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Zhejiang Puhua Tianqin Equity Investment Management Co., Ltd. | ||
| (浙江普华天勤股权投资管理有限公司) | ||
| [Company chop is affixed] | ||
| By: | /s/ Qinhua Shen | |
| Name: Qinhua Shen | ||
| Title: Legal Representative | ||
[Signature Page to Limited Guarantee]
IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Limited Guarantee]
Exhibit 99.110
Execution Version
LIMITED GUARANTEE
This Limited Guarantee, dated as of December 18, 2015 (this "Limited Guarantee"), is made by Tianjin Xinxin Qiyuan Investment Limited Partnership (天津信心奇缘股权投资合伙企业 (有限合伙)), a limited partnership formed under the laws of the People’s Republic of China (including its successors and permitted assigns, the "Guarantor"), in favor of Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Guaranteed Party"). Reference is hereby made to the Agreement and Plan of Merger, dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), and the Guaranteed Party. Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Merger Agreement.
1. Limited Guarantee.
(a) To induce the Guaranteed Party to enter into the Merger Agreement, the Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, subject to the terms and conditions hereof, the due and punctual payment and performance when due of 6.76% of the Parent Parties' obligation (the "Guaranteed Obligation") to pay to the Guaranteed Party (i) the Parent Termination Fee if and when required pursuant to Section 8.2(c) of the Merger Agreement, and (ii) the payment obligations of the Parent Parties pursuant to Section 6.6 of the Merger Agreement; provided that the maximum aggregate liability of the Guarantor hereunder shall not exceed US$ 30,431,770 (the "Maximum Amount").
(b) The Guaranteed Party hereby agrees that (a) the Guarantor shall in no event be required to pay more than the Maximum Amount under or in respect of this Guarantee and (b) the Guarantor shall not have any obligation or liability to any Person (including, without limitation, to the Guaranteed Party's equity holders, Affiliates and/or subsidiaries) relating to, arising out of or in connection with this Limited Guarantee, the Merger Agreement, or the Equity Commitment Letter (as defined below) other than as expressly set forth herein or in the Equity Commitment Letter or the Escrow Agreement (as defined in the Equity Commitment Letter).
(c) The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by the Guaranteed Party in connection with the enforcement of its rights hereunder and under the Merger Agreement, including, without limitation, in the event that (i) the Guarantor asserts in any arbitration, litigation or other proceeding that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms and the Guaranteed Party prevails in such arbitration, litigation or other proceeding, or (ii) the Guarantor fails or refuses to make any payment to the Guaranteed Party hereunder when due and payable and it is determined judicially or by arbitration that the Guarantor is required to make such payment hereunder.
(d) The Guarantor promises and undertakes to make all payments hereunder free and clear of any deduction, offset, defense, claim or counterclaim of any kind. If the Parent Parties fail to pay or cause to be paid the Guaranteed Obligation as and when due and payable pursuant to Section 8.2(c) of the Merger Agreement, as applicable, then the Guarantor's liabilities to the Guaranteed Party hereunder in respect of such Guaranteed Obligation shall become immediately due and payable and the Guaranteed Party may at any time and from time to time, at the Guaranteed Party's option, and so long as the Parent Parties remain in breach of its Guaranteed Obligation, take any and all actions available hereunder or under applicable Law to collect the Guaranteed Obligation from the Guarantor subject to the Maximum Amount as applicable.
2. Terms of Limited Guarantee.
(a) This Limited Guarantee is a primary and original obligation of the Guarantor and is one of payment, not collection, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against any Parent Party or any other Person or whether any Parent Party or any other Person is joined in any such action or actions. Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantor under this Limited Guarantee and of the other guarantors under the other Limited Guarantees dated as of the date hereof ("Other Guarantors") shall be several and not joint.
(b) The liability of the Guarantor under this Limited Guarantee shall, to the fullest extent permitted under applicable law, be absolute, irrevocable and unconditional, irrespective of:
(i) the value, genuineness, validity, illegality or enforceability of the Merger Agreement or the letter agreement dated as of the date hereof between the Guarantor, on the one hand, and Holdco and Parent, on the other hand, pursuant to which the Guarantor has agreed to make a certain equity contribution to Holdco and Parent (the "Equity Commitment Letter") or any other agreement or instrument referred to herein or therein;
(ii) any change in the corporate existence, structure or ownership of any Parent Party or any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting any Parent Party, any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor) or any of their respective assets;
(iii) any amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof;
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(iv) the existence of any claim, set-off or other right that the Guarantor may have at any time against any Parent Party or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise;
(v) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against any Parent Party or the Guarantor or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation (other than as and if required by Section 2(a));
(vi) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of the Guaranteed Obligation;
(vii) any other act or omission that may in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment in full of the Guaranteed Obligation in accordance with their terms); or
(viii) the addition, substitution, discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Guaranteed Obligation as a result of payment in full of the Guaranteed Obligation in accordance with their terms) of any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor),
other than in each case with respect to (A) defenses to the payment of the Guaranteed Obligation that are available to any Parent Party under the Merger Agreement or (B) breach by the Guaranteed Party of this Limited Guarantee, including, without limitation, the limitations set forth in Section 3 below), and, notwithstanding any other provision of this Limited Guarantee to the contrary, the Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that any Parent Party could assert against the Company under the terms of, or with respect to, the Merger Agreement that would relieve each of the Parent Parties of its obligations under the Merger Agreement.
(c) To the fullest extent permitted by applicable law, the Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of the Guaranteed Obligation and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligation shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between the Parent Parties and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under no obligation to pursue such rights and remedies it may have against the Parent Parties or any other Person for the Guaranteed Obligation or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue such other rights or remedies or to collect any payments from the Parent Parties or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of the Parent Parties or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guaranteed Party.
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(d) To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, acceptance hereof, presentment, demand for payment, notice of non-performance, default, dishonor and protest, any notice not provided for herein, all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of any Parent Party or any other person interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligation that are available to the Parent Parties under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated under the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits.
(e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that the Parent Parties become subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantor's obligation hereunder. In the event that any payment to the Guaranteed Party in respect of the Guaranteed Obligation is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to the Guaranteed Obligation as if such payment had not been made so long as this Limited Guarantee has not terminated in accordance with its terms.
3. Sole Remedy; No Recourse. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party further agrees that neither it nor any other Person (including, without limitation, the Guaranteed Party's equityholders, Affiliates and subsidiaries) has any right of recovery against, and no personal liability shall attach to, the Guarantor, any former, current or future, director, officer, employee, agent or Affiliate of the Guarantor, any former, current or future, direct or indirect holder of any equity interests or securities of the Guarantor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or representative any of the foregoing (each such Person, a "Related Person"), through any Parent Party or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of any Parent Party against the Guarantor or any Related Person (except for any claim to compel Holdco and/or Parent to enforce the Equity Commitment Letter in accordance with the terms thereof), or otherwise, except for its rights against the Guarantor under this Limited Guarantee and the Escrow Agreement. Recourse against the Guarantor under this Limited Guarantee and the Escrow Agreement and the Guaranteed Party's rights under the Equity Commitment Letter shall be the sole and exclusive remedy of (i) the Guaranteed Party and (ii) all of the Guaranteed Party's equityholders, Affiliates and subsidiaries against the Guarantor and any Related Person (other than the Parent Parties and their respective successors and assigns) in respect of any liabilities or obligations arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby, including by piercing the corporate, limited liability company or limited partnership veil or by a claim by or on behalf of any Parent Party. The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Affiliates and subsidiaries not to institute, any proceeding or bring any other claim arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby (or the failure of such to be consummated), against the Guarantor or any Related Person, except for (A) claims of the Guaranteed Party against the Guarantor under and in accordance with this Limited Guarantee and the Escrow Agreement, (B) claims of the Guaranteed Party against the Parent Parties (and their respective successors and assigns) under and in accordance with the Merger Agreement and the Escrow Agreement, and (C) the exercise of the Guaranteed Party's rights under and in accordance with the Equity Commitment Letter, and the Guaranteed Party hereby, on behalf of itself and its Affiliates and subsidiaries, waives any and all claims arising under, or in connection with, the Merger Agreement, this Limited Guarantee, the Equity Commitment Letter, the Escrow Agreement or, in each case, the transactions contemplated hereby or thereby against the Guarantor or any Related Person and releases such Persons from such claims, in each case, except for claims described in clauses (A), (B) and (C) of this sentence (each, a "Permitted Claim"). Nothing set forth in this Limited Guarantee shall confer or give or shall be construed to confer or give to any Person (including any Person acting in a representative capacity) other than the Guaranteed Party any rights or remedies against any Person, including the Guarantor, except as expressly set forth herein.
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4. Subrogation. The Guarantor will not exercise against any Parent Party any rights of subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by reason of any payment by it pursuant to the provisions of Section 1 hereof unless and until the Guaranteed Obligation and all other amounts payable under this Limited Guarantee have been paid in full.
5. Termination. This Limited Guarantee shall terminate (and the Guarantor shall have no further obligations hereunder) upon the earliest to occur of (a) the Effective Time, (b) the payment in full of the Guaranteed Obligation and the obligation under Section 1(c), (c) the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would not be required pursuant to the terms and subject to the conditions of the Merger Agreement to make any payment of any Guaranteed Obligation; and (d) six months after the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would be required pursuant to the terms and subject to the conditions of the Merger Agreement to make a payment of the Guaranteed Obligation, unless by the end of such six-month period, the Guaranteed Party shall have initiated a claim or proceeding in accordance with the terms of the Merger Agreement for payment of any of the Guaranteed Obligations; provided that if the Guaranteed Party has initiated a claim or proceeding by the end of such six-month period, this Limited Guarantee shall terminate upon the date such claim or proceeding is finally satisfied or otherwise resolved by agreement of the parties hereto or pursuant to Section 12. In the event that the Guaranteed Party or any of its Affiliates or subsidiaries asserts in any litigation or other proceeding relating to this Limited Guarantee or the Merger Agreement (i) that the provisions hereof (including, without limitation, Section 1 hereof limiting the Guarantor's aggregate liability to the Maximum Amount or Section 3 hereof relating to the sole and exclusive remedies of the Guaranteed Party and its equityholders, Affiliates and subsidiaries against the Guarantor or any Related Person) are illegal, invalid or unenforceable, in whole or in part, or (ii) any theory of liability against the Guarantor or any Related Person or any other Guarantor under the other Limited Guarantees dated as of the date hereof or any Related Person of any such other Guarantor with respect to the transactions contemplated by this Limited Guarantee, the Equity Commitment Letter or the Merger Agreement other than any Permitted Claim, then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and be null and void, (y) if the Guarantor has previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments from the Guaranteed Party and (z) neither the Guarantor nor any Related Person (other than the Parent Parties and their respective successors and assigns) shall have any liability to the Guaranteed Party or any of its equityholders, Affiliates or subsidiaries with respect to the Merger Agreement or the transactions contemplated by the Merger Agreement or this Limited Guarantee.
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6. Continuing Guarantee. Except to the extent terminated pursuant to the provisions of Section 5 hereof, this Limited Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed Obligation and the obligation under Section 1(c), shall be binding upon the Guarantor, its successors and assigns, and shall inure to the benefit of, and be enforceable by, the Guaranteed Party and its successors, permitted transferees and permitted assigns; provided that notwithstanding anything to the contrary in this Limited Guarantee, the provisions of this Limited Guarantee that are for the benefit of any Related Person (including the provisions of Sections 3 and 5) shall indefinitely survive any termination of this Limited Guarantee for the benefit of the Guarantor and any Related Persons. All obligation to which this Limited Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
7. Entire Agreement. This Limited Guarantee, the Merger Agreement, the Equity Commitment Letter and the Escrow Agreement constitute the entire agreement with respect to the subject matter hereof, and supersede all other prior agreements and understandings, both written and oral, among the Parent Parties and/or the Guarantor or any of their respective Affiliates, on the one hand, and the Guaranteed Party or any of its Affiliates, on the other hand, regarding the subject matter hereof.
8. Amendments and Waivers. Any provision of this Limited Guarantee may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Guarantor and the Guaranteed Party or, in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by any party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
9. Counterparts. This Limited Guarantee may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
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10. Notices. All notices, requests, claims, demands and other communications hereunder shall be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressee's location on any Business Day after 5:00 p.m. (addressee's local time) shall be deemed to have been received at 9:00 a.m. (addressee's local time) on the next Business Day), by reliable international overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:
if to the Guarantor:
Tianjin Xinxin Qiyuan Investment Limited Partnership
(天津信心奇缘股权投资合伙企业 (有限合伙))
360 Tower, No.6 Jiuxianqiao Road
Chaoyang District, Beijing, China
Attention: Wenxin Xing
with copies to:
Kirkland & Ellis
26th Floor, Glouster Tower, The Landmark
15 Queen's Road Central
Hong Kong
Facsimile: +852-3761-3301
Attention: David Zhang and Jesse Sheley
If to the Guaranteed Party, as provided in Section 9.2 of the Merger Agreement.
11. Governing Law. This Limited Guarantee (except for the arbitration agreement in Section 12) shall be governed by and construed in accordance with the Laws of the State of New York without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
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12. Jurisdiction; Waiver of Service of Process.
(a) Jurisdiction. In the event any dispute arises among the parties hereto out of or in relation to this Limited Guarantee, including any dispute regarding its existence, interpretation, performance, breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly consultations within thirty (30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions of this Section 12. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre ("HKIAC") Administered Rules in force when a notice of arbitration is submitted. The seat and venue of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The law of the arbitration agreement shall be Hong Kong law. The appointing authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number, and one arbitrator shall be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from nominating their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within 30 days after such two arbitrators have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any person necessary for the conduct of the arbitration, unless otherwise required by Law or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and any interim or final award, as well as the fact that an arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after the submission of any dispute to arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter agreement, except insofar as the same may relate directly to the matters in dispute. The parties hereby agree that any arbitration award rendered in accordance with the provisions of this Section 12 shall be final and binding upon them, and the parties further agree that such award may be enforced by any court having jurisdiction over the party against which the award has been rendered or the assets of such party wherever the same may be located. In any arbitration proceeding, any legal proceeding to enforce any arbitration award and in any other legal proceeding among the Parties pursuant to or relating to this Agreement, each Party expressly waives the defense of sovereign immunity and any other defense based on the fact or allegation that it is an agency or instrumentality of a sovereign state or is otherwise entitled to immunity.
13. Representations and Warranties. The Guarantor hereby represents and warrants to the Guaranteed Party that:
(a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization;
(b) it has all necessary power and authority to execute, deliver and perform this Limited Guarantee;
(c) the execution, delivery and performance of this Limited Guarantee by the Guarantor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Guarantor are necessary therefor;
(d) all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Limited Guarantee by the Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution, delivery or performance of this Limited Guarantee;
(e) this Limited Guarantee has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the undersigned in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law));
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(f) the execution, delivery and performance by the undersigned of this Limited Guarantee do not and will not violate the organizational documents of the undersigned or violate any applicable law, regulation, rule, decree, order, judgment or contractual restriction binding on the Guarantor or its assets or properties; and
(g) it has the financial capacity to pay and perform its obligations under this Limited Guarantee, and all funds necessary for the Guarantor to fulfill its obligations under this Limited Guarantee shall be available to the Guarantor for so long as this Limited Guarantee shall remain in effect in accordance with Section 6.
14. No Assignment. Neither this Limited Guarantee nor any of the rights, interests or obligations hereunder shall be assignable without the prior written consent of the Guaranteed Party (in the case of an assignment by the Guarantor) or the Guarantor (in the case of an assignment by the Guaranteed Party).
15. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LIMITED GUARANTEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 15.
16. Severability. Any term or provision of this Limited Guarantee which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Limited Guarantee in any jurisdiction and, if any provision of this Limited Guarantee is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Maximum Amount provided in Section 1 hereof and to the provisions of Sections 3 and 5 hereof. No party hereto shall assert, and each party shall cause its respective Affiliates and subsidiaries not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.
17. Headings. Headings of the Sections of this Limited Guarantee are for convenience only and shall be given no substantive or interpretive effect whatsoever.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Tianjin Xinxin Qiyuan Investment Limited Partnership | ||
| (天津信心奇缘股权投资合伙企业 (有限合伙)) | ||
| [Company chop is affixed] | ||
| By: | /s/ DONG Jian Ming | |
| Name: DONG Jian Ming 董健明 | ||
| Title: Authorised Signatory | ||
[Signature Page to Limited Guarantee]
IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Limited Guarantee]
Exhibit 99.111
Execution Version
LIMITED GUARANTEE
This Limited Guarantee, dated as of December 18, 2015 (this "Limited Guarantee"), is made by Tianjin Xinxinsheng Investment Limited Partnership (天津欣新盛股权投资合伙企业 (有限合伙)), a limited partnership formed under the laws of the People’s Republic of China (including its successors and permitted assigns, the "Guarantor"), in favor of Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Guaranteed Party"). Reference is hereby made to the Agreement and Plan of Merger, dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), and the Guaranteed Party. Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Merger Agreement.
1. Limited Guarantee.
(a) To induce the Guaranteed Party to enter into the Merger Agreement, the Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, subject to the terms and conditions hereof, the due and punctual payment and performance when due of 12.39% of the Parent Parties' obligation (the "Guaranteed Obligation") to pay to the Guaranteed Party (i) the Parent Termination Fee if and when required pursuant to Section 8.2(c) of the Merger Agreement, and (ii) the payment obligations of the Parent Parties pursuant to Section 6.6 of the Merger Agreement; provided that the maximum aggregate liability of the Guarantor hereunder shall not exceed US$ 55,733,613 (the "Maximum Amount").
(b) The Guaranteed Party hereby agrees that (a) the Guarantor shall in no event be required to pay more than the Maximum Amount under or in respect of this Guarantee and (b) the Guarantor shall not have any obligation or liability to any Person (including, without limitation, to the Guaranteed Party's equity holders, Affiliates and/or subsidiaries) relating to, arising out of or in connection with this Limited Guarantee, the Merger Agreement, or the Equity Commitment Letter (as defined below) other than as expressly set forth herein or in the Equity Commitment Letter or the Escrow Agreement (as defined in the Equity Commitment Letter).
(c) The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by the Guaranteed Party in connection with the enforcement of its rights hereunder and under the Merger Agreement, including, without limitation, in the event that (i) the Guarantor asserts in any arbitration, litigation or other proceeding that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms and the Guaranteed Party prevails in such arbitration, litigation or other proceeding, or (ii) the Guarantor fails or refuses to make any payment to the Guaranteed Party hereunder when due and payable and it is determined judicially or by arbitration that the Guarantor is required to make such payment hereunder.
(d) The Guarantor promises and undertakes to make all payments hereunder free and clear of any deduction, offset, defense, claim or counterclaim of any kind. If the Parent Parties fail to pay or cause to be paid the Guaranteed Obligation as and when due and payable pursuant to Section 8.2(c) of the Merger Agreement, as applicable, then the Guarantor's liabilities to the Guaranteed Party hereunder in respect of such Guaranteed Obligation shall become immediately due and payable and the Guaranteed Party may at any time and from time to time, at the Guaranteed Party's option, and so long as the Parent Parties remain in breach of its Guaranteed Obligation, take any and all actions available hereunder or under applicable Law to collect the Guaranteed Obligation from the Guarantor subject to the Maximum Amount as applicable.
2. Terms of Limited Guarantee.
(a) This Limited Guarantee is a primary and original obligation of the Guarantor and is one of payment, not collection, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against any Parent Party or any other Person or whether any Parent Party or any other Person is joined in any such action or actions. Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantor under this Limited Guarantee and of the other guarantors under the other Limited Guarantees dated as of the date hereof ("Other Guarantors") shall be several and not joint.
(b) The liability of the Guarantor under this Limited Guarantee shall, to the fullest extent permitted under applicable law, be absolute, irrevocable and unconditional, irrespective of:
(i) the value, genuineness, validity, illegality or enforceability of the Merger Agreement or the letter agreement dated as of the date hereof between the Guarantor, on the one hand, and Holdco and Parent, on the other hand, pursuant to which the Guarantor has agreed to make a certain equity contribution to Holdco and Parent (the "Equity Commitment Letter") or any other agreement or instrument referred to herein or therein;
(ii) any change in the corporate existence, structure or ownership of any Parent Party or any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting any Parent Party, any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor) or any of their respective assets;
(iii) any amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof;
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(iv) the existence of any claim, set-off or other right that the Guarantor may have at any time against any Parent Party or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise;
(v) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against any Parent Party or the Guarantor or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation (other than as and if required by Section 2(a));
(vi) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of the Guaranteed Obligation;
(vii) any other act or omission that may in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment in full of the Guaranteed Obligation in accordance with their terms); or
(viii) the addition, substitution, discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Guaranteed Obligation as a result of payment in full of the Guaranteed Obligation in accordance with their terms) of any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor),
other than in each case with respect to (A) defenses to the payment of the Guaranteed Obligation that are available to any Parent Party under the Merger Agreement or (B) breach by the Guaranteed Party of this Limited Guarantee, including, without limitation, the limitations set forth in Section 3 below), and, notwithstanding any other provision of this Limited Guarantee to the contrary, the Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that any Parent Party could assert against the Company under the terms of, or with respect to, the Merger Agreement that would relieve each of the Parent Parties of its obligations under the Merger Agreement.
(c) To the fullest extent permitted by applicable law, the Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of the Guaranteed Obligation and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligation shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between the Parent Parties and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under no obligation to pursue such rights and remedies it may have against the Parent Parties or any other Person for the Guaranteed Obligation or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue such other rights or remedies or to collect any payments from the Parent Parties or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of the Parent Parties or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guaranteed Party.
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(d) To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, acceptance hereof, presentment, demand for payment, notice of non-performance, default, dishonor and protest, any notice not provided for herein, all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of any Parent Party or any other person interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligation that are available to the Parent Parties under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated under the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits.
(e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that the Parent Parties become subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantor's obligation hereunder. In the event that any payment to the Guaranteed Party in respect of the Guaranteed Obligation is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to the Guaranteed Obligation as if such payment had not been made so long as this Limited Guarantee has not terminated in accordance with its terms.
3. Sole Remedy; No Recourse. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party further agrees that neither it nor any other Person (including, without limitation, the Guaranteed Party's equityholders, Affiliates and subsidiaries) has any right of recovery against, and no personal liability shall attach to, the Guarantor, any former, current or future, director, officer, employee, agent or Affiliate of the Guarantor, any former, current or future, direct or indirect holder of any equity interests or securities of the Guarantor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or representative any of the foregoing (each such Person, a "Related Person"), through any Parent Party or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of any Parent Party against the Guarantor or any Related Person (except for any claim to compel Holdco and/or Parent to enforce the Equity Commitment Letter in accordance with the terms thereof), or otherwise, except for its rights against the Guarantor under this Limited Guarantee and the Escrow Agreement. Recourse against the Guarantor under this Limited Guarantee and the Escrow Agreement and the Guaranteed Party's rights under the Equity Commitment Letter shall be the sole and exclusive remedy of (i) the Guaranteed Party and (ii) all of the Guaranteed Party's equityholders, Affiliates and subsidiaries against the Guarantor and any Related Person (other than the Parent Parties and their respective successors and assigns) in respect of any liabilities or obligations arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby, including by piercing the corporate, limited liability company or limited partnership veil or by a claim by or on behalf of any Parent Party. The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Affiliates and subsidiaries not to institute, any proceeding or bring any other claim arising under, or in connection with, this Limited Guarantee, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby (or the failure of such to be consummated), against the Guarantor or any Related Person, except for (A) claims of the Guaranteed Party against the Guarantor under and in accordance with this Limited Guarantee and the Escrow Agreement, (B) claims of the Guaranteed Party against the Parent Parties (and their respective successors and assigns) under and in accordance with the Merger Agreement and the Escrow Agreement, and (C) the exercise of the Guaranteed Party's rights under and in accordance with the Equity Commitment Letter, and the Guaranteed Party hereby, on behalf of itself and its Affiliates and subsidiaries, waives any and all claims arising under, or in connection with, the Merger Agreement, this Limited Guarantee, the Equity Commitment Letter, the Escrow Agreement or, in each case, the transactions contemplated hereby or thereby against the Guarantor or any Related Person and releases such Persons from such claims, in each case, except for claims described in clauses (A), (B) and (C) of this sentence (each, a "Permitted Claim"). Nothing set forth in this Limited Guarantee shall confer or give or shall be construed to confer or give to any Person (including any Person acting in a representative capacity) other than the Guaranteed Party any rights or remedies against any Person, including the Guarantor, except as expressly set forth herein.
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4. Subrogation. The Guarantor will not exercise against any Parent Party any rights of subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by reason of any payment by it pursuant to the provisions of Section 1 hereof unless and until the Guaranteed Obligation and all other amounts payable under this Limited Guarantee have been paid in full.
5. Termination. This Limited Guarantee shall terminate (and the Guarantor shall have no further obligations hereunder) upon the earliest to occur of (a) the Effective Time, (b) the payment in full of the Guaranteed Obligation and the obligation under Section 1(c), (c) the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would not be required pursuant to the terms and subject to the conditions of the Merger Agreement to make any payment of any Guaranteed Obligation; and (d) six months after the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would be required pursuant to the terms and subject to the conditions of the Merger Agreement to make a payment of the Guaranteed Obligation, unless by the end of such six-month period, the Guaranteed Party shall have initiated a claim or proceeding in accordance with the terms of the Merger Agreement for payment of any of the Guaranteed Obligations; provided that if the Guaranteed Party has initiated a claim or proceeding by the end of such six-month period, this Limited Guarantee shall terminate upon the date such claim or proceeding is finally satisfied or otherwise resolved by agreement of the parties hereto or pursuant to Section 12. In the event that the Guaranteed Party or any of its Affiliates or subsidiaries asserts in any litigation or other proceeding relating to this Limited Guarantee or the Merger Agreement (i) that the provisions hereof (including, without limitation, Section 1 hereof limiting the Guarantor's aggregate liability to the Maximum Amount or Section 3 hereof relating to the sole and exclusive remedies of the Guaranteed Party and its equityholders, Affiliates and subsidiaries against the Guarantor or any Related Person) are illegal, invalid or unenforceable, in whole or in part, or (ii) any theory of liability against the Guarantor or any Related Person or any other Guarantor under the other Limited Guarantees dated as of the date hereof or any Related Person of any such other Guarantor with respect to the transactions contemplated by this Limited Guarantee, the Equity Commitment Letter or the Merger Agreement other than any Permitted Claim, then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and be null and void, (y) if the Guarantor has previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments from the Guaranteed Party and (z) neither the Guarantor nor any Related Person (other than the Parent Parties and their respective successors and assigns) shall have any liability to the Guaranteed Party or any of its equityholders, Affiliates or subsidiaries with respect to the Merger Agreement or the transactions contemplated by the Merger Agreement or this Limited Guarantee.
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6. Continuing Guarantee. Except to the extent terminated pursuant to the provisions of Section 5 hereof, this Limited Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed Obligation and the obligation under Section 1(c), shall be binding upon the Guarantor, its successors and assigns, and shall inure to the benefit of, and be enforceable by, the Guaranteed Party and its successors, permitted transferees and permitted assigns; provided that notwithstanding anything to the contrary in this Limited Guarantee, the provisions of this Limited Guarantee that are for the benefit of any Related Person (including the provisions of Sections 3 and 5) shall indefinitely survive any termination of this Limited Guarantee for the benefit of the Guarantor and any Related Persons. All obligation to which this Limited Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
7. Entire Agreement. This Limited Guarantee, the Merger Agreement, the Equity Commitment Letter and the Escrow Agreement constitute the entire agreement with respect to the subject matter hereof, and supersede all other prior agreements and understandings, both written and oral, among the Parent Parties and/or the Guarantor or any of their respective Affiliates, on the one hand, and the Guaranteed Party or any of its Affiliates, on the other hand, regarding the subject matter hereof.
8. Amendments and Waivers. Any provision of this Limited Guarantee may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Guarantor and the Guaranteed Party or, in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by any party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
9. Counterparts. This Limited Guarantee may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
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10. Notices. All notices, requests, claims, demands and other communications hereunder shall be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressee's location on any Business Day after 5:00 p.m. (addressee's local time) shall be deemed to have been received at 9:00 a.m. (addressee's local time) on the next Business Day), by reliable international overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:
if to the Guarantor:
Tianjin Xinxinsheng Investment Limited Partnership
(天津欣新盛股权投资合伙企业 (有限合伙))
360 Tower, No.6 Jiuxianqiao Road, Chaoyang District, Beijing
Attention: Fan Zhang
with copies to:
Kirkland & Ellis
26th Floor, Glouster Tower, The Landmark
15 Queen's Road Central
Hong Kong
Facsimile: +852-3761-3301
Attention: David Zhang and Jesse Sheley
If to the Guaranteed Party, as provided in Section 9.2 of the Merger Agreement.
11. Governing Law. This Limited Guarantee (except for the arbitration agreement in Section 12) shall be governed by and construed in accordance with the Laws of the State of New York without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
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12. Jurisdiction; Waiver of Service of Process.
(a) Jurisdiction. In the event any dispute arises among the parties hereto out of or in relation to this Limited Guarantee, including any dispute regarding its existence, interpretation, performance, breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly consultations within thirty (30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions of this Section 12. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre ("HKIAC") Administered Rules in force when a notice of arbitration is submitted. The seat and venue of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The law of the arbitration agreement shall be Hong Kong law. The appointing authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number, and one arbitrator shall be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from nominating their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within 30 days after such two arbitrators have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any person necessary for the conduct of the arbitration, unless otherwise required by Law or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and any interim or final award, as well as the fact that an arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after the submission of any dispute to arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter agreement, except insofar as the same may relate directly to the matters in dispute. The parties hereby agree that any arbitration award rendered in accordance with the provisions of this Section 12 shall be final and binding upon them, and the parties further agree that such award may be enforced by any court having jurisdiction over the party against which the award has been rendered or the assets of such party wherever the same may be located. In any arbitration proceeding, any legal proceeding to enforce any arbitration award and in any other legal proceeding among the Parties pursuant to or relating to this Agreement, each Party expressly waives the defense of sovereign immunity and any other defense based on the fact or allegation that it is an agency or instrumentality of a sovereign state or is otherwise entitled to immunity.
13. Representations and Warranties. The Guarantor hereby represents and warrants to the Guaranteed Party that:
(a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization;
(b) it has all necessary power and authority to execute, deliver and perform this Limited Guarantee;
(c) the execution, delivery and performance of this Limited Guarantee by the Guarantor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Guarantor are necessary therefor;
(d) all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Limited Guarantee by the Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution, delivery or performance of this Limited Guarantee;
(e) this Limited Guarantee has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the undersigned in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law));
(f) the execution, delivery and performance by the undersigned of this Limited Guarantee do not and will not violate the organizational documents of the undersigned or violate any applicable law, regulation, rule, decree, order, judgment or contractual restriction binding on the Guarantor or its assets or properties; and
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(g) it has the financial capacity to pay and perform its obligations under this Limited Guarantee, and all funds necessary for the Guarantor to fulfill its obligations under this Limited Guarantee shall be available to the Guarantor for so long as this Limited Guarantee shall remain in effect in accordance with Section 6.
14. No Assignment. Neither this Limited Guarantee nor any of the rights, interests or obligations hereunder shall be assignable without the prior written consent of the Guaranteed Party (in the case of an assignment by the Guarantor) or the Guarantor (in the case of an assignment by the Guaranteed Party).
15. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LIMITED GUARANTEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 15.
16. Severability. Any term or provision of this Limited Guarantee which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Limited Guarantee in any jurisdiction and, if any provision of this Limited Guarantee is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Maximum Amount provided in Section 1 hereof and to the provisions of Sections 3 and 5 hereof. No party hereto shall assert, and each party shall cause its respective Affiliates and subsidiaries not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.
17. Headings. Headings of the Sections of this Limited Guarantee are for convenience only and shall be given no substantive or interpretive effect whatsoever.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Tianjin Xinxinsheng Investment Limited Partnership | ||
| (天津欣新盛股权投资合伙企业 ( | ||
| 有限合伙)) | ||
| [Company chop is affixed] | ||
| By: | /s/ Xiangdong Qi | |
| Name: Xiangdong Qi | ||
| Title: Authorized Signatory | ||
[Signature Page to Limited Guarantee]
IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Limited Guarantee]
Exhibit 99.112
Execution Version
LIMITED GUARANTEE
This Limited Guarantee, dated as of December 18, 2015 (this "Limited Guarantee"), is made by Global Village Associates Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands (including its successors and permitted assigns, the "Guarantor"), in favor of Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Guaranteed Party"). Reference is hereby made to the Agreement and Plan of Merger, dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), and the Guaranteed Party. Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Merger Agreement.
1. Limited Guarantee.
(a) To induce the Guaranteed Party to enter into the Merger Agreement, the Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, subject to the terms and conditions hereof, the due and punctual payment and performance when due of 18.66% of the Parent Parties' obligation (the "Guaranteed Obligation") to pay to the Guaranteed Party (i) the Parent Termination Fee if and when required pursuant to Section 8.2(c) of the Merger Agreement, and (ii) the payment obligations of the Parent Parties pursuant to Section 6.6 of the Merger Agreement; provided that the maximum aggregate liability of the Guarantor hereunder shall not exceed US$ 83,952,953 (the "Maximum Amount").
(b) The Guaranteed Party hereby agrees that (a) the Guarantor shall in no event be required to pay more than the Maximum Amount under or in respect of this Guarantee and (b) the Guarantor shall not have any obligation or liability to any Person (including, without limitation, to the Guaranteed Party's equity holders, Affiliates and/or subsidiaries) relating to, arising out of or in connection with this Limited Guarantee or the Merger Agreement other than as expressly set forth herein.
(c) The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by the Guaranteed Party in connection with the enforcement of its rights hereunder and under the Merger Agreement, including, without limitation, in the event that (i) the Guarantor asserts in any arbitration, litigation or other proceeding that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms and the Guaranteed Party prevails in such arbitration, litigation or other proceeding, or (ii) the Guarantor fails or refuses to make any payment to the Guaranteed Party hereunder when due and payable and it is determined judicially or by arbitration that the Guarantor is required to make such payment hereunder.
(d) The Guarantor promises and undertakes to make all payments hereunder free and clear of any deduction, offset, defense, claim or counterclaim of any kind. If the Parent Parties fail to pay or cause to be paid the Guaranteed Obligation as and when due and payable pursuant to Section 8.2(c) of the Merger Agreement, as applicable, then the Guarantor's liabilities to the Guaranteed Party hereunder in respect of such Guaranteed Obligation shall become immediately due and payable and the Guaranteed Party may at any time and from time to time, at the Guaranteed Party's option, and so long as the Parent Parties remain in breach of its Guaranteed Obligation, take any and all actions available hereunder or under applicable Law to collect the Guaranteed Obligation from the Guarantor subject to the Maximum Amount as applicable.
2. Terms of Limited Guarantee.
(a) This Limited Guarantee is a primary and original obligation of the Guarantor and is one of payment, not collection, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against any Parent Party or any other Person or whether any Parent Party or any other Person is joined in any such action or actions. Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantor under this Limited Guarantee and of the other guarantors under the other Limited Guarantees dated as of the date hereof ("Other Guarantors") shall be several and not joint.
(b) The liability of the Guarantor under this Limited Guarantee shall, to the fullest extent permitted under applicable law, be absolute, irrevocable and unconditional, irrespective of:
(i) the value, genuineness, validity, illegality or enforceability of the Merger Agreement or any other agreement or instrument referred to herein or therein;
(ii) any change in the corporate existence, structure or ownership of any Parent Party or any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting any Parent Party, any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor) or any of their respective assets;
(iii) any amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof;
(iv) the existence of any claim, set-off or other right that the Guarantor may have at any time against any Parent Party or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise;
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(v) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against any Parent Party or the Guarantor or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation (other than as and if required by Section 2(a));
(vi) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of the Guaranteed Obligation;
(vii) any other act or omission that may in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment in full of the Guaranteed Obligation in accordance with their terms); or
(viii) the addition, substitution, discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Guaranteed Obligation as a result of payment in full of the Guaranteed Obligation in accordance with their terms) of any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor),
other than in each case with respect to (A) defenses to the payment of the Guaranteed Obligation that are available to any Parent Party under the Merger Agreement or (B) breach by the Guaranteed Party of this Limited Guarantee, including, without limitation, the limitations set forth in Section 3 below), and, notwithstanding any other provision of this Limited Guarantee to the contrary, the Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that any Parent Party could assert against the Company under the terms of, or with respect to, the Merger Agreement that would relieve each of the Parent Parties of its obligations under the Merger Agreement.
(c) To the fullest extent permitted by applicable law, the Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of the Guaranteed Obligation and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligation shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between the Parent Parties and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under no obligation to pursue such rights and remedies it may have against the Parent Parties or any other Person for the Guaranteed Obligation or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue such other rights or remedies or to collect any payments from the Parent Parties or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of the Parent Parties or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guaranteed Party.
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(d) To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, acceptance hereof, presentment, demand for payment, notice of non-performance, default, dishonor and protest, any notice not provided for herein, all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of any Parent Party or any other person interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligation that are available to the Parent Parties under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated under the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits.
(e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that the Parent Parties become subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantor's obligation hereunder. In the event that any payment to the Guaranteed Party in respect of the Guaranteed Obligation is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to the Guaranteed Obligation as if such payment had not been made so long as this Limited Guarantee has not terminated in accordance with its terms.
3. Sole Remedy; No Recourse. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party further agrees that neither it nor any other Person (including, without limitation, the Guaranteed Party's equityholders, Affiliates and subsidiaries) has any right of recovery against, and no personal liability shall attach to, the Guarantor, any former, current or future, director, officer, employee, agent or Affiliate of the Guarantor, any former, current or future, direct or indirect holder of any equity interests or securities of the Guarantor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or representative any of the foregoing (each such Person, a "Related Person"), through any Parent Party or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of any Parent Party against the Guarantor or any Related Person, or otherwise, except for its rights against the Guarantor under this Limited Guarantee. Recourse against the Guarantor under this Limited Guarantee shall be the sole and exclusive remedy of (i) the Guaranteed Party and (ii) all of the Guaranteed Party's equityholders, Affiliates and subsidiaries against the Guarantor and any Related Person (other than the Parent Parties and their respective successors and assigns) in respect of any liabilities or obligations arising under, or in connection with, this Limited Guarantee, the Merger Agreement or the transactions contemplated hereby or thereby, including by piercing the corporate, limited liability company or limited partnership veil or by a claim by or on behalf of any Parent Party. The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Affiliates and subsidiaries not to institute, any proceeding or bring any other claim arising under, or in connection with, this Limited Guarantee, the Merger Agreement or the transactions contemplated hereby or thereby (or the failure of such to be consummated), against the Guarantor or any Related Person, except for (A) claims of the Guaranteed Party against the Guarantor under and in accordance with this Limited Guarantee, and (B) claims of the Guaranteed Party against the Parent Parties (and their respective successors and assigns) under and in accordance with the Merger Agreement, and, the Guaranteed Party hereby, on behalf of itself and its Affiliates and subsidiaries, waives any and all claims arising under, or in connection with, the Merger Agreement, this Limited Guarantee or the transactions contemplated hereby or thereby against the Guarantor or any Related Person and releases such Persons from such claims, in each case, except for claims described in clauses (A) and (B) of this sentence (each, a "Permitted Claim"). Nothing set forth in this Limited Guarantee shall confer or give or shall be construed to confer or give to any Person (including any Person acting in a representative capacity) other than the Guaranteed Party any rights or remedies against any Person, including the Guarantor, except as expressly set forth herein.
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4. Subrogation. The Guarantor will not exercise against any Parent Party any rights of subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by reason of any payment by it pursuant to the provisions of Section 1 hereof unless and until the Guaranteed Obligation and all other amounts payable under this Limited Guarantee have been paid in full.
5. Termination. This Limited Guarantee shall terminate (and the Guarantor shall have no further obligations hereunder) upon the earliest to occur of (a) the Effective Time, (b) the payment in full of the Guaranteed Obligation and the obligation under Section 1(c), (c) the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would not be required pursuant to the terms and subject to the conditions of the Merger Agreement to make any payment of any Guaranteed Obligation; and (d) six months after the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would be required pursuant to the terms and subject to the conditions of the Merger Agreement to make a payment of the Guaranteed Obligation, unless by the end of such six-month period, the Guaranteed Party shall have initiated a claim or proceeding in accordance with the terms of the Merger Agreement for payment of any of the Guaranteed Obligations; provided that if the Guaranteed Party has initiated a claim or proceeding by the end of such six-month period, this Limited Guarantee shall terminate upon the date such claim or proceeding is finally satisfied or otherwise resolved by agreement of the parties hereto or pursuant to Section 12. In the event that the Guaranteed Party or any of its Affiliates or subsidiaries asserts in any litigation or other proceeding relating to this Limited Guarantee or the Merger Agreement (i) that the provisions hereof (including, without limitation, Section 1 hereof limiting the Guarantor's aggregate liability to the Maximum Amount or Section 3 hereof relating to the sole and exclusive remedies of the Guaranteed Party and its equityholders, Affiliates and subsidiaries against the Guarantor or any Related Person) are illegal, invalid or unenforceable, in whole or in part, or (ii) any theory of liability against the Guarantor or any Related Person or any other Guarantor under the other Limited Guarantees dated as of the date hereof or any Related Person of any such other Guarantor with respect to the transactions contemplated by this Limited Guarantee or the Merger Agreement other than any Permitted Claim, then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and be null and void, (y) if the Guarantor has previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments from the Guaranteed Party and (z) neither the Guarantor nor any Related Person (other than the Parent Parties and their respective successors and assigns) shall have any liability to the Guaranteed Party or any of its equityholders, Affiliates or subsidiaries with respect to the Merger Agreement or the transactions contemplated by the Merger Agreement or this Limited Guarantee.
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6. Continuing Guarantee. Except to the extent terminated pursuant to the provisions of Section 5 hereof, this Limited Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed Obligation and the obligation under Section 1(c), shall be binding upon the Guarantor, its successors and assigns, and shall inure to the benefit of, and be enforceable by, the Guaranteed Party and its successors, permitted transferees and permitted assigns; provided that notwithstanding anything to the contrary in this Limited Guarantee, the provisions of this Limited Guarantee that are for the benefit of any Related Person (including the provisions of Sections 3 and 5) shall indefinitely survive any termination of this Limited Guarantee for the benefit of the Guarantor and any Related Persons. All obligation to which this Limited Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
7. Entire Agreement. This Limited Guarantee and the Merger Agreement constitute the entire agreement with respect to the subject matter hereof, and supersede all other prior agreements and understandings, both written and oral, among the Parent Parties and/or the Guarantor or any of their respective Affiliates, on the one hand, and the Guaranteed Party or any of its Affiliates, on the other hand, regarding the subject matter hereof.
8. Amendments and Waivers. Any provision of this Limited Guarantee may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Guarantor and the Guaranteed Party or, in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by any party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
9. Counterparts. This Limited Guarantee may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
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10. Notices. All notices, requests, claims, demands and other communications hereunder shall be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressee's location on any Business Day after 5:00 p.m. (addressee's local time) shall be deemed to have been received at 9:00 a.m. (addressee's local time) on the next Business Day), by reliable international overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:
if to the Guarantor:
c/o Mr. Zhou Hongyi
Tower B,
Building 2, No.6 Jiuxianqiao Road,
Chaoyang District, Beijing 100015
with copies to:
Kirkland & Ellis
26th Floor, Glouster Tower, The Landmark
15 Queen's Road Central
Hong Kong
Facsimile: +852-3761-3301
Attention: David Zhang and Jesse Sheley
If to the Guaranteed Party, as provided in Section 9.2 of the Merger Agreement.
11. Governing Law. This Limited Guarantee (except for the arbitration agreement in Section 12) shall be governed by and construed in accordance with the Laws of the State of New York without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
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12. Jurisdiction; Waiver of Service of Process.
(a) Jurisdiction. In the event any dispute arises among the parties hereto out of or in relation to this Limited Guarantee, including any dispute regarding its existence, interpretation, performance, breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly consultations within thirty (30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions of this Section 12. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre ("HKIAC") Administered Rules in force when a notice of arbitration is submitted. The seat and venue of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The law of the arbitration agreement shall be Hong Kong law. The appointing authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number, and one arbitrator shall be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from nominating their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within 30 days after such two arbitrators have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any person necessary for the conduct of the arbitration, unless otherwise required by Law or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and any interim or final award, as well as the fact that an arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after the submission of any dispute to arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter agreement, except insofar as the same may relate directly to the matters in dispute. The parties hereby agree that any arbitration award rendered in accordance with the provisions of this Section 12 shall be final and binding upon them, and the parties further agree that such award may be enforced by any court having jurisdiction over the party against which the award has been rendered or the assets of such party wherever the same may be located. In any arbitration proceeding, any legal proceeding to enforce any arbitration award and in any other legal proceeding among the Parties pursuant to or relating to this Agreement, each Party expressly waives the defense of sovereign immunity and any other defense based on the fact or allegation that it is an agency or instrumentality of a sovereign state or is otherwise entitled to immunity.
13. Representations and Warranties. The Guarantor hereby represents and warrants to the Guaranteed Party that:
(a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization;
(b) it has all necessary power and authority to execute, deliver and perform this Limited Guarantee;
(c) the execution, delivery and performance of this Limited Guarantee by the Guarantor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Guarantor are necessary therefor;
(d) all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Limited Guarantee by the Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution, delivery or performance of this Limited Guarantee;
(e) this Limited Guarantee has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the undersigned in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law));
(f) the execution, delivery and performance by the undersigned of this Limited Guarantee do not and will not violate the organizational documents of the undersigned or violate any applicable law, regulation, rule, decree, order, judgment or contractual restriction binding on the Guarantor or its assets or properties; and;
(g) it has the financial capacity to pay and perform its obligations under this Limited Guarantee, and all funds necessary for the Guarantor to fulfill its obligations under this Limited Guarantee shall be available to the Guarantor for so long as this Limited Guarantee shall remain in effect in accordance with Section 6.
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14. No Assignment. Neither this Limited Guarantee nor any of the rights, interests or obligations hereunder shall be assignable without the prior written consent of the Guaranteed Party (in the case of an assignment by the Guarantor) or the Guarantor (in the case of an assignment by the Guaranteed Party).
15. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LIMITED GUARANTEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 15.
16. Severability. Any term or provision of this Limited Guarantee which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Limited Guarantee in any jurisdiction and, if any provision of this Limited Guarantee is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Maximum Amount provided in Section 1 hereof and to the provisions of Sections 3 and 5 hereof. No party hereto shall assert, and each party shall cause its respective Affiliates and subsidiaries not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.
17. Headings. Headings of the Sections of this Limited Guarantee are for convenience only and shall be given no substantive or interpretive effect whatsoever.
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IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Global Village Associates Limited | ||
| By: | /s/ Hongyi Zhou | |
| Name: Hongyi Zhou | ||
| Title: Authorized Signatory | ||
[Signature Page to Limited Guarantee]
IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Limited Guarantee]
Exhibit 99.113
Execution Version
LIMITED GUARANTEE
This Limited Guarantee, dated as of December 18, 2015 (this "Limited Guarantee"), is made by Young Vision Group Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands (including its successors and permitted assigns, the "Guarantor"), in favor of Qihoo 360 Technology Co. Ltd., an exempted company with limited liability incorporated under the laws of the Cayman Islands (the "Guaranteed Party"). Reference is hereby made to the Agreement and Plan of Merger, dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People's Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"), and the Guaranteed Party. Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Merger Agreement.
1. Limited Guarantee.
(a) To induce the Guaranteed Party to enter into the Merger Agreement, the Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, subject to the terms and conditions hereof, the due and punctual payment and performance when due of 3.12% of the Parent Parties' obligation (the "Guaranteed Obligation") to pay to the Guaranteed Party (i) the Parent Termination Fee if and when required pursuant to Section 8.2(c) of the Merger Agreement, and (ii) the payment obligations of the Parent Parties pursuant to Section 6.6 of the Merger Agreement; provided that the maximum aggregate liability of the Guarantor hereunder shall not exceed US$ 14,032,333 (the "Maximum Amount").
(b) The Guaranteed Party hereby agrees that (a) the Guarantor shall in no event be required to pay more than the Maximum Amount under or in respect of this Guarantee and (b) the Guarantor shall not have any obligation or liability to any Person (including, without limitation, to the Guaranteed Party's equity holders, Affiliates and/or subsidiaries) relating to, arising out of or in connection with this Limited Guarantee or the Merger Agreement other than as expressly set forth herein.
(c) The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred by the Guaranteed Party in connection with the enforcement of its rights hereunder and under the Merger Agreement, including, without limitation, in the event that (i) the Guarantor asserts in any arbitration, litigation or other proceeding that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms and the Guaranteed Party prevails in such arbitration, litigation or other proceeding, or (ii) the Guarantor fails or refuses to make any payment to the Guaranteed Party hereunder when due and payable and it is determined judicially or by arbitration that the Guarantor is required to make such payment hereunder.
(d) The Guarantor promises and undertakes to make all payments hereunder free and clear of any deduction, offset, defense, claim or counterclaim of any kind. If the Parent Parties fail to pay or cause to be paid the Guaranteed Obligation as and when due and payable pursuant to Section 8.2(c) of the Merger Agreement, as applicable, then the Guarantor's liabilities to the Guaranteed Party hereunder in respect of such Guaranteed Obligation shall become immediately due and payable and the Guaranteed Party may at any time and from time to time, at the Guaranteed Party's option, and so long as the Parent Parties remain in breach of its Guaranteed Obligation, take any and all actions available hereunder or under applicable Law to collect the Guaranteed Obligation from the Guarantor subject to the Maximum Amount as applicable.
2. Terms of Limited Guarantee.
(a) This Limited Guarantee is a primary and original obligation of the Guarantor and is one of payment, not collection, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Limited Guarantee, irrespective of whether any action is brought against any Parent Party or any other Person or whether any Parent Party or any other Person is joined in any such action or actions. Notwithstanding anything to the contrary contained in this Limited Guarantee or any other document, the obligations of the Guarantor under this Limited Guarantee and of the other guarantors under the other Limited Guarantees dated as of the date hereof ("Other Guarantors") shall be several and not joint.
(b) The liability of the Guarantor under this Limited Guarantee shall, to the fullest extent permitted under applicable law, be absolute, irrevocable and unconditional, irrespective of:
(i) the value, genuineness, validity, illegality or enforceability of the Merger Agreement or any other agreement or instrument referred to herein or therein;
(ii) any change in the corporate existence, structure or ownership of any Parent Party or any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), or any insolvency, bankruptcy, reorganization, liquidation or other similar proceeding affecting any Parent Party, any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor) or any of their respective assets;
(iii) any amendment or modification of the Merger Agreement, or any change in the manner, place or terms of payment or performance of, any change or extension of the time of payment or performance of, or any renewal or alteration of any Guaranteed Obligation, any escrow arrangement or other security therefor, or any liability incurred directly or indirectly in respect thereof;
(iv) the existence of any claim, set-off or other right that the Guarantor may have at any time against any Parent Party or the Guaranteed Party, whether in connection with any Guaranteed Obligation or otherwise;
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(v) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or enforce any right or remedy against any Parent Party or the Guarantor or any other Person primarily or secondarily liable with respect to any Guaranteed Obligation (other than as and if required by Section 2(a));
(vi) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of the Guaranteed Obligation;
(vii) any other act or omission that may in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than as a result of payment in full of the Guaranteed Obligation in accordance with their terms); or
(viii) the addition, substitution, discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Guaranteed Obligation as a result of payment in full of the Guaranteed Obligation in accordance with their terms) of any person now or hereafter liable with respect to the Guaranteed Obligation or otherwise interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor),
other than in each case with respect to (A) defenses to the payment of the Guaranteed Obligation that are available to any Parent Party under the Merger Agreement or (B) breach by the Guaranteed Party of this Limited Guarantee, including, without limitation, the limitations set forth in Section 3 below), and, notwithstanding any other provision of this Limited Guarantee to the contrary, the Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that any Parent Party could assert against the Company under the terms of, or with respect to, the Merger Agreement that would relieve each of the Parent Parties of its obligations under the Merger Agreement.
(c) To the fullest extent permitted by applicable law, the Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of the Guaranteed Obligation and notice of or proof of reliance by the Guaranteed Party upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligation shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between the Parent Parties and/or the Guarantor, on the one hand, and the Guaranteed Party, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. Except as provided in Section 2(a), when pursuing its rights and remedies hereunder against the Guarantor, the Guaranteed Party shall be under no obligation to pursue such rights and remedies it may have against the Parent Parties or any other Person for the Guaranteed Obligation or any right of offset with respect thereto, and any failure by the Guaranteed Party to pursue such other rights or remedies or to collect any payments from the Parent Parties or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Guaranteed Party of the Parent Parties or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of Law, of the Guaranteed Party.
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(d) To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, acceptance hereof, presentment, demand for payment, notice of non-performance, default, dishonor and protest, any notice not provided for herein, all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets of any Parent Party or any other person interested in the transactions contemplated under the Merger Agreement (including any Other Guarantor), and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligation that are available to the Parent Parties under the Merger Agreement or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated under the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits.
(e) The Guaranteed Party shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that the Parent Parties become subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantor's obligation hereunder. In the event that any payment to the Guaranteed Party in respect of the Guaranteed Obligation is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable hereunder with respect to the Guaranteed Obligation as if such payment had not been made so long as this Limited Guarantee has not terminated in accordance with its terms.
3. Sole Remedy; No Recourse. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party further agrees that neither it nor any other Person (including, without limitation, the Guaranteed Party's equityholders, Affiliates and subsidiaries) has any right of recovery against, and no personal liability shall attach to, the Guarantor, any former, current or future, director, officer, employee, agent or Affiliate of the Guarantor, any former, current or future, direct or indirect holder of any equity interests or securities of the Guarantor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or representative any of the foregoing (each such Person, a "Related Person"), through any Parent Party or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of any Parent Party against the Guarantor or any Related Person, or otherwise, except for its rights against the Guarantor under this Limited Guarantee. Recourse against the Guarantor under this Limited Guarantee shall be the sole and exclusive remedy of (i) the Guaranteed Party and (ii) all of the Guaranteed Party's equityholders, Affiliates and subsidiaries against the Guarantor and any Related Person (other than the Parent Parties and their respective successors and assigns) in respect of any liabilities or obligations arising under, or in connection with, this Limited Guarantee, the Merger Agreement or the transactions contemplated hereby or thereby, including by piercing the corporate, limited liability company or limited partnership veil or by a claim by or on behalf of any Parent Party. The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Affiliates and subsidiaries not to institute, any proceeding or bring any other claim arising under, or in connection with, this Limited Guarantee, the Merger Agreement or the transactions contemplated hereby or thereby (or the failure of such to be consummated), against the Guarantor or any Related Person, except for (A) claims of the Guaranteed Party against the Guarantor under and in accordance with this Limited Guarantee, and (B) claims of the Guaranteed Party against the Parent Parties (and their respective successors and assigns) under and in accordance with the Merger Agreement, and, the Guaranteed Party hereby, on behalf of itself and its Affiliates and subsidiaries, waives any and all claims arising under, or in connection with, the Merger Agreement, this Limited Guarantee or the transactions contemplated hereby or thereby against the Guarantor or any Related Person and releases such Persons from such claims, in each case, except for claims described in clauses (A) and (B) of this sentence (each, a "Permitted Claim"). Nothing set forth in this Limited Guarantee shall confer or give or shall be construed to confer or give to any Person (including any Person acting in a representative capacity) other than the Guaranteed Party any rights or remedies against any Person, including the Guarantor, except as expressly set forth herein.
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4. Subrogation. The Guarantor will not exercise against any Parent Party any rights of subrogation or contribution, whether arising by contract or operation of law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, by reason of any payment by it pursuant to the provisions of Section 1 hereof unless and until the Guaranteed Obligation and all other amounts payable under this Limited Guarantee have been paid in full.
5. Termination. This Limited Guarantee shall terminate (and the Guarantor shall have no further obligations hereunder) upon the earliest to occur of (a) the Effective Time, (b) the payment in full of the Guaranteed Obligation and the obligation under Section 1(c), (c) the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would not be required pursuant to the terms and subject to the conditions of the Merger Agreement to make any payment of any Guaranteed Obligation; and (d) six months after the termination of the Merger Agreement in accordance with its terms under circumstances in which the Parent Parties would be required pursuant to the terms and subject to the conditions of the Merger Agreement to make a payment of the Guaranteed Obligation, unless by the end of such six-month period, the Guaranteed Party shall have initiated a claim or proceeding in accordance with the terms of the Merger Agreement for payment of any of the Guaranteed Obligations; provided that if the Guaranteed Party has initiated a claim or proceeding by the end of such six-month period, this Limited Guarantee shall terminate upon the date such claim or proceeding is finally satisfied or otherwise resolved by agreement of the parties hereto or pursuant to Section 12. In the event that the Guaranteed Party or any of its Affiliates or subsidiaries asserts in any litigation or other proceeding relating to this Limited Guarantee or the Merger Agreement (i) that the provisions hereof (including, without limitation, Section 1 hereof limiting the Guarantor's aggregate liability to the Maximum Amount or Section 3 hereof relating to the sole and exclusive remedies of the Guaranteed Party and its equityholders, Affiliates and subsidiaries against the Guarantor or any Related Person) are illegal, invalid or unenforceable, in whole or in part, or (ii) any theory of liability against the Guarantor or any Related Person or any other Guarantor under the other Limited Guarantees dated as of the date hereof or any Related Person of any such other Guarantor with respect to the transactions contemplated by this Limited Guarantee or the Merger Agreement other than any Permitted Claim, then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and be null and void, (y) if the Guarantor has previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments from the Guaranteed Party and (z) neither the Guarantor nor any Related Person (other than the Parent Parties and their respective successors and assigns) shall have any liability to the Guaranteed Party or any of its equityholders, Affiliates or subsidiaries with respect to the Merger Agreement or the transactions contemplated by the Merger Agreement or this Limited Guarantee.
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6. Continuing Guarantee. Except to the extent terminated pursuant to the provisions of Section 5 hereof, this Limited Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed Obligation and the obligation under Section 1(c), shall be binding upon the Guarantor, its successors and assigns, and shall inure to the benefit of, and be enforceable by, the Guaranteed Party and its successors, permitted transferees and permitted assigns; provided that notwithstanding anything to the contrary in this Limited Guarantee, the provisions of this Limited Guarantee that are for the benefit of any Related Person (including the provisions of Sections 3 and 5) shall indefinitely survive any termination of this Limited Guarantee for the benefit of the Guarantor and any Related Persons. All obligation to which this Limited Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
7. Entire Agreement. This Limited Guarantee and the Merger Agreement constitute the entire agreement with respect to the subject matter hereof, and supersede all other prior agreements and understandings, both written and oral, among the Parent Parties and/or the Guarantor or any of their respective Affiliates, on the one hand, and the Guaranteed Party or any of its Affiliates, on the other hand, regarding the subject matter hereof.
8. Amendments and Waivers. Any provision of this Limited Guarantee may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Guarantor and the Guaranteed Party or, in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by any party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
9. Counterparts. This Limited Guarantee may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
10. Notices. All notices, requests, claims, demands and other communications hereunder shall be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressee's location on any Business Day after 5:00 p.m. (addressee's local time) shall be deemed to have been received at 9:00 a.m. (addressee's local time) on the next Business Day), by reliable international overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:
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if to the Guarantor:
c/o Mr. Xiangdong Qi
Tower A, Building 2, No.6 Jiuxianqiao
Road,
Chaoyang District, Beijing 100015
with copies to:
Kirkland & Ellis
26th Floor, Glouster Tower, The Landmark
15 Queen's Road Central
Hong Kong
Facsimile: +852-3761-3301
Attention: David Zhang and Jesse Sheley
If to the Guaranteed Party, as provided in Section 9.2 of the Merger Agreement.
11. Governing Law. This Limited Guarantee (except for the arbitration agreement in Section 12) shall be governed by and construed in accordance with the Laws of the State of New York without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
12. Jurisdiction; Waiver of Service of Process.
(a) Jurisdiction. In the event any dispute arises among the parties hereto out of or in relation to this Limited Guarantee, including any dispute regarding its existence, interpretation, performance, breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly consultations within thirty (30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions of this Section 12. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre ("HKIAC") Administered Rules in force when a notice of arbitration is submitted. The seat and venue of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The law of the arbitration agreement shall be Hong Kong law. The appointing authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number, and one arbitrator shall be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from nominating their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within 30 days after such two arbitrators have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any person necessary for the conduct of the arbitration, unless otherwise required by Law or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and any interim or final award, as well as the fact that an arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after the submission of any dispute to arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter agreement, except insofar as the same may relate directly to the matters in dispute. The parties hereby agree that any arbitration award rendered in accordance with the provisions of this Section 12 shall be final and binding upon them, and the parties further agree that such award may be enforced by any court having jurisdiction over the party against which the award has been rendered or the assets of such party wherever the same may be located. In any arbitration proceeding, any legal proceeding to enforce any arbitration award and in any other legal proceeding among the Parties pursuant to or relating to this Agreement, each Party expressly waives the defense of sovereign immunity and any other defense based on the fact or allegation that it is an agency or instrumentality of a sovereign state or is otherwise entitled to immunity.
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13. Representations and Warranties. The Guarantor hereby represents and warrants to the Guaranteed Party that:
(a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization;
(b) it has all necessary power and authority to execute, deliver and perform this Limited Guarantee;
(c) the execution, delivery and performance of this Limited Guarantee by the Guarantor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Guarantor are necessary therefor;
(d) all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Limited Guarantee by the Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution, delivery or performance of this Limited Guarantee;
(e) this Limited Guarantee has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the undersigned in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law));
(f) the execution, delivery and performance by the undersigned of this Limited Guarantee do not and will not violate the organizational documents of the undersigned or violate any applicable law, regulation, rule, decree, order, judgment or contractual restriction binding on the Guarantor or its assets or properties; and
(g) it has the financial capacity to pay and perform its obligations under this Limited Guarantee, and all funds necessary for the Guarantor to fulfill its obligations under this Limited Guarantee shall be available to the Guarantor for so long as this Limited Guarantee shall remain in effect in accordance with Section 6.
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14. No Assignment. Neither this Limited Guarantee nor any of the rights, interests or obligations hereunder shall be assignable without the prior written consent of the Guaranteed Party (in the case of an assignment by the Guarantor) or the Guarantor (in the case of an assignment by the Guaranteed Party).
15. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LIMITED GUARANTEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 15.
16. Severability. Any term or provision of this Limited Guarantee which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Limited Guarantee in any jurisdiction and, if any provision of this Limited Guarantee is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Maximum Amount provided in Section 1 hereof and to the provisions of Sections 3 and 5 hereof. No party hereto shall assert, and each party shall cause its respective Affiliates and subsidiaries not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.
17. Headings. Headings of the Sections of this Limited Guarantee are for convenience only and shall be given no substantive or interpretive effect whatsoever.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Young Vision Group Limited | ||
| By: | /s/ Xiangdong Qi | |
| Name: Xiangdong Qi | ||
| Title: Authorized Signatory | ||
[Signature Page to Limited Guarantee]
IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chen | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Limited Guarantee]
Exhibit 99.114
Execution Version
LIMITED GUARANTEE
This Limited Guarantee, dated as of December 18, 2015 (this "Limited Guarantee"), is made by Global Village Associates Limited, a British Virgin Islands company (including its successors and permitted assigns, the "Guarantor"), in favor of Qihoo 360 Technology Co. Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the "Guaranteed Party"). Reference is hereby made to each of: (i) that certain Agreement and Plan of Merger, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among the Guaranteed Party, Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Holdco"), Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司), a limited liability company incorporated under the laws of the People’s Republic of China ("Parent"), True Thrive Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Midco"), and New Summit Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands ("Merger Sub"); (ii) that certain limited guarantee, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the "Investor Guarantee") between the Tianjin Xinxin Qiyuan Investment Limited Partnership (天津信心奇缘股权投资合伙企业 (有限合伙)), a limited partnership established under the laws of the PRC (“Investor”) and the Guaranteed Party; (iii) that certain equity commitment letter, executed by the Investor on the date hereof in favor of Holdco, Parent and the Guaranteed Party (the "Equity Commitment Letter" and, together with the Limited Guarantee, the “Investor Documents”); and (iv) those certain escrow agreements, executed by each of the Equity Investors (as defined in the Merger Agreement), Parent and the Guaranteed Party (the “Escrow Agreements”).
Unless otherwise provided herein, capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
1. Limited Guarantee.
(a) (a) To induce the Guaranteed Party to enter into the Merger Agreement, the Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, subject to the terms and conditions hereof, the due and punctual payment and performance when due of the Investor’s payment obligations (the "Guaranteed Obligation") under the Investor Documents; provided that the maximum aggregate liability of the Guarantor hereunder shall not exceed $ 30,431,770 (the "Maximum Amount").
(b) The Guaranteed Party hereby agrees that (x) the Guarantor shall in no event be required to pay more than the Maximum Amount under or in respect of this Limited Guarantee and (y) the Guarantor shall not have any obligation or liability to any Person (including, without limitation, to the Guaranteed Party's equity holders, Affiliates and/or subsidiaries) relating to, arising out of or in connection with this Limited Guarantee, the Investor Documents or the Merger Agreement other than as expressly set forth herein or the Merger Agreement.
(c) The liability of the Guarantor under this Limited Guarantee shall, to the fullest extent permitted under applicable law, be absolute, irrevocable and unconditional. Except to the extent terminated pursuant to the provisions of Section 4 hereof, (i) this Limited Guarantee is a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed Obligations, shall be binding upon the Guarantor, its successors and assigns, and shall inure to the benefit of, and be enforceable by, the Guaranteed Party and its successors, permitted transferees and permitted assigns, and (ii) the Guarantor shall continue to own the Company Shares currently held by it as of the date hereof, and will not sell, transfer or otherwise disposes of any Company Shares without the prior written consent of the Guaranteed Party until the indefeasible payment and satisfaction in full of the Guaranteed Obligations.
(d) To the fullest extent permitted by applicable Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any Law which would otherwise require any election of remedies by the Guaranteed Party. The Guarantor waives promptness, diligence, acceptance hereof, presentment, demand for payment, notice of non-performance, default, dishonor and protest, any notice not provided for herein, all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, and all suretyship defenses generally (other than defenses to the payment of the Guaranteed Obligation that are available to Investor under the Investor Documents or Parent under the Escrow Agreement, as applicable, or a breach by the Guaranteed Party of this Limited Guarantee). The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated under the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits.
2. Escrow Agreements. The Guarantor hereby agrees that it will use its reasonable best efforts to cause Parent to (i) enforce the Escrow Agreements, and (ii) not utilize or release any Escrowed Amount from the Parent Account except in accordance with the terms of the applicable Escrow Agreements. Capitalized terms used in this paragraph but not otherwise defined herein shall have the meanings ascribed to such terms in the Escrow Agreements.
3. Sole Remedy; No Recourse. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party further agrees that neither it nor any other Person (including, without limitation, the Guaranteed Party's equityholders, Affiliates and Subsidiaries) has any right of recovery against, and no personal liability shall attach to, the Guarantor, any former, current or future, director, officer, employee, agent or Affiliate of the Guarantor, any former, current or future, direct or indirect holder of any equity interests or securities of the Guarantor (whether such holder is a limited or general partner, member, manager, stockholder or otherwise), or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or representative any of the foregoing (each such Person, a "Related Person"), through the Investor or any Parent Party or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of the Investor against the Guarantor or any Related Person (except for any claim to compel Holdco and/or Parent to enforce the Equity Commitment Letter in accordance with the terms thereof), or otherwise, except for its rights against the Guarantor under this Limited Guarantee. Recourse against the Guarantor under this Limited Guarantee shall be the sole and exclusive remedy of (i) the Guaranteed Party and (ii) all of the Guaranteed Party's equityholders, Affiliates and Subsidiaries against the Guarantor and any Related Person (other than the Investor and its successors and assigns) in respect of any liabilities or obligations arising under, or in connection with, this Limited Guarantee, the Investor Documents, the Merger Agreement or the transactions contemplated hereby or thereby, including by piercing the corporate, limited liability company or limited partnership veil or by a claim by or on behalf of any Parent Party.
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4. Termination. This Limited Guarantee shall terminate (and the Guarantor shall have no further obligations hereunder) upon the termination of both Investor Documents in accordance with their terms.
5. Survival. The provisions of this Limited Guarantee that are for the benefit of any Related Person (including the provisions of Sections 3 and 4) shall indefinitely survive any termination of this Limited Guarantee for the benefit of the Guarantor and any Related Persons.
6. Entire Agreement. This Limited Guarantee, the Merger Agreement and the Investor Documents constitute the entire agreement with respect to the subject matter hereof, and supersede all other prior agreements and understandings, both written and oral, among the Parent Parties and/or the Guarantor or any of their respective Affiliates, on the one hand, and the Guaranteed Party or any of its Affiliates, on the other hand, regarding the subject matter hereof.
7. Amendments and Waivers. Any provision of this Limited Guarantee may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Guarantor and the Guaranteed Party or, in the case of a waiver, by the party against whom the waiver is to be effective. Notwithstanding the foregoing, no failure or delay by any party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
8. Counterparts. This Limited Guarantee may be executed in counterparts (including by facsimile or electronically transmitted signature pages), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy or otherwise) to the other parties.
9. Notices. All notices, requests, claims, demands and other communications hereunder shall be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressee's location on any Business Day after 5:00 p.m. (addressee's local time) shall be deemed to have been received at 9:00 a.m. (addressee's local time) on the next Business Day), by reliable international overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:
if to the Guarantor:
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c/o Mr. Zhou Hongyi
Tower B, Building 2, No.6 Jiuxianqiao Road,
Chaoyang District, Beijing 100015
with copies to:
Kirkland & Ellis
26th Floor, Glouster Tower, The Landmark
15 Queen's Road Central
Hong Kong
Facsimile: +852-3761-3301
Attention: David Zhang and Jesse Sheley
If to the Guaranteed Party, as provided in Section 9.2 of the Merger Agreement.
10. Governing Law. This Limited Guarantee (except for the arbitration agreement in Section 11) shall be governed by and construed in accordance with the Laws of the State of New York without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the Laws of another jurisdiction.
11. Jurisdiction; Waiver of Service of Process. In the event any dispute arises among the parties hereto out of or in relation to this Limited Guarantee, including any dispute regarding its existence, interpretation, performance, breach, termination or validity, the parties shall attempt in the first instance to resolve such dispute through friendly consultations. If any dispute has not been resolved by friendly consultations within thirty (30) days after any party has served written notice on the other parties requesting the commencement of such consultations, then any party may demand that the dispute be finally settled by arbitration in accordance with the following provisions of this Section 11. The arbitration shall be conducted in accordance with the Hong Kong International Arbitration Centre ("HKIAC") Administered Rules in force when a notice of arbitration is submitted. The seat and venue of the arbitration shall be Hong Kong and the language of the arbitration shall be English. The law of the arbitration agreement shall be Hong Kong law. The appointing authority shall be the HKIAC. There shall be three arbitrators. One arbitrator shall be nominated by the claimant(s), irrespective of number, and one arbitrator shall be nominated by the respondent(s), irrespective of number. If the respondent(s) shall abstain from nominating their arbitrator, the HKIAC shall appoint such arbitrator. The two arbitrators so chosen shall select a third arbitrator; provided that if such two arbitrators shall fail to choose a third arbitrator within 30 days after such two arbitrators have been selected, the HKIAC, upon the request of any party, shall appoint a third arbitrator. The third arbitrator shall be the presiding arbitrator. The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it shall not be disclosed beyond the tribunal, the parties, their legal and professional advisers, and any person necessary for the conduct of the arbitration, unless otherwise required by Law or the parties hereto otherwise agree in writing. The parties agree that all documents and evidence submitted in the arbitration (including without limitation any statements of case and any interim or final award, as well as the fact that an arbitral award has been made) shall remain confidential both during and after any final award that is rendered unless otherwise required by Law or the parties hereto otherwise agree in writing. Upon and after the submission of any dispute to arbitration, the parties shall continue to exercise their remaining respective rights, and fulfill their remaining respective obligations under this letter agreement, except insofar as the same may relate directly to the matters in dispute. The parties hereby agree that any arbitration award rendered in accordance with the provisions of this Section 11 shall be final and binding upon them, and the parties further agree that such award may be enforced by any court having jurisdiction over the party against which the award has been rendered or the assets of such party wherever the same may be located. In any arbitration proceeding, any legal proceeding to enforce any arbitration award and in any other legal proceeding among the Parties pursuant to or relating to this Agreement, each Party expressly waives the defense of sovereign immunity and any other defense based on the fact or allegation that it is an agency or instrumentality of a sovereign state or is otherwise entitled to immunity.
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12. Representations and Warranties. The Guarantor hereby represents and warrants to the Guaranteed Party that:
(a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization;
(b) it has all necessary power and authority to execute, deliver and perform this Limited Guarantee;
(c) the execution, delivery and performance of this Limited Guarantee by the Guarantor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Guarantor are necessary therefor;
(d) all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Limited Guarantee by the Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body is required in connection with the execution, delivery or performance of this Limited Guarantee;
(e) this Limited Guarantee has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the undersigned in accordance with its terms (subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law));
(f) the execution, delivery and performance by the undersigned of this Limited Guarantee do not and will not violate the organizational documents of the undersigned or violate any applicable law, regulation, rule, decree, order, judgment or contractual restriction binding on the Guarantor or its assets or properties; and
(g) it has the financial capacity to pay and perform its obligations under this Limited Guarantee, and all funds necessary for the Guarantor to fulfill its obligations under this Limited Guarantee shall be available to the Guarantor for so long as this Limited Guarantee shall remain in effect.
13. No Assignment. Neither this Limited Guarantee nor any of the rights, interests or obligations hereunder shall be assignable without the prior written consent of the Guaranteed Party (in the case of an assignment by the Guarantor) or the Guarantor (in the case of an assignment by the Guaranteed Party).
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14. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LIMITED GUARANTEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS SECTION 14.
15. Severability. Any term or provision of this Limited Guarantee which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision or the remaining terms and provisions of this Limited Guarantee in any jurisdiction and, if any provision of this Limited Guarantee is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable; provided that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Maximum Amount provided in Section 1 hereof and to the provision of Sections 3 hereof. No party hereto shall assert, and each party shall cause its respective Affiliates and subsidiaries not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.
16. Headings. Headings of the Sections of this Limited Guarantee are for convenience only and shall be given no substantive or interpretive effect whatsoever.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and delivered as of the date first written above.
| Global Village Associates Limited | ||
| By: | /s/ Hongyi Zhou | |
| Name: Hongyi Zhou | ||
| Title: Authorized Representative | ||
| Qihoo 360 Technology Co. Ltd. | ||
| By: | /s/ Eric X. Chenv | |
| Name: Eric X. Chen | ||
| Title: Director | ||
[Signature Page to Limited Guarantee]
Exhibit 99.115
STRICTLY Private and confidential
| To: | Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司, the “SPV1” or “Borrower”) |
| Attention: | Zhou Hongyi |
18 December, 2015
Dear Sirs:
Transformer – Debt Commitment Letter
We, China Merchants Bank Co., Ltd. (招商银行股份有限公司) (the “Mandated Lead Arranger”) and China Merchants Bank Co., Ltd. (招商银行股份有限公司) (the “Underwriter”), are pleased to set out the terms and conditions on which the Mandated Lead Arranger irrevocably commits to arrange, and the Underwriter irrevocably commits to underwrite, 100% of a term facility of up to an RMB equivalent of US$3,000,000,000 (the “Facility”).
The Facility shall be used to finance part of the Borrower’s subscription for shares in 天津奇信通达科技有限公司 (Tianjin Qixin Tongda Technology Co., Ltd.) (the “SPV2”), the proceeds of which will be applied by SPV2 to fund or cause to be funded, directly or indirectly through True Thrive Limited (诚盛有限公司), an exempted company with limited liability incorporated under the laws of the Cayman Islands (the “Midco”) or New Summit Limited (新峰有限公司), an exempted company with limited liability incorporated under the laws of the Cayman Islands (the “Merger Sub”), the transactions contemplated under that certain Agreement and Plan of Merger, to be entered into by Qihoo 360 Technology Co. Ltd (QIHU), a company listed in US NYSE (the “Target”), SPV1, SPV2, Midco, Merger Sub and certain other parties identified therein (the “Merger Agreement”), including payment of merger consideration and option consideration for certain of the Target’s securities, the repurchase of the Target’s convertible notes and payment of related fees and expenses of the transactions pursuant to the terms of the Merger Agreement.
This letter is to be read together with the term sheet attached hereto as Appendix A to this letter (the “Term Sheet”, together with this letter and appendices attached hereto, this “Commitment Letter”).
Each capitalised term defined in the Term Sheet, unless otherwise defined in this Commitment Letter or the other Underwriting Documents (as defined below), has the same meaning when used in this Commitment Letter. For purposes of the Underwriting Documents:
“Buyer Group Members” means any investor that has become a direct shareholder of SPV1 or SPV2 prior to the merger effective date under the Merger Agreement, excluding any employee stock ownership plan and any individual employee (either personally or through one or more corporate vehicles or trusts) who possesses any ownership interest in SPV2.
“Business Day” means a day (other than a Saturday or Sunday) on which banks are open for general business in New York City, the Cayman Islands, Hong Kong and PRC.
“Certain Funds Period” means the period commencing on the date of this Commitment Letter and ending on the date falling ten (10) months after the date of the Merger Agreement.
“Facility Agreement” means the facility agreement to be entered into by the Finance Parties and the Borrower relating to the provision of the Facility.
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“Fee Letter” means any fee letter dated on or about the date of this letter from the Mandated Lead Arranger or the Underwriter to the Borrower.
“Finance Documents” means the Facility Agreement, any Fee Letter, the transaction security documents and any other documents designated as such by the parties hereto.
“PRC” means the People’s Republic of China, but for the purpose of this definition excluding Hong Kong Special Administrative Region (“Hong Kong”), the Macau Special Administrative Region and Taiwan.
“SPV2 Commitment Letter” means the commitment letter from China Merchants Bank Co., Ltd. (招商银行股份有限公司) to SPV2 dated on or about the date of this letter.
“SPV2 Term Sheet” means the term sheet attached to the SPV2 Commitment Letter as Appendix A.
“SPV2 Underwriting Documents” means the SPV2 Commitment Letter (including the SPV2 Term Sheet and other appendices to the SPV2 Commitment Letter).
“Target Group” means the Target and its subsidiaries.
“Underwriting Documents” means this Commitment Letter (including the Term Sheet and other appendices).
| 1 | COMMITMENT |
The Mandated Lead Arranger hereby irrevocably commits to arrange, and the Underwriter hereby irrevocably commits to underwrite and to provide, the whole Facility on and subject to the terms and conditions set out in the Underwriting Documents (such respective commitments by the Mandated Lead Arranger or the Underwriter, the “Commitments”). The Facility shall be made available to you on the terms set out in the Term Sheet.
| 2 | GRANT OF MANDATE |
| 2.1 | Subject to paragraph 2.2 below, the Mandated Lead Arranger is hereby appointed as exclusive arranger and bookrunner of the Facility and the Underwriter is hereby appointed as exclusive underwriter of the Facility. |
| 2.2 | Subject to the mutual agreement of the Mandated Lead Arranger, the Underwriter and the Borrower, the parties hereto may jointly appoint up to two (2) additional mandated lead arrangers and underwriters to participate in the Facility, and the parties agree to make such amendments to the Underwriting Documents as are necessary to reflect the additional parties to the Underwriting Documents. If the Underwriter transfers any portion of its commitment under the Facility prior to the Closing Date and if the transferee defaults in its obligation to provide its pro rata share of a utilisation, then the Underwriter agrees to provide (in addition to any portion of its commitment it has not transferred) the amount by way of utilisations of the Facility that the defaulting transferee was obliged to provide up to the amount that the Underwriter had transferred to such transferee. |
| 2.3 | China Merchants Bank Co., Ltd. (招商银行股份有限公司) confirms that it is willing to act as Facility Agent and Security Agent on the terms set out in the Facility Agreement. |
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| 2.4 | Unless and until this Commitment Letter terminates in accordance with the terms of this Commitment Letter and subject to paragraph 2.2 above, you shall ensure that no Buyer Group Member appoints, or awards any title to, a third party in connection with arranging and/or underwriting the Facility without our prior written consent (other than as to arranging and underwriting the SPV2 Facility which shall be governed by the SPV2 Underwriting Documents). Except as otherwise provided in the Underwriting Documents, no fees or compensation in connection with the Facility or any other financing to fund the Merger shall be payable to anyone without the prior written consent of the Mandated Lead Arranger. |
| 3 | INFORMATION |
| 3.1 | Save as disclosed in writing to the Mandated Lead Arranger or the Underwriter prior to the date of this letter or prior to the date on which the relevant Information (as defined below) is provided to the Mandated Lead Arranger or the Underwriter, you hereby represent (as at the date of this letter, and by reference to the facts and circumstances then existing) and warrant that to your knowledge: |
| (a) | all material written factual information concerning you and your subsidiaries and the Target Group, other than any financial projections (the “Projections”), other forward-looking information and information of a general economic or industry-specific nature, that has been or will be made available to any of us by or on behalf of you in connection with the transactions contemplated hereby (the “Information”), when taken as a whole, does not or will not, when furnished, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements are made (after giving effect to all supplements and updates thereto from time to time); and |
| (b) | the Projections that have been or will be made available to any of us by or on behalf of you have been or will be prepared in good faith based upon assumptions believed by you to be reasonable at the time furnished (it being recognized by us that such Projections are not to be viewed as facts and are subject to significant uncertainties and contingencies many of which are beyond your control, that no assurance can be given that any particular financial projections will be realized, that actual results may differ from projected results and that such differences may be material). |
| 3.2 | Notwithstanding anything to the contrary contained in this Commitment Letter, none of the making of any representation under this paragraph 3, any supplement thereto, or the accuracy of any such representation shall constitute a condition precedent to the availability and initial funding of the Facility, including, without limitation, under paragraph 4 (Underwriting Conditions) and paragraph 5 (Certain Funds) of this Commitment Letter. |
| 4 | UNDERWRITING CONDITIONS |
| 4.1 | The Underwriter’s underwriting of the Facility is subject only to the satisfaction of the following conditions: |
| (a) | execution of a mutually acceptable Facility Agreement, reflecting the terms and conditions set out in the Term Sheet, by all parties thereto, provided that this paragraph (a) shall not apply in the case of a breach by the Mandated Lead Arranger or the Underwriter of paragraph 6 (Execution of Facility Agreement) of this letter; |
| (b) | satisfaction (or waiver by the Underwriter) of all conditions precedent to the obligations of the Mandated Lead Arranger and the Underwriter set out in section “Conditions Precedent” in the Term Sheet; and |
| (c) | compliance by the Borrower in all material respects with the material terms of the Underwriting Documents to the extent that any failure to so comply with terms of the Underwriting Documents would result in any Certain Funds Condition not being satisfied (had the Facility Agreement been entered into as of the date of this Commitment Letter), |
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and upon satisfaction or waiver by the Underwriter, the initial funding under the Facility shall occur.
| 5 | CERTAIN FUNDS |
| 5.1 | The Commitments are made on a certain funds basis, as set out in the Underwriting Documents, during the Certain Funds Period. Accordingly, and notwithstanding anything to the contrary herein or in any Underwriting Document, during the Certain Funds Period, the only conditions to utilisation of the Facility are as expressly set out in paragraph 4 (Underwriting Conditions) of this Commitment Letter. None of the Underwriting Documents, the Facility Agreement or the other Finance Documents shall contain any material adverse effect conditionality in respect of the Commitments. |
| 5.2 | The Mandated Lead Arranger and the Underwriter confirm that: |
| (a) | their respective Commitments and the Facility have been approved by their respective credit committees and all other relevant internal bodies or approvals process required to provide the Commitments and each of the Mandated Lead Arranger and the Underwriter confirms that it has received all due diligence required by it in respect of the Merger, the Buyer Group Members, the Target Group and otherwise in connection with making the Facility available in connection with the Merger; |
| (b) | they have completed all approval processes and received all final internal approvals required to execute this Commitment Letter and the other Underwriting Documents and provide their respective Commitments; and |
| (c) | they have completed and are satisfied with the results of all client identification procedures they are respectively required to carry out in connection with making the Facility available in connection with the Merger in compliance with all applicable laws, regulations and internal requirements (including but not limited to all applicable money laundering rules and all “know your customer” requirements). |
| 5.3 | The Mandated Lead Arranger and the Underwriter each further confirms that the Merger Agreement which is required as a condition precedent under the Term Sheet (as at the date of this Commitment Letter) has been delivered to the Mandated Lead Arranger and the Underwriter, and in the form delivered is (and subject to it remaining in substantially the same form, or with such supplements or other modifications (which in the aggregate, do not materially and adversely affect the interests of the Mandated Lead Arranger and the Underwriter taken as a whole), when delivered in final form, will be) acceptable to the Mandated Lead Arranger and the Underwriter for the purposes of satisfying any of the conditions precedent in the Term Sheet which corresponds to that document. |
| 5.4 | If it becomes unlawful in any applicable jurisdiction for the Mandated Lead Arranger or the Underwriter to perform any of their obligations as contemplated by the Underwriting Documents or to fund, issue or maintain their participation under the Facility, such Mandated Lead Arranger or Underwriter shall: |
| (a) | promptly notify you upon becoming aware of the event; and |
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| (b) | in consultation with you, take all reasonable steps to mitigate any circumstances which arise and which would result in their underwriting in respect of the Facility not being available including (but not limited to) transferring its rights and obligations under the Underwriting Documents to one or more of its affiliates. |
| 5.5 | The obligations of the Mandated Lead Arranger and the Underwriter are several and a failure by a Mandated Lead Arranger or an Underwriter to perform its obligations under any of the Underwriting Documents shall not affect the obligations of any other Mandated Lead Arranger or Underwriter. No Mandated Lead Arranger or Underwriter is responsible for the obligations of another Mandated Lead Arranger or Underwriter. |
| 6 | EXECUTION OF FACILITY AGREEMENT |
| 6.1 | Each of the Mandated Lead Arranger and the Underwriter undertakes to negotiate in good faith, to use best efforts and to allocate sufficient resources and personnel to ensure that the parties hereto shall enter into the Facility Agreement and the other Finance Documents, in all relevant capacities (required to be entered into as a condition precedent to the initial utilisation of the Facility) on terms consistent with the Term Sheet, as soon as reasonably practicable following countersigning of this Commitment Letter by the Borrower and in any event on or prior to the date falling seven months after the date the Merger Agreement is signed (or such later date as may be mutually agreed by the parties hereto (each party acting reasonably)) (the “Proposed Signing Date”), subject to: |
| (a) | you signing and returning to us copies of the Underwriting Documents; and |
| (b) | entry into the Merger Agreement by the parties thereto. |
| 6.2 | The Mandated Lead Arranger’s and the Underwriter’s respective undertaking above to negotiate in good faith, to use their best efforts and to allocate sufficient resources and personnel to ensure that they enter into the Facility Agreement and the other Finance Documents shall expire on the termination of this Commitment Letter. |
| 6.3 | If, despite good faith negotiation, we are not able to agree on a term of the Finance Documents by the Proposed Signing Date, then as soon as practicable following that date the Mandated Lead Arranger, the Underwriter and the Borrower undertake to sign all Finance Documents required to be signed prior to the Utilisation of the Facility and any such term not previously agreed on will, to the extent comparable with respect to the Facility, be in the form of the current standard form of syndicated loan template published by China Banking Association (“CBA Template”) and to the extent that no comparable clause is included in the CBA Template, be in the form of the current standard form of the Senior Multicurrency Term and Revolving Facilities Agreement for Leveraged Acquisition Finance Transactions (“LMA Template”, and together with the CBA Template, the “Precedent Facility Agreement”) (subject to the specific terms of the Term Sheet) provided that where the relevant Precedent Facility Agreement contains a drafting option, is silent on a particular point or the provisions of the Precedent Facility Agreement require more than minor or technical changes in order to be incorporated into the Facility Agreement, the relevant language shall be such option or language as is reasonably requested by the Mandated Lead Arranger or if the Mandated Lead Arranger does not specify any option or language within 5 days of the date of a written request by you, such option or language reasonably requested by you. |
| 7 | UNDERTAKING TO PAY |
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| 7.1 | You undertake to pay (or to procure payment) to the Mandated Lead Arranger as soon as reasonably practicable, and in any event within 5 Business Days following demand, an amount equal to any liability, damages, cost, loss or expense (each, a “Loss”) (including reasonable and documented legal fees subject to a cap mutually agreed and excluding, in each case, indirect or consequential damages, and any loss of profit) incurred by the Mandated Lead Arranger, the Underwriter or any of their respective Affiliates or any of their (or their respective Affiliates’) directors, officers, employees or agents (each, an “Indemnified Person”) arising out of, in connection with or based on any action, claim, suit, investigation or proceeding (in each case, whether or not any Indemnified Person is party and including any action, claim, investigation or proceeding to preserve or enforce rights) commenced, pending or threatened in relation to any Underwriting Document, the use of proceeds of any Facility or the Merger (whether or not made) except to the extent the Loss resulted primarily from (a) the gross negligence or wilful misconduct of the relevant Indemnified Person, (b) a breach by the relevant Indemnified Person of (i) any term of the Underwriting Documents or any confidentiality undertaking or (ii) any law, (c) claims by you or the Target against the Mandated Lead Arranger or the Underwriter, (d) any wilful breach by such Indemnified Person of any applicable law or (e) claims of an Indemnified Person against another Indemnified Person. |
| 7.2 | You undertake to pay (or to procure payment) to the Mandated Lead Arranger on demand an amount equal to any reasonable cost or expense (including reasonable and documented legal fees) incurred in connection with investigating, preparing, pursuing or defending any action, claim, suit, investigation or proceeding arising out of, in connection with or based on any of the above, whether or not any Indemnified Person is a party. |
| 7.3 | The Mandated Lead Arranger shall not have any duty or obligation, whether as fiduciary for any Indemnified Person or otherwise, to recover any payment made under paragraph 7.1 or 7.2. |
| 7.4 | You agree that no Indemnified Person shall have any liability (whether direct or indirect, in contract or tort or otherwise) to you or any of your Affiliates for or in connection with anything referred to in paragraph 7.1 except for breach of any Underwriting Document or the Facility Agreement or any other Finance Documents or any such liability for losses, claims, damages or liabilities incurred by you or any of your Affiliates that in each case resulted primarily from the gross negligence or wilful misconduct of that Indemnified Person. No Indemnified Person shall be responsible or have any liability to you or any of your Affiliates or anyone else for consequential losses or damages. |
| 7.5 | Each Indemnified Person shall, in consultation with you, take all reasonable steps to mitigate any Loss and shall consult with you and give (subject to legal restrictions) such information and assistance to you as you may reasonably request in connection with any action, claim, suit, proceeding or investigation in connection with a Loss and shall not take any action which might reasonably be expected to prejudice your position in relation to any such action, claim, suit proceeding or investigation. |
| 7.6 | On the date the Facility Agreement becomes effective, your obligations under this paragraph 7 shall terminate and be superseded by the relevant terms of the Facility Agreement and this paragraph 7 shall cease to have effect. |
| 8 | FEES AND EXPENSES |
| 8.1 | You shall pay the Mandated Lead Arranger the fees in the amount and on the terms set out in a Fee Letter separately agreed by the parties hereto or as set out in the Term Sheet. |
| 8.2 | Whether or not the Finance Documents are signed, the Borrower shall, within five Business Days of demand by the Mandated Lead Arranger, subject to a cap mutually agreed by the parties hereto, pay the Mandated Lead Arranger (or its/their legal advisor(s)) the amount of all costs and expenses (including legal fees subject to such caps as agreed with the Mandated Lead Arranger’s legal advisor(s)) reasonably incurred by it/them in connection with the negotiation, preparation, printing and execution of the Underwriting Documents and the Finance Documents. |
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| 8.3 | Payment under paragraph 8.2 shall be accompanied by invoice(s) in relation to such costs and expenses together with reasonable documentary evidence of such costs and expenses. |
| 9 | Confidentiality |
| 9.1 | The parties acknowledge that the terms and conditions of the Underwriting Documents are confidential and are not to be disclosed to or relied upon by anyone else, except disclosure of such terms and conditions or a copy of any of them is permitted to the extent made as follows: |
| (a) | to SPV2, the Parent, the Merger Sub, the Target Group and the current direct or indirect owners and management of the Target Group or any of their Affiliates and their respective officers, directors, employees, investors and advisors or any of their Affiliates on a “need to know” and confidential basis for purposes of the Merger; |
| (b) | to your, any Buyer Group Member, the Mandated Lead Arranger’s or the Underwriter’s Affiliates or to any of their or their Affiliates’ respective officers, directors, employees, investors and advisors on a “need to know” and confidential basis for purposes of the Merger; |
| (c) | to anyone else to the extent required by law, regulation or applicable governmental or regulatory authority (including any applicable stock exchange and the US Securities and Exchange Commission) or court, or required pursuant to any legal, arbitral or administrative proceedings or process; |
| (d) | to the “Special Committee” of the Target and its professional advisers; |
| (e) | in connection with the establishment of any due diligence defence; |
| (f) | in connection with any preservation or enforcement of rights under any Underwriting Document; or |
| (g) | by the Mandated Lead Arranger or the Underwriter on a “need to know” and confidential basis to any potential Lender looking to participate in the Facility and any potential mandated lead arrangers or underwriters looking to arrange or underwrite, as applicable, part of the Facility who has been made aware of and agrees to be bound by the obligations under this paragraph 9, on condition that the Mandated Lead Arranger and the Underwriter shall not disclose to any potential Lender any information regarding fees payable under the Underwriting Documents. |
| 9.2 | Notwithstanding anything to the contrary in any Underwriting Document, on the date the Facility Agreement becomes effective, the provisions of this paragraph 9 shall automatically terminate and be superseded by the terms of the Facility Agreement. |
| 9.3 | For the avoidance of doubt, the provisions of this paragraph 9 do not supersede any other confidentiality or non-disclosure agreement or undertaking by any of us or our respective Affiliates or our or their respective representatives in favour of any Buyer Group Member, the Target or their respective Affiliates (whether directly or indirectly through a back-to-back or similar agreement). |
| 10 | No announcements |
Each of the parties shall not make, and shall cause each of its Affiliates not to make, any public announcement regarding the Merger or any or all of the Facility without the prior consent of each of the other parties (such consent not to be unreasonably withheld or delayed), except to the extent required by law, regulation or applicable governmental or regulatory authority (including any applicable stock exchange or the US Securities and Exchange Commission).
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| 11 | Assignment |
| 11.1 | No party may assign or transfer any of its rights or obligations under the Underwriting Documents without the prior written consent of the other parties, except that you may transfer your rights and obligations under the Underwriting Documents to a newly established limited liability company which has not previously traded, is wholly-owned (other than nominal holdings and director’s qualifying shares), directly or indirectly, by funds managed or advised by a Buyer Group Member, and is incorporated in the PRC or in any other jurisdiction acceptable to the Mandated Lead Arranger and the Underwriter (acting reasonably). |
| 11.2 | If, prior to the execution of the Facility Agreement, the Mandated Lead Arranger or the Underwriter is in material breach of its obligations under the Underwriting Documents and has failed to remedy the same within 10 Business Days of written notice by you to such Mandated Lead Arranger or Underwriter in respect of such breach, you shall have the right by notice in writing to replace such Mandated Lead Arranger or Underwriter (the “Defaulting MLA”) with any bank or financial institution (the “Replacement MLA”) selected by you and who confirms its willingness to assume and does assume all the obligations of such Defaulting MLA (in its capacity as Mandated Lead Arranger and as Underwriter) under the Underwriting Documents, provided that such Defaulting MLA must be replaced by such Replacement MLA both in its capacity as Mandated Lead Arranger and as Underwriter. Upon such replacement, each of the parties hereto shall execute amendments to the Underwriting Documents solely to give effect to the replacement and substitution of such Defaulting MLA by such Replacement MLA (pursuant to which such Replacement MLA shall assume all of the rights and obligations of such Defaulting MLA under the Underwriting Documents) and the cessation of such Defaulting MLA as the Mandated Lead Arranger and the Underwriter, provided that (for the avoidance of doubt) such amendments shall not seek to vary the commercial substance of any of the terms of the Underwriting Documents. |
| 12 | PERIOD OF OFFER |
This offer shall remain in effect until 5p.m., Beijing time, on the date falling 10 Business Days after the date of this Commitment Letter (as may be extended by the Mandated Lead Arranger and the Underwriter in writing), at which time it will automatically expire unless before then the Mandated Lead Arranger and the Underwriter have received your written agreement to this Term Sheet and any Fee Letter or this offer is extended by us in writing.
| 13 | TERMINATION |
| 13.1 | Subject to paragraph 14 (Survival), the Mandated Lead Arranger and the Underwriter may give you notice terminating their obligations under the Underwriting Documents if and only if the Closing Date does not occur by the date falling one month after the End Date (as defined in the Merger Agreement). |
| 13.2 | Subject to paragraph 14 (Survival), you may terminate this Commitment Letter upon written notice to the Mandated Lead Arranger and the Underwriter at any time. |
| 13.3 | Subject to paragraph 14 (Survival), this Commitment Letter shall terminate on the date the Facility Agreement becomes effective. |
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| 14 | SURVIVAL |
| 14.1 | The terms of paragraph 2 (Grant of Mandate), paragraph 3 (Information), paragraph 5 (Certain Funds), paragraph 6 (Execution of Facility Agreement), paragraph 8 (Fees and Expenses), paragraph 10 (No Announcements), paragraph 11 (Assignment) and this paragraph 14 to paragraph 21 (Integration) inclusive shall survive and continue after the date the Facility Agreement becomes effective. |
| 14.2 | Without prejudice to paragraph 14.1, paragraph 8 (Fees and Expenses) to paragraph 20 (Jurisdiction) inclusive shall survive and continue after any termination or expiry of any Underwriting Document, whether as a result of paragraph 13 (Termination) or otherwise. |
| 15 | amendments |
No waiver or amendment of any provision of any Underwriting Document shall be effective unless it is in writing and signed by the parties hereto.
| 16 | THIRD PARTY RIGHTS |
| 16.1 | A person who is not a party to this Commitment Letter has no right to enforce or to enjoy the benefit of any term of this Commitment Letter. |
| 16.2 | Notwithstanding any other term of this Commitment Letter, the consent of any person who is not a party to this Commitment Letter is not required to rescind or vary this Commitment Letter at any time. |
| 17 | COUNTERPARTS |
Each Underwriting Document may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of such Underwriting Document. Delivery of an executed counterpart of a signature page of this Commitment Letter by facsimile transmission or in electronic format (e.g., “.pdf” or “.tif”) is equally as effective as delivery of an original executed counterpart of this Commitment Letter.
| 18 | Notices |
| 18.1 | Any communication to be made under or in connection with any Underwriting Document shall be made in writing and, unless otherwise stated, may be made by fax, email or letter. |
| 18.2 | Notices and communications to be given to you shall be sent to: |
| Name: | 天津奇信志成科技有限公司 |
| Address: | Building #2, No. 6 Jiuxianqiao Road, Chaoyang District, Beijing, P.R.C. 100015 |
| Attention: | LIN Jing |
| Email: | linjing@360.cn |
| 18.3 | Notices and communications to be given to the Mandated Lead Arranger or the Underwriter shall be sent to: |
| Name: | China Merchants Bank Co., Ltd. (招商银行股份有限公司) |
| Address: | CMB TOWER, No. 7088 Shennan Boulevard, Shenzhen, 518040 |
| Attention: | FAN Yuanyuan |
| Email: | fanyuanyuan@cmbchina.com |
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| 19 | GOVERNING LAW |
Each Underwriting Document and each non-contractual obligation arising out of or in connection therewith is governed by the laws of the PRC.
| 20 | JURISDICTION |
Any dispute arising out of or in connection with this Commitment Letter shall be submitted to China International Economic and Trade Arbitration Commission (the “Commission”) for arbitration in Beijing which shall be conducted in accordance with the arbitration rules of the Commission in effect at the time of applying for arbitration.
| 21 | INTEGRATION |
| 21.1 | The Underwriting Documents form the entire agreement between you and us as to the Facility and replace any previous oral or written understanding or agreement in relation to the Facility or the financing of the Merger (other than as to arranging and underwriting the SPV2 Facility which shall be governed by the SPV2 Underwriting Documents). |
| 21.2 | Each of the parties hereto agrees that each of the Underwriting Documents is a binding and enforceable agreement with respect to the subject matter contained herein or therein (including an obligation to negotiate in good faith); it being acknowledged and agreed that, notwithstanding anything to the contrary contained in the Underwriting Documents, the commitments to fund the Facility are subject only to the conditions set forth in paragraph 4 (Underwriting Conditions) of this Commitment Letter. |
If you agree to the above, please sign, date and return to the Mandated Lead Arranger the enclosed copies of this Commitment Letter. We look forward to working with you on this transaction.
Yours faithfully,
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| For and on behalf of | |
| China Merchants Bank Co., Ltd. (招商银行股份有限公司) | |
| as Mandated Lead Arranger | |
| [Company chop is affixed] | |
| /s/ Mingjie Xu | |
| Name: Mingjie Xu | |
| Title: | |
| For and on behalf of | |
| China Merchants Bank Co., Ltd. (招商银行股份有限公司) | |
| as Underwriter | |
| [Company chop is affixed] | |
| /s/ Mingjie Xu | |
| Name: Mingjie Xu | |
| Title: | |
| We agree the terms set out above. | |
| Date: December 18, 2015 | |
| For and on behalf of | |
| Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司) | |
| [Company chop is affixed] | |
| /s/ Hongyi Zhou | |
| Name: Hongyi Zhou | |
| Title: Legal Representative | |
APPENDIX A
TERM SHEET
| Facility | (i) A term loan facility of up to an RMB equivalent of US$3,000,000,000 to Tianjin Qixin Zhicheng Technology Co., Ltd. (“SPV1”) (the “Term Facility”); and (ii) A bridge loan facility of up to an RMB equivalent of US$400,000,000 to Tianjin Qixin Tongda Technology Co., Ltd. (“SPV2”) (the “Bridge Facility”).
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| Borrower | (i) SPV1 for the Term Facility; and (ii) SPV 2 for the Bridge Facility.
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| Midco | True Thrive Limited.
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| Merger Sub | New Summit Limited.
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| Target | Qihoo 360 Technology Co. Ltd (QIHU).
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| Finance Parties | 1. China Merchants Bank Co., Ltd. (“CMB”) as the facility agent (the “Facility Agent”) and the security agent (the “Security Agent”); 2. CMB as the underwriter (the “Underwriter”); 3. CMB and no more than two additional banking institutions jointly appointed by CMB, SPV1 (in relation to the Term Facility) and SPV2 (in relation to the Bridge Facility) as the mandated lead arrangers (the “Mandated Lead Arrangers”); and 4. CMB and additional banking institutions jointly appointed by CMB, SPV1 (in relation to the Term Facility) and SPV2 (in relation to the Bridge Facility) as the Lender(s) (the “Lenders”).
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| Original Obligor | SPV1, SPV2, Midco, Merger Sub and Mr. Zhou Hongyi |
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| Purpose | (i) To fund or cause to be funded, directly or indirectly through Midco or Merger Sub, the transactions contemplated under that certain Agreement and Plan of Merger, entered or to be entered into by the Target, SPV1, SPV2, Midco, Merger Sub and certain other parties identified therein (the “Merger Agreement”), including payment of merger consideration and option consideration for certain of the Target’s securities, the repurchase of the Target’s convertible notes and payment of related fees and expenses of the transactions pursuant to the terms of the Merger Agreement; and (ii) To fund payment of fees, costs, expenses and taxes payable in connection with the Finance Documents.
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| Availability Period | The period from and including the date of the Facility Agreement to and including the date falling 10 months after the date of the Merger Agreement. |
| Final Maturity Date | 1. For the Term Facility, the date falling 7 years after the date of the first utilisation date of the Term Facility. Voluntary prepayment of the Term Facility in whole or in part is allowed. Voluntary prepayments of the Term Facility may be applied to the Term Facility (and any repayment instalments of the Term Facility) as the relevant Borrower shall determine in its sole discretion. 2. For the Bridge Facility, the date falling 12 months after the date of the first utilisation date of the Bridge Facility. The Bridge Facility shall not be extended. Voluntary Prepayment of the Bridge Facility in whole or part is allowed. |
| Repayment | 1. Term Facility: repayment in installments with two and half years grace period. The repayment shall be made on the 21st day of the 30th month following the first utilisation date and every 6 months thereafter. The detailed repayment schedule is as below: |
| 1st year | 2nd year | 3rd year | 4th year | 5th year | 6th year | 7th year | |||
| 0 | 0 | 10% (5% every half year) | 30% (15% every half year) | 30% (15% every half year) | 25% (12.5% every half year) | 5% (2.5% every half year) | |||
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2. Bridge Facility: the principal shall be repaid in full on the final maturity date.
After a share listing but before the lock-up period (in respect of such listing) expires, the Finance Parties agree to discuss and negotiate with SPV1 and/or SPV2 to make changes to the repayment plan to the extent that it does not affect the interests of the Finance Parties in a materially adverse manner. A written consent from the Finance Parties shall be obtained before making any changes to the repayment plan (other than any change resulting from voluntary prepayment under the current repayment plan). | |
| Interest Periods | 6 months.
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| Interest Rate | The interest rate shall be 111% of the base lending rate for loans of the same tenor as promulgated by the People's Bank of China. |
| Interest Payment | Accrued interest shall be paid every 6 months on the 21st day of the last month of such 6 months intervals starting from the first utilisation date of the relevant facility (the “Interest Payment Date”). |
| Closing Date | The date on which the merger is completed under the Merger Agreement. |
| Target Group | The Target and its subsidiaries from time to time. |
| Group | The Borrower and its subsidiaries from time to time (including, without limitation, with effect only on and from the Closing Date, the Target Group). |
| Guarantors | 1. Mr. Zhou Hongyi; 2. Material overseas subsidiaries (referring to the subsidiaries whose assets accounted for more than 5%) of the Target (“Overseas Material Subsidiaries”); 3. Tianjin Qisi Technology Co., Ltd.; and 4. Qihoo 360 Software (Beijing) Co., Ltd. |
| Transaction Security | The security for the Term Facility shall comprise only: 1 Before the Closing Date (a) Zhou Hongyi shall provide a personal guarantee in accordance with his shareholding percentage in SPV1 and SPV2, which shall only be enforced after claiming first against all other guarantors and disposal of all the security assets held by the Finance Parties. Such guarantee shall be released after a listing of the Group.
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(b) Pledge of 100% equity interest in SPV1 and pledge of equity interest in SPV2 (the equity interest in SPV2 held by ESOP shall not be pledged). (c) SPV2 shall pledge 100% of its shares in Midco.
2 After the Closing Date, to the extent permissible under applicable laws and regulations, the following security shall be added (a) Midco shall pledge 100% of its shares in the Target. (b) The Target shall provide a debenture over all its assets. (c) The Target shall pledge all its shares in the Overseas Material Subsidiaries. (d) The Overseas Material Subsidiaries of the Target shall provide guarantees. (e) Shares held by the Target in the first tier onshore WFOE and (after the VIE structures have been removed) onshore major business entities originally controlled through VIE structures (including but not be limited to the following companies: Tianjin Qisi Technology Co., Ltd., Qizhi Software (Beijing) Company Limited., Qifei Xiangyi (Beijing) Software Company Limited, Beijing Star World Technology Co., Ltd., Beijing Qihu Technology Company Limited, Qihoo 360 Software (Beijing) Co., Ltd., Quyou Technology Group Co., Ltd., Beijing Sheen Wealth Technology Co., Ltd., Chengdu Boguantonghui Technology Co., Ltd., Shenzhen Qihoo Jianan Intelligent Technology Co., Ltd.) shall be pledged. (f) Tianjing Qisi Technology Co., Ltd. and Qihoo 360 Software (Beijing) Co., Ltd. shall provide guarantee. (g) The shares hold by the Target in QiKu Internet Network Technology (Shenzhen) Co., Ltd. and Beijing Qi’an’xin Technology Co., Ltd. (after the restructuring) shall be pledged. The Target will only hold part of the shares in Beijing Qi’an’xin Technology Co., Ltd. after restructuring of it, and such shares held by the Target shall all be pledged. |
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(h) Before a listing, the shares obtained from each increase of the investment with the amount exceeding US$ 50 million shall be pledge. (i) The property of Beijing Chaoyang Jiuxianqiao International Electronics Headquarters (Address: Buildinng 2, 6 Haoyuan, Jiuxianqiao Road, Chaoyang District, Beijing, PRC. 100015, with a floor area of not less than 69205.19 square meters) owned by Beijing Qichuangyousheng Technology Co., Ltd., Qizhi Software (Beijing) Company Limited and Qifei Xiangyi (Beijing) Software Company Limited shall be mortgaged. The property ownership certificate shall be deposited with the Security Agent upon completion of title registration of such property, and the mortgage registration shall be started immediately upon obtaining of the property ownership certificate or completion of the privatization transaction (whichever is later). (j) Series of “360” trademarks held by Beijing Qihu Technology Company Limited. 3 After completion of a listing (a) Shares of the listed company (excluding shares held by ESOP) held by original shareholders of the SPV2 shall be pledged.
The Bridge Facility is a credit loan for which no transaction security is required. | |
| Financial Covenants | 1. Net Debt Coverage Ratio Net Debt = Consolidated Interest-Bearing Debts of SPV1 – Account Book Cash and Equivalents (including realizable short-term investments which can be changed into cash) Net Debt Coverage = Net Debt / Consolidated EBITDA of SPV1 in the last four quarters, which shall not exceed the relevant ratio set forth below: |
| Year | Ratio | |||
| 1st year | 5.5:1 | |||
| 2nd year | 5.0:1 | |||
| 3rd year | 4.0:1 | |||
| 4th year | 3.5:1 | |||
| 5th year | 3.0:1 | |||
| 6th year | 2.5:1 | |||
| 7th year | 2.0:1 |
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2. Annual capital expenditure (CAPEX) The annual capital expenditure in the year of 2016, 2017 and 2018 shall not exceed 85%, 70% and 50% respectively of the EBITDA of the preceding year. For the years after 2018, the annual capital expenditure each year shall not exceed 30% of the EBITDA of the preceding year. The amount of capital expenditure that has not been used in the current year can be accumulated to and used in the next year. After a listing, the restrictions on CAPEX shall be canceled.
No financial covenants shall apply on or prior to the Closing Date. | |
| Other Covenants | (a) The accounts of SPV1, SPV2, Mid Co and the Merger Sub shall be opened with the Facility Agent and subject to supervision by the Facility Agent; after a listing, the SPV2 or any other proposed listed company shall open a cash management system with the Facility Agent, and its main deposits shall be deposited in the Security Agent. (b) The SPV1’s debt service account shall be opened with the Security Agent. Each instalment of interest and principal shall be paid to such debt service account 1 month before the applicable payment date. (c) All dividend accounts of shareholders of SPV2 (or the proposed listed entity) should be opened with the Security Agent, the dividend income distributed to such shareholders (excluding Mr. Qi Xiangdong, Mr. Zhou Hongyi and ESOP) shall be used to prepay the facilities. |
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(d) After a listing, the sole stock selling account of all the shareholders of the SPV2 (or any other proposed listed entity) (excluding ESOP) should be opened with the Security Agent. An effective tripartite monitoring agreement shall be executed and the proceeds of the sale of the shares shall be used to prepay the facilities first. At the same time, after a listing, in the event that (i) SPV1’s shareholders breach the shareholder agreements or investment agreements, or (ii) disposal of the shares is necessary to perform the supplementary capital increase obligations under the shareholder agreements or investment agreement, SPV1 will notify the Agent and the Agent shall, upon receiving such notice, instruct the securities companies that have executed relevant monitoring agreements to sell the shares of the relevant investors (whether pledged or not) and the proceeds therefrom shall be used to fulfil supplementary capital increase to SPV1 by relevant investors to repay the facility owed by SPV1. (e) Immediately before a listing, the guarantee, pledges and/or mortgages of equity interests and assets of any proposed listed entity and its subsidiaries shall be released by the Finance Parties, and such pledges and/or mortgages will not be needed after a listing (except as otherwise agreed). In the event that there is no significant progress on a listing within six months following the releases, such pledges and/or mortgages shall be restored. (f) Once the cumulative amount repaid or prepaid, as the case may be, for the Term Facility has reached US$1.5 billion, and the market value of pledged shares is not less than 3 times of the outstanding loan amount, the pledge on the shares of the listed company held by original shareholders of SPV2 (excluding SPV1 and Mr. Zhou Hongyi) can be released, and the proceeds of the sale of such released shares can be transferred out of the monitoring account. |
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(g) CMB provides a US$ 200 million working capital facility commitment to Tianjing Qisi Technology Co., Ltd, which will come into effect after the full repayment of the Bridge Facility. In addition, the consent of the Finance Parties shall be obtained for borrowing by the contemplated listed entity and its subsidiary companies (whose total profits account for more than 5% of the consolidated statements). (h) The prior consent of the Finance Parties shall be obtained for changes in the shareholdings of SPV1 and its subsidiaries (including SPV2 and the contemplated listing entity) and no actions that may prejudice the value of the shares or involve improper disposal of the assets shall be taken. However, the Finance Parties acknowledge that the Group may conduct a series of shareholding and assets restructuring for a listing and such restructuring will involve Group Members which are required to provide security over its shares or assets for the Term Facility or Bridge Facility. For this purpose, subject to provision of a restructuring plan in advance which is reasonably satisfactory to the Finance Parties, the Finance Parties will cooperate to release or waive the security that has been or will be created over the relevant shares or assets to ensure completion of such restructuring.
No covenants above shall apply on or prior to the Closing Date, except for covenants (a) to (c) to the extent they are related to the opening of any accounts which shall be opened as conditions precedent as set out in the column “Conditions Precedent” below. | |
| Certain Fund Period | Relevant provisions regarding “certain funds” as below shall be included in the Facility Agreement. The facility will be made available until the end of the Certain Funds Period subject only to the following conditions (the “Certain Funds Conditions”): 1. the conditions precedent specified under “Conditions Precedent” below have been achieved (each Finance Party acting reasonably and in accordance with the terms of the Commitment Letter); |
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2. there being no “Major Event of Default” continuing (i.e. not remedied or waived), and the scope of Major Event of Defaults shall comprise only: (a) misrepresentation (subject to the applicable materiality qualifiers and exceptions) by SPV1, the SPV2 and/or Midco in respect of their status, powers and authority to execute relevant Finance Documents, binding obligations under the Finance Documents, execution of the Finance Documents not constituting unlawful activities by the relevant party, legal ownership of shares and assets which are subject to the Transaction Security (each, a “Major Representation”); and (b) the following material events of SPV1, SPV2 and/or Midco (in each case, subject to applicable materiality qualifiers and exceptions): non-payment under the Finance Documents, insolvency, insolvency proceedings, invalidity of executed Finance Documents relating to the obligations of any party other than a Finance Party; and 3. delivery of the applicable utilisation request in accordance with the provisions of the Facility Agreement.
For such purpose, “Certain Funds Period” means “the period from the date of the Facility Agreement to the date falling 10 months after the date of the Merger Agreement”.
During the Certain Funds Period and notwithstanding any other provision, agreement, representation or circumstance, each of the Finance Parties agrees that drawdowns under the Facilities may be made by the Borrowers subject only to the satisfaction (or waiver by the Facility Agent) of the Certain Funds Conditions and that no rights (including rights of set-off or counterclaim) of the Finance Parties will be exercised which could affect or prevent the making of the relevant drawdown or its application for its permitted purpose if the Certain Funds Conditions are satisfied or waived by the Facility Agent and no Finance Party may take any action to cancel, accelerate or cause repayment or prepayment of any utilization unless the entitlement to take any of the foregoing action arises because of a Major Event of Default that is continuing (i.e. not remedied or waived). After the expiry of the Certain Funds Period, all rights and remedies of the Finance Parties shall be available for use and preserved (whether those relate to events or circumstances occurring or subsisting during, or prior to, on or after the expiry of, the Certain Funds Period) even though they may not be available during the Certain Funds Period. |
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| Conditions Precedent | The Conditions Precedent to the first utilization of the Term Facility and the Bridge Facility comprise only: 1. the following documents of each Original Obligor: (a) certificate of incorporation (for offshore companies), business license (for PRC companies) and identity certificate/passport (for individuals); (b) articles of association and similar constitutional documents (for companies); (c) specimen signature of authorized signatories; (d) board resolutions or shareholder resolutions (for companies); 2. Transaction documents and steps comprising only (a) a duly executed copy of the Merger Agreement; and (b) completion (or waiver in accordance with the terms of the Merger Agreement) of all conditions precedent to the obligations of the Parent Parties (as defined in the Merger Agreement) to consummate the transactions contemplated by the Merger Agreement set forth in Article VII thereof other than (i) conditions that by their nature are to be satisfied on the Closing Date (as defined in the Merger Agreement) and (ii) any PRC Regulatory Approval (as defined in the Merger Agreement) that is applicable to the Parent Parties consummation of the aforementioned transactions only after the respective utilisation of the Bridge Facility and the Term Facility; 3. the Facility Agreement duly executed by SPV1 and SPV2 and each of the Fee Letters countersigned by SPV1 and SPV2 respectively; |
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4. signing of the guarantee and security documents by the relevant obligors under paragraph 1 of the row titled “Transaction Security” which are required to be signed before the Closing Date; 5. delivery of documents and certificates which are required to be delivered before the first utilization date under the equity pledge or share charge documents set out in items 1(b) and 1(c) under the column of “Transaction Security” above (e.g. the share certificates, notices and declarations) and completion of governmental registrations which are necessary for such pledge/charge to take effect; 6. issuance of legal opinions in relation to all applicable jurisdictions only regarding the Original Obligors and the Finance Documents which are required to be signed before the Closing Date; 7. opening of accounts of SPV1, SPV2, Midco and Merger Sub which should be opened before the Closing Date; and 8. evidence that the Equity Financing (as defined in the Merger Agreement) shall have been injected into the account of SPV1 and SPV2 (as applicable) in an aggregate amount sufficient for the Parent Parties to consummate the transactions contemplated by the Merger Agreement assuming (i) each of the Term Facility and the Bridge Facility is funded in accordance with the terms of the term sheet relating to such facility and (ii) the Founder Securities (as defined in the Merger Agreement) are terminated in accordance with the terms of the Merger Agreement.
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| Representation, General Undertakings, Event of Default, Material Adverse Effect, Acquisition related provisions and Miscellaneous Provisions | Such clauses shall be drafted (subject to customary materiality, actual knowledge, grace periods, baskets and thresholds and other customary qualifications applied to the representations and warranties, undertakings, events of default and other material provisions not otherwise specified in this term sheet) on the basis of the current standard form of syndicated loan template published by China Banking Association (the “CBA Template”) and to the extent that no comparable clause is included in the CBA Template, be in the form of the current standard form of the Senior Multicurrency Term and Revolving Facilities Agreement for Leveraged Acquisition Finance Transactions (such standard forms shall be revised accordingly to comply with the provisions in this Term Sheet and should not impose substantive restrictions over the Group which have not set out in this Term Sheet). |
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| Clean-up Period | During the Clean-up Period, any breach of a representation or an undertaking or any default which solely arises with respect to the merger of the Target or the permitted restructuring arrangement, such breach of default shall not constitute an Event of Default, provided that such breach or default: 1. is capable of being remedied within the Clean-up Period and reasonable steps are being taken to cure it; 2. does not have and would not reasonably be expected to have a material adverse effect; and 3. does not exist at the end of the Clean-up Period.
“Clean-up Period” means the period from the Closing Date to the date falling 90 days thereafter. |
| Assignments and Transfers by the Lender | No party may assign or transfer any of its rights or obligations under the Facility Agreement without the prior written consent of the other parties.
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| Insolvency of the Finance Parties | Provisions will be included in the Finance Documents to address the position of any Finance Party which is insolvent or which, by reason of financial difficulties, is unable to perform its obligations under the Finance Documents. These will include the following provisions: (a) no commitment fee will be payable to such Finance Party; (b) the Borrowers will be entitled to require the transfer of the commitment of such Finance Party to another entity identified by the Borrowers, or may prepay such Finance Party’s participation in the facility; (c) such Finance Party will not be entitled to vote and its commitment will be disregarded in determining the result of any vote; and
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(d) if the affected Finance Party is the Facility Agent or the Security Agent, the Borrowers or the majority lenders will be entitled to require the appointment of a new Facility Agent or Security Agent in its place, without the cooperation of the existing Facility Agent or Security Agent.
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| Confidentiality | None of the Finance Parties or the Borrowers shall disclose the confidential information relevant to the facility (subject to the exceptions expressly set forth in the Facility Agreement).
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| Language | Chinese.
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| Governing Law | PRC law for the Facility Agreement.
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| Jurisdiction | The disputes shall be submitted to China International Economic and Trade Arbitration Commission (CIETAC) for arbitration. The seat of the arbitration shall be Beijing. |
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Exhibit 99.116
STRICTLY Private and confidential
| To: | Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司, the “SPV2” or “Borrower”) |
| Attention: | Zhou Hongyi |
18 December, 2015
Dear Sirs:
Transformer – Debt Commitment Letter
We, China Merchants Bank Co., Ltd. (招商银行股份有限公司) (the “Mandated Lead Arranger”) and China Merchants Bank Co., Ltd. (招商银行股份有限公司) (the “Underwriter”), are pleased to set out the terms and conditions on which the Mandated Lead Arranger irrevocably commits to arrange, and the Underwriter irrevocably commits to underwrite, 100% of a bridge facility of up to an RMB equivalent of US$400,000,000 (the “Facility”).
The Facility shall be used to fund or cause to be funded, directly or indirectly through True Thrive Limited (诚盛有限公司), an exempted company with limited liability incorporated under the laws of the Cayman Islands (the “Midco”) or New Summit Limited (新峰有限公司), an exempted company with limited liability incorporated under the laws of the Cayman Islands (the “Merger Sub”), the transactions contemplated under that certain Agreement and Plan of Merger, to be entered into by Qihoo 360 Technology Co. Ltd (QIHU), a company listed in US NYSE (the “Target”), SPV1, SPV2, Midco, Merger Sub and certain other parties identified therein (the “Merger Agreement”), including payment of merger consideration and option consideration for certain of the Target’s securities, the repurchase of the Target’s convertible notes and payment of related fees and expenses of the transactions pursuant to the terms of the Merger Agreement.
This letter is to be read together with the term sheet attached hereto as Appendix A to this letter (the “Term Sheet”, together with this letter and appendices attached hereto, this “Commitment Letter”).
Each capitalised term defined in the Term Sheet, unless otherwise defined in this Commitment Letter or the other Underwriting Documents (as defined below), has the same meaning when used in this Commitment Letter. For purposes of the Underwriting Documents:
“Buyer Group Members” means any investor that has become a direct shareholder of SPV1 or SPV2 prior to the merger effective date under the Merger Agreement, excluding any employee stock ownership plan and any individual employee (either personally or through one or more corporate vehicles or trusts) who possesses any ownership interest in SPV2.
“Business Day” means a day (other than a Saturday or Sunday) on which banks are open for general business in New York City, the Cayman Islands, Hong Kong and PRC.
“Certain Funds Period” means the period commencing on the date of this Commitment Letter and ending on the date falling ten (10) months after the date of the Merger Agreement.
“Facility Agreement” means the facility agreement to be entered into by the Finance Parties and the Borrower relating to the provision of the Facility.
“Fee Letter” means any fee letter dated on or about the date of this letter from the Mandated Lead Arranger or the Underwriter to the Borrower.
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“Finance Documents” means the Facility Agreement, any Fee Letter, the transaction security documents and any other documents designated as such by the parties hereto.
“PRC” means the People’s Republic of China, but for the purpose of this definition excluding Hong Kong Special Administrative Region (“Hong Kong”), the Macau Special Administrative Region and Taiwan.
“SPV1” means Tianjin Qixin Zhicheng Technology Co., Ltd. (天津奇信志成科技有限公司).
“SPV1 Commitment Letter” means the commitment letter from China Merchants Bank Co., Ltd. (招商银行股份有限公司) to SPV1 dated on or about the date of this letter.
“SPV1 Term Sheet” means the term sheet attached to the SPV1 Commitment Letter as Appendix A.
“SPV1 Underwriting Documents” means the SPV1 Commitment Letter (including the SPV1 Term Sheet and other appendices to the SPV1 Commitment Letter).
“Target Group” means the Target and its subsidiaries.
“Underwriting Documents” means this Commitment Letter (including the Term Sheet and other appendices).
| 1 | COMMITMENT |
The Mandated Lead Arranger hereby irrevocably commits to arrange, and the Underwriter hereby irrevocably commits to underwrite and to provide, the whole Facility on and subject to the terms and conditions set out in the Underwriting Documents (such respective commitments by the Mandated Lead Arranger or the Underwriter, the “Commitments”). The Facility shall be made available to you on the terms set out in the Term Sheet.
| 2 | GRANT OF MANDATE |
| 2.1 | Subject to paragraph 2.2 below, the Mandated Lead Arranger is hereby appointed as exclusive arranger and bookrunner of the Facility and the Underwriter is hereby appointed as exclusive underwriter of the Facility. |
| 2.2 | Subject to the mutual agreement of the Mandated Lead Arranger, the Underwriter and the Borrower, the parties hereto may jointly appoint up to two (2) additional mandated lead arrangers and underwriters to participate in the Facility, and the parties agree to make such amendments to the Underwriting Documents as are necessary to reflect the additional parties to the Underwriting Documents. If the Underwriter transfers any portion of its commitment under the Facility prior to the Closing Date and if the transferee defaults in its obligation to provide its pro rata share of a utilisation, then the Underwriter agrees to provide (in addition to any portion of its commitment it has not transferred) the amount by way of utilisations of the Facility that the defaulting transferee was obliged to provide up to the amount that the Underwriter had transferred to such transferee. |
| 2.3 | China Merchants Bank Co., Ltd. (招商银行股份有限公司) confirms that it is willing to act as Facility Agent and Security Agent on the terms set out in the Facility Agreement. |
| 2.4 | Unless and until this Commitment Letter terminates in accordance with the terms of this Commitment Letter and subject to paragraph 2.2 above, you shall ensure that no Buyer Group Member appoints, or awards any title to, a third party in connection with arranging and/or underwriting the Facility without our prior written consent (other than as to arranging and underwriting the SPV1 Facility which shall be governed by the SPV1 Underwriting Documents). Except as otherwise provided in the Underwriting Documents, no fees or compensation in connection with the Facility or any other financing to fund the Merger shall be payable to anyone without the prior written consent of the Mandated Lead Arranger. |
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| 3 | INFORMATION |
| 3.1 | Save as disclosed in writing to the Mandated Lead Arranger or the Underwriter prior to the date of this letter or prior to the date on which the relevant Information (as defined below) is provided to the Mandated Lead Arranger or the Underwriter, you hereby represent (as at the date of this letter, and by reference to the facts and circumstances then existing) and warrant that to your knowledge: |
| (a) | all material written factual information concerning you and your subsidiaries and the Target Group, other than any financial projections (the “Projections”), other forward-looking information and information of a general economic or industry-specific nature, that has been or will be made available to any of us by or on behalf of you in connection with the transactions contemplated hereby (the “Information”), when taken as a whole, does not or will not, when furnished, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements are made (after giving effect to all supplements and updates thereto from time to time); and |
| (b) | the Projections that have been or will be made available to any of us by or on behalf of you have been or will be prepared in good faith based upon assumptions believed by you to be reasonable at the time furnished (it being recognized by us that such Projections are not to be viewed as facts and are subject to significant uncertainties and contingencies many of which are beyond your control, that no assurance can be given that any particular financial projections will be realized, that actual results may differ from projected results and that such differences may be material). |
| 3.2 | Notwithstanding anything to the contrary contained in this Commitment Letter, none of the making of any representation under this paragraph 3, any supplement thereto, or the accuracy of any such representation shall constitute a condition precedent to the availability and initial funding of the Facility, including, without limitation, under paragraph 4 (Underwriting Conditions) and paragraph 5 (Certain Funds) of this Commitment Letter. |
| 4 | UNDERWRITING CONDITIONS |
| 4.1 | The Underwriter’s underwriting of the Facility is subject only to the satisfaction of the following conditions: |
| (a) | execution of a mutually acceptable Facility Agreement, reflecting the terms and conditions set out in the Term Sheet, by all parties thereto, provided that this paragraph (a) shall not apply in the case of a breach by the Mandated Lead Arranger or the Underwriter of paragraph 6 (Execution of Facility Agreement) of this letter; |
| (b) | satisfaction (or waiver by the Underwriter) of all conditions precedent to the obligations of the Mandated Lead Arranger and the Underwriter set out in section “Conditions Precedent” in the Term Sheet; and |
| (c) | compliance by the Borrower in all material respects with the material terms of the Underwriting Documents to the extent that any failure to so comply with terms of the Underwriting Documents would result in any Certain Funds Condition not being satisfied (had the Facility Agreement been entered into as of the date of this Commitment Letter), |
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and upon satisfaction or waiver by the Underwriter, the initial funding under the Facility shall occur.
| 5 | CERTAIN FUNDS |
| 5.1 | The Commitments are made on a certain funds basis, as set out in the Underwriting Documents, during the Certain Funds Period. Accordingly, and notwithstanding anything to the contrary herein or in any Underwriting Document, during the Certain Funds Period, the only conditions to utilisation of the Facility are as expressly set out in paragraph 4 (Underwriting Conditions) of this Commitment Letter. None of the Underwriting Documents, the Facility Agreement or the other Finance Documents shall contain any material adverse effect conditionality in respect of the Commitments. |
| 5.2 | The Mandated Lead Arranger and the Underwriter confirm that: |
| (a) | their respective Commitments and the Facility have been approved by their respective credit committees and all other relevant internal bodies or approvals process required to provide the Commitments and each of the Mandated Lead Arranger and the Underwriter confirms that it has received all due diligence required by it in respect of the Merger, the Buyer Group Members, the Target Group and otherwise in connection with making the Facility available in connection with the Merger; |
| (b) | they have completed all approval processes and received all final internal approvals required to execute this Commitment Letter and the other Underwriting Documents and provide their respective Commitments; and |
| (c) | they have completed and are satisfied with the results of all client identification procedures they are respectively required to carry out in connection with making the Facility available in connection with the Merger in compliance with all applicable laws, regulations and internal requirements (including but not limited to all applicable money laundering rules and all “know your customer” requirements). |
| 5.3 | The Mandated Lead Arranger and the Underwriter each further confirms that the Merger Agreement which is required as a condition precedent under the Term Sheet (as at the date of this Commitment Letter) has been delivered to the Mandated Lead Arranger and the Underwriter, and in the form delivered is (and subject to it remaining in substantially the same form, or with such supplements or other modifications (which in the aggregate, do not materially and adversely affect the interests of the Mandated Lead Arranger and the Underwriter taken as a whole), when delivered in final form, will be) acceptable to the Mandated Lead Arranger and the Underwriter for the purposes of satisfying any of the conditions precedent in the Term Sheet which corresponds to that document. |
| 5.4 | If it becomes unlawful in any applicable jurisdiction for the Mandated Lead Arranger or the Underwriter to perform any of their obligations as contemplated by the Underwriting Documents or to fund, issue or maintain their participation under the Facility, such Mandated Lead Arranger or Underwriter shall: |
| (a) | promptly notify you upon becoming aware of the event; and |
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| (b) | in consultation with you, take all reasonable steps to mitigate any circumstances which arise and which would result in their underwriting in respect of the Facility not being available including (but not limited to) transferring its rights and obligations under the Underwriting Documents to one or more of its affiliates. |
| 5.5 | The obligations of the Mandated Lead Arranger and the Underwriter are several and a failure by a Mandated Lead Arranger or an Underwriter to perform its obligations under any of the Underwriting Documents shall not affect the obligations of any other Mandated Lead Arranger or Underwriter. No Mandated Lead Arranger or Underwriter is responsible for the obligations of another Mandated Lead Arranger or Underwriter. |
| 6 | EXECUTION OF FACILITY AGREEMENT |
| 6.1 | Each of the Mandated Lead Arranger and the Underwriter undertakes to negotiate in good faith, to use best efforts and to allocate sufficient resources and personnel to ensure that the parties hereto shall enter into the Facility Agreement and the other Finance Documents, in all relevant capacities (required to be entered into as a condition precedent to the initial utilisation of the Facility) on terms consistent with the Term Sheet, as soon as reasonably practicable following countersigning of this Commitment Letter by the Borrower and in any event on or prior to the date falling seven months after the date the Merger Agreement is signed (or such later date as may be mutually agreed by the parties hereto (each party acting reasonably)) (the “Proposed Signing Date”), subject to: |
| (a) | you signing and returning to us copies of the Underwriting Documents; and |
| (b) | entry into the Merger Agreement by the parties thereto. |
| 6.2 | The Mandated Lead Arranger’s and the Underwriter’s respective undertaking above to negotiate in good faith, to use their best efforts and to allocate sufficient resources and personnel to ensure that they enter into the Facility Agreement and the other Finance Documents shall expire on the termination of this Commitment Letter. |
| 6.3 | If, despite good faith negotiation, we are not able to agree on a term of the Finance Documents by the Proposed Signing Date, then as soon as practicable following that date the Mandated Lead Arranger, the Underwriter and the Borrower undertake to sign all Finance Documents required to be signed prior to the Utilisation of the Facility and any such term not previously agreed on will, to the extent comparable with respect to the Facility, be in the form of the current standard form of syndicated loan template published by China Banking Association (“CBA Template”) and to the extent that no comparable clause is included in the CBA Template, be in the form of the current standard form of the Senior Multicurrency Term and Revolving Facilities Agreement for Leveraged Acquisition Finance Transactions (“LMA Template”, and together with the CBA Template, the “Precedent Facility Agreement”) (subject to the specific terms of the Term Sheet) provided that where the relevant Precedent Facility Agreement contains a drafting option, is silent on a particular point or the provisions of the Precedent Facility Agreement require more than minor or technical changes in order to be incorporated into the Facility Agreement, the relevant language shall be such option or language as is reasonably requested by the Mandated Lead Arranger or if the Mandated Lead Arranger does not specify any option or language within 5 days of the date of a written request by you, such option or language reasonably requested by you. |
| 7 | UNDERTAKING TO PAY |
| 7.1 | You undertake to pay (or to procure payment) to the Mandated Lead Arranger as soon as reasonably practicable, and in any event within 5 Business Days following demand, an amount equal to any liability, damages, cost, loss or expense (each, a “Loss”) (including reasonable and documented legal fees subject to a cap mutually agreed and excluding, in each case, indirect or consequential damages, and any loss of profit) incurred by the Mandated Lead Arranger, the Underwriter or any of their respective Affiliates or any of their (or their respective Affiliates’) directors, officers, employees or agents (each, an “Indemnified Person”) arising out of, in connection with or based on any action, claim, suit, investigation or proceeding (in each case, whether or not any Indemnified Person is party and including any action, claim, investigation or proceeding to preserve or enforce rights) commenced, pending or threatened in relation to any Underwriting Document, the use of proceeds of any Facility or the Merger (whether or not made) except to the extent the Loss resulted primarily from (a) the gross negligence or wilful misconduct of the relevant Indemnified Person, (b) a breach by the relevant Indemnified Person of (i) any term of the Underwriting Documents or any confidentiality undertaking or (ii) any law, (c) claims by you or the Target against the Mandated Lead Arranger or the Underwriter, (d) any wilful breach by such Indemnified Person of any applicable law or (e) claims of an Indemnified Person against another Indemnified Person. |
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| 7.2 | You undertake to pay (or to procure payment) to the Mandated Lead Arranger on demand an amount equal to any reasonable cost or expense (including reasonable and documented legal fees) incurred in connection with investigating, preparing, pursuing or defending any action, claim, suit, investigation or proceeding arising out of, in connection with or based on any of the above, whether or not any Indemnified Person is a party. |
| 7.3 | The Mandated Lead Arranger shall not have any duty or obligation, whether as fiduciary for any Indemnified Person or otherwise, to recover any payment made under paragraph 7.1 or 7.2. |
| 7.4 | You agree that no Indemnified Person shall have any liability (whether direct or indirect, in contract or tort or otherwise) to you or any of your Affiliates for or in connection with anything referred to in paragraph 7.1 except for breach of any Underwriting Document or the Facility Agreement or any other Finance Documents or any such liability for losses, claims, damages or liabilities incurred by you or any of your Affiliates that in each case resulted primarily from the gross negligence or wilful misconduct of that Indemnified Person. No Indemnified Person shall be responsible or have any liability to you or any of your Affiliates or anyone else for consequential losses or damages. |
| 7.5 | Each Indemnified Person shall, in consultation with you, take all reasonable steps to mitigate any Loss and shall consult with you and give (subject to legal restrictions) such information and assistance to you as you may reasonably request in connection with any action, claim, suit, proceeding or investigation in connection with a Loss and shall not take any action which might reasonably be expected to prejudice your position in relation to any such action, claim, suit proceeding or investigation. |
| 7.6 | On the date the Facility Agreement becomes effective, your obligations under this paragraph 7 shall terminate and be superseded by the relevant terms of the Facility Agreement and this paragraph 7 shall cease to have effect. |
| 8 | FEES AND EXPENSES |
| 8.1 | You shall pay the Mandated Lead Arranger the fees in the amount and on the terms set out in a Fee Letter separately agreed by the parties hereto or as set out in the Term Sheet. |
| 8.2 | Whether or not the Finance Documents are signed, the Borrower shall, within five Business Days of demand by the Mandated Lead Arranger, subject to a cap mutually agreed by the parties hereto, pay the Mandated Lead Arranger (or its/their legal advisor(s)) the amount of all costs and expenses (including legal fees subject to such caps as agreed with the Mandated Lead Arranger’s legal advisor(s)) reasonably incurred by it/them in connection with the negotiation, preparation, printing and execution of the Underwriting Documents and the Finance Documents. |
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| 8.3 | Payment under paragraph 8.2 shall be accompanied by invoice(s) in relation to such costs and expenses together with reasonable documentary evidence of such costs and expenses. |
| 9 | Confidentiality |
| 9.1 | The parties acknowledge that the terms and conditions of the Underwriting Documents are confidential and are not to be disclosed to or relied upon by anyone else, except disclosure of such terms and conditions or a copy of any of them is permitted to the extent made as follows: |
| (a) | to SPV1, the Parent, the Merger Sub, the Target Group and the current direct or indirect owners and management of the Target Group or any of their Affiliates and their respective officers, directors, employees, investors and advisors or any of their Affiliates on a “need to know” and confidential basis for purposes of the Merger; |
| (b) | to your, any Buyer Group Member, the Mandated Lead Arranger’s or the Underwriter’s Affiliates or to any of their or their Affiliates’ respective officers, directors, employees, investors and advisors on a “need to know” and confidential basis for purposes of the Merger; |
| (c) | to anyone else to the extent required by law, regulation or applicable governmental or regulatory authority (including any applicable stock exchange and the US Securities and Exchange Commission) or court, or required pursuant to any legal, arbitral or administrative proceedings or process; |
| (d) | to the “Special Committee” of the Target and its professional advisers; |
| (e) | in connection with the establishment of any due diligence defence; |
| (f) | in connection with any preservation or enforcement of rights under any Underwriting Document; or |
| (g) | by the Mandated Lead Arranger or the Underwriter on a “need to know” and confidential basis to any potential Lender looking to participate in the Facility and any potential mandated lead arrangers or underwriters looking to arrange or underwrite, as applicable, part of the Facility who has been made aware of and agrees to be bound by the obligations under this paragraph 9, on condition that the Mandated Lead Arranger and the Underwriter shall not disclose to any potential Lender any information regarding fees payable under the Underwriting Documents. |
| 9.2 | Notwithstanding anything to the contrary in any Underwriting Document, on the date the Facility Agreement becomes effective, the provisions of this paragraph 9 shall automatically terminate and be superseded by the terms of the Facility Agreement. |
| 9.3 | For the avoidance of doubt, the provisions of this paragraph 9 do not supersede any other confidentiality or non-disclosure agreement or undertaking by any of us or our respective Affiliates or our or their respective representatives in favour of any Buyer Group Member, the Target or their respective Affiliates (whether directly or indirectly through a back-to-back or similar agreement). |
| 10 | No announcements |
Each of the parties shall not make, and shall cause each of its Affiliates not to make, any public announcement regarding the Merger or any or all of the Facility without the prior consent of each of the other parties (such consent not to be unreasonably withheld or delayed), except to the extent required by law, regulation or applicable governmental or regulatory authority (including any applicable stock exchange or the US Securities and Exchange Commission).
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| 11 | Assignment |
| 11.1 | No party may assign or transfer any of its rights or obligations under the Underwriting Documents without the prior written consent of the other parties, except that you may transfer your rights and obligations under the Underwriting Documents to a newly established limited liability company which has not previously traded, is wholly-owned (other than nominal holdings and director’s qualifying shares), directly or indirectly, by funds managed or advised by a Buyer Group Member, and is incorporated in the PRC or in any other jurisdiction acceptable to the Mandated Lead Arranger and the Underwriter (acting reasonably). |
| 11.2 | If, prior to the execution of the Facility Agreement, the Mandated Lead Arranger or the Underwriter is in material breach of its obligations under the Underwriting Documents and has failed to remedy the same within 10 Business Days of written notice by you to such Mandated Lead Arranger or Underwriter in respect of such breach, you shall have the right by notice in writing to replace such Mandated Lead Arranger or Underwriter (the “Defaulting MLA”) with any bank or financial institution (the “Replacement MLA”) selected by you and who confirms its willingness to assume and does assume all the obligations of such Defaulting MLA (in its capacity as Mandated Lead Arranger and as Underwriter) under the Underwriting Documents, provided that such Defaulting MLA must be replaced by such Replacement MLA both in its capacity as Mandated Lead Arranger and as Underwriter. Upon such replacement, each of the parties hereto shall execute amendments to the Underwriting Documents solely to give effect to the replacement and substitution of such Defaulting MLA by such Replacement MLA (pursuant to which such Replacement MLA shall assume all of the rights and obligations of such Defaulting MLA under the Underwriting Documents) and the cessation of such Defaulting MLA as the Mandated Lead Arranger and the Underwriter, provided that (for the avoidance of doubt) such amendments shall not seek to vary the commercial substance of any of the terms of the Underwriting Documents. |
| 12 | PERIOD OF OFFER |
This offer shall remain in effect until 5p.m., Beijing time, on the date falling 10 Business Days after the date of this Commitment Letter (as may be extended by the Mandated Lead Arranger and the Underwriter in writing), at which time it will automatically expire unless before then the Mandated Lead Arranger and the Underwriter have received your written agreement to this Term Sheet and any Fee Letter or this offer is extended by us in writing.
| 13 | TERMINATION |
| 13.1 | Subject to paragraph 14 (Survival), the Mandated Lead Arranger and the Underwriter may give you notice terminating their obligations under the Underwriting Documents if and only if the Closing Date does not occur by the date falling one month after the End Date (as defined in the Merger Agreement). |
| 13.2 | Subject to paragraph 14 (Survival), you may terminate this Commitment Letter upon written notice to the Mandated Lead Arranger and the Underwriter at any time. |
| 13.3 | Subject to paragraph 14 (Survival), this Commitment Letter shall terminate on the date the Facility Agreement becomes effective. |
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| 14 | SURVIVAL |
| 14.1 | The terms of paragraph 2 (Grant of Mandate), paragraph 3 (Information), paragraph 5 (Certain Funds), paragraph 6 (Execution of Facility Agreement), paragraph 8 (Fees and Expenses), paragraph 10 (No Announcements), paragraph 11 (Assignment) and this paragraph 14 to paragraph 21 (Integration) inclusive shall survive and continue after the date the Facility Agreement becomes effective. |
| 14.2 | Without prejudice to paragraph 14.1, paragraph 8 (Fees and Expenses) to paragraph 20 (Jurisdiction) inclusive shall survive and continue after any termination or expiry of any Underwriting Document, whether as a result of paragraph 13 (Termination) or otherwise. |
| 15 | amendments |
No waiver or amendment of any provision of any Underwriting Document shall be effective unless it is in writing and signed by the parties hereto.
| 16 | THIRD PARTY RIGHTS |
| 16.1 | A person who is not a party to this Commitment Letter has no right to enforce or to enjoy the benefit of any term of this Commitment Letter. |
| 16.2 | Notwithstanding any other term of this Commitment Letter, the consent of any person who is not a party to this Commitment Letter is not required to rescind or vary this Commitment Letter at any time. |
| 17 | COUNTERPARTS |
Each Underwriting Document may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of such Underwriting Document. Delivery of an executed counterpart of a signature page of this Commitment Letter by facsimile transmission or in electronic format (e.g., “.pdf” or “.tif”) is equally as effective as delivery of an original executed counterpart of this Commitment Letter.
| 18 | Notices |
| 18.1 | Any communication to be made under or in connection with any Underwriting Document shall be made in writing and, unless otherwise stated, may be made by fax, email or letter. |
| 18.2 | Notices and communications to be given to you shall be sent to: |
| Name: | 天津奇信志成科技有限公司 |
| Address: | Building #2, No. 6 Jiuxianqiao Road, Chaoyang District, Beijing, P.R.C. 100015 |
| Attention: | LIN Jing |
| Email: | linjing@360.cn |
| 18.3 | Notices and communications to be given to the Mandated Lead Arranger or the Underwriter shall be sent to: |
| Name: | China Merchants Bank Co., Ltd. (招商银行股份有限公司) |
| Address: | CMB TOWER, No. 7088 Shennan Boulevard, Shenzhen, 518040 |
| Attention: | FAN Yuanyuan |
| Email: | fanyuanyuan@cmbchina.com |
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| 19 | GOVERNING LAW |
Each Underwriting Document and each non-contractual obligation arising out of or in connection therewith is governed by the laws of the PRC.
| 20 | JURISDICTION |
Any dispute arising out of or in connection with this Commitment Letter shall be submitted to China International Economic and Trade Arbitration Commission (the “Commission”) for arbitration in Beijing which shall be conducted in accordance with the arbitration rules of the Commission in effect at the time of applying for arbitration.
| 21 | INTEGRATION |
| 21.1 | The Underwriting Documents form the entire agreement between you and us as to the Facility and replace any previous oral or written understanding or agreement in relation to the Facility or the financing of the Merger (other than as to arranging and underwriting the SPV1 Facility which shall be governed by the SPV1 Underwriting Documents). |
| 21.2 | Each of the parties hereto agrees that each of the Underwriting Documents is a binding and enforceable agreement with respect to the subject matter contained herein or therein (including an obligation to negotiate in good faith); it being acknowledged and agreed that, notwithstanding anything to the contrary contained in the Underwriting Documents, the commitments to fund the Facility are subject only to the conditions set forth in paragraph 4 (Underwriting Conditions) of this Commitment Letter. |
If you agree to the above, please sign, date and return to the Mandated Lead Arranger the enclosed copies of this Commitment Letter. We look forward to working with you on this transaction.
Yours faithfully,
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| For and on behalf of | |
| China Merchants Bank Co., Ltd. (招商银行股份有限公司) | |
| as Mandated Lead Arranger | |
| [Company chop is affixed] | |
| /s/ Mingjie Xu | |
| Name: Mingjie Xu | |
| Title: | |
| For and on behalf of | |
| China Merchants Bank Co., Ltd. (招商银行股份有限公司) | |
| as Underwriter | |
| [Company chop is affixed] | |
| /s/ Mingjie Xu | |
| Name: Mingjie Xu | |
| Title: |
| We agree the terms set out above. | |
| Date: December 18, 2015 | |
| For and on behalf of | |
| Tianjin Qixin Tongda Technology Co., Ltd. (天津奇信通达科技有限公司) | |
| [Company chop is affixed] | |
| /s/ Hongyi Zhou | |
| Name: Hongyi Zhou | |
| Title: Legal Representative | |
APPENDIX A
TERM SHEET
| Facility | (i) A term loan facility of up to an RMB equivalent of US$3,000,000,000 to Tianjin Qixin Zhicheng Technology Co., Ltd. (“SPV1”) (the “Term Facility”); and (ii) A bridge loan facility of up to an RMB equivalent of US$400,000,000 to Tianjin Qixin Tongda Technology Co., Ltd. (“SPV2”) (the “Bridge Facility”).
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| Borrower | (i) SPV1 for the Term Facility; and (ii) SPV 2 for the Bridge Facility.
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| Midco | True Thrive Limited.
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| Merger Sub | New Summit Limited.
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| Target | Qihoo 360 Technology Co. Ltd (QIHU).
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| Finance Parties | 1. China Merchants Bank Co., Ltd. (“CMB”) as the facility agent (the “Facility Agent”) and the security agent (the “Security Agent”); 2. CMB as the underwriter (the “Underwriter”); 3. CMB and no more than two additional banking institutions jointly appointed by CMB, SPV1 (in relation to the Term Facility) and SPV2 (in relation to the Bridge Facility) as the mandated lead arrangers (the “Mandated Lead Arrangers”); and 4. CMB and additional banking institutions jointly appointed by CMB, SPV1 (in relation to the Term Facility) and SPV2 (in relation to the Bridge Facility) as the Lender(s) (the “Lenders”).
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| Original Obligor | SPV1, SPV2, Midco, Merger Sub and Mr. Zhou Hongyi
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| Purpose | (i) To fund or cause to be funded, directly or indirectly through Midco or Merger Sub, the transactions contemplated under that certain Agreement and Plan of Merger, entered or to be entered into by the Target, SPV1, SPV2, Midco, Merger Sub and certain other parties identified therein (the “Merger Agreement”), including payment of merger consideration and option consideration for certain of the Target’s securities, the repurchase of the Target’s convertible notes and payment of related fees and expenses of the transactions pursuant to the terms of the Merger Agreement; and (ii) To fund payment of fees, costs, expenses and taxes payable in connection with the Finance Documents.
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| Availability Period | The period from and including the date of the Facility Agreement to and including the date falling 10 months after the date of the Merger Agreement.
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| Final Maturity Date | 1. For the Term Facility, the date falling 7 years after the date of the first utilisation date of the Term Facility. Voluntary prepayment of the Term Facility in whole or in part is allowed. Voluntary prepayments of the Term Facility may be applied to the Term Facility (and any repayment instalments of the Term Facility) as the relevant Borrower shall determine in its sole discretion. 2. For the Bridge Facility, the date falling 12 months after the date of the first utilisation date of the Bridge Facility. The Bridge Facility shall not be extended. Voluntary Prepayment of the Bridge Facility in whole or part is allowed.
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| Repayment | 1. Term Facility: repayment in installments with two and half years grace period. The repayment shall be made on the 21st day of the 30th month following the first utilisation date and every 6 months thereafter. The detailed repayment schedule is as below: |
| 1st year | 2nd year | 3rd year | 4th year | 5th year | 6th year | 7th year | |||
| 0 | 0 | 10% (5% every half year) | 30% (15% every half year) | 30% (15% every half year) | 25% (12.5% every half year) | 5% (2.5% every half year) |
| 2. Bridge Facility: the principal shall be repaid in full on the final maturity date. |
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After a share listing but before the lock-up period (in respect of such listing) expires, the Finance Parties agree to discuss and negotiate with SPV1 and/or SPV2 to make changes to the repayment plan to the extent that it does not affect the interests of the Finance Parties in a materially adverse manner. A written consent from the Finance Parties shall be obtained before making any changes to the repayment plan (other than any change resulting from voluntary prepayment under the current repayment plan).
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| Interest Periods | 6 months.
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| Interest Rate | The interest rate shall be 111% of the base lending rate for loans of the same tenor as promulgated by the People's Bank of China.
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| Interest Payment | Accrued interest shall be paid every 6 months on the 21st day of the last month of such 6 months intervals starting from the first utilisation date of the relevant facility (the “Interest Payment Date”).
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| Closing Date | The date on which the merger is completed under the Merger Agreement.
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| Target Group | The Target and its subsidiaries from time to time.
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| Group | The Borrower and its subsidiaries from time to time (including, without limitation, with effect only on and from the Closing Date, the Target Group).
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| Guarantors | 1. Mr. Zhou Hongyi; 2. Material overseas subsidiaries (referring to the subsidiaries whose assets accounted for more than 5%) of the Target (“Overseas Material Subsidiaries”); 3. Tianjin Qisi Technology Co., Ltd.; and 4. Qihoo 360 Software (Beijing) Co., Ltd.
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| Transaction Security | The security for the Term Facility shall comprise only: 1 Before the Closing Date (a) Zhou Hongyi shall provide a personal guarantee in accordance with his shareholding percentage in SPV1 and SPV2, which shall only be enforced after claiming first against all other guarantors and disposal of all the security assets held by the Finance Parties. Such guarantee shall be released after a listing of the Group.
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(b) Pledge of 100% equity interest in SPV1 and pledge of equity interest in SPV2 (the equity interest in SPV2 held by ESOP shall not be pledged). (c) SPV2 shall pledge 100% of its shares in Midco.
2 After the Closing Date, to the extent permissible under applicable laws and regulations, the following security shall be added (a) Midco shall pledge 100% of its shares in the Target. (b) The Target shall provide a debenture over all its assets. (c) The Target shall pledge all its shares in the Overseas Material Subsidiaries. (d) The Overseas Material Subsidiaries of the Target shall provide guarantees. (e) Shares held by the Target in the first tier onshore WFOE and (after the VIE structures have been removed) onshore major business entities originally controlled through VIE structures (including but not be limited to the following companies: Tianjin Qisi Technology Co., Ltd., Qizhi Software (Beijing) Company Limited., Qifei Xiangyi (Beijing) Software Company Limited, Beijing Star World Technology Co., Ltd., Beijing Qihu Technology Company Limited, Qihoo 360 Software (Beijing) Co., Ltd., Quyou Technology Group Co., Ltd., Beijing Sheen Wealth Technology Co., Ltd., Chengdu Boguantonghui Technology Co., Ltd., Shenzhen Qihoo Jianan Intelligent Technology Co., Ltd.) shall be pledged. (f) Tianjing Qisi Technology Co., Ltd. and Qihoo 360 Software (Beijing) Co., Ltd. shall provide guarantee. (g) The shares hold by the Target in QiKu Internet Network Technology (Shenzhen) Co., Ltd. and Beijing Qi’an’xin Technology Co., Ltd. (after the restructuring) shall be pledged. The Target will only hold part of the shares in Beijing Qi’an’xin Technology Co., Ltd. after restructuring of it, and such shares held by the Target shall all be pledged. |
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(h) Before a listing, the shares obtained from each increase of the investment with the amount exceeding US$ 50 million shall be pledge. (i) The property of Beijing Chaoyang Jiuxianqiao International Electronics Headquarters (Address: Buildinng 2, 6 Haoyuan, Jiuxianqiao Road, Chaoyang District, Beijing, PRC. 100015, with a floor area of not less than 69205.19 square meters) owned by Beijing Qichuangyousheng Technology Co., Ltd., Qizhi Software (Beijing) Company Limited and Qifei Xiangyi (Beijing) Software Company Limited shall be mortgaged. The property ownership certificate shall be deposited with the Security Agent upon completion of title registration of such property, and the mortgage registration shall be started immediately upon obtaining of the property ownership certificate or completion of the privatization transaction (whichever is later). (j) Series of “360” trademarks held by Beijing Qihu Technology Company Limited. 3 After completion of a listing (a) Shares of the listed company (excluding shares held by ESOP) held by original shareholders of the SPV2 shall be pledged.
The Bridge Facility is a credit loan for which no transaction security is required. | |
| Financial Covenants | 1. Net Debt Coverage Ratio Net Debt = Consolidated Interest-Bearing Debts of SPV1 – Account Book Cash and Equivalents (including realizable short-term investments which can be changed into cash) Net Debt Coverage = Net Debt / Consolidated EBITDA of SPV1 in the last four quarters, which shall not exceed the relevant ratio set forth below: |
| Year | Ratio | |||
| 1st year | 5.5:1 | |||
| 2nd year | 5.0:1 | |||
| 3rd year | 4.0:1 | |||
| 4th year | 3.5:1 | |||
| 5th year | 3.0:1 | |||
| 6th year | 2.5:1 | |||
| 7th year | 2.0:1 |
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2. Annual capital expenditure (CAPEX) The annual capital expenditure in the year of 2016, 2017 and 2018 shall not exceed 85%, 70% and 50% respectively of the EBITDA of the preceding year. For the years after 2018, the annual capital expenditure each year shall not exceed 30% of the EBITDA of the preceding year. The amount of capital expenditure that has not been used in the current year can be accumulated to and used in the next year. After a listing, the restrictions on CAPEX shall be canceled.
No financial covenants shall apply on or prior to the Closing Date. | |
| Other Covenants | (a) The accounts of SPV1, SPV2, Mid Co and the Merger Sub shall be opened with the Facility Agent and subject to supervision by the Facility Agent; after a listing, the SPV2 or any other proposed listed company shall open a cash management system with the Facility Agent, and its main deposits shall be deposited in the Security Agent. (b) The SPV1’s debt service account shall be opened with the Security Agent. Each instalment of interest and principal shall be paid to such debt service account 1 month before the applicable payment date. (c) All dividend accounts of shareholders of SPV2 (or the proposed listed entity) should be opened with the Security Agent, the dividend income distributed to such shareholders (excluding Mr. Qi Xiangdong, Mr. Zhou Hongyi and ESOP) shall be used to prepay the facilities. |
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(d) After a listing, the sole stock selling account of all the shareholders of the SPV2 (or any other proposed listed entity) (excluding ESOP) should be opened with the Security Agent. An effective tripartite monitoring agreement shall be executed and the proceeds of the sale of the shares shall be used to prepay the facilities first. At the same time, after a listing, in the event that (i) SPV1’s shareholders breach the shareholder agreements or investment agreements, or (ii) disposal of the shares is necessary to perform the supplementary capital increase obligations under the shareholder agreements or investment agreement, SPV1 will notify the Agent and the Agent shall, upon receiving such notice, instruct the securities companies that have executed relevant monitoring agreements to sell the shares of the relevant investors (whether pledged or not) and the proceeds therefrom shall be used to fulfil supplementary capital increase to SPV1 by relevant investors to repay the facility owed by SPV1. (e) Immediately before a listing, the guarantee, pledges and/or mortgages of equity interests and assets of any proposed listed entity and its subsidiaries shall be released by the Finance Parties, and such pledges and/or mortgages will not be needed after a listing (except as otherwise agreed). In the event that there is no significant progress on a listing within six months following the releases, such pledges and/or mortgages shall be restored. (f) Once the cumulative amount repaid or prepaid, as the case may be, for the Term Facility has reached US$1.5 billion, and the market value of pledged shares is not less than 3 times of the outstanding loan amount, the pledge on the shares of the listed company held by original shareholders of SPV2 (excluding SPV1 and Mr. Zhou Hongyi) can be released, and the proceeds of the sale of such released shares can be transferred out of the monitoring account. |
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(g) CMB provides a US$ 200 million working capital facility commitment to Tianjing Qisi Technology Co., Ltd, which will come into effect after the full repayment of the Bridge Facility. In addition, the consent of the Finance Parties shall be obtained for borrowing by the contemplated listed entity and its subsidiary companies (whose total profits account for more than 5% of the consolidated statements). (h) The prior consent of the Finance Parties shall be obtained for changes in the shareholdings of SPV1 and its subsidiaries (including SPV2 and the contemplated listing entity) and no actions that may prejudice the value of the shares or involve improper disposal of the assets shall be taken. However, the Finance Parties acknowledge that the Group may conduct a series of shareholding and assets restructuring for a listing and such restructuring will involve Group Members which are required to provide security over its shares or assets for the Term Facility or Bridge Facility. For this purpose, subject to provision of a restructuring plan in advance which is reasonably satisfactory to the Finance Parties, the Finance Parties will cooperate to release or waive the security that has been or will be created over the relevant shares or assets to ensure completion of such restructuring.
No covenants above shall apply on or prior to the Closing Date, except for covenants (a) to (c) to the extent they are related to the opening of any accounts which shall be opened as conditions precedent as set out in the column “Conditions Precedent” below.
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| Certain Fund Period | Relevant provisions regarding “certain funds” as below shall be included in the Facility Agreement. The facility will be made available until the end of the Certain Funds Period subject only to the following conditions (the “Certain Funds Conditions”): 1. the conditions precedent specified under “Conditions Precedent” below have been achieved (each Finance Party acting reasonably and in accordance with the terms of the Commitment Letter);
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2. there being no “Major Event of Default” continuing (i.e. not remedied or waived), and the scope of Major Event of Defaults shall comprise only: (a) misrepresentation (subject to the applicable materiality qualifiers and exceptions) by SPV1, the SPV2 and/or Midco in respect of their status, powers and authority to execute relevant Finance Documents, binding obligations under the Finance Documents, execution of the Finance Documents not constituting unlawful activities by the relevant party, legal ownership of shares and assets which are subject to the Transaction Security (each, a “Major Representation”); and (b) the following material events of SPV1, SPV2 and/or Midco (in each case, subject to applicable materiality qualifiers and exceptions): non-payment under the Finance Documents, insolvency, insolvency proceedings, invalidity of executed Finance Documents relating to the obligations of any party other than a Finance Party; and 3. delivery of the applicable utilisation request in accordance with the provisions of the Facility Agreement.
For such purpose, “Certain Funds Period” means “the period from the date of the Facility Agreement to the date falling 10 months after the date of the Merger Agreement”.
During the Certain Funds Period and notwithstanding any other provision, agreement, representation or circumstance, each of the Finance Parties agrees that drawdowns under the Facilities may be made by the Borrowers subject only to the satisfaction (or waiver by the Facility Agent) of the Certain Funds Conditions and that no rights (including rights of set-off or counterclaim) of the Finance Parties will be exercised which could affect or prevent the making of the relevant drawdown or its application for its permitted purpose if the Certain Funds Conditions are satisfied or waived by the Facility Agent and no Finance Party may take any action to cancel, accelerate or cause repayment or prepayment of any utilization unless the entitlement to take any of the foregoing action arises because of a Major Event of Default that is continuing (i.e. not remedied or waived). After the expiry of the Certain Funds Period, all rights and remedies of the Finance Parties shall be available for use and preserved (whether those relate to events or circumstances occurring or subsisting during, or prior to, on or after the expiry of, the Certain Funds Period) even though they may not be available during the Certain Funds Period.
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| Conditions Precedent | The Conditions Precedent to the first utilization of the Term Facility and the Bridge Facility comprise only: 1. the following documents of each Original Obligor: (a) certificate of incorporation (for offshore companies), business license (for PRC companies) and identity certificate/passport (for individuals); (b) articles of association and similar constitutional documents (for companies); (c) specimen signature of authorized signatories; (d) board resolutions or shareholder resolutions (for companies); 2. Transaction documents and steps comprising only (a) a duly executed copy of the Merger Agreement; and (b) completion (or waiver in accordance with the terms of the Merger Agreement) of all conditions precedent to the obligations of the Parent Parties (as defined in the Merger Agreement) to consummate the transactions contemplated by the Merger Agreement set forth in Article VII thereof other than (i) conditions that by their nature are to be satisfied on the Closing Date (as defined in the Merger Agreement) and (ii) any PRC Regulatory Approval (as defined in the Merger Agreement) that is applicable to the Parent Parties consummation of the aforementioned transactions only after the respective utilisation of the Bridge Facility and the Term Facility; 3. the Facility Agreement duly executed by SPV1 and SPV2 and each of the Fee Letters countersigned by SPV1 and SPV2 respectively; 4. signing of the guarantee and security documents by the relevant obligors under paragraph 1 of the row titled “Transaction Security” which are required to be signed before the Closing Date;
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5. delivery of documents and certificates which are required to be delivered before the first utilization date under the equity pledge or share charge documents set out in items 1(b) and 1(c) under the column of “Transaction Security” above (e.g. the share certificates, notices and declarations) and completion of governmental registrations which are necessary for such pledge/charge to take effect; 6. issuance of legal opinions in relation to all applicable jurisdictions only regarding the Original Obligors and the Finance Documents which are required to be signed before the Closing Date; 7. opening of accounts of SPV1, SPV2, Midco and Merger Sub which should be opened before the Closing Date; and 8. evidence that the Equity Financing (as defined in the Merger Agreement) shall have been injected into the account of SPV1 and SPV2 (as applicable) in an aggregate amount sufficient for the Parent Parties to consummate the transactions contemplated by the Merger Agreement assuming (i) each of the Term Facility and the Bridge Facility is funded in accordance with the terms of the term sheet relating to such facility and (ii) the Founder Securities (as defined in the Merger Agreement) are terminated in accordance with the terms of the Merger Agreement.
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| Representation, General Undertakings, Event of Default, Material Adverse Effect, Acquisition related provisions and Miscellaneous Provisions | Such clauses shall be drafted (subject to customary materiality, actual knowledge, grace periods, baskets and thresholds and other customary qualifications applied to the representations and warranties, undertakings, events of default and other material provisions not otherwise specified in this term sheet) on the basis of the current standard form of syndicated loan template published by China Banking Association (the “CBA Template”) and to the extent that no comparable clause is included in the CBA Template, be in the form of the current standard form of the Senior Multicurrency Term and Revolving Facilities Agreement for Leveraged Acquisition Finance Transactions (such standard forms shall be revised accordingly to comply with the provisions in this Term Sheet and should not impose substantive restrictions over the Group which have not set out in this Term Sheet). |
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| Clean-up Period | During the Clean-up Period, any breach of a representation or an undertaking or any default which solely arises with respect to the merger of the Target or the permitted restructuring arrangement, such breach of default shall not constitute an Event of Default, provided that such breach or default: 1. is capable of being remedied within the Clean-up Period and reasonable steps are being taken to cure it; 2. does not have and would not reasonably be expected to have a material adverse effect; and 3. does not exist at the end of the Clean-up Period.
“Clean-up Period” means the period from the Closing Date to the date falling 90 days thereafter. |
| Assignments and Transfers by the Lender | No party may assign or transfer any of its rights or obligations under the Facility Agreement without the prior written consent of the other parties.
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| Insolvency of the Finance Parties | Provisions will be included in the Finance Documents to address the position of any Finance Party which is insolvent or which, by reason of financial difficulties, is unable to perform its obligations under the Finance Documents. These will include the following provisions: (a) no commitment fee will be payable to such Finance Party; (b) the Borrowers will be entitled to require the transfer of the commitment of such Finance Party to another entity identified by the Borrowers, or may prepay such Finance Party’s participation in the facility; (c) such Finance Party will not be entitled to vote and its commitment will be disregarded in determining the result of any vote; and |
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(d) if the affected Finance Party is the Facility Agent or the Security Agent, the Borrowers or the majority lenders will be entitled to require the appointment of a new Facility Agent or Security Agent in its place, without the cooperation of the existing Facility Agent or Security Agent.
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| Confidentiality | None of the Finance Parties or the Borrowers shall disclose the confidential information relevant to the facility (subject to the exceptions expressly set forth in the Facility Agreement).
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| Language | Chinese.
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| Governing Law | PRC law for the Facility Agreement.
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| Jurisdiction | The disputes shall be submitted to China International Economic and Trade Arbitration Commission (CIETAC) for arbitration. The seat of the arbitration shall be Beijing.
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