EX-4.48 6 tv518001_ex4-48.htm EXHIBIT 4.48

 

Exhibit 4.48

 

English Translation

 

 

Shareholder Voting Rights Proxy Agreement

 

This Shareholder Voting Rights Proxy Agreement (this “Agreement”) dated January 17, 2017, is made in Guangzhou, the People’s Republic of China (the “PRC”), by and among:

 

Party A: David Xueling Li (the “Shareholder”)
ID Card number:  
   
Party B: Guangzhou BaiGuoYuan Information Technology Co., Ltd. (the “WOFE”)
Address: Room 2705, 27/F, Building B-1, North Block of Wanda Plaza, No. 79 Wanbo Er Road, Nancun Town, Panyu District, Guangzhou
Legal Representative: David Xueling Li
   
Party C: Guangzhou BaiGuoYuan Network Technology Co., Ltd. (the “Company”)
Address: 25/F, Building B-1, North Block of Wanda Plaza, No. 79 Wanbo Er Road, Nancun Town, Panyu District, Guangzhou
Legal Representative: David Xueling Li

 

Party A, Party B and Party C respectively referred to as a “Party”, collectively referred to as “Parties”.

 

WHEREAS:

 

1.The Shareholder is the present shareholder of the Company, which holds 99% equity of the Company;

 

2.The Shareholders intend to severally entrust the individual designated by WFOE with the exercise of their voting rights in the Company and WFOE is willing to designate such individual to accept such entrustment.

 

THEREFORE, the Parties, after friendly consultations, hereby agree as follows:

 

Article 1 Voting Right Entrustment

 

1.1The Shareholder hereby irrevocably undertakes to sign a power of attorney in the form and substance as set forth in Annex 1 after execution of this Agreement to entrust the individual designated by WFOE (hereinafter, the “Entrusted Person”) to exercise on their respective behalf the following rights they, as the shareholder of the Company, are entitled to under the then effective articles of association of the Company (collectively, the “Entrusted Rights”):

 

(1)Proposing to convene and attending shareholders’ meetings of the Company as the representative of the Shareholder according to the articles of association of the Company;

 

   
English Translation

 

(2)On behalf of the Shareholder, exercising voting rights on all the issues needing to be discussed and resolved by the shareholders’ meetings of the Company, including but not limited to the appointment of the Company’s directors and other officers needing to be appointed and removed by shareholders;

 

(3)Other voting rights of shareholder as provided by the laws and regulations of PRC (including their amendments, changes, additions and re-enactments, regardless of the time of their effectiveness before or after the execution of this Agreement);

 

(4)Exercise other shareholder voting rights as specified in the articles of association of the Company (including any other shareholder voting rights as specified in the amended articles of association).

 

The above authorization and entrustment are granted subject to the status of the Entrusted Person as a PRC citizen and the approval by WFOE. Upon and only upon written notice of dismissing and replacing the Entrusted Person (s) given by WFOE to the Shareholder, the Shareholder shall promptly entrust another PRC citizen then designated by WFOE to exercise the above Entrusted Rights, and once new entrustment is made, the original entrustment shall be replaced. The Shareholder shall not cancel the authorization and entrustment for the Entrusted Person (s) otherwise.

 

1.2The Entrusted Person shall perform the fiduciary obligations within the scope of authorization with due care and diligence and in compliance with laws. The Shareholder acknowledges and assumes relevant liabilities for any legal consequences of the Entrusted Person’s exercise of the foregoing Entrusted Rights.

 

1.3The Shareholder hereby acknowledges that the Entrusted Person is not required to seek advice from the Shareholder prior to the exercise of the foregoing Entrusted Rights. However, the Entrusted Person shall inform the Shareholder in a timely manner of any resolution or any proposal on convening interim shareholders’ meeting after such resolution or proposal is made.

 

Article 2 Right to Information

 

2.1For the purpose of exercising the Entrusted Rights hereunder, the Entrusted Person is entitled to know the information with regard to the Company’s operation, business, customers, finance, staff, etc., and shall have access to the relevant materials of the Company. The Company shall adequately cooperate with the Entrusted Person in this regard.

 

   
English Translation

 Article 3 Exercise of Entrusted Rights

 

3.1The Shareholder will provide adequate assistance to the exercise of the Entrusted Rights by the Entrusted Person, including timely execution of the resolutions of the shareholders’ meeting of the Company adopted by the Entrusted Person or other related legal documents when necessary (e.g., when it is necessary for examination and approval of or registration or filing with governmental departments).

 

3.2If at any time during the term of this Agreement, the grant or exercise of the Entrusted Rights hereunder is unenforceable for any reason (except for default of Shareholder or the Company), the Parties shall immediately seek a most similar substitute for the unenforceable provision and, if necessary, enter into a supplementary agreement to amend or adjust the provisions herein, in order to ensure the realization of the purpose of this Agreement.

 

Article 4 Exemption and Compensation

 

4.1Pursuant to the Section 4.2, the Parties acknowledge that WFOE shall not be requested to be liable to or compensate (monetary or otherwise) other Parties or any third party due to exercise of the Entrusted Rights hereunder by the individuals designated by it.

 

4.2The Shareholder and the Company agree to indemnify and hold harmless WFOE from and against all losses incurred or likely to be incurred by it due to exercise of the Entrusted Rights by the Entrusted Person designated by WFOE, including without limitation, any loss resulting from any litigation, demand, arbitration or claim initiated or raised by any third party against it or from administrative investigation or penalty of governmental authorities (collectively, the “Losses”), PROVIDED THAT the above indemnity in respect of any Losses shall not be available to WFOE to the extent that such Losses have been caused by the willful default or gross negligence on the part of the Entrusted Person.

 

Article 5 Representations and Warranties

 

5.1The Shareholder hereby represents and warrants that:

 

5.1.1It is a Chinese citizen with full capacity. It has the full and independent legal status and legal capacity to, and has been duly authorized to, execute, deliver and perform this Agreement. It may sue or be sued as an independent party.

 

5.1.2It has the full power and authority to execute and deliver this Agreement and all other documents relating to the transaction contemplated hereby and to be executed by it. It also has the full power and authority to consummate the transaction contemplated hereby. This Agreement, when duly executed and delivered, shall constitute a legal, valid and binding obligation enforceable against it in accordance with the terms of this Agreement.

 

   
English Translation

5.1.3It is the recorded legal shareholder of the Company as of the effective date of this Agreement, and except for the rights under this Agreement, the Equity Pledge Agreement, the Exclusive Option Agreement and the Exclusive Assets Purchase Agreement entered into among the Shareholder, the Company and WFOE, the Entrusted Rights are free of any third-party right. Pursuant to this Agreement, the Entrusted Person may fully and sufficiently exercise the Entrusted Rights in accordance with the then effective articles of association of the Company.

 

5.2.Each of WFOE and the Company hereby represents and warrants that:

 

5.2.1It is a limited liability company duly organized and validly existing under the PRC Law with an independent legal personality. It has the full and independent legal status and legal capacity to execute, deliver and perform this Agreement and may sue or be sued as an independent party.

 

5.2.2It has the full corporate power and authority to execute and deliver this Agreement and all other documents relating to the transaction contemplated hereby and to be executed by it. It also has the full power and authority to consummate the transaction contemplated hereby.

 

5.3The Company further represents and warrants that:

 

5.3.1The Shareholder is the recorded legal shareholder of the Company as of the effective date of this Agreement, and except for the rights under this Agreement, the Equity Pledge Agreement, the Exclusive Option Agreement and the Exclusive Assets Purchase Agreement entered into among the Shareholder, the Company and WFOE, the Entrusted Rights are free of any third-party right. Pursuant to this Agreement, the Entrusted Person may fully and sufficiently exercise the Entrusted Rights in accordance with the then effective articles of association of the Company.

 

Article 6 Term

 

6.1Subject to the provisions of Articles 6.2 and 6.3 hereof, this Agreement shall become effective as of the date of the due execution by the Parties. Unless prematurely terminated by the Parties in writing or pursuant to Article 9.1 hereof, this Agreement shall remain in force.

 

6.2If the Company or WFOE, upon expiry of its duration, fails to handle the examination, approval and registration procedures concerning the extension thereof, this Agreement shall be terminated.

 

6.3In case that the Shareholder transfers all of the equity interest held by it in the Company with WFOE’s prior consent, such Shareholder shall cease to be a party to this Agreement.

 

   
English Translation

 Article 7 Notices

 

7.1Any notice, request, demand and other communications required to be made or given under or pursuant to this Agreement shall be in writing and served on the relevant Party.

 

7.2The above notices or other communications shall be deemed duly given or served: if sent by fax or telex, immediately upon transmission; if delivered in person, at the time of delivery; if posted by mail, five (5) days after posting.

 

Article 8 Confidentiality

 

8.1Regardless of whether this Agreement is terminated or not, each Party shall keep strictly confidential all the business secrets, proprietary information, customer information and other information of a confidential nature about the other Parties known by it during the execution and performance of this Agreement (collectively, the “Confidential Information”). The receiving Party shall not disclose any Confidential Information to any third party except with the prior written consent of the disclosing Party or in accordance with relevant laws or regulations or under requirements of the place where its affiliate is listed on a stock exchange. The receiving Party shall not use or indirectly use any Confidential Information other than for performing this Agreement.

 

8.2The following information shall not be deemed part of the Confidential Information:

 

(a)any information already known by the receiving Party by legal means prior to disclosure, which is substantiated in writing;

 

(b)any information being part of public knowledge through no fault of the receiving Party; or

 

(c)any information rightfully received by the receiving Party from other sources after disclosure.

 

8.3The receiving Party may disclose the Confidential Information to its relevant employees, agents or engaged professionals, but the receiving Party shall guarantee that they are in compliance with the relevant terms and conditions of this Agreement and assume any responsibility arising from any breach thereof by them.

 

8.4Notwithstanding any other provision herein, the validity of this Article shall survive the termination of this Agreement.

 

   
English Translation

Article 9 Defaulting Liability

 

9.1The Parties agree and acknowledge that, if any of the Parties (the “Defaulting Party”) materially breaches any provision herein or materially fails to perform or delays performance of any of the obligations hereunder, such breach, failure or delay shall constitute a default under this Agreement (a “Default”). In such event, any of the other Parties without default (the “Non-defaulting Party”) shall have the right to require the Defaulting Party to rectify such Default or take remedial measures within a reasonable period. If the Defaulting Party fails to rectify such Default or take remedial measures within such reasonable period or within ten (10) days of the Non-defaulting Party notifying the Defaulting Party in writing and requiring the Default to be rectified, then:

 

9.1.1if the Shareholder or the Company is the Defaulting Party, WFOE shall be entitled to terminate this Agreement and require the Defaulting Party to indemnify all damages;

 

9.1.2if WFOE is the Defaulting Party, the Non-defaulting Party shall be entitled to require the Defaulting Party to indemnify all damages, but the Non-defaulting Party shall not be entitled to any rights to terminate or cancel this Agreement in any situation unless otherwise provided by the mandatory provisions of the laws.

  

9.2Notwithstanding any other provision herein, the validity of this Article shall survive the suspension or termination of this Agreement.

 

Article 10 Miscellaneous

 

10.1This Agreement is written in Chinese and executed in three (3) originals, with one (1) original to be retained by each Party hereto.

 

10.2The formation, validity and interpretation of, resolution of disputes in connection with, this Agreement, shall be governed by PRC Law.

 

10.3Any dispute arising hereunder and in connection herewith shall be resolved through consultations among the Parties, and if the Parties fail to reach a mutual agreement within thirty (30) days of its occurrence, any Party may submit such dispute to China International Economic and Trade Arbitration Commission (“CIETAC”) for arbitration in accordance with its arbitration rules in effect at the time of applying for arbitration. The number of arbitrators should be one. If within 20 (20) days after the issuance of the notice of arbitration by any party to this Agreement, the parties refuse the designation of the arbitrator who has agreed to participate in the arbitration, the CIETAC shall appoint an arbitrator separately. The seat of arbitration shall be Beijing and the language used in arbitration proceedings shall be Chinese. The arbitral award shall be final and binding on the Parties.

  

10.4During dispute resolution, the Parties shall continue to exercise the rights of this Agreement and perform the terms of this Agreement other than those relating to disputes.

 

   
English Translation

10.5Any right, power or remedy conferred on any Party by any provision of this Agreement shall not be exclusive of any other right, power or remedy available to it at law and under the other provisions of this Agreement, and the exercise by such Party of any of its rights, powers and remedies shall not preclude the exercise of any other rights, powers and remedies it may have.

 

10.6No failure or delay by a Party in exercising any of its rights, powers and remedies available to it hereunder or at law (hereinafter, the “Party’s Rights”) shall operate as a waiver thereof, nor shall the waiver of any single or partial exercise of the Party’s Rights shall preclude such Party from exercising such rights in any other way and exercising the remaining part of the Party’s Rights.

 

10.7The headings contained herein shall be for reference only, and in no circumstances shall such headings be used in or affect the interpretation of the provisions hereof.

 

10.8Each provision contained herein shall be severable and independent from each of other provisions, and if at any time any one or more provisions herein become invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions herein shall not be affected as a result thereof.

 

10.9Any amendment or supplement hereto shall be made in writing and shall become effective only upon due execution by the Parties hereto.

 

10.10Without WFOE’s prior written consent, any other Party shall not transfer any of its rights and/or obligations hereunder to any third party. The Shareholder and the Company hereby agree that WFOE is entitled to transfer any of its rights and/or obligations hereunder to any third party upon written notice thereof to the other Parties.

 

10.11This Agreement shall be binding on the legal assignees, successors or heirs of the Parties.

 

10.12After the execution of this Agreement, if any government agency of PRC makes amendments to any of the laws, regulations, decrees or provisions of China, including amendments, additions or repeal of existing laws, regulations, decrees or regulations, or cites a different interpretation or a different implementation to any of the existing laws, regulations, decrees or regulations (respectively referred to as a “Modification”), or a new law, regulation, decree or regulation (respectively referred to as a “New Provision”), or any government agency proposes requirements or opinions that may have an impact to the performance of this Agreement, the following shall apply:

 

(a)if the Modification or New Provision is more favorable to the WFOE than the relevant laws, regulations, decrees or regulations that are effective as of the effective date of this Agreement, the parties shall promptly apply to the relevant institutions (if required) for the benefits of these Modification or New Provision. The parties should use their best efforts to get the application approved.

 

   
English Translation

(b)if, due to the Modification or New Provision, the interests of the WFOE under this Agreement are seriously and adversely affected directly or indirectly, after the WFOE notifies the other parties, the parties shall promptly negotiate on the basis of the principle of good faith, and make all necessary modifications and adjustments to the terms or performance of this Agreement, in order to maximize the original commercial intentions of the parties under this Agreement and to maintain the interests of WFOE in this Agreement.

 

(c)if the requirements of any government agency may have a material adverse effect on the performance of this Agreement in accordance with the terms and conditions of this Agreement, the Shareholder and the Company shall use their best reasonable efforts to communicate with the relevant government agency in order to make this Agreement could be performed pursuant to the original terms and conditions, and the WFOE shall provide necessary assistance in such communication. If such communication is unavailable, all parties shall make timely negotiating on the basis of the principle of good faith, make all necessary modifications and reasonable adjustments to the terms or performance of this Agreement, in order to maximize the original commercial intentions of the parties under this Agreement and to maintain the interests of WFOE in this Agreement.

 

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English Translation

IN WITNESS WHEREOF , the Parties hereto have caused this Agreement to be executed as of the date first above written.

 

Party A: David Xueling Li  
     
Signature: /s/ David Xueling Li  
     
Party B: Guangzhou BaiGuoYuan Information Technology Co., Ltd.  
     
Signature: /s/ David Xueling Li  
Name: David Xueling Li  
Title: Legal Representative  

 

Party C: Guangzhou BaiGuoYuan Network Technology Co., Ltd.  
     
Signature: /s/ David Xueling Li  
Name: David Xueling Li  
Title: Legal Representative  

 

   
English Translation

 Annex 1:

 

Power of Attorney

 

   
English Translation

 Power of Attorney

 

The undersigned, David Xueling Li, an individual with PRC nationality, with the ID Card number *, hereby declares and confirms as follows:

 

(1)The undersigned holds 99% of the rights and interests (the “ Rights and Interests ”) in the registered capital of Guangzhou BaiGuoYuan Network Technology Co., Ltd., a limited liability company duly incorporated and validly existing under the PRC laws (the “ Domestic Company ”).

 

(2)The undersigned hereby irrevocably authorizes Guangzhou BaiGuoYuan Information Technology Co., Ltd., a company duly incorporated and validly existing under the PRC laws (the “ WFOE ”), or any succeeding person or entity who has obtained the business of WFOE through merger, acquisition or integration (the “ Successor ”), to handle any and all matters in relation to the Domestic Company and its rights and interests, and to exercise all rights of the undersigned as the holder of the Rights and Interests, in the name of the undersigned. This Power of Attorney grants to WFOE the following rights and authorizations, including without limitation:

 

(a)WFOE or the Successor may, as the sole agent of the undersigned, handle any and all matters in relation to the Rights and Interests, including but not limited to (i) attend the general meetings of the Domestic Company; (ii) exercise all voting rights of shareholders and other rights enjoyed by the undersigned pursuant to PRC laws and the article of association of the Domestic Company, including but not limited to the sales, transfer, pledge, or disposal in other way, of the whole or part of the Rights and Interests; (iii) appoint the legal representative, chairman, director, supervisor, chief executive officer and any other senior officers of the Domestic Company on behalf of the undersigned; and (iv) overlook the operation result of the Domestic Company; (v) access the financial information of the Domestic Company at any time; (vi) in case the conducts of directors or senior officers of the Domestic Company harm the interest of the Domestic Company or its shareholders, initiate shareholder derivative litigation or other legal proceedings against such directors or senior officers; (vii) approve annual budget or distribution of dividends; and (viii) any other shareholder’s rights granted to the shareholders by the articles of association of the Domestic Company and its amendments from time to time, or/and relevant laws and regulations.

 

(b)The undersigned further authorizes WFOE to enter into contracts or documents relating to the operation of the Domestic Company on behalf of the undersigned, including but not limited to any contract of transfer, in order to perform the obligations under the Exclusive Option Agreement, the Exclusive Assets Purchase Agreement and the Equity Interest Pledge Agreement entered into by the undersigned on January 17, 2017. This authorization shall also include the rights to execute any other documents for the perfection of the rights and interests under the aforementioned agreements.

 

   
English Translation

(c)As solely decided by WFOE and without the necessity of informing the undersigned or obtain further consent from the undersigned, WFOE is also entitled to authorize any third party to exercise the power hereunder, and transfer the rights hereunder to any third party to allow such third party to exercise such rights.

 

(3)All actions taken by WFOE or the Successor in relation to the Rights and Interests shall be deemed as taken by the undersigned in person, without the necessity of consulting with the undersigned in advance; all documents executed by WFOE or the Successor in relation to the Rights and Interests shall be deemed as executed by the undersigned in person. The undersigned hereby confirms, ratifies and approves such actions taken by or documents executed by WFOE or the Successor.

 

(4)The undersigned has agreed to transfer the Rights and Interests to WFOE or any person or entity designated by WFOE in line with the Exclusive Option Agreement entered into by and between the undersigned, WFOE and the Domestic Company (the “ Exclusive Option Agreement ”). To ensure the performance of the Exclusive Option Agreement, the undersigned hereby undertakes as follows:

 

(a)The undersigned has executed the Equity Transfer Agreement (the “ Equity Transfer Agreement ”), and has execute the Shareholder’s Resolution to approve such transfer. At any time upon the request of WFOE, the undersigned shall immediately transfer the Rights and Interests to WFOE or the Successor. The date of execution and the name of the transferee on such Equity Transfer Agreement and the Shareholder’s Resolution are left blank.

 

(b)The undersigned hereby irrevocably authorizes WFOE to fill in the date of execution and the name of the transferee in the Equity Transfer Agreement, and the undersigned hereby agrees that the Equity Transfer Agreement shall be kept by WFOE;

 

(c)The undersigned hereby irrevocably authorizes WFOE to, for the purpose of the effective transfer of the Rights and Interests to WFOE and the Successor, execute additional documents as required by law or government on behalf of the undersigned; and

 

(d)The undersigned hereby confirms that the undersigned is and will continue to be bound by the obligations under the Exclusive Option Agreement and the Equity Transfer Agreement, and undertakes to perform all such obligations upon written request of WFOE.

 

   
English Translation

(5)The undersigned has agreed to procure the Domestic Company to transfer its assets to WFOE or any person or entity designated by WFOE, pursuant to the Exclusive Assets Purchase Agreement by and between the Domestic Company, the undersigned and WFOE (the “ Exclusive Assets Purchase Agreement ”), including executing and delivering the Shareholder’s Resolution which approves such transfer;

 

(6)The undersigned further agrees and undertakes to WFOE that if the undersigned receives any dividends, interests, capital distribution in any other form, remaining assets after liquidation, or incomes or considerations generated from the transfer of equity by virtue of the equity interest of the Domestic Company held by the undersigned, the undersigned shall, to the extent permitted by law, pay all of these dividends, interests, capital distribution, assets, incomes or considerations to WFOE in full without requesting for any compensation.

 

(7)All actions taken by WFOE or the Successor in line with this Power of Attorney shall be deemed as taken by the undersigned in person; all documents executed by WFOE or the Successor in relation to the Rights and Interests shall be deemed as executed by the undersigned in person. The undersigned hereby confirms, ratifies and approves such actions taken by or documents executed by WFOE or the Successor, and accepts and assumes corresponding responsibility for all legal consequences arising from the authorizations made by the undersigned under this Power of Attorney.

 

(8)The undersigned hereby waives all rights enjoyed by the undersigned as the holder of the Rights and Interests. Such rights have been irrevocably authorized to WFOE through this Power of Attorney, and the undersigned shall not exercise or attempt to exercise any of such rights.

 

(9)The undersigned hereby agrees that if the equity held by the undersigned in the Domestic Company increases, whether through increment of capital contribution or not, any additional equity held by any shareholder shall be subject to this Agreement, and WFOE shall have the right to exercise the shareholder’s rights as provided in Section 2 over such additional equity on behalf of the undersigned; similarly, if any person obtains equity of the Domestic Company, whether through voluntary transfer, transfer by operation of law, mandatory auction or in any other way, the undersigned shall procure such transferee to agree that all equity of the Domestic Company it obtained is subject to this Agreement, and WFOE is entitled to exercise the shareholder’s rights as provided in Section 2 over such equity.

 

(10)This Power of Attorney is attached with rights and interests. Throughout the period that the undersigned is a shareholder of the Domestic Company, this Power of Attorney shall remain effective from the day of issue and shall not be revoked.

 

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English Translation

(Execution Page)

 

Name of the Shareholder: David Xueling Li  
   
/s/ David Xueling Li  
(Signature)  
     
Date: January 17, 2017  

 

   
English Translation

Shareholder Voting Rights Proxy Agreement

 

This Shareholder Voting Rights Proxy Agreement (this “Agreement”) dated January 17, 2017, is made in Guangzhou, the People’s Republic of China (the “PRC”), by and among:

 

Party A: Jianqiang Hu (the “Shareholder”)
ID Card number:  
   
Party B: Guangzhou BaiGuoYuan Information Technology Co., Ltd. (the “WFOE”)
Address: Room 2705, 27/F, Building B-1, North Block of Wanda Plaza, No. 79 Wanbo Er Road, Nancun Town, Panyu District, Guangzhou
Legal Representative: David Xueling Li
   
Party C: Guangzhou BaiGuoYuan Network Technology Co., Ltd. (the “Company”)
Address: 25/F, Building B-1, North Block of Wanda Plaza, No. 79 Wanbo Er Road, Nancun Town, Panyu District, Guangzhou
Legal Representative: David Xueling Li

 

Party A, Party B and Party C respectively referred to as a “Party”, collectively referred to as “Parties”.

 

WHEREAS:

 

1.The Shareholder is the present shareholder of the Company, which holds 1% equity of the Company;

 

2.The Shareholders intend to severally entrust the individual designated by WFOE with the exercise of their voting rights in the Company and WFOE is willing to designate such individual to accept such entrustment.

 

THEREFORE, the Parties, after friendly consultations, hereby agree as follows:

 

Article 1 Voting Right Entrustment

 

1.1The Shareholder hereby irrevocably undertakes to sign a power of attorney in the form and substance as set forth in Annex 1 after execution of this Agreement to entrust the individual designated by WFOE (hereinafter, the “Entrusted Person”) to exercise on their respective behalf the following rights they, as the shareholder of the Company, are entitled to under the then effective articles of association of the Company (collectively, the “Entrusted Rights”):

 

(1)Proposing to convene and attending shareholders’ meetings of the Company as the representative of the Shareholder according to the articles of association of the Company;

 

   
English Translation

(2)On behalf of the Shareholder, exercising voting rights on all the issues needing to be discussed and resolved by the shareholders’ meetings of the Company, including but not limited to the appointment of the Company’s directors and other officers needing to be appointed and removed by shareholders;

 

(3)Other voting rights of shareholder as provided by the laws and regulations of PRC (including their amendments, changes, additions and re-enactments, regardless of the time of their effectiveness before or after the execution of this Agreement);

 

(4)Exercise other shareholder voting rights as specified in the articles of association of the Company (including any other shareholder voting rights as specified in the amended articles of association).

 

The above authorization and entrustment are granted subject to the status of the Entrusted Person as a PRC citizen and the approval by WFOE. Upon and only upon written notice of dismissing and replacing the Entrusted Person (s) given by WFOE to the Shareholder, the Shareholder shall promptly entrust another PRC citizen then designated by WFOE to exercise the above Entrusted Rights, and once new entrustment is made, the original entrustment shall be replaced. The Shareholder shall not cancel the authorization and entrustment for the Entrusted Person (s) otherwise.

 

1.2The Entrusted Person shall perform the fiduciary obligations within the scope of authorization with due care and diligence and in compliance with laws. The Shareholder acknowledges and assumes relevant liabilities for any legal consequences of the Entrusted Person’s exercise of the foregoing Entrusted Rights.

 

1.3The Shareholder hereby acknowledges that the Entrusted Person is not required to seek advice from the Shareholder prior to the exercise of the foregoing Entrusted Rights. However, the Entrusted Person shall inform the Shareholder in a timely manner of any resolution or any proposal on convening interim shareholders’ meeting after such resolution or proposal is made.

 

Article 2 Right to Information

 

2.1For the purpose of exercising the Entrusted Rights hereunder, the Entrusted Person is entitled to know the information with regard to the Company’s operation, business, customers, finance, staff, etc., and shall have access to the relevant materials of the Company. The Company shall adequately cooperate with the Entrusted Person in this regard.

 

   
English Translation

Article 3 Exercise of Entrusted Rights

 

3.1The Shareholder will provide adequate assistance to the exercise of the Entrusted Rights by the Entrusted Person, including timely execution of the resolutions of the shareholders’ meeting of the Company adopted by the Entrusted Person or other related legal documents when necessary (e.g., when it is necessary for examination and approval of or registration or filing with governmental departments).

 

3.2If at any time during the term of this Agreement, the grant or exercise of the Entrusted Rights hereunder is unenforceable for any reason (except for default of Shareholder or the Company), the Parties shall immediately seek a most similar substitute for the unenforceable provision and, if necessary, enter into a supplementary agreement to amend or adjust the provisions herein, in order to ensure the realization of the purpose of this Agreement.

 

Article 4 Exemption and Compensation

 

4.1Pursuant to the Section 4.2, the Parties acknowledge that WFOE shall not be requested to be liable to or compensate (monetary or otherwise) other Parties or any third party due to exercise of the Entrusted Rights hereunder by the individuals designated by it.

 

4.2The Shareholder and the Company agree to indemnify and hold harmless WFOE from and against all losses incurred or likely to be incurred by it due to exercise of the Entrusted Rights by the Entrusted Person designated by WFOE, including without limitation, any loss resulting from any litigation, demand, arbitration or claim initiated or raised by any third party against it or from administrative investigation or penalty of governmental authorities (collectively, the “Losses”), PROVIDED THAT the above indemnity in respect of any Losses shall not be available to WFOE to the extent that such Losses have been caused by the willful default or gross negligence on the part of the Entrusted Person.

 

Article 5 Representations and Warranties

 

5.1The Shareholder hereby represents and warrants that:

 

5.1.1It is a Chinese citizen with full capacity. It has the full and independent legal status and legal capacity to, and has been duly authorized to, execute, deliver and perform this Agreement. It may sue or be sued as an independent party.

 

5.1.2It has the full power and authority to execute and deliver this Agreement and all other documents relating to the transaction contemplated hereby and to be executed by it. It also has the full power and authority to consummate the transaction contemplated hereby. This Agreement, when duly executed and delivered, shall constitute a legal, valid and binding obligation enforceable against it in accordance with the terms of this Agreement.

 

   
English Translation

5.1.3It is the recorded legal shareholder of the Company as of the effective date of this Agreement, and except for the rights under this Agreement, the Equity Pledge Agreement, the Exclusive Option Agreement and the Exclusive Assets Purchase Agreement entered into among the Shareholder, the Company and WFOE, the Entrusted Rights are free of any third-party right. Pursuant to this Agreement, the Entrusted Person may fully and sufficiently exercise the Entrusted Rights in accordance with the then effective articles of association of the Company.

 

5.2.Each of WFOE and the Company hereby represents and warrants that:

 

5.2.1It is a limited liability company duly organized and validly existing under the PRC Law with an independent legal personality. It has the full and independent legal status and legal capacity to execute, deliver and perform this Agreement and may sue or be sued as an independent party.

 

5.2.2It has the full corporate power and authority to execute and deliver this Agreement and all other documents relating to the transaction contemplated hereby and to be executed by it. It also has the full power and authority to consummate the transaction contemplated hereby.

 

5.3The Company further represents and warrants that:

 

5.3.1The Shareholder is the recorded legal shareholder of the Company as of the effective date of this Agreement, and except for the rights under this Agreement, the Equity Pledge Agreement, the Exclusive Option Agreement and the Exclusive Assets Purchase Agreement entered into among the Shareholder, the Company and WFOE, the Entrusted Rights are free of any third-party right. Pursuant to this Agreement, the Entrusted Person may fully and sufficiently exercise the Entrusted Rights in accordance with the then effective articles of association of the Company.

 

Article 6 Term

 

6.1Subject to the provisions of Articles 6.2 and 6.3 hereof, this Agreement shall become effective as of the date of the due execution by the Parties. Unless prematurely terminated by the Parties in writing or pursuant to Article 9.1 hereof, this Agreement shall remain in force.

 

6.2If the Company or WFOE, upon expiry of its duration, fails to handle the examination, approval and registration procedures concerning the extension thereof, this Agreement shall be terminated.

 

6.3In case that the Shareholder transfers all of the equity interest held by it in the Company with WFOE’s prior consent, such Shareholder shall cease to be a party to this Agreement.

 

Article 7 Notices

 

7.1Any notice, request, demand and other communications required to be made or given under or pursuant to this Agreement shall be in writing and served on the relevant Party.

 

   
English Translation

7.2The above notices or other communications shall be deemed duly given or served: if sent by fax or telex, immediately upon transmission; if delivered in person, at the time of delivery; if posted by mail, five (5) days after posting.

 

Article 8 Confidentiality

 

8.1Regardless of whether this Agreement is terminated or not, each Party shall keep strictly confidential all the business secrets, proprietary information, customer information and other information of a confidential nature about the other Parties known by it during the execution and performance of this Agreement (collectively, the “Confidential Information”). The receiving Party shall not disclose any Confidential Information to any third party except with the prior written consent of the disclosing Party or in accordance with relevant laws or regulations or under requirements of the place where its affiliate is listed on a stock exchange. The receiving Party shall not use or indirectly use any Confidential Information other than for performing this Agreement.

 

8.2The following information shall not be deemed part of the Confidential Information:

 

(a)any information already known by the receiving Party by legal means prior to disclosure, which is substantiated in writing;

 

(b)any information being part of public knowledge through no fault of the receiving Party; or

 

(c)any information rightfully received by the receiving Party from other sources after disclosure.

 

8.3The receiving Party may disclose the Confidential Information to its relevant employees, agents or engaged professionals, but the receiving Party shall guarantee that they are in compliance with the relevant terms and conditions of this Agreement and assume any responsibility arising from any breach thereof by them.

 

8.4Notwithstanding any other provision herein, the validity of this Article shall survive the termination of this Agreement.

 

   
English Translation

Article 9 Defaulting Liability

 

9.1The Parties agree and acknowledge that, if any of the Parties (the “Defaulting Party”) materially breaches any provision herein or materially fails to perform or delays performance of any of the obligations hereunder, such breach, failure or delay shall constitute a default under this Agreement (a “Default”). In such event, any of the other Parties without default (the “Non-defaulting Party”) shall have the right to require the Defaulting Party to rectify such Default or take remedial measures within a reasonable period. If the Defaulting Party fails to rectify such Default or take remedial measures within such reasonable period or within ten (10) days of the Non-defaulting Party notifying the Defaulting Party in writing and requiring the Default to be rectified, then:

 

9.1.1if the Shareholder or the Company is the Defaulting Party, WFOE shall be entitled to terminate this Agreement and require the Defaulting Party to indemnify all damages;

 

9.1.2if WFOE is the Defaulting Party, the Non-defaulting Party shall be entitled to require the Defaulting Party to indemnify all damages, but the Non-defaulting Party shall not be entitled to any rights to terminate or cancel this Agreement in any situation unless otherwise provided by the mandatory provisions of the laws.

  

9.2Notwithstanding any other provision herein, the validity of this Article shall survive the suspension or termination of this Agreement.

 

Article 10 Miscellaneous

 

10.1This Agreement is written in Chinese and executed in three (3) originals, with one (1) original to be retained by each Party hereto.

 

10.2The formation, validity and interpretation of, resolution of disputes in connection with, this Agreement, shall be governed by PRC Law.

 

10.3Any dispute arising hereunder and in connection herewith shall be resolved through consultations among the Parties, and if the Parties fail to reach a mutual agreement within thirty (30) days of its occurrence, any Party may submit such dispute to China International Economic and Trade Arbitration Commission (“CIETAC”) for arbitration in accordance with its arbitration rules in effect at the time of applying for arbitration. The number of arbitrators should be one. If within 20 (20) days after the issuance of the notice of arbitration by any party to this Agreement, the parties refuse the designation of the arbitrator who has agreed to participate in the arbitration, the CIETAC shall appoint an arbitrator separately. The seat of arbitration shall be Beijing and the language used in arbitration proceedings shall be Chinese. The arbitral award shall be final and binding on the Parties.

  

10.4During dispute resolution, the Parties shall continue to exercise the rights of this Agreement and perform the terms of this Agreement other than those relating to disputes.

 

   
English Translation

 

10.5Any right, power or remedy conferred on any Party by any provision of this Agreement shall not be exclusive of any other right, power or remedy available to it at law and under the other provisions of this Agreement, and the exercise by such Party of any of its rights, powers and remedies shall not preclude the exercise of any other rights, powers and remedies it may have.

 

10.6No failure or delay by a Party in exercising any of its rights, powers and remedies available to it hereunder or at law (hereinafter, the “Party’s Rights”) shall operate as a waiver thereof, nor shall the waiver of any single or partial exercise of the Party’s Rights shall preclude such Party from exercising such rights in any other way and exercising the remaining part of the Party’s Rights.

 

10.7The headings contained herein shall be for reference only, and in no circumstances shall such headings be used in or affect the interpretation of the provisions hereof.

 

10.8Each provision contained herein shall be severable and independent from each of other provisions, and if at any time any one or more provisions herein become invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions herein shall not be affected as a result thereof.

 

10.9Any amendment or supplement hereto shall be made in writing and shall become effective only upon due execution by the Parties hereto.

 

10.10Without WFOE’s prior written consent, any other Party shall not transfer any of its rights and/or obligations hereunder to any third party. The Shareholder and the Company hereby agree that WFOE is entitled to transfer any of its rights and/or obligations hereunder to any third party upon written notice thereof to the other Parties.

 

10.11This Agreement shall be binding on the legal assignees, successors or heirs of the Parties.

 

10.12After the execution of this Agreement, if any government agency of PRC makes amendments to any of the laws, regulations, decrees or provisions of China, including amendments, additions or repeal of existing laws, regulations, decrees or regulations, or cites a different interpretation or a different implementation to any of the existing laws, regulations, decrees or regulations (respectively referred to as a “Modification”), or a new law, regulation, decree or regulation (respectively referred to as a “New Provision”), or any government agency proposes requirements or opinions that may have an impact to the performance of this Agreement, the following shall apply:

 

(a)if the Modification or New Provision is more favorable to the WFOE than the relevant laws, regulations, decrees or regulations that are effective as of the effective date of this Agreement, the parties shall promptly apply to the relevant institutions (if required) for the benefits of these Modification or New Provision. The parties should use their best efforts to get the application approved.

 

   
English Translation

(b)if, due to the Modification or New Provision, the interests of the WFOE under this Agreement are seriously and adversely affected directly or indirectly, after the WFOE notifies the other parties, the parties shall promptly negotiate on the basis of the principle of good faith, and make all necessary modifications and adjustments to the terms or performance of this Agreement, in order to maximize the original commercial intentions of the parties under this Agreement and to maintain the interests of WFOE in this Agreement.

 

(c)if the requirements of any government agency may have a material adverse effect on the performance of this Agreement in accordance with the terms and conditions of this Agreement, the Shareholder and the Company shall use their best reasonable efforts to communicate with the relevant government agency in order to make this Agreement could be performed pursuant to the original terms and conditions, and the WFOE shall provide necessary assistance in such communication. If such communication is unavailable, all parties shall make timely negotiating on the basis of the principle of good faith, make all necessary modifications and reasonable adjustments to the terms or performance of this Agreement, in order to maximize the original commercial intentions of the parties under this Agreement and to maintain the interests of WFOE in this Agreement.

 

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English Translation

IN WITNESS WHEREOF , the Parties hereto have caused this Agreement to be executed as of the date first above written.

 

Party A: Jianqiang Hu  
     
Signature: /s/ Jianqiang Hu  
     
Party B: Guangzhou BaiGuoYuan Information Technology Co., Ltd.  
     
Signature: /s/ David Xueling Li  
Name: David Xueling Li  
Title: Legal Representative  

 

Party C: Guangzhou BaiGuoYuan Network Technology Co., Ltd.  
     
Signature: /s/ David Xueling Li  
Name: David Xueling Li  
Title: Legal Representative  

 

   
English Translation

Annex 1:

 

Power of Attorney

 

   
English Translation

Power of Attorney

 

The undersigned, Jianqiang Hu, an individual with PRC nationality, with the ID Card number *, hereby declares and confirms as follows:

 

(1)The undersigned holds 1% of the rights and interests (the “ Rights and Interests ”) in the registered capital of Guangzhou BaiGuoYuan Network Technology Co., Ltd., a limited liability company duly incorporated and validly existing under the PRC laws (the “ Domestic Company ”).

 

(2)The undersigned hereby irrevocably authorizes Guangzhou BaiGuoYuan Information Technology Co., Ltd., a company duly incorporated and validly existing under the PRC laws (the “ WFOE ”), or any succeeding person or entity who has obtained the business of WFOE through merger, acquisition or integration (the “ Successor ”), to handle any and all matters in relation to the Domestic Company and its rights and interests, and to exercise all rights of the undersigned as the holder of the Rights and Interests, in the name of the undersigned. This Power of Attorney grants to WFOE the following rights and authorizations, including without limitation:

 

(a)WFOE or the Successor may, as the sole agent of the undersigned, handle any and all matters in relation to the Rights and Interests, including but not limited to (i) attend the general meetings of the Domestic Company; (ii) exercise all voting rights of shareholders and other rights enjoyed by the undersigned pursuant to PRC laws and the article of association of the Domestic Company, including but not limited to the sales, transfer, pledge, or disposal in other way, of the whole or part of the Rights and Interests; (iii) appoint the legal representative, chairman, director, supervisor, chief executive officer and any other senior officers of the Domestic Company on behalf of the undersigned; and (iv) overlook the operation result of the Domestic Company; (v) access the financial information of the Domestic Company at any time; (vi) in case the conducts of directors or senior officers of the Domestic Company harm the interest of the Domestic Company or its shareholders, initiate shareholder derivative litigation or other legal proceedings against such directors or senior officers; (vii) approve annual budget or distribution of dividends; and (viii) any other shareholder’s rights granted to the shareholders by the articles of association of the Domestic Company and its amendments from time to time, or/and relevant laws and regulations.

 

(b)The undersigned further authorizes WFOE to enter into contracts or documents relating to the operation of the Domestic Company on behalf of the undersigned, including but not limited to any contract of transfer, in order to perform the obligations under the Exclusive Option Agreement, the Exclusive Assets Purchase Agreement and the Equity Interest Pledge Agreement entered into by the undersigned on January 17, 2017. This authorization shall also include the rights to execute any other documents for the perfection of the rights and interests under the aforementioned agreements.

 

   
English Translation

(c)As solely decided by WFOE and without the necessity of informing the undersigned or obtain further consent from the undersigned, WFOE is also entitled to authorize any third party to exercise the power hereunder, and transfer the rights hereunder to any third party to allow such third party to exercise such rights.

 

(3)All actions taken by WFOE or the Successor in relation to the Rights and Interests shall be deemed as taken by the undersigned in person, without the necessity of consulting with the undersigned in advance; all documents executed by WFOE or the Successor in relation to the Rights and Interests shall be deemed as executed by the undersigned in person. The undersigned hereby confirms, ratifies and approves such actions taken by or documents executed by WFOE or the Successor.

 

(4)The undersigned has agreed to transfer the Rights and Interests to WFOE or any person or entity designated by WFOE in line with the Exclusive Option Agreement entered into by and between the undersigned, WFOE and the Domestic Company (the “ Exclusive Option Agreement ”). To ensure the performance of the Exclusive Option Agreement, the undersigned hereby undertakes as follows:

 

(a)The undersigned has executed the Equity Transfer Agreement (the “ Equity Transfer Agreement ”), and has execute the Shareholder’s Resolution to approve such transfer. At any time upon the request of WFOE, the undersigned shall immediately transfer the Rights and Interests to WFOE or the Successor. The date of execution and the name of the transferee on such Equity Transfer Agreement and the Shareholder’s Resolution are left blank.

 

(b)The undersigned hereby irrevocably authorizes WFOE to fill in the date of execution and the name of the transferee in the Equity Transfer Agreement, and the undersigned hereby agrees that the Equity Transfer Agreement shall be kept by WFOE;

 

(c)The undersigned hereby irrevocably authorizes WFOE to, for the purpose of the effective transfer of the Rights and Interests to WFOE and the Successor, execute additional documents as required by law or government on behalf of the undersigned; and

 

(d)The undersigned hereby confirms that the undersigned is and will continue to be bound by the obligations under the Exclusive Option Agreement and the Equity Transfer Agreement, and undertakes to perform all such obligations upon written request of WFOE.

 

   
English Translation

(5)The undersigned has agreed to procure the Domestic Company to transfer its assets to WFOE or any person or entity designated by WFOE, pursuant to the Exclusive Assets Purchase Agreement by and between the Domestic Company, the undersigned and WFOE (the “ Exclusive Assets Purchase Agreement ”), including executing and delivering the Shareholder’s Resolution which approves such transfer;

 

(6)The undersigned further agrees and undertakes to WFOE that if the undersigned receives any dividends, interests, capital distribution in any other form, remaining assets after liquidation, or incomes or considerations generated from the transfer of equity by virtue of the equity interest of the Domestic Company held by the undersigned, the undersigned shall, to the extent permitted by law, pay all of these dividends, interests, capital distribution, assets, incomes or considerations to WFOE in full without requesting for any compensation.

 

(7)All actions taken by WFOE or the Successor in line with this Power of Attorney shall be deemed as taken by the undersigned in person; all documents executed by WFOE or the Successor in relation to the Rights and Interests shall be deemed as executed by the undersigned in person. The undersigned hereby confirms, ratifies and approves such actions taken by or documents executed by WFOE or the Successor, and accepts and assumes corresponding responsibility for all legal consequences arising from the authorizations made by the undersigned under this Power of Attorney.

 

(8)The undersigned hereby waives all rights enjoyed by the undersigned as the holder of the Rights and Interests. Such rights have been irrevocably authorized to WFOE through this Power of Attorney, and the undersigned shall not exercise or attempt to exercise any of such rights.

 

(9)The undersigned hereby agrees that if the equity held by the undersigned in the Domestic Company increases, whether through increment of capital contribution or not, any additional equity held by any shareholder shall be subject to this Agreement, and WFOE shall have the right to exercise the shareholder’s rights as provided in Section 2 over such additional equity on behalf of the undersigned; similarly, if any person obtains equity of the Domestic Company, whether through voluntary transfer, transfer by operation of law, mandatory auction or in any other way, the undersigned shall procure such transferee to agree that all equity of the Domestic Company it obtained is subject to this Agreement, and WFOE is entitled to exercise the shareholder’s rights as provided in Section 2 over such equity.

 

(10)This Power of Attorney is attached with rights and interests. Throughout the period that the undersigned is a shareholder of the Domestic Company, this Power of Attorney shall remain effective from the day of issue and shall not be revoked.

 

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English Translation

(Execution Page)

 

Name of the Shareholder: Jianqiang Hu  
   
/s/ Jianqiang Hu  
(Signature)  
     
Date: January 17, 2017