Exhibit 10.22
SHAREHOLDERS' VOTING RIGHTS
PROXY AGREEMENT
AMONG
▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇
SHANGHAI FRAMEDIA INVESTMENT CONSULTANCY CO., LTD
AND
GUANGDONG CENTURY SHENGHUO ADVERTISEMENT CO., LTD
JANUARY 13, 2006
SHAREHOLDERS' VOTING RIGHTS PROXY AGREEMENT
This SHAREHOLDERS' VOTING RIGHTS PROXY AGREEMENT (this "AGREEMENT") is entered
into as of January 13 2006 by and among the following Parties:
(1) ▇▇▇ ▇▇▇
ID NO: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
CONTACT ADDRESS: ▇▇▇▇ ▇▇▇, ▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
(▇) ▇▇▇▇ ▇▇▇
ID NO: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
CONTACT ADDRESS: Beijing Water Pump Factory, Tongzhou District, Beijing
(3) SHANGHAI FREMEDIA INVESTMENT CONSULTANCY CO., LTD (HEREINAFTER "FRAMEDIA
INVESTMENT")
REGISTERED ADDRESS: ▇▇▇▇ ▇, ▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇
LEGAL REPRESENTATIVE: ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
(4) GUANGDONG CENTURY SHENGHUO ADVERTISEMENT CO., LTD (HEREINAFTER "CENTURY
SHENGHUO")
REGISTERED ADDRESS: Room 2007, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇., Guangzhou
LEGAL REPRESENTATIVE: ▇▇▇ ▇▇▇
(The above Parties hereinafter each referred to as a "PARTY" individually, and
collectively, the "PARTIES". Among them, ▇▇▇ ▇▇▇ and ▇▇▇▇ ▇▇▇ hereinafter
referred to as a "SHAREHOLDER" individually, and collectively, the
"SHAREHOLDERS".)
WHEREAS:
1. As of the date of the Agreement the Shareholders are the enrolled
shareholders of Century Shenghuo, legally holding all the equity of Century
Shenghuo as of the execution date of this Agreement; among which, ▇▇▇ ▇▇▇
holds 90% equity interest in Century Shenghuo while ▇▇▇▇ ▇▇▇ holds 10%;
2. The Shareholders intend to severally entrust the individual designated by
Framedia Investment with the exercises of their voting rights in Century
Shenghuo while Framedia Investment is willing to designate such an
individual.
The Parties hereby have reached the following agreement upon friendly
consultations:
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ARTICLE 1 VOTING RIGHTS ENTRUSTMENT
1.1 The Shareholders hereby irrevocably undertake to respectively sign the
Entrustment Letter after execution of the Agreement to respectively entrust
the one designated by Framedia Investment (collectively, "TRUSTEES") to
exercise the following rights respectively enjoyed by them as shareholders
of Century Shenghuo in accordance with the then effective articles of
association of Century Shenghuo (collectively, the "ENTRUSTED RIGHTS"):
(1) Proposing to convene and attending shareholders' meetings of Century
Shenghuo as proxy of the Shareholders according to the articles of
association of Century Shenghuo;
(2) Exercising voting rights as proxy of the Shareholders, on issues
discussed and resolved by the shareholders' meeting of Century
Shenghuo, including but not limited to the appointment and election
for the directors, general manager and other senior management
personnel of Century Shenghuo.
The above authorization and entrustment is granted subject to the status of
trustees as PRC citizens and the approval by Framedia Investment. Upon and
only upon written notice of dismissing and replacing Trustee(s) given by
Framedia Investment to the Shareholders, the Shareholders shall promptly
entrust another PRC citizen then designated by Framedia Investment to
exercise the above Entrusted Rights, and once new entrustment is made, the
original entrustment shall be replaced; the Shareholders shall not cancel
the authorization and entrustment of the Trustee(s) otherwise.
1.3 The Trustees shall perform the entrusted obligation within the scope of
entrustment in due care and prudence and in compliance with laws; the
Shareholders acknowledge and assume relevant liabilities for any legal
consequences of the Trustees' exercise of the foregoing Entrusted Rights.
1.4 The Shareholders hereby acknowledge that the Trustees are not required to
seek advice from the Shareholders prior to their respective exercise of the
foregoing Entrusted Rights. However, the Trustees shall inform the
Shareholders in a timely manner of any resolution or proposal on convening
interim shareholders' meeting after such resolution or proposal is made.
ARTICLE 2 RIGHT TO INFORMATION
2.1 For the purpose of exercising the Entrusted Rights under this Agreement,
the Trustees are entitled to know the information with regard to Century
Shenghuo's operation, business, clients, finance, staff, etc., and shall
have access to relevant materials of Century Shenghuo. Century Shenghuo
shall adequately cooperate
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with the Trustees in this regard.
ARTICLE 3 EXERCISE OF ENTRUSTED RIGHTS
3.1 The Shareholders will provide adequate assistance to the exercise of the
Entrusted Rights by the Trustees, including execution of the resolutions of
the shareholders' meeting of Century Shenghuo or other pertinent legal
documents made by the Trustee when necessary (e.g., when it is necessary
for examination and approval of or registration or filing with governmental
departments).
3.3 If at any time during the term of this Agreement, the entrustment or
exercise of the Entrusted Rights under this Agreement is unenforceable for
any reason except for default of any Shareholder or Century Shenghuo, the
Parties shall immediately seek a most similar substitute for the
unenforceable provision and, if necessary, enter into 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
4.1 The Parties acknowledge that Framedia Investment shall not be requested to
be liable for or compensate (monetary or otherwise) other Parties or any
third party due to exercise of Entrusted Rights by the Trustees designated
by Framedia Investment under this Agreement.
4.2 Century Shenghuo and the Shareholders agree to compensate Framedia
Investment for and hold it harmless against all losses incurred or likely
to be incurred by it due to exercise of the Entrusted Rights by the
Trustees designated by Framedia Investment, 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. However, the
Shareholders and Century Shenghuo will not compensate for losses incurred
due to wilful misconduct or gross negligence of Framedia Investment.
ARTICLE 5 REPRESENTATIONS AND WARRANTIES
5.1 Each of the Personal Shareholders hereby severally and jointly represents
and warrants that:
5.1.1 Each of the Shareholders is Chinese citizen with full capacity and is
a person with full and independent legal status and legal capacity to
execute, deliver and perform this Agreement, and may act independently
as a litigant party.
5.1.2 Each of the Shareholders has full power and authorization to execute
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and deliver this Agreement and all the other documents to be entered
into by it in relation to the transaction referred to herein, and it
has the full power and authorization to complete the transaction
referred to herein.
5.1.3 The Shareholders are the enrolled legal owner of the Option Equity as
of the effective date of this Agreement, and except the rights created
by this Agreement, the Equity Pledge Agreement (the "EQUITY PLEDGE
AGREEMENT") and the Shareholders' Voting Rights Proxy Agreement (the
"PROXY AGREEMENT") entered into by the Shareholders, Century Shenghuo
and Framedia Investment dated January 13 2006 and EQUITY TRANSFER
AGREEMENT (hereinafter "OTHER CONTRACT") among the Shareholders,
Shanghai Focus Media Advertisement Co., Ltd. (with its registered
address at F Room 1003, ▇▇.▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ) and Shanghai Focus Media Co., Ltd. (with its registered
address at ▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇.▇▇▇, ▇▇▇▇▇▇▇ Road, Changning
District, Shanghai ), there is no third party rights on the Entrusted
Right. Pursuant to this Agreement, the Trustees may fully and
sufficiently exercise the Entrusted Rights in accordance with the then
effective articles of association of Century Shenghuo.
5.2 Century Shenghuo hereby in respect of themselves respectively represents
and warrants that:
5.2.1 it is a company with limited liability properly registered and
legally existing under PRC laws, with an independent legal person
status, and with full and independent legal status and legal capacity
to execute, deliver and perform this Agreement and may act
independently as a subject of actions; and
5.2.2 it has the full corporate power and authority to execute and deliver
this Agreement and all the other documents to be entered into by it in
relation to the transaction contemplated hereunder, and has the full
power and authority to consummate such transaction.
5.2.3 The Shareholders are enrolled shareholders as of the effective date
of this Agreement, among which, ▇▇▇ ▇▇▇ holds 90% equity interest in
Century Shenghuo while ▇▇▇▇ ▇▇▇ holds 10%. Except rights created by
this Agreement, the Equity Pledge Agreement, the Call Option Agreement
and Other Contract among the Shareholders, Shanghai Focus Media
Advertisement Co., Ltd. (with its registered
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address at F Room 1003, ▇▇.▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇) and Shanghai Focus Media Co., Ltd. (with its registered
address at ▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇.▇▇▇, ▇▇▇▇▇▇▇ Road, Changning
District, Shanghai ), there exists no third party right on the
Entrusted Rights. Pursuant to this Agreement, the Trustees may fully
and sufficiently exercise the Entrusted Rights in accordance with the
then effective articles of association of Century Shenghuo.
5.2.4 Considering the fact that the Shareholders of Century Shenghuo will
set aside all the equity interest held thereby in Century Shenghuo as
security to secure the performance of the contractual obligations by
Century Shenghuo under the Call Option Agreement and Technology
Permission and Service Agreement, Century Shenghuo undertakes to,
during the valid term of this Agreement, make full and due performance
of any and all obligations under the Call Option Agreement and
Technology Permission and Service Agreement, and warrant that no
adverse impact on the exercise of the Entrusted Rights hereunder by
the Trustees will be incurred due to the breach of the Call Option
Agreement and Technology Permission and Service Agreement by Century
Shenghuo.
ARTICLE 6 TERM OF AGREEMENT
6.1 Limited by the Article 6.2 and 6.3 of this Agreement, this Agreement shall
take effect as of the date of formal execution by the Parties with the term
of twenty (20) years, unless the Parties terminate the Agreement with the
written agreement in advance, or the Parties terminate the Agreement in
accordance with section 8.1 of this Agreement. Upon the expiration of this
Agreement, the Agreement will be automatically renewed for one (1) year,
unless Framedia Investment gives the other Parties written notice of its
intention not renew at least thirty (30) days prior to expiration.
6.2 In case that a Shareholder transfers all of the equity interest held by it
in Century Shenghuo with prior consent of Framedia Investment, such
Shareholder shall no longer be a Party to this Agreement (to the extent
that it acts as the shareholder of such Century Shenghuo) whilst the
obligations and commitments of the other Sarties under this Agreement shall
not be adversely affected thereby.
6.3 During the term of this Agreement, should the term of operation of any
Century Shenghuo terminate by any reason; this Agreement to such Century
Shenghuo and its shareholders (to the extent that it acts as the
shareholder of such Century Shenghuo) will be terminated.
ARTICLE 7 NOTICE
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7.1 Any notice, request, demand and other correspondences made as required by
or in accordance with this Agreement shall be made in writing and delivered
to the relevant Party.
7.2 The abovementioned notice or other correspondences shall be deemed to have
been delivered when (i) it is transmitted if transmitted by facsimile, or
(ii) it is delivered if delivered in person, or (iii) when five (5) days
have elapsed after posting the same if posted by mail.
ARTICLE 8 DEFAULT LIABILITY
8.1 The Parties agree and confirm that, if any of the Parties (the "DEFAULTING
PARTY") breaches substantially any of the provisions herein or fails
substantially to perform any of the obligations hereunder, such a breach or
failure shall constitute a default under this Agreement (a "DEFAULT"). In
such event any of the other Parties without default (a "NON-DEFAULTING
PARTY") who incurs losses arising from such a Default 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 a Non-defaulting Party's notifying the
Defaulting Party in writing and requiring it to rectify the Default, then
the relevant Non-defaulting Party shall be entitled to choose at its
discretion to (1) terminate this Agreement and require the Defaulting Party
to indemnify all damages, or (2) require specific performance by the
Defaulting Party of this Agreement and indemnifation against all damages.
8.2 Regardless otherwise stipulated in this Agreement, the event that
Shareholders transfer the equity interest they hold in Century Shenghuo to
Shanghai Focus Media Advertisement Co., Ltd (with its registered address at
F Room 1003, ▇▇.▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ) and
Shanghai Focus Media Co., Ltd (with its registered address at ▇▇▇▇ ▇▇▇, ▇▇
▇▇▇▇▇, ▇▇.▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ )shall not
constitute a breach to this Agreement, provided that the Shareholders cause
Shanghai Focus Media Advertisement Co., Ltd and Shanghai Focus Media Co.,
Ltd to simultaneously execute an agreement with Framedia and Century
Shenghuo in the same content and form with this Agreement upon the
completion of the above transfer.
8.3 The Parties agree and confirm, the Shareholders or Century Shenghuo shall
not request the termination of this Agreement for whatsoever reason and
under whatsoever circumstance, except otherwise stipulated by laws or this
Agreement.
8.4 Notwithstanding any other provisions herein, the validity of this Article
shall not be affected by the suspension or termination of this Agreement.
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ARTICLE 9 MISCELLANEOUS
9.1 This Agreement shall be prepared in Chinese language in five (5) original
copies, with each involved Party holding one (1) copy hereof.
9.2 The conclusion, validity, execution, amendment, interpretation and
termination of this Agreement shall be governed by laws of the PRC.
9.3 Any disputes arising from and in connection with this Agreement shall be
settled through consultations among the Parties involved, and if the
Partiesinvolved fail to reach an agreement regarding such a dispute within
thirty (30) days of its occurrence, such dispute shall be submitted to
[China International Economic and Trade Arbitration Commission Shanghai
Branch] for arbitration in [Shanghai] in accordance with the arbitration
rules of such commission, and the arbitration award shall be final and
binding on all the Parties involved.
9.4 Any rights, powers and remedies empowered to any Party by any provisions
herein shall not preclude any other rights, powers and remedies enjoyed by
such Party in accordance with laws and other provisions under this
Agreement, and a Party's exercise of any of its rights, powers and remedies
shall not preclude its exercise of other rights, powers and remedies of it.
9.5 Any failure or delay by a Party in exercising any of its rights, powers and
remedies hereunder or in accordance with laws (the "PARTY'S RIGHTS") shall
not lead to a waiver of such rights, and the waiver of any single or
partial exercise of the Party's Rights shall not preclude such Party from
exercising such rights in any other way or exercising the remaining part of
the Party's Rights.
9.6 The titles of the Articles contained herein are for reference only, and in
no circumstances shall such titles be used for or affect the interpretation
of the provisions hereof.
9.7 Each provision contained herein shall be severable and independent from
each of other provisions. If at any time any one or more articles herein
become invalid, illegal or unenforceable, the validity, legality or
enforceability of the remaining provisions herein shall not be affected
thereby.
9.8 Upon execution, this Agreement shall replace any other previous legal
documents entered into by relevant Parties on the same subject matter.
9.9 Any amendments or supplements to this Agreement shall be made in writing
and shall take effect only when properly signed by the Parties to this
Agreement.
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9.10 In respect of the Shareholder and Century Shenghuo, they shall not assign
any of their rights and/or transfer any of their obligations hereunder to
any third parties without prior written consent from Framedia Investment;
Framedia Investment shall have the right to assign any of its rights and/or
transfer any of its obligations hereunder to any third parties designated
by it after giving notice to the Shareholders.
9.11 This Agreement shall be binding on the legal successors of the Parties.
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IN WITNESS HEREOF, the following Parties have caused this Shareholders' Voting
Rights Proxy Agreement to be executed as of the date and in the place first here
above mentioned.
▇▇▇ ▇▇▇
Signature: /s/ ▇▇▇ ▇▇▇
-----------------------------
▇▇▇▇ ▇▇▇
Signature: /s/ ▇▇▇▇ ▇▇▇
-----------------------------
SHANGHAI FRAMEDIA INVESTMENT CONSULTANCY
CO., LTD
(chop)
Signature by: /s/ ▇▇▇ ▇▇▇
--------------------------
Name: ▇▇▇ ▇▇▇
Position: Legal Representative
GUANGDONG CENTURY SHENGHUO ADVERTISEMENT
CO., LTD
(chop)
Signature by: /s/ ▇▇▇ ▇▇▇
--------------------------
Name: ▇▇▇ ▇▇▇
Position: Legal Representative
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