EXHIBIT 10.52
CONFIDENTIAL
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EQUITY PLEDGE AGREEMENT
AMONG
SHANGHAI FOCUS MEDIA ADVERTISEMENT CO., LTD
SHANGHAI FOCUS MEDIA ADVERTISING AGENCY CO., LTD
BEIJING DOTAD TECHNOLOGY CO., LTD
AND
BEIJING FOCUS MEDIA WIRELESS CO., LTD
DATED AS OF
MAY 22, 2006
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EQUITY PLEDGE AGREEMENT
This EQUITY PLEDGE AGREEMENT (hereinafter, this "AGREEMENT") is entered into in
the People's Republic of China (hereinafter, "PRC") as of [ ], 2006 by and among
the following Parties:
(1) SHANGHAI FOCUS MEDIA ADVERTISEMENT CO., LTD. (hereinafter "FOCUS MEDIA
ADVERTISEMENT")
REGISTERED ADDRESS: F Room 1003, ▇▇.▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
LEGAL REPRESENTATIVE: ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
(2) SHANGHAI FOCUS MEDIA ADVERTISING AGENCY CO., LTD. (hereinafter "FOCUS MEDIA
ADVERTISING AGENCY")
REGISTERD ADDRESS: A65 Room, ▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
LEGAL REPRESENTATIVE: ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
(3) BEIJING DOTAD TECHNOLOGY CO., LTD. (hereinafter "PLEDGEE")
REGISTERED ADDRESS: ▇▇. ▇, ▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Haidian
District, Beijing
LEGAL REPRESENTATIVE: [ ]
(4) BEIJING FOCUS MEDIA WIRELESS CO., LTD. (hereinafter "FOCUS MEDIA WIRELESS")
REGISTERED ADDRESS: ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇. ▇, Qi Road, Shangdi
Development Region, Haidian District, Beijing
LEGAL REPRESENTATIVE: [ ]
(The above parties hereinafter shall be individually referred to as a "PARTY"
and collectively referred to as the "PARTIES", of which Focus Media
Advertisement and Focus Media Advertising Agency shall be individually referred
to as a "PLEDGOR" and collectively referred to as the "PLEDGORS" .)
WHEREAS:
(1) Shareholders are the enrolled shareholders of Focus Media Wireless, legally
holding all the equity of the company as of the execution date of this
Agreement, of
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which Focus Media Advertisement holds 90% interest while Focus Media
Advertising Agency holds 10%.
(2) Pursuant to the Call Option Agreement dated as of [ ] 2006 among the
Pldgee, the Pledgors and Focus Media Wireless (hereinafter, the "CALL
OPTION AGREEMENT"), the Plegors shall transfer part or all of the equity
interest of Focus Media Wireless they hold to Dotad Technology and/or any
other entity or individual designated by Dotad Technology at the request of
the Dotad Technology.
(3) Pursuant to the Shareholders' Voting Right Proxy Agreement dated as of [ ],
2006 among the Pledgee, the Pledgors and Focus Media Wireless (hereinafter,
the "PROXY AGREEMENT"), Pledgors have already entrusted the person
designated by the Pledgors with full power to exercise on their behalf all
of their shareholders' voting rights in respect of the relevant Focus Media
Wireless.
(4) As security for performance by the Pledgors of the Contract Obligations (as
defined below) and repayment of the Guaranteed Liabilities (as defined
below), the Pledgors agree to pledge all of their Focus Media Wireless
Equity to the Pledgee and grant the Pledgee the right to request for
repayment in first priority and Focus Media Wireless agree such equity
pledge arrangement.
THEREFORE, the Parties hereby have reached the following agreement upon mutual
consultations:
ARTICLE 1 DEFINITION
1.1 Except as otherwise construed in the context, the following terms in this
Agreement shall be interpreted to have the following meanings:
"CONTRACT OBLIGATIONS" shall mean all contractual obligations of a Pledgor under
the Call Option Agreement and Proxy Agreement; all contractual obligations of a
Focus Media Wireless under the Call Option Agreement and Proxy Agreement; and
all contractual obligations of a Pledgor under this Agreement.
"GUARANTEED LIABILITIES" shall mean all direct, indirect and consequential
losses and losses of foreseeable profits suffered by Pledgee due to any
Breaching Event (as defined below) a Pledgor and/or a Focus Media Wireless, and
all fees incurred by
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Pledgee for the enforcement of the Contractual Obligations of a Pledgor and/or a
Focus Media Wireless.
"TRANSACTION AGREEMENTS" shall mean the Call Option Agreement and the Proxy
Agreement.
"BREACHING EVENT" shall mean any breach by either Pledgor of its Contract
Obligations under the Proxy Agreement, Call Option Agreement and/or this
Agreement; any breach by a Focus Media Wireless of its Contract Obligations
under the Call Option Agreement, Proxy Agreement and/or this Agreement.
"PLEDGED PROPERTY" shall mean the equity interest in Focus Media Wireless which
is legally owned by the Pledgor as of the effective date hereof and is to be
pledges by the Pledgor to the Pledgee according to provisions hereof as the
security for the performance by the Pledgor and Focus Media Wireless of their
Contractual Obligations (in respect of Focus Media Advertisement, means the 90%
equity interest it holds in Focus Media Wireless, and in respect of Focus Media
Advertising Agency, means the 10% equity interest it holds in Focus Media
Wireless), and the increased capital contribution and equity interest described
in Articles 2.6 and 2.7 hereof.
"PRC LAW" shall mean the then valid laws, administrative regulations,
administrative rules, local regulations, judicial interpretations and other
binding regulatory documents of the People's Republic of China.
1.2 The references to any PRC Law herein shall be deemed:
(1) to include the references to the amendments, changes, supplements and
reenactments of such law, irrespective of whether they take effect
before or after the formation of this Agreement; and
(2) to include the references to other decisions, notices or regulations
enacted in accordance therewith or effective as a result thereof.
1.3 Except as otherwise stated in the context herein, all references to an
Article, clause, item or paragraph shall refer to the relevant part of this
Agreement.
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ARTICLE 2 EQUITY PLEDGE
2.1 Each Pledgor hereby agrees to pledge the Pledged Property, which it legally
owns and has the right to dispose of, to Pledgee according to the
provisions hereof as the security for the performance of the Contract
Obligations and the repayment of the Guaranteed Liabilities. Focus Media
Wireless hereby agrees that the Pledgors legally holding equity interest in
it to pledge the Pledged Property to the Pledgee according to the
provisions hereof.
2.2 Each Pledgor hereby undertakes that it will be responsible for, recording
the arrangement of the equity pledge hereunder (hereinafter, the "EQUITY
PLEDGE") on the shareholder register of Focus Media Wireless on the date
hereof, and will do its best endeavor to make registration with
registration authorities of industry and commerce of Focus Media Wireless.
Focus Media Wireless undertakes that it will do its best to cooperate with
the Pledgors to complete the registration with authorities of industry and
commerce under this Article.
2.3 During the valid term of this Agreement, except for the willful misconduct
or gross negligence of Pledgee which has direct cause and effect
relationship the reduction in value of the Pledged Property, Pledgee shall
not be liable in any way to, nor shall Pledgors have any right to claim in
any way or propose any demands on Pledgee, in respect of the said reduction
in value of the Pledged Property.
2.4 To the extent not violating provision of Article 2.3 above, in case of any
possibility of obvious reduction in value of the Pledged Property which is
sufficient to jeopardize Pledgee's rights, Pledgee may at any time auction
or sell off the Pledged Property on behalf of Pledgors, and discuss with
Pledgors to use the proceeds from such auction or sale-off as pre-repayment
of the Guaranteed Liabilities, or may submit such proceeds to the local
notary institution where Pledgee are domiciled (any fees incurred in
relation thereto shall be borne by Pledgors).
2.5 The Plegee as Plegee shall be deemed to have created the encumbrance of
first order in priority on the Pledged Property, and in case of any
Breaching Event, such Pledgee shall have the right to dispose of the
Pledged Property in the way set out in Article 4 hereof.
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2.6 Only upon prior consent by Pledgee shall Pledgors be able to increase their
capital contribution to Focus Media Wireless. Further capital contribution
made by Pledgor (s) in Focus Media Wireless shall also be part of the
Pledged Property.
2.7 Only upon prior consent by Pledgee shall Pledgors be able to receive
dividends or share profits from the Pledged Property. The dividends or the
profits received by Pledgors from the Pledged Property shall be deposited
into Pledgee's bank account designated by Pledgee respectively, to be under
the supervision of Pledgee and used as the Pledged Property to repay in
priority the Guaranteed Liabilities.
ARTICLE 3 RELEASE OF PLEDGE
In respect of equity interest of Focus Media Wireless, upon full and complete
performance by relevant Pledgors of all of their Contractual Obligations and
upon the full repayment by relevant Pledgors of all the Guaranteed
Liabilities(if any), the Pledgee shall, at the request of relevant Pledgors,
release the pledge created on Focus Media Wireless under this Agreement, and
shall cooperate with Pledgors to go through the formalities to cancel the record
of the Equity Pledge in the shareholder register of Focus Media Wireless; in
case of the Equity Pledge having been recorded at the registration department of
Administration of Industry and Commerce of Focus Media Wireless, the relevant
Parties shall cooperate with each other to go through the formalities to cancel
such record of the Equity Pledge. The reasonable fees incurred in connection
with such release to be borne by Pledgee with the same proportion.
ARTICLE 4 DISPOSAL OF THE PLEDGED PROPERTY
4.1 Pledgors, Focus Media Wireless and Pledgee hereby agree that, in case of
any Breaching Event, the Pledgee, shall have the right to exercise, upon
giving written notice to Pledgors, all of the remedial rights and powers
enjoyable by them under PRC Law, Transaction Agreements and the terms
hereof, including but not limited to being repayment in priority with
proceeds from auctions or sale-offs of the Pledged Property. Pledgee shall
not be liable for any loss as the result of their reasonable exercise of
such rights and powers.
4.2 Pledgee shall have the right to designate in writing its legal counsel or
other agents to exercise on their respective behalf any and all rights and
powers set out
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above, and neither Pledgors nor Focus Media Wireless shall not oppose
thereto.
4.3 The reasonable costs incurred by Pledgee in connection with their exercise
of any and all rights and powers set out above shall be borne by Pledgors,
and Pledgee shall have the right to deduct the costs actually incurred from
the proceeds that they acquire from the exercise of the rights and powers.
4.4 The proceeds that Pledgee acquires from the exercise of their respective
rights and powers shall be used in the priority order as follows:
- First, to pay any cost incurred in connection with the disposal of
the Pledged Property and the exercise by Pledgee of their respective
rights and powers (including remuneration paid to their respective
legal counsels and agents);
- Second, to pay any taxes and levies payable for the disposal of the
Pledged Property; and
- Third, to repay Pledgee for the Guaranteed Liabilities.
In case of any balance after payment of the above amounts, Pledgee shall
return the same to Pledgors or other persons entitled thereto according to
the relevant laws and rules or submit the same to the local notary
institution where Pledgee are domiciled (any fees incurred in relation
thereto shall be borne by Pledgors).
4.5 Pledgee shall have the option to exercise, simultaneously or in certain
sequence, any of the remedies at breaching that it is entitled to in
respect of the equity interest of Focus Media Wireless holding by any
Pledgor; Pledgee shall not be obliged to exercise other remedies at
breaching before their exercise of the right to the auctions or sale-offs
of the Pledged Property hereunder. Pledgors or Focus Media Wireless shall
not oppose to whether Pledgee exercise any part of the right to the pledge
or the sequence of exercising the pledge interest.
ARTICLE 5 FEES AND COSTS
All costs actually incurred in connection with the establishment of the Equity
Pledge hereunder, including but not limited to stamp duties, any other taxes,
all legal fees, etc shall be borne by the Pledgee.
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ARTICLE 6 CONTINUITY AND NO WAIVE
The Equity Pledge hereunder is a continuous guarantee, with its validity to
continue until the full performance of the Contractual Obligations or the full
repayment of the Guaranteed Liabilities. Neither exemption or grace period
granted by Pledgee to Pledgors in respect of their breach, nor delay by Pledgee
in exercising any of their rights under the Transaction Agreements and this
Agreement shall affect the rights of Pledgee under this Agreement, relevant PRC
Law and the Transaction Agreements, the rights of Pledgee to demand at any time
thereafter the strict performance of the Transaction Agreements and this
Agreement by Pledgors or the rights Pledgee may be entitled to due to subsequent
breach by Pledgors of the obligations under the Transaction Agreements and/or
this Agreement.
ARTICLE 7 REPRESENTATIONS AND WARRANTIES BY PLEDGORS
Each of Pledgors hereby, in respect of itself and Focus Media Wireless in which
it holds equity interest, represents and warrants to Pledgee as follows:
7.1 Each Individual Pledgor is a limited liability corporation duly registered
and validly existing under PRC Law, with independent status as a legal
person; Each of Shareholders has full and independent legal status and
legal capacity to execute, deliver and perform this Agreement, and may act
independently as a subject of actions.
7.2 Focus Media Wireless in which the Pledgors hold equity interest is a
limited liability corporation duly incorporated and validly existing under
PRC Law, it has independent status as a legal person; it has full and
independent legal status and capacity to execute, deliver and perform this
Agreement and can independently be a subject of actions. It has full right
and authorization to execute and deliver this Agreement and other documents
relating to the transaction as stipulated in this Agreement and to be
executed by them. It also has full right and authorization to complete the
transaction stipulated in this Agreement.
7.3 All reports, documents and information concerning Pledgors and all matters
as required by this Agreement which are provided by Pledgors to Pledgee
before this Agreement comes into effect are true, correct and effective in
all material aspects
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as of the execution hereof.
7.5 At the time of the effectiveness of this Agreement, Pledgors are the sole
legal owner of the Pledged Property, with no existing dispute whatever
concerning the ownership of the Pledged Property. Pledgors have the right
to dispose of the Pledged Property or any part thereof.
7.6 Except for the encumbrance set on the Pledged Property hereunder and the
rights set under the Transaction Agreements, there is no other encumbrance
or third party interest set on the Pledged Property.
7.7 The Pledged Property is capable of being pledged or transferred according
to the laws, and Pledgors have the full right and power to pledge the
Pledged Property to Pledgee according to this Agreement.
7.8 This Agreement constitutes the legal, valid and binding obligations on
Pledgors when it is duly executed by Pledgors.
7.9 Any consent, permission, waive or authorization by any third person, or any
approval, permission or exemption by any government authority, or any
registration or filing formalities (if required by laws) with any
government authority to be handled or obtained in respect of the execution
and performance hereof and the Equity Pledge hereunder have already been
handled or obtained, and will be fully effective during the valid term of
this Agreement.
7.10 The execution and performance by Pledgors of this Agreement are not in
violation of or conflict with any laws applicable to them, or any agreement
to which they are a party or which has binding effect on their assets, any
court judgment, any arbitration award, or any administration authority
decision.
7.11 The pledge hereunder constitutes the encumbrance of first order in priority
on the Pledged Property.
7.12 All taxes and fees payable in connection with acquisition of the Pledged
Property have already been paid in full amount by Pledgors.
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7.13 There is no pending or, to the knowledge of Pledgors, threatened
litigation, legal process or demand by any court or any arbitral tribunal
against Pledgors, or their property, or the Pledged Property, nor is there
any pending or, to the knowledge of Pledgors, threatened litigation, legal
process or demand by any government authority or any administration
authority against Pledgors, or their property, or the Pledged Property,
which is of material or detrimental effect on the economic status of
Pledgors or their capability to perform the obligations hereunder and the
Guaranteed Liabilities.
7.14 Pledgors hereby warrant to Pledgee that the above representations and
warranties will remain true, correct and effective at any time and under
any circumstance before the Contractual Obligations are fully performed or
the Guaranteed Liabilities are fully repaid, and will be fully complied
with.
ARTICLE 8 - REPRESENTATIONS AND WARRANTIES BY FOCUS MEDIA WIRELESS
Focus Media Wireless hereby represents and warrants to Pledgee as follows:
8.1 Focus Media Wireless is a limited liability corporation duly incorporated
and validly existing under PRC Law, with full capacity of disposition and
has obtained due authorization to execute, deliver and perform this
Agreement and can independently be a subject of actions.
8.2 All reports, documents and information concerning Pledged Property and all
matters as required by this Agreement which are provided by Focus Media
Wireless to Pledgee before this Agreement comes into effect are true,
correct and effective in all material aspects as of the execution hereof.
8.3 All reports, documents and information concerning Pledged Property and all
matters as required by this Agreement which are provided by Focus Media
Wireless to Pledgee after this Agreement comes into effect are true,
correct and effective in all material aspects upon provision.
8.4 This Agreement constitutes the legal, valid and binding obligations on
Focus Media Wireless when it is duly executed by Focus Media Wireless.
8.5 It has full right and authorization to execute and deliver this Agreement
and other
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documents relating to the transaction as stipulated in this Agreement and
to be executed by them. It also has full right and authorization to
complete the transaction stipulated in this Agreement.
8.6 There is no pending or, to the knowledge of Focus Media Wireless,
threatened litigation, legal process or demand by any court or any arbitral
tribunal against Focus Media Wireless, or their property (including but are
not limited to the Pledged Property), nor is there any pending or, to the
knowledge of Focus Media Wireless, threatened litigation, legal process or
demand by any government authority or any administration authority against
Focus Media Wireless, or their property (including but are not limited to
the Pledged Property), which is of material or detrimental effect on the
economic status of Focus Media Wireless or their capability to perform the
obligations hereunder and the Guaranteed Liabilities.
8.7 Focus Media Wireless hereby agree to bear joint responsibilities to Pledgee
in respect of the representations and Warranties made by its relevant
Plegor according to Article 7.5, Article 7.6, Article 7.7, Article 7.9 and
Article 7.11 hereof.
8.8 Focus Media Wireless hereby warrant to Pledgee that the above
representations and warranties will remain true, correct and effective at
any time and under any circumstance before the Contractual Obligations are
fully performed or the Guaranteed Liabilities are fully repaid, and will be
fully complied with.
ARTICLE 9 - UNDERTAKINGS BY PLEDGORS
Each of Pledgors hereby individually undertakes to Pledgee in respect of it and
its Focus Media Wireless of which it holds equity as follows:
9.1 Without the prior written consent by Pledgee, Pledgors shall not establish
or permit to establish any new pledge or any other encumbrance on the
Pledged Property.
9.2 Without first giving written notice to Pledgee and having Pledgee's prior
written consent, Pledgors shall not transfer the Pledged Property, and any
attempt by Pledgors to transfer the Pledged Property shall be null and
void. The proceeds
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from transfer of the Pledged Property by Pledgors shall be used to repay to
Pledgee in advance the Guaranteed Liabilities or submit the same to the
third party agreed with Pledgee.
9.3 In case of any litigation, arbitration or other demand which may affect
detrimentally the interest of Pledgors or Pledgee under the Transaction
Agreements and hereunder or the Pledged Property, Pledgors undertake to
notify Pledgee thereof in writing as soon as possible and promptly and
shall take, at the reasonable request of Pledgee, all necessary measures to
ensure the pledge interest of Pledgee in the Pledged Property.
9.4 Pledgors shall not carry on or permit any act or action which may affect
detrimentally the interest of Pledgee under the Transaction Agreements and
hereunder or the Pledged Property.
9.5 Pledgors guarantee that they shall, at the reasonable request of Pledgee,
take all necessary measures and execute all necessary documents (including
but not limited to supplementary agreement hereof) in respect of ensuring
the pledge interest of Pledgee in the Pledged Property and the exercise and
realization of the rights thereof.
9.6 In case of assignment of any Pledged Property as the result of the exercise
of the right to the pledge hereunder, Pledgors guarantee that they will
take all necessary measures to realize such assignment.
9.7 Without the prior written consent by the Pledgee, if the business term of
Focus Media Wireless expires during the term of this Agreement, each
Pledgor shall then take all necessary measures to extend such business term
to ensure the business term of Focus Media Wireless not be expired during
the term of this Agreement.
ARTICLE 10 - UNDERTAKINGS BY FOCUS MEDIA WIRELESS
10.1 Any consent, permission, waive or authorization by any third person, or any
approval, permission or exemption by any government authority, or any
registration or filing formalities (if required by laws) with any
government authority to be handled or obtained in respect of the execution
and performance
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hereof and the Equity Pledge hereunder will be cooperated to handle or
obtain by Focus Media Wireless to their best and will be ensured to remain
full effective during the valid term of this Agreement.
10.2 Without the prior written consent by Pledgee, Focus Media Wireless shall
not cooperate to establish or permit to establish any new pledge or any
other encumbrance on the Pledged Property.
10.3 Without having Pledgee's prior written consent, Focus Media Wireless shall
not cooperate to transfer or permit to transfer the Pledged Property.
10.4 In case of any litigation, arbitration or other demand which may affect
detrimentally the interest of Focus Media Wireless or Pledgee under the
Transaction Agreements and hereunder or the equity of Focus Media Wireless
as the Pledged Property, Focus Media Wireless undertake to notify Pledgee
thereof in writing as soon as possible and promptly and shall take, at the
reasonable request of Pledgee, all necessary measures to ensure the pledge
interest of Pledgee in the Pledged Property.
10.5 Focus Media Wireless shall not carry on or permit any act or action which
may affect detrimentally the interest of Pledgee under the Transaction
Agreements and hereunder or the Pledged Property.
10.6 Focus Media Wireless shall provide Pledgee with the financial statement of
the last calendar season within the first month of each calendar season,
including but are not limited to the balance sheet, the income statement
and the statement of cash flow.
10.7 Focus Media Wireless guarantee that they shall, at the reasonable request
of Pledgee, take all necessary measures and execute all necessary documents
(including but not limited to supplementary agreement hereof) in respect of
ensuring the pledge interest of Pledgee in the Pledged Property and the
exercise and realization of the rights thereof.
10.8 In case of assignment of any Pledged Property as the result of the exercise
of the right to the pledge hereunder, Focus Media Wireless guarantee that
they will take
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all necessary measures to realize such assignment.
ARTICLE 11 - CHANGE OF CIRCUMSTANCES
As supplement and subject to compliance with other terms of the Transaction
Agreements and this Agreement, in case that at any time the promulgation or
change of any PRC Law, regulations or rules, or change in interpretation or
application of such laws, regulations and rules, or the change of the relevant
registration procedures enables Pledgee to believe that it will be illegal or in
conflict with such laws, regulations or rules to further maintain the
effectiveness of this Agreement and/or dispose of the Pledged Property in the
way provided herein, Pledgors and Focus Media Wireless shall, at the written
direction of Pledgee and in accordance with the reasonable request of Pledgee,
promptly take actions and/or execute any agreement or other document, in order
to:
(1) keep this Agreement remain in effect;
(2) facilitate the disposal of the Pledged Property in the way provided
herein; and/or
(3) maintain or realize the intention or the guarantee established
hereunder.
ARTICLE 12 - EFFECTIVENESS AND TERM OF THIS AGREEMENT
12.1 This Agreement shall become effective when this Agreement is duly executed
by Pledgee, Focus Media Wireless and the Pledgors who hold the equity
interest in Focus Media Wireless.
12.2 The Pledgors who hold the equity interest in Focus Media Wireless and Focus
Media Wireless shall legally record the Equity Pledge in the shareholders'
register of Focus Media Wireless. Pledgors shall provide the registration
certification of the Equity Pledge being recorded in the shareholders'
register as mentioned above to Pledgee in a way satisfactory to Pledgee.
12.3 This Agreement shall have its valid term until the full performance of the
Contractual Obligations or the full repayment of the Guaranteed
Liabilities.
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ARTICLE 13 - NOTICE
13.1 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.
13.2 The abovementioned notice or other correspondences shall be deemed to have
been delivered when it is transmitted if transmitted by facsimile; it shall
be deemed to have been delivered when it is delivered if delivered in
person; it shall be deemed to have been delivered five (5) days after
posting the same if posted by mail.
ARTICLE 14 - MISCELLANEOUS
14.1 Pledgee may, upon notice to Pledgors and Focus Media Wireless but not
necessarily with Pledgors and Focus Media Wireless's consent, assign
Pledgee's rights and/or obligations hereunder to any third party; provided
that Pledgors may not, without Pledgee's prior written consent, assign
Pledgors' rights, obligations and/or liabilities hereunder to any third
party. Successors or permitted assignees (if any) of Pledgors shall
continue to perform the obligations of Pledgors under this Agreement.
14.2 This Agreement shall be prepared in the Chinese language in four (4)
original copies, with each involved Party holding one (1) copy hereof.
14.3 The formation, validity, execution, amendment, interpretation and
termination of this Agreement shall be subject to PRC Law.
14.4 Any disputes arising hereunder and in connection herewith shall be settled
through consultations among the Parties, and if the Parties cannot reach an
agreement regarding such disputes within thirty (30) days of their
occurrence, such disputes shall be submitted to China International
Economic and Trade Arbitration Commission for arbitration in Shanghai in
accordance with the arbitration rules of such Commission, and the
arbitration award shall be final and binding on all Parties.
14.5 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 the
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exercise of its rights, powers and remedies by a Party shall not preclude
its exercise of its other rights, powers and remedies by such Party.
14.6 Any failure or delay by a Party in exercising any of its rights, powers
and remedies hereunder or in accordance with laws (hereinafter, 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 and
exercising the remaining part of the Party's Rights.
14.7 The titles of the Articles contained herein shall be for reference only,
and in no circumstances shall such titles be used in or affect the
interpretation of the provisions hereof.
14.8 Each provision contained herein shall be severable and independent from
each of other provisions, and 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 as
a result thereof.
14.9 This Agreement shall substitute any other documents on the same subject
executed by relevant Parties hereof once duly executed.
14.10 Any amendments or supplements to this Agreement shall be made in writing.
Except for assignment by Pledgee of its rights hereunder according to
Article 14.1 of this Agreement, the amendments or supplements to this
Agreement shall take effect only when properly signed by the Parties to
this Agreement.
14.11 This Agreement shall be binding on the legal successors of the Parties.
14.12 At the time of execution hereof, each of Pledgors shall sign respectively
a Power of Attorney (as set out in Appendix I hereto, hereinafter, the
"POWER OF ATTORNEY") to authorize any person designated by the Pledgee to
sign on the Pledgee's behalf according to this Agreement any and all legal
documents necessary for the exercise of Pledgee's rights hereunder. Such
Power of Attorney shall be delivered to the Pledgee to keep in custody
and, when necessary, the Pledgee may at any time submit the Power of
Attorney to the relevant government authority.
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IN WITNESS HEREOF, the following Parties have caused this Equity Pledge
Agreement to be executed as of the date and in the place first here above
mentioned.
SHANGHAI FOCUS MEDIA ADVERTISEMENT CO., LTD.
(chop)
Signature by Legal Representative: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
SHANGHAI FOCUS MEDIA ADVERTISING AGENCY CO., LTD.
(chop)
Signature by Legal Representative: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
BEIJING DOTAD TECHNOLOGY CO., LTD.
(chop)
Signature by Legal Representative: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
BEIJING FOCUS MEDIA WIRELESS CO., LTD.
Signature by Legal Representative: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
17
APPENDIX I:
POWER OF ATTORNEY
The company hereby irrevocably entrust ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ [Identity Card
number: 310109730305521], as the authorized representative of the company, to
sign all the necessary or useful legal documents for the exercise of the rights
by Beijing Dotad Technology Co., Ltd under the Equity Pledge Agreement among
Beijing Dotad Technology Co., Ltd, the company, Beijing Focus Media Wireless
Co., Ltd and other relevant party dated _____, 2006.
Shanghai Focus Media Advertisement Co., Ltd.
(Chop)
Signature:__________________
Date:_______________________
18
POWER OF ATTORNEY
The company hereby irrevocably entrust ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ [Identity Card
number: 310109730305521], as the authorized representative of the company, to
sign all the necessary or useful legal documents for the exercise of the rights
by Beijing Dotad Technology Co., Ltd under the Equity Pledge Agreement among
Beijing Dotad Technology Co., Ltd, the company, Beijing Focus Media Wireless
Co., Ltd and other relevant party dated _____, 2006.
Shanghai Focus Media Advertising Agency Co., Ltd.
(Chop)
Signature:________________
Date:_____________________
19