Ex. 10.45
▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇
SHANGHAI FRAMEDIA INVESTMENT CONSULTANCY CO., LTD
AND
GUANGDONG CENTURY SHENGHUO ADVERTISEMENT CO., LTD
----------
EQUITY PLEDGE AGREEMENT
----------
JANUARY 13, 2006
EQUITY PLEDGE AGREEMENT
This EQUITY PLEDGE AGREEMENT (hereinafter, this "AGREEMENT") is entered into in
the People's Republic of China (hereinafter, "PRC") 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 "PLEDGEE")
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 "PLEDGOR" individually, and collectively, the "PLEDGORS".)
WHEREAS:
(1) 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) Pursuant to the Call Option Agreement dated as of January 13 2006 among the
Pledgees, the Pledgors and Century Shenghuo (hereinafter, the "CALL OPTION
1
AGREEMENT"), the Plegors shall transfer part or all of the equity interest
of the Century Shenghuo to the Pledgees and/or any other entity or
individual designated by the Pledgees at the request of the Pledgees.
(3) Pursuant to the Shareholders' Voting Right Proxy Agreement dated as of
January 13, 2006 among the Pledgeees, Century Shenghuo and the Pledgors
(hereinafter, the "PROXY AGREEMENT"), Pledgors have already entrusted the
person designated by the Pledgees with full power to exercise on their
behalf all of their shareholders' voting rights in respect of Century
Shenghuo.
(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 Century Shenghuo Equity
to the Pledgees and grant the Pledgees the right to request for repayment
in first priority and Century Shenghuo 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
Century Shenghuo under the Call Option Agreement, Proxy Agreement, Technology
Permission and Service Agreement; all contractual obligations of an Individual
Pledgor under the Loan Agreement; and all contractual obligations of a Pledgor
under this Agreement.
"CENTURY SHENGHUO" shall mean any and all companies listed in Appendix I.
"GUARANTEED LIABILITIES" shall mean all direct, indirect and consequential
losses and losses of foreseeable profits suffered by Pledgees due to any
Breaching Event (as defined below) a Pledgor and/or a Century Shenghuo, and all
fees incurred by Pledgees for the enforcement of the Contractual Obligations of
a Pledgor and/or a Century
2
Shenghuo.
"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 Century Shenghuo of its Contract Obligations under
the Call Option Agreement, Proxy Agreement, Technology Permission and Service
Agreement; and any breach by an Individual Pledgor of its Contractual
Obligations under the Loan Agreement.
"PLEDGED PROPERTY" shall mean all of the equity interest in the Century Shenghuo
which is legally owned by the Pledgor as of the effective date hereof and is to
be pledged to the Pledgees by it according to provisions hereof as the security
for the performance of the Contractual Obligations by it and the Century
Shenghuo (for details of such equity interest, see Appendix I), 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.
"OTHER CONTRACT" shall mean the Equity Transfer Agreement among the Pledgors,
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 ▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇,
▇▇.▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇); according to such
contract, Pledgors agree to transfer the equity interest they hold in Century
Shenghuo to Shanghai Focus Media Advertisement Co., Ltd and Shanghai Focus Media
Co., Ltd.
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
3
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.
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 Pledgees according to the
provisions hereof as the security for the performance of the Contract
Obligations and the repayment of the Guaranteed Liabilities. Century
Shenghuo hereby agrees that the Pledgors legally holding equity interest in
it to pledge the Pledged Property to the Pledgees 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 Century Shenghuo on the date
hereof, and will do its best endeavor to make registration with
registration authorities of industry and commerce of Century Shenghuo.
Century Shenghuo respectively 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 Pledgees which has direct cause and effect
relationship the reduction in value of the Pledged Property, Pledgees 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, Pledgees 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
4
Liabilities, or may submit such proceeds to the local notary institution
where Pledgees are domiciled (any fees incurred in relation thereto shall
be borne by Pledgors).
2.5 The Pledgees as Pledgee shall be deemed to have created the encumbrance of
first order in priority on the Pledged Property, and in case of any
Breaching Event, the Pledgees shall have the right to dispose of the
Pledged Property in the way set out in Article 4 hereof.
2.6 Only upon prior consent by Pledgees shall Pledgors be able to increase
their capital contribution to any or all of the Century Shenghuo. Further
capital contribution made by Pledgor (s) in the Century Shenghuo shall also
be part of the Pledged Property.
2.7 Only upon prior consent by Pledgees 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 Pledgees's bank account designated by Pledgees respectively, to be
under the supervision of Pledgees and used as the Pledged Property to repay
in priority the Guaranteed Liabilities.
ARTICLE 3 RELEASE OF PLEDGE
In respect of equity interest of any Century Shenghuo, upon full and complete
performance by relevant Pledgors of all of their Contractual Obligations,
Pledgees shall, at the request of relevant Pledgors, release the pledge created
on such Century Shenghuo under this Agreement, and shall cooperate with relevant
Pledgors to go through the formalities to cancel the record of the Equity Pledge
in the shareholder register of the relevant Century Shenghuo; in case of the
Equity Pledge having been recorded at the registration department of
Administration of Industry and Commerce of the Century Shenghuo, 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 Pledgees.
ARTICLE 4 DISPOSAL OF THE PLEDGED PROPERTY
4.1 Pledgors, Century Shenghuo and Pledgees hereby agree that, in case of any
5
Breaching Event, the Pledgees 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. Pledgees shall not be liable
for any loss as the result of their reasonable exercise of such rights and
powers.
4.2 Pledgees 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 above, and neither Pledgors nor Century Shenghuo shall not
oppose thereto.
4.3 The reasonable costs incurred by Pledgees in connection with their exercise
of any and all rights and powers set out above shall be borne by Pledgors,
and Pledgees 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 Pledgees acquire 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 Pledgees 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 Pledgees for the Guaranteed Liabilities.
In case of any balance after payment of the above amounts, Pledgees 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 Pledgees are domiciled (any fees incurred in relation
thereto shall be borne by Pledgors).
4.5 Pledgees 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 any Century Shenghuo holding by any
Pledgor; Pledgees shall not be
6
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 Century Shenghuo shall not oppose to whether Pledgees 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 Pledgees.
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 Pledgees to Pledgors in respect of their breach, nor delay by
Pledgees 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 Pledgees 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 Pledgor hereby, in respect of itself and Century Shenghuo in which it
holds equity interest, represents and warrants to Pledgees as follows:
7.1 Each of the Pledgor is a 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..
7.2 Century Shenghuo 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
7
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 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
8
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.
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 CENTURY SHENGHUO
Century Shenghuo hereby individually represents and warrants to Pledgee as
follows:
8.1 Century Shenghuo 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 Century
Shenghuo 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
9
matters as required by this Agreement which are provided by Century
Shenghuo 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
Century Shenghuo when it is duly executed by Century Shenghuo.
8.5 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.
8.6 There is no pending or, to the knowledge of Century Shenghuo, threatened
litigation, legal process or demand by any court or any arbitral tribunal
against Century Shenghuo, or their property (including but are not limited
to the Pledged Property), nor is there any pending or, to the knowledge of
Century Shenghuo, threatened litigation, legal process or demand by any
government authority or any administration authority against Century
Shenghuo, or their property (including but are not limited to the Pledged
Property), which is of material or detrimental effect on the economic
status of Century Shenghuo or their capability to perform the obligations
hereunder and the Guaranteed Liabilities.
8.7 Each of Century Shenghuo hereby agree to bear joint responsibilities to
Pledgees 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 Century Shenghuo 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
Century Shenghuo of which it holds equity as follows:
10
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 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 In case of the expiration of term of operation of the Century Shenghuo
during the term of this Agreement, without prior written consent from the
Pledgees, the Pledgor shall take all necessary measure to extend the term
of operation of the Century Shenghuo until the expiration of this
Agreement.
11
ARTICLE 10 - UNDERTAKINGS BY CENTURY SHENGHUO
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 hereof and the Equity Pledge hereunder will be cooperated
to handle or obtain by Century Shenghuo 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, Century Shenghuo 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, Century Shenghuo 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 Century Shenghuo or Pledgee under the
Transaction Agreements and hereunder or the equity of Century Shenghuo as
the Pledged Property, Century Shenghuo 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 Century Shenghuo 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 Century Shenghuo shall provide Pledgees 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 Century Shenghuo guarantee that they shall, at the reasonable request of
Pledgee, take all necessary measures and execute all necessary documents
(including but
12
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, Century Shenghuo guarantee that they
will take all necessary measures to realize such assignment.
ARTICLE 11 - CHANGE OF CIRCUMSTANCES
11.1 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 Century Shenghuo 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 upon the satisfaction of all of the
following conditions in respect of any Century Shenghuo and any Pledgor who
holds the equity of the Century Shenghuo:
(1) this Agreement is duly executed by Pledgors, the Century Shenghuo and
the Pledgors who pledge the equity of the Century Shenghuo; and
(2) the Equity Pledge hereunder has been legally recorded in the
shareholders' register of the Century Shenghuo.
13
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.
12.2 This Agreement shall have its valid term until the full performance of the
Contractual Obligations or the full repayment of the Guaranteed
Liabilities.
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 but not necessarily with Pledgors'
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 Regardless otherwise stipulated in this Agreement, the event that Pledgors
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 Pledgors cause Shanghai Focus
Media Advertisement Co., Ltd and Shanghai Focus Media Co., Ltd to
simultaneously execute an agreement with
14
Framedia and Century Shenghuo in the same content and form with this
Agreement upon the completion of the above transfer.
14.3 This Agreement shall be prepared in the Chinese language in six (6)
original copies, with each involved Party holding one (1) copy.
14.4 The formation, validity, execution, amendment, interpretation and
termination of this Agreement shall be subject to PRC Law.
14.5 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 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 Parties.
14.6 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 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.
14.7 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.
14.8 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.
14.9 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
15
remaining provisions herein shall not be affected as a result thereof.
14.10 This Agreement shall substitute any other documents on the same subject
executed by relevant Parties hereof once duly executed.
14.11 Any amendments or supplements to this Agreement shall be made in writing.
Except for assignment by Pledgee of its rights hereunder according to
Article 15.1 of this Agreement, the amendments or supplements to this
Agreement shall take effect only when properly signed by the Parties to
this Agreement. Notwithstanding the preceding sentence, considering the
rights and obligations of Century Shenghuo and Pledgors are severable and
independent, in case the amendment or supplement is intended to have impact
upon one Party of the Century Shenghuo and part of the Pledgors who hold
the equity interest, the amendment or supplement requires the consent by
the Century Shenghuo and the part of the Pledgors only and it is not
required to obtain the consent of other Century Shenghuo and other Pledgors
(to the extent the amendment or supplement does not have impact upon such
Pledgor).
14.12 This Agreement shall be binding on the legal successors of the Parties.
14.13 At the time of execution hereof, each of Pledgors shall sign respectively
a power of attorney (as set out in Appendix II hereto, hereinafter, the
"POWER OF ATTORNEY") to authorize any person designated by Pledgee to sign
on its behalf according to this Agreement any and all legal documents
necessary for the exercise by Pledgee's rights hereunder. Such Power of
Attorney shall be delivered to Pledgee to keep in custody and, when
necessary, Pledgee may at any time submit the Power of Attorney to the
relevant government authority.
[The remainder of this page is left blank]
16
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.
▇▇▇ ▇▇▇
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
17
APPENDIX I:
FORMAT OF THE POWER OF ATTORNEY
I, ____________, hereby entrusts ____________, [with his/her identity card
number ____________,] to be the my authorized trustee to sign on the my behalf
all legal documents necessary or desirous for Shanghai Framedia Investment
Consultancy Co., Ltd. to exercise its rights under the Equity Pledge Agreement
January 13 2006 between it, me, Guangdong Century Shenghuo Advertisement Co.,
Ltd. and other relevant parties.
Signature:
-----------------------------
Date:
----------------------------------
18