EXHIBIT 10.5
Translation
Execution Copy
REVISED AND RESTATED BUSINESS COOPERATION AGREEMENT
AMONG
ECONOMIC OBSERVER PRESS OFFICE,
GUANGZHOU JINGSHI CULTURE INTERMEDIARY CO. LTD,
BEIJING JINGGUAN XINCHENG ADVERTISING CO. LTD,
AND
BEIJING JINGSHI JINGGUAN ADVERTISING CO. LTD
NOVEMBER, 2006
TABLE OF CONTENTS
Article 1 Definitions
Article 2 Joint Venture Corporation
Article 3 Business Cooperation
Article 4 Other Cooperation
Article 5 Confidentiality
Article 6 Effectiveness, Changes, and Termination of the Agreement
Article 7 Applicable Laws and Resolution of Disputes
Article 8 Notice
Article 9 Other Issues
BUSINESS COOPERATION AGREEMENT
This business cooperation agreement (hereafter as "this agreement") was
signed on Xxxxxxxx 0, 0000 xx Xxxxxxx, Xxxxxx'x Xxxxxxxx of China (hereafter as
"PRC") by the following parties:
PARTY A: Economic Observer Press Office (hereafter as "EOPO"),
PARTY B: Guangzhou Jingshi Culture Intermediary Co. Ltd (hereafter as "Jingshi
Culture"),
PARTY C: Beijing Jingguan Xincheng Advertising Co. Ltd (hereafter as "JGXC"),
and
PARTY D: Beijing Jingshi Jingguan Advertising Co. Ltd (hereafter as
"Jingshi Jingguan" or the "Joint Venture Corporation").
Whereas:
1. The EOPO is a publishing institution that is established according to the
PRC laws and that is effectively surviving; it holds a "business license
for publications", and administers and operates the Economic Observer
Newspaper (see below for definitions), and is a lawful institutional
business unit registered with the Registration Administration of Shandong
Province for Institutional Units;
2. Jingshi Culture is a legally existing corporation with limited liabilities,
incorporated according to the PRC laws, and is engaged in businesses for
cultural promulgation and event promotion;
3. JGXC is a legally existing corporation with limited liabilities,
incorporated according to the PRC laws, and pursuant to the terms in the
"Amended and Restated Agreement on Business Cooperation" signed on November
6, 2006 by the two parties of JGXC and the EOPO with Shangdong Sanlian
Group Co. Ltd and Shandong Economic Observing Newspaper Co. Ltd, JGXC has
acquired from the EOPO a sole exclusive advertising agency and has the
right to make its own decisions on transfer, render, authorization, and
permit of the agency to a third party; further JGXC has acquired
authorization from the EOPO to use EOPO's intellectual properties.
4. Jingshi Jingguan is a legally existing corporation with limited
liabilities, incorporated according to the PRC laws, and is a joint venture
corporation from Jingshi Culture and JGXC.
5. It is the wish of the parties to sign this agreement on relevant issues of
cooperation activities in order to define the terms and conditions for the
cooperation.
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6. The parties signed the "agreement on business cooperation" ("the original
agreement") on May 10, 2006.
Therefore, the parties, after friendly consultation and pursuant to the
stipulations in the PRC laws, have all agreed to make the following amendments
and restatements to the original agreement and implement what is in the amended
and restated agreement.
ARTICLE 1 DEFINITIONS
Except where it is stipulated otherwise in this agreement or where there
are other requirements in the context, the following terms shall have meanings
as follows:
1.1 Certification of BPA international distribution volume: meaning the set of
audit certification system with certain lawfully binding authority over the
distribution volume provided to the media clients by BPA Worldwide (an
international organization engaged in audit business of media's
distribution volume).
1.2 The Preparatory Committee: see Article 2 in this agreement for definitions.
1.3 The Joint Venture Corporation: meaning the corporation with limited
liabilities, already set up from JGXC and Jingshi Culture, pursuant to
Article 2 of this agreement.
1.4 The parties: meaning the 4 parties including EOPO, Jingshi Culture, JGXC,
and Jingshi Jingguan.
1.5 Financial institutions: meaning Chinese or foreign commercial banks, city
credit unions, rural credit unions, investment trust corporations,
financial corporations, financial leasing corporations, insurance
corporations, investment banks, insurance corporations, foundations
corporations, securities corporations, investment consultancy corporations,
investment management service providers, foreign exchange corporations, and
other financial institutions established inside and outside China,
including institutions engaged in subordinate and derivative services in
the financial industry such as financial training, financial public
relations, and financial consultancy and advisory.
1.6 The EOPO: meaning the newspaper with its current name as the "Economic
Observer Newspaper" and its predecessor, successor or replacement from
changing its name or version, and its publications on finance and economy
that come out from time to time in any format and any or all of the
annexes, supplements, extra editions, and derivative publications, whether
in printed texts, electronic forms or any other forms, or published or
printed in any media carrier.
1.7 Lifestyle special issue: meaning the monthly special publication called
"Lifestyle" that is inserted with the Economic Observer Newspaper.
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1.8 Financial advertising business: meaning the advertising business entrusted
by any financial institutions and their agents or trustees, which is
released on the Economic Observer Newspaper or which is related to the
Economic Observer Newspaper.
1.9 "Money Journal" magazine: meaning the nationwide monthly publication with
its domestic publication code as CN64-1024/G, whether it is in a printed
format, on a website and/or in any other format of display and publication.
1.10 Promotion activities: meaning the various events and activities conducted
to promote the Economic Observer or to promote the use of brands of the
Economic Observer. The forms include but are not limited to distribution of
flyers, salons, seminars, forums, exhibitions, advertisement publicity, and
large scale theme events.
1.11 Promotion Special Issue: meaning the magazines stipulated under Article 3.2
in the agreement.
1.12 A party: meaning any party of the EOPO or Jingshi Culture or JGXC or
Jingshi Jingguan.
1.13 PRC: meaning the People's Republic of China, and for the purpose of this
agreement, not including the Special Administrative Region of Hong Kong,
the Special Administrative Region of Macau, or the region of Taiwan.
1.14 The PRC laws: meaning any law, act, regulation and regulatory documents
publicly announced by the PRC governments (including the central and local
governments), and the amendments, additions, and interpretations made at
any time with respect to these laws.
ARTICLE 2 JOINT VENTURE CORPORATION
2.1 Jingshi Culture and JGXC, pursuant to the terms in Article 2 in the
original agreement, have already jointly set up a corporation with limited
liabilities ("Joint Venture Corporation") in the city of Beijing, PRC,
i.e.: Jingshi Jingguan, with a registered capital of RMB Yuan 6,000,000, of
which 3,000,000 (which is 50% of the registered capital of the Joint
Venture Corporation) is an investment from JGXC, and 3,000,000 (which is
50% of the registered capital of the Joint Venture Corporation) is an
investment from Jingshi Culture.
2.2 The Joint Venture Corporation has a board of directors of 5 members, 2
assigned by JGXC and 3 assigned by Jingshi Culture, and the chairman of the
board nominated by Jingshi Culture. The Joint Venture Corporation has one
General Manager, who is nominated by Jingshi Culture, appointed by the
Board of Directors, and is accountable to the Board. The General Manager is
responsible
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for the daily operation and management of the Joint Venture Corporation and
has decision power over the various issues in the operation and management.
2.3 Jingshi Culture and JGXC assign staff responsible for commercial ads and
promotion business or other related staff to form a preparatory group
("Preparatory Group"), and the group will take charge of issues concerning
incorporating the Joint Venture Corporation; expenses in the due course of
it will first be borne by Jingshi Culture. After the Joint Venture
Corporation is set up, the expenses that Jingshi Culture has paid for
during the preparatory course shall be reimbursed to Jingshi Culture. The
Preparatory Group is automatically dismissed on the date of the
incorporation of the Joint Venture Corporation.
2.4 After the Joint Venture Corporation is set up, the parties shall make use
of their advantages to provide necessary economic and technical support for
the operation and development of the Joint Venture Corporation.
2.5 The operational revenues of the Joint Venture Corporation, whether or not
to be distributed to another or other parties, shall first be collected by
the Joint Venture Corporation from clients and entered into the account(s)
of the Joint Venture Corporation. At the end of the year after accounting
verification, the distribution can then be processed according to the
proportions stipulated in this agreement.
2.6 JGXC authorizes the Joint Venture Corporation to engage in the following
advertising businesses:
(1) financial advertising businesses, and
(2) promotional activities related to advertising businesses; in order not
to cause doubtful points, the "promotion-related advertising
businesses" mean the invitation to clients for them to sponsor the
promotion, or as a return to such sponsorship from the clients, the
provision of ads by the Joint Venture Corporation to the clients,
whether it has been entrusted through a financial institution or not;
and
(3) advertising businesses published on the Special Editions for
Promotion, whether or not it has been entrusted by a financial
institution.
2.7 The sales price, as well as sales discounts and pricing policies, executed
by the Joint Venture Corporation in conducting any advertising business
should be, through consultation, made consistent with the sales policies of
JGXC. Neither JGXC nor the Joint Venture Corporation is to unilaterally
implement its own sales policies and interfere with each other's normal
business activities.
2.8 The Joint Venture Corporation will set up an advertisement sales department
to take charge of the advertising businesses of the Joint Venture
Corporation. In the first year upon setting up of the Joint Venture
Corporation, JGXC and Jingshi Culture can participate in the advertising
sales of the Joint Venture Corporation and the specific sales methods will
be stipulated elsewhere. That particular policy
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is treated as a temporary clause and is subject to changes from time to
time according to the status quo of business development of the Joint
Venture Corporation.
2.9 The Joint Venture Corporation shall make a monthly payment of RMB 250,000
to JGXC as authorization fees for financial advertising business and
related special permit fees for using the intellectual properties.
ARTICLE 3 BUSINESS COOPERATION
3.1 Promotional Activities
3.1.1 Pursuant to the terms of this agreement, the EOPO authorizes the
Joint Venture Corporation to conduct various kinds of promotions under
the name of the EOPO and irrevocably agrees that the Joint Venture
Corporation has all rights and benefits of an exclusive sole agency
over the promotions, including but not limited to the rights of
operation, advertisement release, organization of events, name(s), and
projects to attract investments.
3.1.2 The EOPO shall provide all necessary assistance, including but not
limited to transferring to the Joint Venture Corporation completely
the specific action plans and related materials of promotion
activities that have already been listed into the promotion plan of
the EOPO. The EOPO undertakes to dismiss its former Department of
Promotions and its functions and will assign 8 employees to the Joint
Venture Corporation to carry out promotions. The Joint Venture
Corporation can sign necessary labor contracts or service agreements
with these employees when it deems necessary.
3.1.3 JGXC authorizes the Joint Venture Corporation, in its promotion
activities, to use the intellectual properties of the EOPO, including
but not limited to the brands, trademarks, and service icons of the
EOPO.
3.1.4 When the Joint Venture Corporation is engaged in promotion
activities, whether it is for profit or not, the EOPO and JGXC shall
support by allocating, free of charge, an extra space of no less than
50 pages in the pages for promotion activity advertisements in the
Economic Observer Newspaper per annum. Except when the lawfully
allowable space quota for advertisements is fully sold out, JGXC
cannot reject the request from the Joint Venture Corporation for
additional free advertisements in the advertising space for promotion
activities. The pages for promotion activities are limited to
advertisements only for the promotion activities. Within the space of
these pages, the Joint Venture Corporation has the right, according to
the scope of promotion activities and the needs for publicity, to
verify and adjust, ahead of each activity, with the EOPO, the
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publicity pages and time (dates) as required in the activity. To avoid
doubts, the "Economic Observer Newspaper" in this clause only refers
to the published newspaper by the EOPO coded CN37-0027 and its
publications after changing its name or version, not including its
supplements, extra editions, attached sheet or other subordinate
publications.
3.1.5 Jingshi Culture shall provide all necessary assistance to the Joint
Venture Corporation, including but not limited to transferring the
former's or the former's affiliated enterprises' current businesses of
Financial Seminars and Forums to the latter at a time when the former
deems appropriate, and assigns 9 of its employees to the Joint Venture
Corporation to take charge of promoting the businesses, whereas the
Joint Venture Corporation has its own right to decide whether or not
to sign necessary labour contracts or service agreements with these
employees.
3.2 Promotion Special Issue
3.2.1 The parties agree to set up a Special Issue for financial information
and promotion activities ("Promotion Special Issue"), published twice
a month, the format for the Special Issue is 24 pages with
measurements and paper quality similar to those of Lifestyle Special
Issue. JGXC and the EOPO agree to make, from time to time, adjustments
to the aforementioned issues according to the requests of the Joint
Venture Corporation. The EOPO shall make sure that it acquires all
necessary approvals, permits, and other related legal procedures for
the publication and issuance of the Promotion Special Issue.
3.2.2 In order to push forward the Joint Venture Corporation's
advertisements for attracting investments, the EOPO agrees that the
Joint Venture Corporation will provide specific contents for the
Promotion Special Issue and make suggestions for the writing and
editing of the Special Issue. The EOPO has the final review and
editing right to the content in the special issue. The parties shall
provide full human resources and materialistic support to the Joint
Venture Corporation in its businesses of advertisements to attract
investments, including but not limited to inputting their data and
material collecting, artistic design, printing, distribution staffing,
and providing their plates, articles, and other contents.
3.2.3 Promotion Special Issue as a supplement of the Economic Observer
Newspaper is to be distributed along with the Economic Observer
Newspaper. The places issued to are Beijing, Shanghai and Guangdong,
and other Chinese provinces, cities or regions agreed upon by the
Joint Venture Corporation and JGXC. The distribution focuses on banks'
financial management centers, securities corporations and upscale
display sites (such as high class office buildings). The distribution
is through
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special channels (such as entrusting airlines to deliver) and through
subscriptions.
3.2.4 Promotion Special Issue's target distribution volume is to be decided
according to the market status quo. As long as the laws permit,
including but not limited to after the Joint Venture Corporation has
acquired necessary operational credentials, the distribution volume of
Promotion Special Issue will not be restricted by the distribution
volume of the Economic Observer Newspaper, and the Joint Venture
Corporation can, on its own, distribute to its large users such as
major banks' financial management centers and securities corporations.
3.2.5 The expenses and costs of Promotion Special Issue are the
responsibilities of the Joint Venture Corporation, and the advertising
revenues from the Special Issue, the revenues from promotion
activities, the distribution revenues conforming to the conditions
stipulated in the previous clause, and other lawful revenues obtained
pursuant to the terms of this agreement stay with the Joint Venture
Corporation (unless otherwise stipulated in this agreement).
3.3 Financial Advertising
3.3.1 Without an advance written consent from JGXC, the Joint Venture
Corporation cannot transfer, render, authorize or permit the whole or
part of the operation right to the financial advertising business to a
third party (but not including Jingshi Culture).
3.3.2 When the Joint Venture Corporation is exercising its advertising
agency right, it can be done under the name of a financial advertising
business agency or under its own name of the Joint Venture
Corporation, including but not limited to signing contracts under its
own name with advertising clients or their agents.
3.3.3 The EOPO shall stipulate in the newspaper's relevant sales
information (e.g.: publications, websites or copyright page, etc.)
that the Joint Venture Corporation is the sole exclusive agent for
financial advertising in the newspaper.
ARTICLE 4 OTHER COOPERATION
4.1 In order to assist Jingshi Culture and its affiliated enterprises to
promote the "Money Journal" magazine, the EOPO is committed to offer
necessary support, including but not limited to providing Jingshi Culture
with distribution channels and clients information, and publishing
promotion advertisements for subscriptions to the "Money Journal".
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ARTICLE 5 CONFIDENTIALITY
5.1 Without an advance written consent of a party, no other party can make any
public statement with respect to the content that this agreement and any
other consecutive documents deal with.
5.2 Except where it is otherwise stipulated in 5.1 and 5.3, the parties shall
deem any information on the following contents obtained during the course
of setting up this agreement (or of setting up any agreements according to
this agreement) as confidential information, which is not allowed to be
disclosed or utilized:
5.2.1 the articles and clauses in this agreement and articles and clauses
in any agreements set up according to this agreement;
5.2.2 negotiations about this agreement (and other agreements of the same
category); or
5.2.3 business, finance or other issues (including future plans and goals)
of any party.
5.3 Under the following circumstances, the previous 5.2 is not applicable in
forbidding from disclosing or utilizing any information:
5.3.1 where the laws, any regulatory body or any publicly recognized rules
and regulations for securities exchange require the disclosure and
utilization;
5.3.2 where this agreement or the setting up of any other agreement
according to this agreement has caused any legal proceeding that
requires the disclosure and utilization, or the appropriate disclosure
to the taxation authorities of the tax related issues of the
disclosing party;
5.3.3 where there is disclosure to professional advisors of the parties;
however the parties shall request these advisors to abide by the rules
in 5.2 about the relevant category of information, as if he/she were a
party of this agreement;
5.3.4 where the information has already become public knowledge, not due to
breach of this agreement; or
5.3.5 where the disclosure or utilization has already been consented to in
writing in advance by a party.
ARTICLE 6 EFFECTIVENESS, CHANGES, AND TERMINATION OF THE AGREEMENT
This agreement is effective upon the signing or stamping of the authorized
representative of the parties. Except where there are other regulations under
the PRC laws or where
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there are other terms in this agreement, no change or discontinuation can be
allowed without a unanimous written consensus from the parties of this
agreement.
ARTICLE 7 APPLICABLE LAWS AND RESOLUTION OF DISPUTES
7.1 The setting up, effectiveness, implementation, and interpretation of this
agreement and the resolution of disputes are all applicable under the PRC
laws.
7.2 Any disputes related to this agreement or caused by this agreement shall be
resolved by way of friendly consultation. If a consultation fails, the
dispute shall be submitted to Beijing Sub-Committee of China International
Economic and Trade Arbitration Committee to be mediated according to the
current applicable and effective arbitration rules at the time of the
submission for arbitration. The decision from the arbitration is final and
binding on both sides. During the course of arbitration, except for issues
of disputes submitted for arbitration, the parties shall continue to
fulfill the other articles of this agreement.
ARTICLE 8 NOTICE
8.1 Except otherwise stipulated in this agreement, any party, when sending
notice under this agreement or notices related to this agreement, should be
in writing. In the case of delivery by a designated person, or faxing, or
using a publicly recognized express mail service to send to the following
addresses or the fax number(s), or sending to another address or fax number
the recipient has already notified in advance, it is considered to have
been delivered.
Economic Observer Press Office
Contact Person: Xxxxx Xxxxxx
Mail Address: Xxxxxxxx 0X, Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxx District,
Beijing
Postal Code: 100013
Tel.: 000-00000000
Fax: 000-00000000
Guangzhou Jingshi Culture Intermediary Co. Ltd
Contact Person: Jiang Guibin
Mail Address: Rm 802, Yuanhui Commerce Tower, 423 Tianhe Rd North, Tianhe
District, Guangzhou
Postal Code: 510620
Tel.: 000-00000000
Fax: 000-00000000
Beijing Jingguan Xincheng Advertising Co. Ltd
Contact Person: Xxxxx Xxxxxx
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Mail Address: Xxxxxxxx 0X, Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxx District,
Beijing
Postal Code: 100013
Tel.: 000-00000000
Fax: 000-00000000
Beijing Jingshi Jingguan Advertising Co. Ltd
Contact Person: Fan Zude
Mail Address: Rm 410, Wangfu Century Tower, 00 Xxxxxxxxx Xxx., Xxxxxxxxx
Xxxxxxxx, Xxxxxxx
Postal Code: 100006
Tel.: 000-00000000
Fax: 000-00000000
8.2 Except otherwise stipulated in this agreement, any notice sent via fax is
deemed to have been immediately delivered when faxed in a normal way to the
above fax number(s) of the recipient during 08: 00 - 17:00 Beijing time on
a statutory business day; however, the notice shall be immediately sent via
a publicly recognized express mail service to the recipient for
verification. If sent via a publicly recognized express mail service, the
notice is deemed delivered within 5 days upon sending to the address of the
recipient.
ARTICLE 9 OTHER ISSUES
9.1 The sub-title added for each article and clause is only for convenient
reference and does not affect the interpretation of the content of articles
in this agreement.
9.2 If any article or clause and terms in this agreement are deemed as illegal
or unable to be executed with force according to applicable laws, that
article or clause is already deleted from this agreement, and is already
void; however, this agreement is still effective and shall be deemed as
never containing that article or clause from the very beginning. The
parties shall fully consult with each other in order to replace the deleted
article(s) or clause(s) with ones that are acceptable, satisfactory, lawful
and effective to all the parties.
9.3 The time, dates, and length of terms stipulated in this agreement are
critically important to this agreement, and anything departing from the
time, dates or length of terms as stipulated in this agreement shall be
deemed as a breach of agreement.
9.4 Not any party can transfer its rights and/or duties under this agreement to
any non-party to this agreement, unless with a written consent from other
parties.
9.5 The parties shall individually bear their own expenses incurred during the
course of signing and implementing this agreement.
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9.6 The appendices to this agreement constitute an inseparable party of this
agreement and have the same legal effects as the texts in the main body of
this agreement.
9.7 This agreement has 4 counterparts, 1 for each of the 3 parties and 1 for
the Joint Venture Corporation. All counterparts have the same legal
effects.
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The Signature Page for the "Business Cooperation Agreement"
Economic Observer Press Office [Company chop of Economic Observer Press Office]
Authorized Representative: /s/
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Guangzhou Jingshi Culture Intermediary Co., Ltd. [Company chop of Guangzhou
Jingshi Culture Intermediary Co., Ltd.]
Authorized Representative:
------------------------------
Beijing Jingguan Xincheng Advertising Co. Ltd [Company chop of Beijing Jingguan
Xincheng Advertising Co. Ltd]
Authorized Representative: /s/
------------------------------
Beijing Jingshi Jingguan Advertising Co., Ltd. [Company chop of Beijing Jingshi
Jingguan Advertising Co., Ltd.]
Authorized Representative:
------------------------------
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