CONFIDENTIAL
EXHIBIT 10.54
================================================================================
SHAREHOLDERS' VOTING RIGHTS
PROXY 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
================================================================================
SHAREHOLDERS' VOTING RIGHTS PROXY AGREEMENT
This SHAREHOLDERS' VOTING RIGHTS PROXY AGREEMENT (this "AGREEMENT") is entered
into 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, Xx.0000, Xxxxxxxxx Xxxx, Xxxxxxxxx
Xxxxxxxx, Xxxxxxxx
LEGAL REPRESENTATIVE: Xxxxx Xxxxxxx Xxxxx
(2) SHANGHAI FOCUS MEDIA ADVERTISING AGENCY CO., LTD. (hereinafter "FOCUS
MEDIAADVERTISING AGENCY")
REGISTERD ADDRESS: A65 Room, 00xx Xxxxx, Xx. 000, Xxxxxxxxx Xxxx,
Xxxxxxxxx
Xxxxxxxx, Xxxxxxxx
LEGAL REPRESENTATIVE: Xxxxx Xxxxxxx Xxxxx
(3) BEIJING DOTAD TECHNOLOGY CO., LTD. (hereinafter "DOTAD TECHNOLOGY")
REGISTERED ADDRESS: Xx. 0, Xx Xxxx, Xxxxxxx Xxxxxxxxxxx Xxxxxx, Haidian
District, Beijing LEGAL REPRESENTATIVE: [ ]
(4) BEIJING FOCUS MEDIA WIRELESS CO., LTD. (hereinafter "FOCUS MEDIA
WIRELESS")
REGISTERED ADDRESS: Xxxx 000, Xxxxxxxx Xxxxxxxx, Xx. 0, 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 "SHAREHOLDER" and collectively referred to as the "SHAREHOLDERS".)
WHEREAS:
1. As of the date of the Agreement, 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 which Focus
Media Advertisement holds 90% interest while Focus Media Advertising
Agency holds 10%.
2. The Shareholders intend to severally entrust the individual designated by
Dotad Technology with the exercises of their voting rights in Focus Media
Wireless (as defined below) while Dotad Technology is willing to designate
such an individual to accept the entrustment.
1
The Parties hereby have reached the following agreement upon friendly
consultations:
ARTICLE 1 VOTING RIGHTS ENTRUSTMENT
1.1 The Shareholders hereby irrevocably undertake to respectively sign the
Entrustment Letter after execution of the Agreement to respectively
entrust the individual designated by Dotad Technology (hereinafter, the
"TRUSTEES") to exercise the following rights respectively enjoyed by them
as shareholders of Focus Media Wireless in accordance with the then
effective articles of association of Focus Media Wireless (collectively,
the "ENTRUSTED RIGHTS"):
(1) Proposing to convene and attending shareholders' meetings of Focus
Media Wireless as proxy of the Shareholders according to the
articles of association of Focus Media Wireless;
(2) Exercising voting rights as proxy of the Shareholders, on issues
discussed and resolved by the shareholders' meeting of Focus Media
Wireless, including but not limited to the appointment and election
for the directors, supervisors, general manager, vice-general
manager, financial officer and other senior management personnel of
Focus Media Wireless.
The above authorization and entrustment is granted subject to the status
of Trustees as PRC citizens and the approval by Dotad Technology. Upon and
only upon written notice of dismissing and replacing Trustee(s) given by
Dotad Technology to the Shareholders, the Shareholders shall promptly
entrust another PRC citizen then designated by Dotad Technology to
exercise the above Entrusted Rights, and once new entrustment is made, the
original entrustment shall be replaced; the Shareholders shall not cancel
the authorization and entrustment of the Trustee(s) otherwise.
1.2 The Trustees shall perform the entrusted obligation within the scope of
entrustment in due care and prudence and in compliance with laws; the
Shareholders acknowledge and assume relevant liabilities for any legal
consequences of the Trustees' exercise of the foregoing Entrusted Rights.
1.3 The Shareholders hereby acknowledge that the Trustees are not required to
seek advice from the Shareholders prior to their respective exercise of
the foregoing Entrusted Rights. However, the Trustees shall inform the
Shareholders in a timely manner of any resolution or proposal on convening
interim shareholders' meeting after such resolution or proposal is made.
ARTICLE 2 RIGHT TO INFORMATION
2
For the purpose of exercising the Entrusted Rights under this Agreement, the
Trustees are entitled to know the information with regard to Focus Media
Wireless's operation, business, clients, finance, staff, etc., and shall have
access to relevant materials of Focus Media Wireless. Focus Media Wireless shall
adequately cooperate with the Trustees in this regard.
ARTICLE 3 EXERCISE OF ENTRUSTED RIGHTS
3.1 The Shareholders will provide adequate assistance to the exercise of the
Entrusted Rights by the Trustees, including execution of the resolutions
of the shareholders' meeting of Focus Media Wireless or other pertinent
legal documents made by the Trustee when necessary (e.g., when it is
necessary for examination and approval of or registration or filing with
governmental departments).
3.2 If at any time during the term of this Agreement, the entrustment or
exercise of the Entrusted Rights under this Agreement is unenforceable for
any reason except for default of any Shareholder or Focus Media Wireless,
the Parties shall immediately seek a most similar substitute for the
unenforceable provision and, if necessary, enter into supplementary
agreement to amend or adjust the provisions herein, in order to ensure the
realization of the purpose of this Agreement.
ARTICLE 4 EXEMPTION AND COMPENSATION
4.1 The Parties acknowledge that Dotad Technology shall not be requested to be
liable for or compensate (monetary or otherwise) other Parties or any
third party due to exercise of Entrusted Rights by the Trustees designated
by Dotad Technology under this Agreement.
4.2 Focus Media Wireless and the Shareholders agree to compensate Dotad
Technology for and hold it harmless against all losses incurred or likely
to be incurred by it due to exercise of the Entrusted Rights by the
Trustees designated by Dotad Technology, including without limitation any
loss resulting from any litigation, demand arbitration or claim initiated
or raised by any third party against it or from administrative
investigation or penalty of governmental authorities. However, the
Shareholders and Focus Media Wireless will not compensate for losses
incurred due to wilful misconduct or gross negligence of Dotad Technology.
ARTICLE 5 REPRESENTATIONS AND WARRANTIES
5.1 Each of the Shareholders hereby respectively represents and warrants that:
5.1.1 Each of Shareholders is a limited liability corporation duly
registered and validly existing under PRC Law, with
independent status as a
3
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..
5.1.2 The Shareholders have 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.
5.1.3 The Shareholders are enrolled and legal shareholders of Focus
Media Wireless as of the effective date of this Agreement, and
except the rights created by this Agreement, the Call Option
Agreement (the "CALL OPTION AGREEMENT") as well as the Equity
Pledge Agreement (the "EQUITY PLEDGE AGREEMENT") entered into
by Dotad Technology, Focus Media Wireless and them on [ ],
2006, there exists no third party right on the Entrusted
Rights. Pursuant to this Agreement, the Trustees may fully and
sufficiently exercise the Entrusted Rights in accordance with
the then effective articles of association of Focus Media
Wireless.
5.2 Focus Media Wireless hereby represents and warrants that:
5.2.1 It is a company with limited liability properly registered and
legally existing under PRC laws, with an independent legal
person status, and with full and independent legal status and
legal capacity to execute, deliver and perform this Agreement
and may act independently as a subject of actions.
5.2.2 It has the full corporate power and authority to execute and
deliver this Agreement and all the other documents to be
entered into by it in relation to the transaction contemplated
hereunder, and has the full power and authority to consummate
such transaction.
5.2.3 The Shareholders are enrolled shareholders as of the effective
date of this Agreement, of which Focus Media Advertisement
holds 90% interest while Focus Media Advertising Agency holds
10%. Except rights created by this Agreement, the Equity
Pledge Agreement and the Call Option Agreement, there exists
no third party right on the Entrusted Rights. Pursuant to this
Agreement, the Trustees may fully and sufficiently exercise
the Entrusted Rights in accordance with the then effective
articles of association of Focus Media Wireless.
5.2.4 Considering the fact that the Shareholders of Focus Media
Wireless
4
will set aside all the equity interest held thereby in Focus
Media Wireless as security to secure the performance of the
contractual obligations by Focus Media Wireless under the Call
Option Agreement, Focus Media Wireless undertakes to, during
the valid term of this Agreement, make full and due
performance of any and all obligations under Call Option
Agreement, and warrant that no adverse impact on the exercise
of the Entrusted Rights hereunder by the Trustees will be
incurred due to the breach of the Call Option Agreement by
Focus Media Wireless.
ARTICLE 6 TERM OF AGREEMENT
6.1 Limited by the Article 6.2 and 6.3 of this Agreement, this Agreement shall
take effect as of the date of formal execution by the Parties with the
term of twenty (20) years, unless the Parties terminate the Agreement with
the written agreement in advance, or the Parties terminate the Agreement
in accordance with section 8.1 of this Agreement. Upon the expiration of
this Agreement, the Agreement will be automatically renewed for one (1)
year, unless Dotad Technology gives the other Parties written notice of
its intention not renew at least thirty (30) days prior to expiration.
6.2 In case that a Shareholder transfers all of the equity interest held by it
in Focus Media Wireless with prior consent of Dotad Technology, such
Shareholder shall no longer be a Party to this Agreement whilst the
obligations and commitments of the other Parties under this Agreement
shall not be adversely affected thereby.
6.3 During the term of this Agreement, should the business term of Focus Media
Wireless terminate by any reason; this Agreement to Focus Media Wireless
and Shareholders will be terminated.
ARTICLE 7 NOTICE
7.1 Any notice, request, demand and other correspondences made as required by
or in accordance with this Agreement shall be made in writing and
delivered to the relevant Party.
7.2 The abovementioned notice or other correspondences shall be deemed to have
been delivered when (i) it is transmitted if transmitted by facsimile, or
(ii) it is delivered if delivered in person, or (iii) when five (5) days
have elapsed after posting the same if posted by mail.
ARTICLE 8 DEFAULT LIABILITY
5
8.1 The Parties agree and confirm that, if any of the Parties (the "DEFAULTING
PARTY") breaches substantially any of the provisions herein or fails
substantially to perform any of the obligations hereunder, such a breach
or failure shall constitute a default under this Agreement (a "DEFAULT").
In such event any of the other Parties without default (a "NON-DEFAULTING
PARTY") who incurs losses arising from such a Default shall have the right
to require the Defaulting Party to rectify such Default or take remedial
measures within a reasonable period. If the Defaulting Party fails to
rectify such Default or take remedial measures within such reasonable
period or within ten (10) days of a Non-defaulting Party's notifying the
Defaulting Party in writing and requiring it to rectify the Default, then
the relevant Non-defaulting Party shall be entitled to choose at its
discretion to (1) terminate this Agreement and require the Defaulting
Party to indemnify all damages, or (2) require specific performance by the
Defaulting Party of this Agreement and indemnifation against all damages.
8.2 The Parties agree and confirm, the Shareholders or Focus Media Wireless
shall not request the termination of this Agreement for whatsoever reason
and under whatsoever circumstance, except otherwise stipulated by laws or
this Agreement.
8.3 Notwithstanding any other provisions herein, the validity of this Article
shall not be affected by the suspension or termination of this Agreement.
ARTICLE 9 MISCELLANEOUS
9.1 This Agreement shall be prepared in Chinese language in four (4) original
copies, with each involved Party holding one (1) copy hereof.
9.2 The conclusion, validity, execution, amendment, interpretation and
termination of this Agreement shall be governed by laws of the PRC.
9.3 Any disputes arising from and in connection with this Agreement shall be
settled through consultations among the Parties involved, and if the
Partiesinvolved fail to reach an agreement regarding such a dispute within
thirty (30) days of its occurrence, such dispute shall be submitted to
China International Economic and Trade Arbitration Commission for
arbitration in Shanghai in accordance with the arbitration rules of such
commission, and the arbitration award shall be final and binding on all
the Parties involved.
9.4 Any rights, powers and remedies empowered to any Party by any provisions
herein shall not preclude any other rights, powers and remedies enjoyed by
such Party in accordance with laws and other provisions under this
Agreement, and a Party's exercise of any of its rights, powers and
remedies shall not preclude its exercise of other rights, powers and
remedies of it.
6
9.5 Any failure or delay by a Party in exercising any of its rights, powers
and remedies hereunder or in accordance with laws (the "PARTY'S RIGHTS")
shall not lead to a waiver of such rights, and the waiver of any single or
partial exercise of the Party's Rights shall not preclude such Party from
exercising such rights in any other way or exercising the remaining part
of the Party's Rights.
9.6 The titles of the Articles contained herein are for reference only, and in
no circumstances shall such titles be used for or affect the
interpretation of the provisions hereof.
9.7 Each provision contained herein shall be severable and independent from
each of other provisions. If at any time any one or more articles herein
become invalid, illegal or unenforceable, the validity, legality or
enforceability of the remaining provisions herein shall not be affected
thereby.
9.8 Upon execution, this Agreement shall replace any other previous legal
documents entered into by relevant Parties on the same subject matter.
9.9 Any amendments or supplements to this Agreement shall be made in writing
and shall take effect only when properly signed by the Parties to this
Agreement.
9.10 In respect of the Shareholder and Focus Media Wireless, they shall not
assign any of their rights and/or transfer any of their obligations
hereunder to any third parties without prior written consent from Dotad
Technology; Dotad Technology shall have the right to assign any of its
rights and/or transfer any of its obligations hereunder to any third
parties designated by it after giving notice to the Shareholders.
9.11 This Agreement shall be binding on the legal successors of the Parties.
[The remiander of this page is left blank]
IN WITNESS HEREOF, the following Parties have caused this Shareholders' Voting
Rights Proxy Agreement to be executed as of the date and in the place first here
above mentioned.
7
SHANGHAI FOCUS MEDIA ADVERTISEMENT CO., LTD.
(chop)
Signature by Legal Representative: /s/ Xxxxx Xxxxxxx Xxxxx
-----------------------------
SHANGHAI FOCUS MEDIA ADVERTISING AGENCY CO., LTD
(chop)
Signature by Legal Representative: /s/ Xxxxx Xxxxxxx Xxxxx
-----------------------------
BEIJING DOTAD TECHNOLOGY CO., LTD.
(chop)
Signature by Legal Representative: /s/ Xxxxx Xxxxxxx Xxxxx
-----------------------------
BEIJING FOCUS MEDIA WIRELESS CO., LTD
Signature by Legal Representative: /s/ Xxxxx Xxxxxxx Xxxxx
-----------------------------
8
