EXHIBIT 10.32
CONFIDENTIAL
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ADVERTISEMENT DISSEMINATION AGREEMENT
BETWEEN
SHANGHAI FOCUS MEDIA ADVERTISING AGENCY CO., LTD.
AND
SHAHGHAI NEW FOCUS MEDIA ADVERTISEMENT CO., LTD.
DATED AS OF
MAY 22, 2006
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ADVERTISEMENT DISSEMINATION AGREEMENT
This Advertisement Dissemination Agreement is entered into as of May 22, 2006 in
Shanghai, by and between the following Parties:
(1) SHANGHAI FOCUS MEDIA ADVERTISING AGENCY CO., LTD., a company of limited
liabilities incorporated under the laws of China, with its legal address
at Xxxx X00, 00 Xxxxx, Xx. 000 Xxxxxxx Xxxx, Xxxxxxxxx Xxxxxxxx, Xxxxxxxx
("FOCUS MEDIA ADVERTISING AGENCY"); and
(2) SHANGHAI NEW FOCUS MEDIA ADVERTISEMENT CO., LTD., a company of limited
liabilities incorporated under the laws of China, with its legal address
at Room 15F-30, Xx.000 Xxx'xx Xxxx, Xxxxxxxxx Xxxxxxxx, Xxxxxxxx ("NEW
FOCUS MEDIA ADVERTISEMENT").
WHEREAS:
1. New Focus Media Advertisement owns equipments, technologies for LCD
advertising business; and it is authorized to utilize the resource of
advertisement placements in accordance with the relevant cooperation
agreement.
2. New Focus Media Advertisement is a advertisement agency company without
any resource to disseminate LCD advertisement;
3. It is agreed that New Focus Media Advertisement shall disseminate LCD
advertisements on behalf of Focus Media Advertising Agency, and Focus
Media Advertising Agency shall pay relevant fees to New Focus Media
Advertisement.
THEREFORE, after friendly consultations among them, the Parties hereby agree as
follows:
ARTICLE 1 DEFINITION
1.1 Unless to be otherwise interpreted by the terms or in the context herein,
the following terms in this Agreement shall be interpreted to have the
following meanings:
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CROSS-TIME Means the advertisement dissemination agreements signed by and
ADVERTISEMENT among Focus Media Advertising Agency and its advertisement clients
DISSEMINATION before January 1, 2006, which provides the dissemination of LCD
AGREEMENT advertisements after January 1, 2006.
EQUIPMENTS AND Means wireless LCD advertisement machines and multi-media CF-card
TECHNOLOGY technology used in LCD advertisement business owned by New Focus
Media Advertisement.
ADVERTISEMENT Means the advertisement placements resources under the cooperation
PLACEMENT RESOURCE agreements, which can be utilized by New Focus Media Advertisement
in disseminating the advertisements.
1.2 The references to any law and regulation ("Laws") 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.
ARTICLE 2 ASSIGNMENT OF ADVERTISEMENT DISSEMINATION
2.1 The Parties agree that New Focus Media Advertisement shall, by using its
own equipments and technology and utilizing the Advertisement Placement
Resource, disseminate all the LCD advertisements for Focus Media
Advertising Agency under the Cross-time Advertisement Dissemination
Agreement.
2.2 Focus Media Advertising Agency shall try all its reasonable efforts to
maintain the cooperation with the advertisement clients and perform all
its duties under the Cross-time Advertisement Dissemination Agreement.
ARTICLE 3 ADVERTISEMENT DISSEMINATION FEES
3.1 In consideration for the Advertisement Dissemination by New Focus Media
Advertisement for Focus Media Advertising Agency, Focus Media Advertising
Agency shall pay to New Focus Media Advertisement the relevant
advertisement dissemination fees. The formula for the calculation of such
fees
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shall be: 97.5% of all the advertisement dissemination fees collected by
Focus Media Advertising Agency from its Advertisement Clients in
accordance with the Cross-time Advertisement Dissemination Agreement since
January 1, 2006.
3.2 With the written consent from both New Focus Media Advertisement and Focus
Media Advertising Agency, the fees or the calculation of the proportion
provided in Article 3.1 can be adjusted subject to the concrete
circumstances. The two Parties shall execute a supplementary agreement in
relation to such adjustment as the schedule to this Agreement.
3.3 Focus Media Advertising Agency shall, in accordance with this Article,
promptly pay the amounts due and payable to the bank account designated by
New Focus Media Advertisement. In case that the aforesaid bank account has
been changed, New Focus Media Advertisement shall notify Focus Media
Advertising Agency thereof in writing.
ARTICLE 4 EXCLUSIVITY
4.1 Without the prior consent in writing by New Focus Media Advertisement,
Focus Media Advertising Agency may not provide any LCD advertisement
dissemination services to any other third party.
ARTICLE 5 CONFIDENTIALITY
5.1 No matter if this Agreement is terminated or not, the Parties shall be
obliged to keep in strict confidence the commercial secret, proprietary
information and customer information in relation to other Parties and any
other non-open information of other Parties which they may become aware of
as the result of their performance hereof (collectively, "CONFIDENTIAL
INFORMATION"). Unless with prior consent of such other Parties in writing
or required to disclose to parties other than Parties hereof according to
relevant laws, regulations or listing rules, no Party shall disclose the
Confidential Information or any part thereof to any parties other than
Parties hereof; unless for the purpose of performance hereof, no Party
shall use directly or indirectly the Confidential Information or any part
thereof for any other purposes, or it shall bear the default liability and
indemnify the losses.
5.2 Upon the termination of this Agreement, the Parties shall, upon demand by
other Parties providing the Confidential Information, return, destroy or
otherwise dispose of all the documents, materials or software containing
the Confidential Information and suspend using such Confidential
Information.
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5.3 Notwithstanding any other provisions herein, the validity of this Article
shall not be affected by the suspension or termination of this Agreement.
ARTICLE 6 UNDERTAKINGS AND GUARANTEES
New Focus Media Advertisement and Focus Media Advertising Agency hereby
undertake and guarantee for each of its own that:
6.1 it is a company of limited liabilities duly registered and legally
existing under the PRC laws with independent legal person status, and with
full and independent status and legal capacity to execute, deliver and
perform this Agreement, and may act independently as a subject of actions;
6.2 its has full internal power and authority within its company to execute
and deliver this Agreement and all the other documents to be entered into
by it in relation to the transaction referred to herein, and it has the
full power and authority to complete the transaction referred to herein.
This Agreement shall be executed and delivered by it legally and properly,
and constitutes the legal and binding obligations on it and is enforceable
on it in accordance with its terms and conditions;
6.3 it has all business licenses necessary for its business operations as of
the effective date of this Agreement, has full rights and qualifications
to engage in its currently engaged businesses, may perform its obligations
hereunder, and will maintain, during the valid term of this Agreement, the
validity of all its such business licenses; and
6.4 it shall inform promptly the other Parties of any litigations it is
involved in and other disadvantageous circumstances that may affect the
performance hereof, and shall endeavor at its best efforts to prevent the
deterioration of losses caused by such litigations or other
disadvantageous circumstances.
ARTICLE 7 AGREEMENT TERM
7.1 The Parties hereby confirm that, once this Agreement is formally executed
by the Parties, this Agreement shall be retrospectively effective as far
as the date January 1, 2006; unless terminated earlier by the Parties in
writing, this Agreement shall be valid for a term of two (2) years from
the date January 1, 2006.
7.2 Upon termination of this Agreement, each Party shall continue to abide by
its obligations under Articles 3 and 6 hereunder.
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ARTICLE 8 NOTICE
8.1 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.
8.2 The abovementioned notice or other correspondences shall be deemed to have
been delivered when it is transmitted if transmitted by facsimile or
telex; 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 9 DEFAULT LIABILITY
9.1 The Parties agree and confirm that, if any Party (the "DEFAULTING PARTY")
breaches any of the agreements made under this Agreement materially, or
fails to perform any of the obligations under this Agreement materially,
such a breach shall constitute a default under this Agreement (a
"DEFAULT"), then the non-defaulting Party whose interest is damaged
thereby 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 the
non-defaulting Party notifying the Defaulting Party in writing and
requiring it to rectify the Default, then the non-defaulting Party shall
have the right, at its own discretion, to (1) terminate this Agreement and
require the Defaulting Party to indemnify it fully for the damage; or (2)
demand the enforcement of the Defaulting Party's obligations hereunder and
require the Defaulting Party to indemnify it fully for the damage.
9.2 Without the agreement or common confirmation of both Parties, Focus Media
Advertising Agency, under no circumstance, could terminate this Agreement
for any reason, except that is required by Laws or provisions herein.
9.3 Notwithstanding any other provisions herein, the validity of this article
shall stand disregarding the suspension or termination of this Agreement.
ARTICLE 10 FORCE MAJEURE
In the event of earthquake, typhoon, flood, fire, war, computer virus, loophole
in the
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design of tooling software, internet system encountering hacker's invasion,
change of policies or laws, and other unforeseeable or unpreventable or
unavoidable event of force majeure, which directly prevents a Party from
performing this Agreement or performing the same on the agreed condition, the
Party encountering such a force majeure event shall forthwith issue a notice by
a facsimile and, within thirty (30) days, present the documents proving the
details of such force majeure event and the reasons for which this Agreement is
unable to be performed or is required to be postponed in its performance, and
such proving documents shall be issued by the notary office of the area where
such force majeure event takes place. The Parties shall consult each other and
decide whether this Agreement shall be waived in part or postponed in its
performance with regard to the extent of impact of such force majeure event on
the performance of this Agreement. No Party shall be liable to compensate for
the economic losses brought to the other Parties by the force majeure event.
ARTICLE 11 MISCELLANEOUS
11.1 This Agreement shall be prepared in the Chinese language in two (2)
original copies, with each involved Party holding one (1) copy hereof.
11.2 The formation, validity, execution, amendment, interpretation and
termination of this Agreement shall be subject to the PRC Laws.
11.3 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 the Parties involved in
such dispute.
11.4 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 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.
11.5 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 and exercising the remaining part
of The Party's Rights.
11.6 The captions of the Articles contained herein shall be for reference only,
and in
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no circumstances shall such captions be used in or affect the
interpretation of the provisions hereof.
11.7 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.
11.8 Once executed, this Agreement shall replace any other legal documents
entered into by the relevant Parties hereof in respect of the same subject
matter hereof.
11.9 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.
11.10 No Party shall assign any of its rights and/or obligations hereunder to
any parties other than the Parties hereof without the prior written
consent from the other Parties.
11.11 This Agreement shall be binding on the legal successors of the Parties.
11.12 The Parties undertake that all the taxes involved in the transaction
occurred herein shall be declared and paid by them respectively.
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[THIS PAGE IS THE EXECUTION PAGE OF THE ADVERTISEMENT DISSEMINATION AGREEMENT]
IN WITNESS HEREOF, the Parties have caused this Advertisement Dissemination
Agreement to be executed in the place and on the date which expressed in the
first page herein.
SHANGHAI FOCUS MEDIA ADVERTISING AGENCY CO., LTD.
(CHOP)
Sign: /s/ Xxxxx Xxxxxxx Xxxxx
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Name: Xxxxx Xxxxxxx Xxxxx
Title: Authorized Representative
SHANGHAI NEW FOCUS MEDIA ADVERTISEMENT CO., LTD.
(CHOP)
Sign: /s/ Xxxxx Xxxxxxx Xxxxx
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Name: Xxxxx Xxxxxxx Xxxxx
Title: Authorized Representative
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