Cooperation Agreement
[Reference
Translation]
among
Shandong
Broadcast & TV Weekly Press
and
Modern
Movie & TV Biweekly Press
and
Ji’nan
Zhongkuan Dian Guang Information Technology Co., Ltd
March
2008
Table
of Contents
|
Chapters
|
Pages
|
||
|
Chapter
|
1
|
Definitions
and Interpretations
|
2
|
|
Chapter
|
2
|
New
Co Establishment
|
5
|
|
Chapter
|
3
|
Inter-Company
Relationship
|
7
|
|
Chapter
|
4
|
Representations
and Warranties
|
9
|
|
Chapter
|
5
|
Covenants
|
11
|
|
Chapter
|
6
|
Conditions
Precedent
|
13
|
|
Chapter
|
7
|
Completion
of Cooperation
|
14
|
|
Chapter
|
8
|
Effectiveness
and Termination
|
15
|
|
Chapter
|
9
|
Events
of Breach
|
17
|
|
Chapter
|
10
|
Force
Majeure
|
17
|
|
Chapter
|
11
|
Confidentiality
|
18
|
|
Chapter
|
12
|
Miscellaneous
|
19
|
Schedules
| A. |
List
of Assets
|
| B. |
List
of The Seconded Staff
|
| C. |
List
of Governmental Authorizations
|
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1
-
This
Cooperation
Agreement (Agreement)
is
entered into on this 8th
day of
March 2008 in Ji’nan, Shandong Province, People’s Republic of China
(PRC)
by
and among
|
(1)
|
Shandong
Broadcast & TV Weekly Press (Party A),
a
PRC legal entity with its registered address at No. 11, Qingnian
East
Road, Ji’nan City, Shandong Province, PRC, whose legal representative is
Xxx Xxxxxx, a PRC citizen; and
|
|
(2)
|
Modern
Movie & TV Biweekly Press (Party
B),
a legal entity established under the laws of the PRC with its registered
address at No. 7, Qingnian East Road, Ji’nan City, Shandong Province, PRC,
whose legal representative is Xxx Xxxxxx, a PRC citizen;
and
|
|
(3)
|
Ji’nan
Zhongkuan Dian Guang Information Technology Co., Ltd
(Party
C),
a company established under PRC laws with its registered address
at Xxxxx
0000, Xxxxxx Xxxxxxxx, Xx. 0 Qingnian East Raod, Lixia District,
Ji’nan
City, Shandong Province, PRC, whose legal representative is Pu
Yue.
|
WHEREAS
| (1) |
Party
A and Party B are engaged in the provision of the Business (as defined
below) and have obtained the licenses necessary to operate the Business
in
the PRC;
|
| (2) |
Party
A and Party B intend to establish a new company (New
Co)
which
will be a joint venture partly owned by
Party C; and
|
| (3) |
The
parties entered into a letter of intent regarding the aforesaid subject
matter on 5 December 2007.
|
NOW,
THEREFORE,
the
parties hereto agree as follows:
Chapter
1 Definitions
and Interpretations
|
1.1
|
Definitions
|
Unless
otherwise indicated, the following terms in this Agreement shall have the
meanings set forth below:
-
2
-
|
Affiliate
|
in
relation to an entity, means another entity:
(1) in
which the entity holds, directly or indirectly, at least 10% of the
equity
interest or voting rights; or
(2) which
is the entity’s Parent Company or Subsidiary.
|
|
Appraisal
|
the
appraisal of the Assets conducted by a qualified appraisal
agent;
|
|
Assets
|
any
assets relating to the operation of the Business, as listed in Schedule
A;
|
|
Business
|
the
business relating to the operations of (1) Shandong Broadcast & TV
Weekly, View Weekly and Modern Movie & TV Biweekly (Newspapers
and Periodicals),
including without limitation the distribution of periodicals, the
publication of advertising, the organization of public relations
events,
the provision of information services, copyright transactions, the
production of audio and video products, the provision of audio value-added
communication services;
|
|
Completion of
Cooperation
|
the
date of fulfillment of all of the conditions precedent as listed
in
Article 6.1 (unless waived in accordance with Article 6.2.3) which
shall
occur no later than 31 March 2008, unless extended in accordance
with
Article 6.2.2;
|
|
Exclusive
Advertising
Agency
Agreement
|
shall
be
as
defined in Article 3.1.1;
|
|
Exclusive
Consulting
Service
Agreement
|
shall
be as defined in Article 3.2.1;
|
|
Force
Majeure
|
any
earthquake, storm, fire, flood, war or other significant event of
natural
or human-caused disaster arising after the signing hereof which is
unavoidable, not possible to overcome, beyond the control of any
party
hereto and prevents the total or partial performance of this Agreement
by
any party hereto, including any change of any laws or regulations
and any
government actions relating to Party A and Party
B;
|
-
3
-
|
Governmental
Authorizations
|
shall
be as defined in Article 4.2.5;
|
|
Parent
Company
|
in
relation to an entity, another entity of which the entity is a Subsidiary
(as defined below);
|
|
PRC
Law
|
all
laws and legislation of the PRC that are in effect, including laws,
regulations, resolutions, decisions, decrees and orders of government
agencies and other documents of a legislative, administrative or
judicial
nature;
|
|
RMB
|
Renminbi,
the lawful currency of the PRC;
|
|
Subsidiary
|
in
relation to an entity, another entity in which the entity holds,
directly
or indirectly, 50% or more of the entity’s total equity interest or voting
rights;
|
|
Tax
|
all
forms of taxation, including enterprise income tax, business tax,
value-added tax, stamp duty and individual income tax levied by the
PRC
tax authorities pursuant to PRC Law, as well as any penalty, surcharge
or
fine in connection therewith;
|
|
Trade
Secret
|
any
information relating to this Agreement or the parties, including
any
information regarding costs, technologies, financial contracts, future
business plans and any other information deemed by the parties to
be
confidential, and which is generally
unknown by the public,
has never been publicly disclosed,
has practical value and is of economic benefit to the
parties;
|
|
Transaction
Documents
|
all
documents that require signing under PRC Law in order to complete
the
transactions contemplated hereunder, including without limitation
the
Articles of Association of the New Co, the Exclusive Advertising
Agency
Agreement and Exclusive Consulting Service Agreement;
|
|
Staff
Secondment
|
as
defined in Article 2.4.1.
|
-
4
-
| 1.2 |
Interpretations
|
All
headings used herein are for reference purposes only and do not affect the
meaning or interpretation of any provision hereof. Any reference herein to
an
Article, Chapter or Schedule is to an article, chapter or schedule of this
Agreement. The use of the plural shall include the use of the singular, and
vice
versa. Unless otherwise indicated, a reference herein to a day, month or year
is
to a calendar day, month or year. A reference to a business day is to a day
on
which commercial banks are open for business in the PRC. The term “including”,
shall mean “including without limitation”.
Chapter
2 New
Co Establishment
| 2.1 |
Assets
Appraisal
|
| 2.1.1 |
As
soon as practicable after the execution of this Agreement, Party
A and
Party B shall hire a qualified appraisal agent reasonably
approved by Party C
to
conduct the Appraisal of the Assets, the expenses of which shall
be
reimbursed by the New Co after it is
established.
|
| 2.1.2 |
The
parties covenant that such Appraisal shall be completed no later
than 28
February 2008.
|
|
2.2
|
Establishment
of New Co
|
| 2.2.1 |
As
soon as practicable after the completion of the Appraisal, Party
A and
Party B shall contribute the Assets in a lump sum, as the initial
contribution to the New Co, in order to establish the New Co jointly
with
Party C in Ji’nan, PRC.
|
| 2.2.2 |
The
registered name of the New Co shall be Shandong Xxxxx Media Co.,
Ltd.
(山东捿瘺传媒有榰狝任公司)].
The registered capital of the New Co shall be no less than XXX 00
million.
Party A and Party B shall use their respective Assets as their
contribution to the Registered Capital, while Party C shall contribute
RMB
10 million in cash as its initial investment as stipulated in Article
7.2.
|
| 2.2.3 |
The
contribution of the Assets by Party A and Party B to the New Co’s
registered capital shall be made in accordance with the appraised
value of
the Assets as stated in the Appraisal report or as recognized by
the
parties.
|
-
5
-
| 2.2.4 |
The
parties further agree that the shares in the revenue of the New Co
shall
be 30% to Party A, 20% to Party B and 50 % to Party
C.
|
| 2.2.5 |
The
New Co’s business scope shall be subject to the standard business scope
approved by any competent government
department.
|
| 2.3 |
Governmental
Approvals
|
Party
A
and Party B shall be responsible for obtaining any and all prior approvals,
consents and (or) certificates, and shall undertake any and all
registrations/filings and
obtain all permits, registrations, licenses, consents or other
rights
necessary for the establishment of the New Co under PRC Law. Party C shall
actively cooperate in this regard. All costs arising therefrom shall be paid
in
advance by the parties in accordance with the percentage of their respective
contributions to the capital of the New Co and shall then be reimbursed by
the
New Co after it is established.
| 2.4 |
Arrangement
of Staff Secondment
|
| 2.4.1 |
Party
A and Party B shall cause the employees subject to their respective
employment systems to enter into new employment contracts with the
New Co
in accordance with the law and shall be responsible for the settlement
of
any labor disputes arising prior to the execution of employment contracts
with the New Co.
|
| 2.4.2 |
Party
A and Party B shall cause the employees subject to their respective
staffing systems or not subject to any employment system to retain
the
positions authorized under that staffing system and shall second
such
employees to work in the New Co.
|
| 2.4.3 |
Party
A and Party B shall assume responsibility for all rights and obligations
of the employees subject to their respective employment systems in
relation to employment relationships accrued prior to the Completion
of
Cooperation. Such rights and obligations accrued after the Completion
of
Cooperation shall be assumed by the New
Co.
|
| 2.5 |
Corporate
Governance
|
| 2.5.1 |
The
New Co shall establish a board of 4 directors. Party C shall appoint
2
directors, while Party A and Party B shall jointly appoint 2
directors.
|
-
6
-
| 2.5.2 |
The
Chairman of the New Co’s board of directors shall be jointly appointed by
Party A and Party B. The general manager and the finance manager
shall be
jointly nominated by Party A and Party B and appointed by Party C.
The
parties agree that the first Chairman of the New Co’s board of directors
shall be Xxx Xxxxxx.
|
| 2.5.3 |
The
New Co’s board of directors will review the details of corporate
governance and may make amendments thereto at any time, if needed,
after 1
year from the date of establishment of the New Co.
|
Chapter
3 Inter-Company
Relationship
| 3.1 |
Exclusive
Advertising Agency Agreement
|
| 3.1.1 |
Execution.
|
As
soon
as practicable after the establishment of the New Co, Party A and Party B shall
execute an exclusive advertising agency agreement (Exclusive
Advertising Agency Agreement)
with
the New Co. The Exclusive Advertising Agency Agreement shall be effective
throughout the term of the existence of New Co.
-
7
-
| 3.1.2 |
Agency
Scope.
|
| 3.1.2.1 |
Party
A and Party B shall retain the New Co as their respective exclusive
advertising agent. The New Co shall be
the exclusive provider to
Party A and Party B of
advertising agency service in respect of the advertisement operation
of
all Newspapers and Periodicals.
|
| 3.1.2.2 |
The
New Co shall be responsible for the solicitation of advertisements
for all
Newspapers and Periodicals, and shall enter into the contracts relating
to
the production and publication of such advertisements with the clients
in
its own name.
|
| 3.1.2.3 |
Party
A and Party B shall share their respective resources relating to
the
Business exclusively with the New Co.
|
| 3.2 |
Exclusive
Consulting Service Agreement
|
| 3.2.1 |
Execution.
|
As
soon
as practicable after the establishment of the New Co, Party A and Party B shall
execute an exclusive consulting service agreement (Exclusive
Consulting Service Agreement)
with
the New Co. The Exclusive Consulting Service Agreement shall be effective
throughout the term of the existence of New Co.
| 3.2.2 |
Service
Scope.
|
| 3.2.2.1 |
Party
A and Party B shall retain the New Co as their respective exclusive
consulting service company. The New Co shall be
the exclusive provider to
Party A and Party B of all technical support, management support,
management service and any other services necessary for the operation
of
the Business, in exchange for service
fees.
|
| 3.2.2.2 |
Party
A and Party B shall use their best endeavors to cause their Affiliates
to
share their respective resources relating to the Business exclusively
with
the New Co.
|
-
8
-
|
3.3
|
Fee
Payment
|
All
the
pre-Tax revenues (less the relevant turnover tax,
urban
maintenance and construction tax, additional education tax and cultural
construction fee,
etc.)
of Party A and Party B generated during the term of the Exclusive Advertising
Agency Agreement and Exclusive Consulting Service Agreement relating to the
Business shall be paid by Party A and Party B to the New Co as agency fees
and
service fees under the Exclusive Advertising Agency Agreement and Exclusive
Consulting Service Agreement. Where the parties need to adjust the specific
finance arrangement for payment of the fees
as
provided in this Article 3.3, such as paying the pre-Tax revenues relating
to
the Business (less the direct cost) to the New Co, the parties shall actively
cooperate with the New Co in making the specific payments of fees in accordance
with the relevant regulations and financial rules. Any taxes arising therefrom
shall be paid by the New Co.
| 3.4 |
Exclusivity.
|
| 3.4.1 |
Neither
Party A nor Party B shall (and cause their respective Affiliates
and
shareholders not to) participate in any substantive discussion or
negotiation, directly or indirectly, in respect of any arrangement
or
service contemplated in this
Agreement, the
Exclusive Advertising Agency Agreement and Exclusive Consulting Service
Agreement.
|
| 3.4.2 |
Where
Party A, Party B or any of their respective Affiliates or shareholders
receives a substantive proposal or communication in respect of cooperation
(relating to any aspect of the Business) from a third party, Party
A and
Party B shall notify Party C of the same. Party A and Party B shall
use
their best endeavors to cause their respective Affiliates or shareholders
to comply with the provisions of Article
3.4.
|
Chapter
4 Representations
and Warranties
| 4.1 |
Mutual
Representations and Warranties
|
|
Each
of the Parties represents and warrants
that:
|
| 4.1.1 |
it
has all necessary power and authority to execute, deliver and perform
this
Agreement and all Transaction Documents to which it is a party to;
|
| 4.1.2 |
the
execution and performance of this Agreement and any Transaction Documents
to which it is a party have been duly and validly authorized by any
and
all necessary corporate actions;
and
|
-
9
-
| 4.1.3 |
the
execution, delivery and performance of this Agreement or any Transaction
Documents to which it is a party will not contravene, conflict with,
or
result in a violation of any provision of any previous documents,
contract, agreement, understanding, other legal arrangement, law
or order
to which it is subject, and is fully enforceable against the party
executing hereby or thereby. In the event that such execution, delivery
and performance conflicts with any such legal arrangement, law or
order,
the legal arrangement, law or order shall prevail.
|
| 4.2 |
Representations
and Warranties of Party A and Party
B
|
|
Party
A and Party B further jointly represent and warrant to Party C
that:
|
| 4.2.1 |
the
Assets are free of any
encumbrances;
|
| 4.2.2 |
Except
for those that have already been disclosed to Party C in writing,
there is
no lawsuit, third party claim, order or investigation pending against
itself relating to the Assets or Business by any third party, court,
or
governmental or arbitral body;
|
| 4.2.3 |
they
at all times honored in full and in a timely fashion, all agreements
with
third parties, including with employees and
customers;
|
| 4.2.4 |
the
Assets constitute all of the assets used in or necessary for the
operation
of
the Business; and
|
| 4.2.5 |
all
consents, approvals, permits ,
licenses, registrations
and filings (Governmental
Authorizations,
which shall include the items or
consents, approvals and filings
listed in Schedule C) required under PRC Law for the due and proper
operation of the Business and any transaction hereunder, have been
duly
obtained from the appropriate authorities and are in full force and
effect.
|
-
10
-
| 4.3 |
Representations
and Warranties of Party C
|
Party
C
further represents and warrants to Party A and Party B that:
| 4.3.1 |
it
is qualified to enter into this Agreement as granted or permitted
by PRC
law;
|
| 4.3.2 |
it
has the capability to independently perform the terms of this
Agreement;
|
| 4.3.3 |
it
shall pay the amounts hereunder in accordance with the condition,
timetable and manner as stipulated in this
Agreement;
|
| 4.3.4 |
it
shall disclose to Party A and Party B any pending litigation, third
party
claim, order or investigation, external guarantee and any other procedure
brought or raised by any third party, court, government or arbitration
body against Party C or its Affiliate in relation to the Assets or
the
Business which may affect the performance of this
Agreement.
|
Chapter
5 Covenants
| 5.1 |
Staff
Secondment Covenants
|
The
New
Co will engage [Ÿ]
employees of Party A and Party B, as unanimously agreed among and between the
parties, to facilitate the operation of the New Co. The names and titles of
the
employees are listed in Schedule D and their salaries shall be determined by
a
resolution of the New Co’s board. Party A and Party B shall cause such employees
to work for the New Co in accordance with the provisions of Article 2.4 and
the
relevant government policies.
| 5.2 |
Assets
/ New Co Covenants
|
At
any
time after the execution of this Agreement and prior to the Completion of
Cooperation (but no later than 31 March 2008), Party A and Party B undertake
that they shall not, without the prior written consent of Party C:
| 5.2.1 |
create
or permit to arise any lien, encumbrance, pledge, mortgage or any
security, or other third party right or interest on or in respect
of any
of the Assets, or grant or issue, or agree to grant or issue, any
guarantee thereover;
|
| 5.2.2 |
enter
into any arrangement which materially affects the performance of
this
Agreement.
|
-
11
-
| 5.3 |
Transactions
Covenants
|
For
the
smooth performance of this Agreement and in respect of the transactions
contemplated hereunder, Party A and Party B shall, to
their
full extent,
obtain
all necessary consents, approvals or authorizations of, or make all necessary
declarations, filings or registrations with, any governmental authority in
connection with the execution, delivery and performance of this Agreement and
any Transaction Documents to which it is a party. Party C shall provide active
assistance therewith.
| 5.4 |
Governmental
Authorizations Covenants
|
| 5.4.1 |
Party
A and Party B shall, at their sole expense, ensure that the annual
inspection and/or renewal of Governmental Authorizations (where
applicable) are duly and timely made and all Governmental Authorizations
are maintained in full force and effect throughout the duration of
the
Exclusive Cooperation Agreement as described in Article 3.1 and any
terms
extended by the parties thereunder.
|
| 5.4.2 |
To
the extent permitted by PRC Law, Party A and Party B shall immediately,
and using its best efforts, cause the New Co to obtain the Governmental
Authorizations required for the operation of the
Business.
|
| 5.5 |
Business
Covenants
|
Party
A
and Party B agree to use their best commercial endeavors to continue the
operation of the Business until the parties agree otherwise.
| 5.6 |
Non-Competition
|
After
the
Completion of Cooperation, Party A and Party B shall not, without first
obtaining the written approval of Party C, develop any business that competes
with the New Co, nor shall they employ, recruit or attempt to recruit any of
the
Seconded Staff, other than any of such Seconded Staff who are engaged in the
transactions hereunder.
| 5.7 |
Indemnification
|
Each
party hereby unconditionally and irrevocably agrees to perpetually indemnify
the
other Party and its Affiliates, and hold them harmless from and against, any
and
all losses, claims, damages, expenses (including legal expenses) and liabilities
that any of the other parties and their Affiliates and Subsidiaries may sustain,
suffer or incur in connection with the Transactions contemplated hereunder
and
as a result of any breach of this Agreement or the Transaction
Documents.
| 5.8 |
Notification
|
Each
party shall promptly notify the other parties upon
becoming
aware of any event that may show, reveal or cause any of the representations
or
warranties to be incorrect, untrue, misleading or breached
in any
material respect, or that may have any material adverse effect on the assets
or
liabilities of the other parties.
-
12
-
Chapter
6 Conditions
Precedent
| 6.1 |
Conditions
Precedent
|
|
The
Completion of Cooperation is subject to the satisfaction of all of
the
following conditions precedent:
|
| 6.1.1 |
the
New Co having been established and all Assets of Party A and Party
B
having been contributed on time;
|
| 6.1.2 |
the
execution and delivery of the Transaction Documents by all the parties
thereto;
|
| 6.1.3 |
the
representations and warranties of the parties remaining true and
accurate
and having been fully adhered to in all material respects at the
time of
Completion of Cooperation;
|
| 6.1.4 |
the
proper completion of the parties’ covenants under Articles 5.1, 5.2 and
5.3.
|
| 6.2 |
Satisfaction
and Waiver of Conditions
Precedent
|
| 6.2.1 |
Within
3 business days after the satisfaction of the conditions precedent
described in Article 6.1, Party
A and Party B shall notify Party C thereof. Within 3 business days
after
the said notification, Party C shall confirm the same in writing
to Party
A and Party B. The Completion of Cooperation shall then be arranged
within
3 business days after receipt of Party C’s confirmation.
|
| 6.2.2 |
If
the conditions precedent set forth in Article 6.1 are not fulfilled
(or
waived as provided for in Article 6.2.3) on or before 31 March 2008,
or
such later date as the parties may agree, this Agreement (except
Chapter
11, Articles 12.3 and 12.4) shall become null and void and be of
no
further effect whatsoever and all the obligations and liabilities
of the
parties hereunder shall cease and terminate (save for any antecedent
breaches of this Agreement), and any funds paid hereunder returned,
other
than each party’s expenses, each party being responsible for its own
expenses.
|
| 6.2.3 |
One
or more of the conditions precedent listed in Article 6.1 may be
waived by
Party C at its sole discretion by sending a notice of such waiver
in
writing to Party A and Party B.
|
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13
-
Chapter
7 Completion
of Cooperation
| 7.1 |
Completion
of Cooperation
|
Subject
to the conditions precedent having been fulfilled (or waived as provided in
Article 6.2.3), the Completion of Cooperation shall be held within 3 working
days after the fulfillment of the conditions precedent at the Beijing offices
of
TransAsia Lawyers (Xxxxx 0000, Xxxxx World Tower 1, Xx. 0 Xxxxxxxxxxxxx Xxxxxx,
Xxxxxxx, XXX) or at such other location as the parties may agree.
At
the
Completion of Cooperation, to the extent not previously executed and delivered,
the parties shall execute and deliver the Transaction Documents.
| 7.2 |
Payment
|
Party
C
shall pay its contributions to the New Co in accordance with the following
provisions:
| 7.2.1 |
Party
C shall, within 3 working days after the execution of this Agreement
and
in any event on or before 31 March 2008, contribute an amount of
no less
than RMB 2 million to the New Co’s designated bank
account;
|
| 7.2.2 |
As
soon as practicable after the Completion of Cooperation, Party C
shall pay
the remaining amount of RMB 8 million; and
|
| 7.2.3 |
Within
12 months after the Completion of Cooperation, upon the proper fulfillment
of the obligations of Party A and Party B under Article 2.2 and Article
5.1 to 5.6 inclusive and other conditions as agreed by the parties,
Party
C shall make its second contribution, based on the New Co’s annual
operational performance during its first fiscal year, in accordance
with
the following arrangement (the parties agreeing that such additional
contribution by Party C shall not affect the revenue-sharing percentage
set forth in Article 2.2.4):
|
-
14
-
| 7.2.3.1 |
where
the annual net profits generated from the New Co’s operations during the
first fiscal year after its establishment is confirmed, in accordance
with
international accounting standards, by an independent professional
audit
institution designated by Party C, to be equal to or more than XXX
00
million, Party C shall make a second contribution of XXX 00 xxxxxxx.
|
| 7.2.3.2 |
where
the annual net profits generated from the New Co’s operations during the
first fiscal year after its establishment is confirmed, in accordance
with
international accounting standards, by an independent professional
audit
institution designated by Party C, to be equal to or more than RMB
4
million, but less than XXX 00 million, Party C shall make a second
contribution of RMB X, where X equals net profits generated during
the
same fiscal year multiplied by 125%.
|
| 7.2.3.3 |
where
the annual net profits generated from the New Co’s operations during the
first fiscal year after its establishment is confirmed, in accordance
with
international accounting standards, by an independent professional
audit
institution designated by Party C, to be less than XXX 0 million,
Party C
will make a second contribution of RMB 5 million to the New
Co.
|
Chapter
8 Effectiveness
and Termination
| 8.1 |
Effective
Date
|
This
Agreement shall be effective upon the date of its execution by the parties.
| 8.2 |
Termination
|
| 8.2.1 |
This
Agreement may be terminated with immediate effect by any party by
means of
written notice to all of the other parties under any of the following
circumstances:
|
| 8.2.1.1 |
where
the Completion of Cooperation has not occurred on or before 31 March
2008
(in no event to be any later than the 3 working days immediately
prior to
the 90th day after the date on which the New Co’s business license is
issued), provided, however, that the right to terminate this Agreement
shall not be available to any party whose failure to fulfill any
obligation hereunder shall have been the cause of the failure for
any
condition precedent to the Completion of Cooperation to be
satisfied;
|
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15
-
| 8.2.1.2 |
where
any other party has committed a breach of this Agreement as described
in
Article 9.1, provided, however, that Party C’s failure to perform its
contribution obligations under Article 7.2.2 as a result of Party
A or
Party B’s nonperformance of their respective obligations under Article 3.4
and Articles 5.1 to 5.6 inclusive and other conditions as agreed
by the
parties, shall not constitute any breach on the part of Party C,
and Party
C shall have the right to request the termination of this Agreement
as
provided for in Article 8.2.2.2;
|
| 8.2.1.3 |
where
the other party becomes insolvent, if an order is made or resolution
passed for the administration, winding-up or dissolution of any party
(otherwise than for the purposes of a solvent corporate reconstruction),
if an administrative or other receiver, manager, liquidator,
administrator, trustee or similar officer is appointed over all or
a
substantial part of the assets of such other party, or if such other
party
enters into or proposes any composition or arrangement with its creditors
generally analogous to the foregoing;
or
|
| 8.2.1.4 |
where
Force Majeure prevails for a period of 30 days or more and has an
adverse
material effect
on
this Agreement.
|
| 8.3 |
Consequence
Upon Termination
|
|
Upon
termination hereof, this Agreement shall be of no further effect
and no
party shall have any right against any of the other parties in connection
with this Agreement; provided, however, that nothing herein shall
relieve
any party of any liability incurred before the termination of this
Agreement. Upon termination of this Agreement, if the New Co has
already
been established, the parties shall dissolve the New Co in accordance
with
PRC law.
|
-
16
-
Chapter
9 Events
of Breach
| 9.1 |
Events
of Breach
|
The
occurrence of any 1 or more of the following events shall constitute a breach
of
this Agreement:
| 9.1.1 |
any
party hereto has breached the terms hereof or has failed to perform
in any
respect its obligations hereunder, and such breach or nonperformance
has
not been remedied for a period of 10 days after receipt of the other
party’s written notice requesting such remedy;
and
|
| 9.1.2 |
any
representation or warranty made by any party hereto shall prove to
have
been or become false or misleading in any
respect.
|
| 9.2 |
Liabilities
for Breach
|
Where
any
party hereto commits a breach of this Agreement, it shall be liable to
compensate the other party for any and all damages caused to it as a result
of
the breach.
Chapter
10 Force
Majeure
| 10.1 |
Consultation
|
In
the
event of Force Majeure, the parties shall promptly consult with each other
to
find a solution to the situation.
| 10.2 |
Relief
from Obligations
|
Should
the occurrence of a Force Majeure result in any party’s failure to perform its
obligations hereunder in whole or in part, that party may, unless otherwise
stipulated by law, be exempted from performing those obligations to the extent
of the effect of the Force Majeure in question.
| 10.3 |
Suspension
of Performance
|
Subject
to this Chapter 10, the party affected by Force Majeure may suspend the
performance of its obligations hereunder to the extent and for the duration
thereof until the effect of the Force Majeure no longer operates. However,
that
Party shall exert its best efforts to remove any impediments resulting from
the
Force Majeure and to minimize to the greatest possible extent any damages
incurred. With the agreement of the parties, the term of this Agreement
shall be
extended by the period of such suspension without penalty to any party
hereto.
-
17
-
|
10.4
|
Written
Evidence
|
The
Party
claiming Force Majeure shall,
as
soon as possible after the occurrence of the Force Majeure, inform the other
Party of the situation and specify the reason for its failure to perform this
Agreement,
so as
to minimize the damages inflicted upon that Party, and shall provide the other
Party with written evidence, certified by the relevant government authority,
of
the occurrence of the Force Majeure.
| 10.5 |
Non-Exemption
|
A
party
shall not be exempted from performing its obligations hereunder where Force
Majeure occurs following the delay by that party to perform such
obligations.
Chapter
11 Confidentiality
| 11.1 |
Non
Disclosure
|
From
the
date hereof until 5 years hereafter, no party shall disclose or communicate
any
Trade Secret which may be within or may come into its knowledge, except to
their
respective employees and the employees of their respective affiliates for the
sole purpose of implementing the agreements contemplated hereunder or as
instructed by the other parties.
| 11.2 |
Breach
of Obligations
|
The
parties shall take all necessary measures (including the signing of
confidentiality agreements) to ensure that
their
respective directors, employees, agents, contractors, suppliers and advisors
also comply with the confidentiality obligations set forth in this
chapter.
| 11.3 |
Exceptions
|
The
disclosure of a Trade Secret by any party hereto shall not be deemed to be
in
breach of this Chapter if any of the following circumstances apply:
| 11.3.1 |
the
information is in the
public domain at the time of disclosure, through no fault of the
disclosing party;
|
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18
-
| 11.3.2 |
the
information is
disclosed pursuant to the prior written agreement of the
parties;
|
| 11.3.3 |
the
information is required
by any government authority or law to which a Party, or its affiliate
is
subject; or
|
| 11.3.4 |
the
information
is
provided to any director, agent, contractor, supplier or advisor
of an
affiliate in the ordinary course of business pursuant to the prior
written
agreement of the parties.
|
Chapter
12 Miscellaneous
| 12.1 |
Copies
|
| 12.1.1 |
This
Agreement shall be executed in 3 sets of originals in Chinese language,
with 1 set of originals for each party to this
Agreement.
|
| 12.1.2 |
This
Agreement may be executed in 1 or more counterparts, each of which
will be
deemed to be an original copy of this Agreement and all of which,
when
taken together, will be deemed to constitute one and the same instrument.
|
| 12.2 |
Notice
|
|
All
notices and communications among the parties shall be made in writing
and
in Chinese languages by facsimile transmission or such other method
of
electronic communication as agreed between the parties, delivery
in person
(including courier service) or registered airmail letter to the
appropriate correspondence addresses set forth
below:
|
| If to Party A: | |||
| Address: | No. 11, Qingnian East Road, Ji’nan City, Shandong Province, PRC | ||
| Telephone: | 0000-00000000 | ||
| Fax: | 0000-00000000 | ||
| Attention: | Xxx Xxxxxx | ||
| If to Party B: | |||
| Address: | No. 7, Qingnian East Road, Ji’nan City, Shandong Province, PRC | ||
| Telephone: | 0000-00000000 | ||
| Fax: | 0000-00000000 | ||
| Attention: | Xxx Xxxxxx | ||
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19
-
|
If
to Party C:
|
|||
| Address: | Xxxxx 0000, Xxxxxx Xxxxxxxx, Xx. 0 Qingnian East Road, Lixia District, Ji’nan City, Shandong Province, PRC | ||
| Telephone: | 0000-00000000 | ||
| Fax: | 0000-00000000 | ||
| Attention: | Pu Yue | ||
| With a Copy to: | |||
|
|
Address:
|
Xxxxxxx Xxxx
0000
Xxxxxxxx,
00xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000 XXX
|
|
| Telephone: | 000.000.0000 | ||
| Fax: | 000.000.0000 | ||
| Attention: | Xxxxxxx Xxxx, Esq. | ||
The
time
of receipt of the notice or communication shall be deemed to be:
| 12.2.1 |
if
by facsimile transmission
or
other agreed electronic
method of communication, at the time displayed in the corresponding
transmission record, unless such facsimile is sent after 5:00 p.m.
or on a
non-business day in the place where it is received, in which case
the date
of receipt shall be deemed to be the following business
day;
|
| 12.2.2 |
if
in person (including courier service), on the date that the receiving
party signs for the document; or
|
| 12.2.3 |
if
by registered mail (including express mail), 7 days after the issuance
of
a receipt by the post office.
|
| 12.3 |
Governing
Law
|
|
The
formation of this Agreement, its validity, interpretation, execution
and
settlement of disputes hereunder will be governed by PRC
Law.
|
-
20
-
| 12.4 |
Dispute
Resolution
|
| 12.4.1 |
Where
any dispute arises out of or in connection with this Agreement, the
Parties shall attempt in the first instance to resolve such dispute
through friendly consultation or
mediation.
|
| 12.4.2 |
Where
the dispute cannot be resolved in the above manner within 30 days
after
the commencement of consultations, any party hereto may submit the
dispute
for arbitration:
|
| 12.4.2.1 |
Any
dispute arising from or in connection with this Agreement shall be
arbitrated in accordance with Ji’nan Arbitration Commission Rules and by a
sole arbitrator appointed
thereunder.
|
| 12.4.2.2 |
Ji’nan
Arbitration Commission shall be the arbitration body, and the arbitration
award shall be final and binding on the parties. The allocation of
responsibility for the arbitration fee shall be determined by the
sole
arbitrator.
|
| 12.4.3 |
When
any dispute is submitted to arbitration, the parties shall continue
to
perform their obligations
hereunder.
|
| 12.5 |
Waiver
|
|
No
failure or delay on the part of any party hereto in the exercise
of any
right hereunder shall impair such right or be construed to be a waiver
of
such right or acquiescence in any breach of any representation, warranty,
covenant or agreement herein, nor shall any single or partial exercise
or
waiver of any such right preclude other or further exercise thereof
or of
any other right.
|
| 12.6 |
Prior
Agreement
|
|
This
Agreement supersedes all prior agreements, whether written or oral,
between the parties with respect to its subject matter and, along
with the
Transaction Documents, constitutes the entire agreement between the
parties with respect to its subject matter.
|
| 12.7 |
Amendment
|
No
amendment or other modification of this Agreement shall be effective unless
the
same shall be in writing and signed by an authorized representative of each
party hereto, and then such amendment or other modification shall be an integral
part of, and have the same effectiveness as, this Agreement.
-
21
-
|
12.8
|
Assignment
|
|
No
party may assign any of its rights and/or obligations hereunder without
the prior written consent of the other party. Subject to the preceding
sentence, this Agreement will apply to, be binding in all respects
upon,
and inure to the benefit of, the successors, heirs, personal
representatives, executors and permitted assigns of the
parties.
|
| 12.9 |
Severability
|
|
Where
any provision of this Agreement is subject to dispute or is determined
by
a competent court, arbitral body or government organization to be
invalid
or unenforceable, the remainder of this Agreement shall continue
in full
force and effect.
|
| 12.10 |
Cost
and Expense
|
|
Except
as otherwise expressly set forth herein or in any related documents,
all
fees, costs and expenses incurred in connection with the negotiation,
execution, delivery and performance of this Agreement and the Transaction
Documents shall be paid by the Party or Parties incurring such fees,
costs
or expenses.
|
[The
space below is intentionally left blank.]
-
22
-
IN
WITNESS WHEREOF,
the
parties hereto have duly executed this Agreement on the date first above
written.
Shandong
Broadcast & TV Weekly Press
| By: | |
| Name: | Xxx Xxxxxx |
| Title: | Legal Representative |
| Company Seal: | |
Modern
Movie & TV Biweekly Press
| By: | |
| Name: | Xxx Xxxxxx |
| Title: | Legal Representative |
| Company Seal: | |
Ji’nan
Zhongkuan Dian Guang Information Technology Co., Ltd
| By: | |
| Name: | Pu Yue |
| Title: | Legal Representative |
| Company Seal: | |
-
23
-
Schedule
A
List
of Assets
[PROVIDE]
-
24
-
Schedule
B
List
of The Seconded Staff
-
25
-
Schedule
C
List
of Governmental Authorizations
|
1.
|
PRC
Newspaper Publication License for Shandong Broadcast & TV Weekly:
Rubachu Number: 0014; National Unified Publication Serial Number:
CN
37-0014;
|
|
2.
|
PRC
Magazine Publication License for View Weekly: Ruqichu
Number:1384;
|
|
3.
|
PRC
Magazine Publication License for Modern Movie & TV Biweekly: Ruqichu
Number:1318;
|
|
4.
|
Advertising
License for Shandong Broadcast & TV Weekly:
3700004000093;
|
|
5.
|
Advertising
License for View Weekly: 3700004000186; and
|
|
6.
|
Advertising
License for Modern Movie & TV Biweekly:
3700004000124.
|
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26
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