EXHIBIT 10.12
EVEREASE NON-COMPETITION AGREEMENT
THIS EVEREASE NON-COMPETITION AGREEMENT (this "Agreement"), dated as of
November, 2004, is entered into by and among Focus Media Holding Limited, an
international business company organized and existing under the laws of the
British Virgin Islands (the "COMPANY"), and Shanghai Everease Communications
Company [CHINESE CHARACTERS] ("EVEREASE"), a collectively-owned enterprise
organized and existing under the laws of the PRC.
RECITALS
WHEREAS the Company and its subsidiaries operate a leading advertising
company;
WHEREAS Jiang Nanchun [CHINESE CHARACTERS] of 28th Floor, Zhao Feng World
Trade Building, No. 369 Jiangsu Road, Shanghai, China, controls both the Company
and Everease;
WHEREAS Everease and the Company have ongoing commercial dealings;
WHEREAS the Company and Xx. Xxxxx seek to induce certain investors
(collectively, the "INVESTORS") to invest in the Company pursuant to that
certain Share Purchase Agreement, dated as of November 9, 2004 (the "SHARE
PURCHASE AGREEMENT");
WHEREAS the Investors seek certain assurances from Xx. Xxxxx and Everease
as a precondition to their investment in the Company, and Xx. Xxxxx and Everease
are willing to give such assurances;
WHEREAS it is a condition precedent under the Share Purchase Agreement
that the Company and Everease enter into this Agreement;
WHEREAS the parties hereto wish to memorialize herein their understanding
with respect to such assurances.
WITNESSETH
In consideration of the premises set forth above and the mutual promises
and agreements contained herein, and for other good and valuable consideration,
the receipt of which is hereby acknowledged, the parties hereto hereby agree as
follows:
SECTION 1. INTERPRETATION
1.1 Definitions. The following terms shall have the meanings ascribed to
them below:
"AFFILIATE" means, with respect to any given Person, a Person that
Controls, is Controlled by, or is under common Control with the given
Person.
"APPLICABLE LAW" means, with respect to any Person, any and all
provisions of any constitution, treaty, statute, law, regulation,
ordinance, code, rule, judgment, rule of common law, order, decree, award,
injunction, governmental approval,
Everease Non-Compete Agreement
concession, grant, franchise, license, agreement, directive, requirement,
or other governmental restriction or any similar form of decision of, or
determination by, or any interpretation or administration of any of the
foregoing by, any Government Entity, whether in effect as of the date
hereof or thereafter and in each case as amended, applicable to such
Person or its subsidiaries or their respective assets.
"BOARD" means the Board of Directors of the Company.
"BUSINESS" means the business of any of the Company and/or the Group
Companies as conducted from time to time during the Term of Employment.
"CONFIDENTIAL INFORMATION" means information about the Company, its
subsidiaries and Affiliates, and their respective clients and customers
that is not available to the general public and that was developed or
learned by Xx. Xxxxx in the course of his employment by, or during their
service on the board of directors of the Company or any Group Company,
including, but not limited to, the following information: (i) trade
secrets, Innovations, patents, copyright, proprietary information, mask
works, ideas, processes, formulas, source and object codes, equipment,
algorithms, data, programs, other works of authorship, know-how,
improvements, discoveries, developments, designs and techniques, whether
patentable or unpatentable, related to past, current, future and proposed
products and services of the Company or any Group Company; (ii)
information regarding plans for research, experimental work, designs,
details and specifications, engineering, development, new products,
procurement requirements, purchasing, creating, merchandising, marketing
and selling business plans, budgets and unpublished financial statements,
financial projections, licenses, prices and costs, suppliers, joint
ventures, licensors, licensees, distributors, customers and other persons
with whom the Company or any Group Company does business; and (iii)
information regarding the skills and compensation of other employees of
the Company or any Group Company.
"CONTROL" means, when used with respect to any Person, the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or
otherwise, and the terms "Controlling" and "Controlled" have meanings
correlative to the foregoing.
"GROUP COMPANY" means any Person that is not a natural person and
that is Controlled by the Company.
"INNOVATION" shall mean, with respect to Xx. Xxxxx, any idea or
information made or conceived or reduced to practice, in whole or in part,
by Xx. Xxxxx, including, but not limited to, all processes, machines,
methods, improvements (whether or not protectable under patent laws),
works of authorship, information fixed in any tangible medium of
expression (whether or not protectable under copyright laws), moral
rights, mask works, trademarks, trade names, trade dress, trade secrets,
know-how, ideas (whether or not protectable under trade secret laws), and
all other subject matter protectable under patent, copyright, moral right,
mask work, trademark, trade secret or other laws, and including without
limitation all new or useful art, combinations, discoveries, processes,
algorithms, programs, formulae, techniques, technical developments,
software (both object code and source code), and designs.
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"PRC" means the People's Republic of China, solely for purposes of
this Agreement, excluding the Hong Kong Special Administrative Region, the
Macau Special Administrative Region and the islands of Taiwan.
"TERM OF EMPLOYMENT" means such period as Xx. Xxxxx is employed by,
or serves on the board of directors of, any of the Company or the Group
Companies.
"TERRITORY" means the PRC, the Hong Kong Special Administrative
Region, the Macau Special Administrative Region, Singapore and the islands
of Taiwan.
1.2 Interpretation. For all purposes of this Agreement, except as
otherwise expressly provided, (i) the terms defined in this Section 1 shall have
the meanings assigned to them in this Section 1 and include the plural as well
as the singular, (ii) all references in this Agreement to designated "Sections"
and other subdivisions are to the designated Sections and other subdivisions of
the body of this Agreement, (iii) pronouns of either gender or neuter shall
include, as appropriate, the other pronoun forms, and (iv) the words "herein,"
"hereof" and "hereunder" and other words of similar import refer to this
Agreement as a whole and not to any particular Section or other subdivision.
SECTION 2 CONFIDENTIAL INFORMATION AND NON-COMPETITION.
2.1 Confidential Information. Everease hereby agrees that none of
Everease, its Affiliates (other than the Company or any Group Company) or its
officers, directors or employees (collectively, the "BOUND PARTIES") shall
disclose to others or use, whether directly or indirectly, any Confidential
Information regarding the Company or any Group Company. Everease acknowledges
that such Confidential Information is specialized, unique in nature and of great
value to the Company and the Group Companies, and that such information gives
the Company and the Group Companies a competitive advantage.
2.2 Non-competition. Everease hereby agrees that, for so long as Xx. Xxxxx
shall continue to hold any equity in the Company (whether directly or
indirectly) and for two (2) years thereafter, none of the Bound Parties shall,
within the Territory:
(a) engage or participate in, directly or indirectly (whether as an
officer, director, employee, partner, consultant, holder of an equity or debt
investment, lender or in any other manner or capacity), or lend any Bound
Party's name (or any part, variant or formative thereof) to any business which
is, or as a result of such engagement or participation would become, competitive
with the Business or is similar to the Business;
(b) deal, directly or indirectly, in a competitive manner with any
customers doing business with the Company or any Group Company;
(c) solicit any officer, director, employee or agent of the Company
or any Group Company to become an officer, director, employee or agent of anyone
other than the Company or any Group Company; or
(d) engage in or participate in, directly or indirectly, any
business conducted under any name that shall be the same as or similar to the
name of the Company or any Group Company or to any trade name used by the
Company or any Group Company where such business is (i) directly or indirectly
competitive with the Business or (ii) engaged in any related activity where the
use of such name is reasonably likely to result in confusion.
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If, at any time of enforcement of this Section 2.2 of this Agreement, a court or
an arbitrator holds that the restrictions stated herein are unreasonable under
circumstances then existing, the parties hereto agree that the maximum period,
scope or geographical area reasonable under such circumstances shall be
substituted for the stated period, scope or area and that the court or the
arbitrator shall be allowed to revise the restrictions contained herein to cover
the maximum period, scope and area permitted by law.
2.3 Compensation for Undertakings. Everease hereby acknowledges that, the
premises set forth in the recitals hereof and the current business dealings
between Everease and the Company constitute sufficient consideration for the
undertakings given in this Section 2. Notwithstanding the previous sentence,
Everease hereby agrees that if a court of competent jurisdiction or a duly
seated arbitral tribunal determines that additional consideration would be
required for the effectiveness and enforceability of such undertakings, then the
Company shall have the option, in its sole discretion, of paying such additional
consideration within a reasonable time after such court determination.
SECTION 3 REMEDIES
Everease acknowledges that irreparable damage would result to the
Company if the provisions of Section 2 were not specifically enforced, and
agrees that the Company shall be entitled to enforce this Agreement by
injunction, specific performance or any other appropriate equitable relief,
without bond and without prejudice to any other rights and remedies that the
Company may have for a breach of this Agreement.
SECTION 4 MISCELLANEOUS
4.1 Representations and Warranties.
(a) Everease represents and warrants to the Company that Everease
has the authorization, power and right to deliver, execute and fully perform its
obligations under this Agreement in accordance with its terms. Everease further
represents and warrants that this Agreement does not require any authorization,
consent, approval, exemption or other action by any other party and does not
conflict with or result in the breach of the terms, conditions or provisions of,
constitute a default under, or result in a violation of any agreement,
instrument, order, judgment or decree to which Everease is subject. Everease
will, to the fullest extent permitted by Applicable Law, indemnify and hold the
Company harmless for any breach of the representations set forth in this
paragraph (a).
(b) The Company represents and warrants to Everease that it has the
authorization, power and right to deliver, execute and fully perform its
obligations under this Agreement in accordance with the terms hereof. The
Company further represents and warrants that this Agreement does not require any
authorization, consent, approval, exemption or other action by any other party
and does not conflict with or result in the breach of the terms, conditions or
provisions of, constitute a default under, or result in a violation of any
agreement, instrument, order, judgment or decree to which the Company is
subject. The Company will, to the fullest extent permitted by Applicable Law,
indemnify Everease and hold Everease harmless for any breach of its
representations set forth in this paragraph (b).
4.2 Severability. If one or more provisions of this Agreement are held to
be unenforceable under Applicable Law, such provision shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded
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and shall be enforceable in accordance with its terms.
4.3 Governing Law. This Agreement shall be construed and interpreted, and
the rights of the parties determined, in accordance with the laws of the State
of New York, without giving effect to principles of conflicts of laws
thereunder.
4.4 Notices. Any notice required or permitted by any provision of this
Agreement shall be given in writing and shall be delivered personally or by
courier, or by registered or certified mail, postage prepaid, and addressed: (i)
in case of Everease and the Company, to their respective addresses as set forth
on the signature page hereof or at such other addresses as such parties may
designate by ten (10) day's advance written notice to the other parties hereto,
and (ii) in the case of any permitted transferee of a party to this Agreement or
its transferee, to such transferee at its address as designated in writing by
such transferee to the Company from time to time. Notices shall be deemed
effectively given upon personal delivery to the party to be notified. Notices
that are mailed shall be deemed received on the tenth (10th) day after the date
mailed. Notices sent by courier or overnight delivery shall be deemed received 2
days after they have been so sent.
4.5 Assignment. The terms and conditions of this Agreement shall inure to
the benefit of and be binding upon the parties, their successors and permitted
assigns and their legal representatives. None of the parties hereto shall assign
any of its rights or obligations hereunder without the mutual written consent of
the other parties hereto.
4.6 Headings. Section headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose.
4.7 Entire Agreement; Amendments and Waivers. This Agreement constitutes
the full and entire understanding and agreement among the parties with regard to
the subject matter hereof. Any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of each party hereto. Failure to insist upon strict compliance
with any of the terms, covenants, or conditions hereof shall not be deemed a
waiver of such term, covenant, or condition, nor shall any waiver or
relinquishment of, or failure to insist upon strict compliance with, any right
or power hereunder at any one or more times be deemed a waiver or relinquishment
of such right or power at any other time or times.
4.8 Conflict. If one or more provisions of this Agreement are found to
conflict with any provision in any other document entered into between the
Company and Everease or its Affiliates (other than the Company or any Group
Company), the provision or provisions of this Agreement shall supercede any such
prior provision to the contrary.
4.9 Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
4.10 Further Assurances. The parties hereto agree to execute such further
instruments and to take such further action as may be reasonably necessary to
carry out the intent of this Agreement.
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4.11 Dispute Resolution.
(a) Any dispute, controversy or claim arising out of or relating to
this Agreement, or the interpretation, breach, termination or validity hereof,
shall be resolved through consultation. Such consultation shall begin
immediately after one party hereto has delivered to the other party hereto a
written request for such consultation. If within thirty (30) days following the
date on which such notice is given the dispute cannot be resolved, the dispute
shall be submitted to arbitration upon the request of either party with notice
to the other.
(b) The arbitration shall be conducted in Hong Kong under the
auspices of the Hong Kong International Arbitration Centre (the "CENTRE"). There
shall be three arbitrators. Each party hereto shall each select one arbitrator
within thirty (30) days after giving or receiving the demand for arbitration.
Such arbitrators shall be freely selected, and the parties shall not be limited
in their selection to any prescribed list. The Chairman of the Centre shall
select the third arbitrator, who shall be qualified to practice law in New York.
If either party does not appoint an arbitrator who has consented to participate
within thirty (30) days after selection of the first arbitrator, the relevant
appointment shall be made by the Chairman of the Centre.
(c) The arbitration proceedings shall be conducted in English. The
arbitration tribunal shall apply the Arbitration Rules of the United Nations
Commission on International Trade Law, as in effect at the time of the
arbitration. However, if such rules are in conflict with the provisions of this
Section 5.11, including the provisions concerning the appointment of
arbitrators, the provisions of this Section 5.11 shall prevail.
(d) The arbitrators shall decide any dispute submitted by the
parties to the arbitration strictly in accordance with the substantive law of
New York and shall not apply any other substantive law.
(e) Each party hereto shall cooperate with the other in making full
disclosure of and providing complete access to all information and documents
requested by the other in connection with such arbitration proceedings, subject
only to any confidentiality obligations binding on such party.
(f) The award of the arbitration tribunal shall be final and binding
upon the disputing parties, and either party may apply to a court of competent
jurisdiction for enforcement of such award.
(g) Either party shall be entitled to seek preliminary injunctive
relief, if possible, from any court of competent jurisdiction pending the
constitution of the arbitral tribunal.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first written above.
FOCUS MEDIA HOLDING LIMITED
By: /s/ Jiang Nanchun
------------------------------------------
Name: Jiang Nanchun [CHINESE CHARACTERS]
Capacity: CEO
Address for notice:
28th Floor, Zhao Feng World Xxxxx Xxxxxxxx,
Xx. 000 Xxxxxxx Xxxx,
Xxxxxxxx, Xxxxx
Attn: Jiang Nanchun [CHINESE CHARACTERS]
Tel: 00-00-00000000
Fax: 00-00-00000000
JJ MEDIA INVESTMENT HOLDING LIMITED
By: /s/ Jiang Nanchun
------------------------------------------
Name: Jiang Nanchun [CHINESE CHARACTERS]
Capacity: CEO
Address for notice:
28th Floor, Zhao Feng World Xxxxx Xxxxxxxx,
Xx. 000 Xxxxxxx Xxxx,
Xxxxxxxx, Xxxxx
Attn: Jiang Nanchun [CHINESE CHARACTERS]
Tel: 00-00-00000000
Fax: 00-00-00000000
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