COOPERATION AGREEMENT
THIS
COOPERATION AGREEMENT (“Agreement”),
dated
as of April 20, 2004, by and between China Communications Corp., a Delaware
corporation (“CCC”),
and
China Daily Information Company d/b/a Xxxxxxxxxx.xxx.xx, a Chinese corporation
(“CDC”),
is in
connection with a business portal website owned by CCC that is devoted to
providing business-to-business yellow pages directory services and economic,
financial, political, cultural, social, demographic, and other information
regarding the People’s Republic of China, including Mainland China and Hong
Kong, to foreign businesses, xxxxxxxx of commerce, and governments interested
in
doing business in the People’s Republic of China or with Chinese businesses (the
“China
B2B Site”).
WHEREAS,
CDC is a subsidiary of China Daily Newspaper Group (“CDNG”),
which
is the publisher of China
Daily,
and is
an affiliate of a government body;
WHEREAS,
CDC owns and operates xxx.xxxxxxxxxx.xxx.xx
(the
“CDC
Site”),
which
is an online version of China
Daily
and is
currently the most influential English-language online news portal from the
People’s Republic of China;
WHEREAS,
CDC currently operates BizChina as part of the CDC Site, and BizChina provides,
among other information, news on everyday business happenings in the People’s
Republic of China, in-depth reports of macro- and micro-economics and specific
industries, statistics, and consulting services;
WHEREAS,
CCC wishes to obtain full support and information from CDC to incorporate into
the China B2B Site; and
WHEREAS,
concurrently herewith CDC and CCC are entering into a subscription agreement
(“Equity
Agreement”)
whereby CCC will issue and sell 14,000,000 shares of CCC’s common stock, $0.0001
par value (“CCC
Shares”),
in
consideration of CDC’s execution and delivery of this Agreement, the startup
services provided by CDC and CDC’s performance of its other obligations and
grant of rights to CCC hereunder in connection with the China B2B
Site;
NOW,
THEREFORE, in consideration of the premises, covenants, and representations
and
warranties set forth herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
| 1. |
CHINA
B2B SITE
|
| A. |
Description.
The China B2B Site is currently intended to be the primary online,
business-to-business trade bridge portal for both finding business
opportunities in the People’s Republic of China and obtaining economic,
political, cultural, social, and other information regarding the People’s
Republic of China by foreign businesses, xxxxxxxx of commerce, and
governments interested in doing business in the People’s Republic of China
or with Chinese businesses, in furtherance of attracting and facilitating
foreign investment in the People’s Republic of China and assisting Chinese
businesses to develop overseas markets. The parties acknowledge and
agree
that the details, nature, scope, and focus of the China B2B Site may
change from time to time, as determined by CCC’s management
team.
|
| B. |
Editorial
Control.
The parties acknowledge that the content of the China B2B Site shall
initially consist of primarily content provided by CDC as set forth
in
Paragraph 2.A. below; however, the layout, features, links, and all
other
aspects of the China B2B Site shall be determined by CCC, except as
otherwise specifically stated herein. The editorial control of CDC
Content
(as defined below) shall be finally determined by CDC, except as on
its
website.
|
| C. |
Ownership.
All right, title, and interest in and to the China B2B Site, including,
without limitation, the domain name, content displayed or archived
on the
China B2B Site (except for content provided by CDC for which a license
is
being granted pursuant to Section 2.E.), and all technical elements
of the
China B2B Site, shall be owned solely by
CCC.
|
| D. |
User
Data.
All user data collected through the China B2B Site shall be the exclusive
property of CCC. Subject to applicable law and required privacy policies,
CDC shall have full access to and the right to use such user data free
of
charge and CCC shall provide full cooperation and assistance to facilitate
CDC’s use of such user data.
|
| 2. |
CDC’S
OBLIGATIONS AND LICENSE REGARDING
CONTENT
|
| A. |
Delivery
of Content.
CDC shall endeavor to use its best efforts to deliver to CCC, in an
electronic format designated by CCC, and in English and, if requested
by
CCC or where appropriate, in Chinese, the following categories of
information (collectively, “CDC
Content”):
|
| (1) |
Yellow
Pages.
“Yellow page” information listing as many Chinese businesses as possible,
including, without limitation, business name, address, phone and fax
numbers, e-mail address, map or driving directions, and if such company
has a website, a link to such website. Such information shall be organized
nationwide and by regions as designated by CCC, in alphabetical order,
and
by product categories, and will be provided in both English and
Chinese.
|
| (2) |
Useful
Information.
Up-to-date information of all types that potential users of the China
B2B
Site might be interested in learning, including, without limitation,
(i)
regular overviews of the investment and economic climate in both Mainland
China and Hong Kong, (ii) reports from the China Business/Investment
Development Council, or the appropriately named equivalent government
agency, (iii) news of the day relating to the Chinese Yuan, financial
market, industry, legal/regulatory changes, tax, politics, and any
other
information that business may be interested in finding out, (iv) PRC
Government’s official overviews and statistics on interest rates, tax
incentives, monetary policy, funding opportunities, growth rates, economic
projections, GDP, etc., (v) information on various governmental bodies
and
their roles and contact information, (vi) useful tips and guide (including
expert analysis) on how to do business in China, by region (including
Hong
Kong), and with Chinese businesses (e.g.,
obtaining various governmental licenses and approvals, shipping
information, and information on letters of credits and industrial zones),
and (vii) other demographic, geographic, industry, commerce, market,
financial, cultural, social, political, tax, legal, and regulatory
information, including actual text of relevant laws, rules, regulations,
ordinances, proclamations, and edicts. Without limiting the generality
of
the foregoing, the parties agree that CDC shall provide to CCC for
use on
the China B2B Site, at a minimum, all information currently provided
on
the BizChina portion of the CDC Site. In any event, as long as CDC
provides all information currently provided on the BizChina portion
of the
CDC site and tries to provide all required CDC Content as required
herein,
CDC shall not be deemed to be in breach of its obligations in this
Section
2A.
|
2
| (3) |
Other
Information.
Other information that CCC and CDC agree from time to
time.
|
| B. |
Schedule
of Delivery.
CDC will deliver the CDC Content as expeditiously as practicable, it
being
understood that the launch of the China B2B Site is currently scheduled
to
occur on August 31, 2004. Thereafter, CDC will deliver updated content
to
CCC, to ensure that the CDC Content is accurate and up-to-date. The
parties acknowledge and agree that CDC’s timely provision of the CDC
Content is of the essence of this Agreement and is critical to the
success
of the China B2B Site. CCC shall give CDC at least three months from
the
date hereof to collect the CDC Content prior to the launch of the China
B2B Site.
|
| C. |
BizChina.
CDC shall place a prominent link to the China B2B Site on every page
of
the BizChina portion of the CDC Site.
|
| D. |
Language.
The China B2B Site will be primarily in English and secondarily in
Chinese. CCC, however, shall have the right to translate the content
into
any other languages, at its sole discretion, and create different language
versions of some or all of the content.
|
| E. |
License.
CDC hereby grants to CCC an irrevocable, fully paid-up, non-exclusive,
right and license to use, and authorize its directly and indirectly
100%
owned subsidiaries to use, without the right to further sub-license
without the prior approval of CDC, the CDC Content for the term of
this
Agreement or its amendment, throughout the world, in and in connection
with the China B2B Site, including in advertising, marketing, and
promotional materials for the China B2B Site in all media, now known
or
hereafter developed. The foregoing license shall also include the right
to
use the “yellow page” information and other portions of the CDC Content in
print materials and to create subsites within the China B2B Site.
|
| F. |
Costs.
All costs and expenses incurred by CDC in the performance of its
obligations hereunder will be borne by CDC, unless otherwise agreed
to in
writing by CCC.
|
| 3. |
ADVERTISING
AND OTHER INCOME
|
| A. |
Advertising.
The parties acknowledge that the China B2B Site may contain third-party
advertising. CCC will have the exclusive right to sell all advertising
(including yellow page listings and sponsorships) on the China B2B
Site,
and retain all revenues derived therefrom; however, CDC agrees to actively
assist and otherwise cooperate with CCC in securing advertisers for
the
China B2B Site. For any business so generated by CDC, CDC shall be
entitled to be compensated by receiving 20% of the gross revenues paid
with respect to that business. In addition, CCC will have the right
to
offer potential advertisers placement of certain ads on both the China
B2B
Site and CDC Site, provided that such placement on the CDC Site will
be
limited to an amount of the advertising space to be mutually agreed
to by
CDC and CCC in good faith. For any business generated by CCC for the
CDC
site, CDC and CCC will share any fees for such advertising placement
on
the CDC Site as follows: CCC and CDC each shall receive 50% of the
gross
revenues paid with respect to that business.
|
3
| B. |
Other
Income.
Without limiting CCC’s rights as set forth in Paragraph 3.A. above, CDC
agrees that CCC shall have the exclusive right to retain all income
derived from or in connection with the China B2B Site and the use of
the
CDC Content as contemplated hereunder.
|
| 4. |
CDC
CONSIDERATION
|
CDC
acknowledges and agrees that its sole consideration for entering into this
Agreement, performing its obligations hereunder, and granting the rights to
CCC
as set forth herein is its receipt of the 14,000,000 CCC Shares under the Equity
Agreement as set forth in the recitals above unless otherwise agreed to
hereunder. Accordingly, CDC agrees that it will not be entitled to any part
of
the income derived from or in connection with the China B2B Site or the use
of
the CDC Content by CCC or its subsidiaries, except for business generated by
CDC
pursuant to Section 3A.
| 5. |
PRC
GOVERNMENT SUPPORT
|
| A. |
CDC
shall seek support for CCC and the China B2B Site from various PRC
Government organizations, including national, provincial, and city
governments, and will use its best efforts to (i) obtain permission
from
such government organizations to state on the China B2B Site and in
the
marketing and promotion materials for the same that the China B2B Site
is
published under the auspices of such government organizations, and
(ii)
cause such government organizations to place a link to the China B2B
Site
on each of their English language websites, and also allow link from
the
China B2B Site to such websites.
|
| B. |
CDC
represents and warrants that in connection with this project it has
the
full support of the relevant Chinese government authority in charge
thereof.
|
| C. |
CDC
shall assist CCC in obtaining all necessary government approvals and
licenses from the PRC government authorities in order for CCC to operate
the China B2B Site. The parties acknowledge and agree that the support
of
the PRC government authorities for the China B2B Site is important
to this
Agreement.
|
| 6. |
PROMOTIONAL
SUPPORT
|
| A. |
CDC
will actively promote, throughout the Term, the China B2B Site on the
CDC
site, in all newspapers and all other publications owned by CDNG,
including, without limitation, China
Daily,
Shanghai-Star,
and any online versions thereof, and radio, television and other media
at
least majority owned directly or indirectly by CDNG. Any online promotion
(such as on the CDC site or any online version of CDNG publications)
shall
include, at a minimum, a direct link from the front page to the China
B2B
Site. The exact nature, placement, and timing of such promotions will
be
mutually determined by CCC and CDC; it being understood and agreed
that as
between CCC and CDC all costs associated with such advertising and
promotions shall be borne solely by CDC.
|
4
| B. |
CCC
may use the name, logo, trademark, service xxxx, and other indicia
of CDC
and CDNG on the China B2B Site and in any advertising, marketing, and
promotional material therefor and in CCC company materials, to indicate
the China B2B Site’s and CCC’s affiliation with CDC and CDNG, subject to
prior approval of the form of use.
|
| C. |
CCC
currently intends to organize promotional events in New York City and
Paris to promote the launching of the China B2B Site, at its sole cost
and
expense. CDC agrees to use reasonable efforts to assist CCC and
participate in such promotional events as requested by CCC. All
out-of-pocket costs and expenses incurred by CDC in participating in
such
events shall be borne and reimbursed by CCC, subject to prior approval
by
CCC.
|
| 7. |
CROSS-LICENSING
OF FREE INFORMATION
|
CCC
hereby grants to CDC a limited license to use any information appearing on
the
China B2B Site for which CCC has not paid or is not obligated to pay any
consideration, or has not been paid or is due any consideration, on the CDC
Site
free of charge (it is understood that consideration could be in any form,
including barter exchange). Similarly, but without limiting CDC’s obligation to
provide content for the China B2B Site pursuant to Paragraph 2.A. above, CDC
hereby grants to CCC a limited license to use any information appearing on
the
CDC Site for which CDC has not paid or is not obligated to pay any
consideration, or has not been paid or is due any consideration, on the China
B2B Site free of charge (it is understood that consideration could be in any
form, including barter exchange). Such uses shall, however, be subject to any
applicable third-party restrictions.
| 8. |
2008
BEIJING OLYMPICS
|
CCC
and
CDC will cooperate in good faith to find opportunities for the China B2B Site
to
be associated with the 2008 Beijing Olympics, such as use of the Olympics
trademark and logo on the China B2B Site by CCC and/or its advertisers and
direct link to the official Olympics website. In furtherance thereof, CDC agrees
to use its best efforts to, as expeditiously as practicable, facilitate CCC’s
contacts with the Olympics Committee, including, without limitation, setting
up
meetings between CCC’s executives and high-level members of the Olympics
Committee and relevant PRC Government officials.
| 9. |
CDC’S
OBLIGATION REGARDING CCC BUSINESS
PLAN
|
CDC
agrees to provide reasonable assistance to CCC in connection with CCC’s
development of its business plans and investor materials, which assistance
may
include, without limitation, furnishing and/or verifying information regarding
the People’s Republic of China, the type of information and data that will be
provided by CDC in connection with the China B2B Site, and the type of support
that CDC has secured or can secure from the PRC Government.
5
| 10. |
TERM
AND TERMINATION
|
| A. |
The
term of this Agreement (“Term”)
will commence upon the date hereof and will continue for twenty (20)
years, subject to renewal upon mutual agreement of the parties.
|
| B. |
In
the event of breaches of any material provision of this Agreement,
the
non-breaching party shall have the right, after providing written notice
of the breach to the breaching party and a period of not less than
ninety
(90) days to cure, to immediately terminate this Agreement.
|
| C. |
All
provisions herein that by their nature survive the termination of this
Agreement shall remain in full force and effect after termination of
this
Agreement.
|
| 11. |
EXCLUSIVITY
|
CDC,
CDNG
and any affiliate represents, warrants, covenants, and agrees that during the
Term, neither CDC, CDNG, nor any of their affiliates, shall directly or
indirectly operate, fund, sponsor, link to, or otherwise support any website
or
online service that is competitive, in whole or in part, with the China B2B
Site
anywhere in the world. Similarly, CCC and its subsidiaries shall not directly
or
indirectly operate, fund, sponsor, link to or otherwise support any website
or
online service that is in direct competition with the China B2B site anywhere
in
the world unless CCC directly or indirectly owns it 100%.
| 12. |
REPRESENTATIONS
AND WARRANTIES
|
| A. |
CCC
and CDC each represents and warrants that it has the full power and
authority to enter into and perform its obligations under this Agreement,
and neither the execution of, nor the performance of its respective
obligations under, this Agreement will violate any other agreement
to
which it is a party.
|
| B. |
CDC
further represents and warrants that (i) it has the necessary right
and
authority to provide all CDC Content to CCC for use as contemplated
hereunder and the use of the CDC Content (including any name, logo,
trademark or service xxxx contained therein) as contemplated hereunder
will not trigger any consent or payment obligations to any third party,
nor will such use infringe or violate any third party right or any
governmental laws or regulations, (ii) the CDC Content will be accurate
and up to date, (iii) it will take all precautions to ensure that the
CDC
Content does not contain any virus, worm, trojan horse, or other harmful
element, and (iv) it will use its best efforts to obtain all necessary
approvals from the appropriate PRC government organizations in connection
with the China B2B Site.
|
| C. |
Except
as specifically set forth herein, neither party makes any warranty,
express or implied, with respect to any matter, and expressly disclaims
the warranties or conditions of non-infringement, merchantability,
and
fitness for any particular purpose.
|
6
| D. |
CDC
represents and warrants that, contemporaneously with the execution
and
delivery of this Agreement, CDNG is executing and delivering to CCC
an
authorized letter of CDNG by which CDNG irrevocably confirms that CDC
has
the exclusive and perpetual right to online information and
business.
|
| E. |
The
parties mutually represent and warrant that CCC is not, under this
Agreement or otherwise by virtue of its relationship with CDC and its
affiliates, engaging or agreeing to engage in any activities on behalf
of
or in furtherance of the interests of the PRC, except if at all, only
as
and to the extent of private and nonpolitical activities in furtherance
of
bona fide trade or commerce.
|
| 13. |
INDEMNITY
|
Each
party agrees to indemnify, defend, and hold harmless the other party, and its
respective officers, directors, employees, agents, attorneys, and successors,
from and against any and all liability, loss, damages, claims or causes of
action, and expenses, including reasonable outside legal fees and expenses,
arising out of or related to such party’s material breach of any representation
or warranty hereunder or any failure by such party to perform its obligations
as
provided herein.
| 14. |
CONFIDENTIALITY
AND NO ASSIGNMENT
|
CDC
shall
not disclose any material terms of this Agreement, or any non-public information
relating to CCC’s business, other than (i) to those employees, affiliates, and
third parties that have a need to know in rendering their services in connection
with this Agreement, and provided further that each such party agrees to keep
such information confidential, or (ii) as required by law or (iii) to its
affiliates and parent company. Neither party shall assign or otherwise transfer,
in whole or in part, its rights or obligations under this Agreement without
the
prior written consent of the other party (which shall not be unreasonably
withheld); provided, however, that either party may assign this Agreement in
its
entirety to an entity that acquires all or substantially all of such party’s
assets, or in connection with any merger or consolidation, whether or not it
is
the surviving entity; provided further, however, that no such assignment by
either party shall relieve it of its obligations hereunder. Subject to the
foregoing, this Agreement shall be binding upon and inure to the benefit of
the
parties and their respective successors and permitted assigns. CCC shall not
disclose any material terms of this Agreement to any third party without the
prior approval of CDC, other than to CCC’s investors, prospective investors,
officers, directors, employees, consultants, counsel, accountants and
representatives who reasonably need to know the same, and pursuant to any law,
rule or regulation.
| 15. |
PRESS
RELEASE
|
Any
press
release issued by CCC or CDC regarding this Agreement that identifies the other
party shall be approved by such other party prior to public dissemination,
which
approval shall not be unreasonably withheld or delayed.
7
| 16. |
REMEDY
|
In
the
event either party breaches any material provision of this Agreement, without
limiting any other rights or remedies, each party agrees that the non-breaching
party shall be entitled to an injunctive or other equitable relief to enforce
the terms of this Agreement.
| 17. |
VENUE;
CHOICE OF LAW
|
This
Agreement shall be governed by and construed in accordance with the laws of
the
United States and the State of New York, including all matters of construction,
validity, performance, and enforcement, without regard to its conflict of laws
principles. The parties agree that the courts located in New York County, in
the
State of New York, shall be the sole venue for any action brought against the
other party and shall have the exclusive personal jurisdiction with respect
thereto.
| 18. |
NOTICE
|
All
notices required or desired to be transmitted hereunder shall be in writing
and
shall be transmitted by registered or certified mail (postage prepaid and return
receipt requested), courier, messenger, or facsimile to the following addresses:
For
CCC:
China
Communications Corp., 00 Xxxxx Xxxxxx, Xxxxxxx, XX 00000, Attention: Xxxxxx
Xxxxxx; with a copy to Loeb & Loeb LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000,
Attention: Xxxxxx X. Xxxx, Esq. (fax: 0-000-000-0000).
For
CDC.
Xxxxxxxxxx.xxx.xx, 000 0xx
Xxxxxx,
0xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Lingling Sun (fax: 0-000-000-0000).
| 19. |
ENTIRE
AGREEMENT/AMENDMENT
|
This
Agreement supersedes all prior negotiations, representations, and agreements,
either written or oral related hereto. No change or modification of this
Agreement, or waiver of any of its provisions, shall be effective unless made
in
writing and signed by both parties.
| 20. |
GENERAL
|
If
any
provision hereof is found to be illegal, invalid, or unenforceable, such
provision shall be modified to the minimum extent necessary to make such
provision valid and enforceable, and the remainder of this Agreement shall
remain in full force and effect. No waiver of rights under this Agreement by
either party shall constitute a subsequent waiver of this or any other right
under this Agreement. CCC and CDC are independent contractors. No agency,
partnership, joint venture, or employment relationship is created between the
parties, and neither party shall have the right or authority to bind the other
party in any way, unless otherwise agreed to by the applicable party in writing.
This Agreement may be executed in counterparts, all of which when taken together
shall be deemed to constitute one and the same instrument.
8
|
CHINA
COMMUNICATIONS CORP.
|
XXXXXXXXXX.XXX.XX
|
|||
|
By:
|
/s/ Xxxxxx Xxxxxx |
By:
|
/s/ Zhang Ping | |
|
Xxxxxx Xxxxxx Its:
Chairman of the Board
|
Zhang Ping Its:
President
|
|||
9
