Text marked by [***] has been omitted pursuant to a request for confidential treatment and was filed separately with the Securities and Exchange Commission.
Exhibit
10.1
Text marked by [***] has been omitted pursuant to a request for confidential treatment and was filed separately with the Securities and Exchange Commission.
Dated
the 12th day of
November ,2007
GUIDING
MEDIA ADVERTISING LIMITED
[CHINESE
OMITTED]
and
NCN
MEDIA SERVICES LIMITED
and
SHANGHAI
QUO ADVERTISING COMPANY LIMITED
[CHINESE
OMITTED]
__________________________________________________
__________________________________________________
THIS
AGREEMENT is made on this 12th day of November
2007
BETWEEN
:
1)
|
GUIDING
MEDIA ADVERTISING LIMITED
[CHINESE OMITTED] (“Guiding Media”), a company incorporated in
the People’s Republic of China, of the first
part,
|
2)
|
NCN
MEDIA SERVICES LIMITED (“NCN”), a company incorporated in the British
Virgin Islands, of the second part
and,
|
3)
|
SHANGHAI
QUO ADVERTISING COMPANY LIMITED (“Quo”), a company incorporated in the
People’s Republic of China, of the third
part.
|
WHEREAS:
A.
|
Guiding
Media is desirous of granting the Agency right in respect of the
Media
hereinafter mentioned to Quo and requires assurance in respect of
the
payment of the Agency Right Fees hereinafter
mentioned.
|
B.
|
Quo
is an associated company of NCN and has applied to NCN for financial
support in order to meet the requirements in respect of the payment
of
Agency Right Fees hereunder and NCN has agreed to be joined as a
party to
this Agreement accordingly.
|
C.
|
Guiding
Media is satisfied with the arrangement for such payments in the
manner
hereinafter appearing.
|
NOW
IT IS
HEREBY AGREED BETWEEN THE PARTIES HERETO AS FOLLOWS:-
1.
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AGENCY
|
In
consideration of the agreements hereinafter contained Guiding Media shall grant
to Quo the exclusive agency right (“Agency”) to operate
98 freestanding multimedia advertisement light boxes (“Media”) to be
situated at designated locations within the International Zone of Number Three
Terminal of Beijing International Airport in China (“Airport”) for a term of 36
months from 1st January,
2008 to
31st December,
2010 (“Term of Agency”)for commercial advertisements (“Advertisement
Project”). The designated locations are more particularly set out in
the Schedule hereto.
2.
|
BUSINESS
PROCEEDS
|
During
the subsistence of the Term of Agency Quo shall be entitled to retain all
the business
proceeds arising from the placing of advertisements through the Media upon
the punctual payment of the relevant fees for its agency right hereinafter
mentioned (“Agency Right Fees”) which shall be effected by payment from
NCN.
2
3.
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AGENCY
RIGHT FEES
|
|
(a)
|
The
Agency Right Fee which shall be payable by NCN on behalf of Quo to
Guiding
Media under this Agreement shall be the aggregate sum of [***] for
the
whole Term of Agency which aggregate sum is calculated at the rate
of
[***] per unit of the Media per
annum.
|
|
(b)
|
The
Agency Right Fee shall be paid in three annual installments by
NCN to
Guiding Media in the manner and punctually on the dates hereinafter
stipulated :-
|
|
(i)
|
a
performance pledge deposit and part payment of the Agency Right Fee
in the
sum of [***] shall be paid by NCN to Guiding Media on or before 3rd
November,
2007 which sum shall be regarded as and applied towards the part
payment
of the first annual installment of the Agency Right Fee upon the
punctual
payment of the balance of such annual
installment;
|
|
(ii)
|
the
Agency Right Fee for the First Year of the Term of Agency in the
sum of
[***] shall be paid by NCN to Guiding Media on or before 30th
November,
2007 in which event credit shall be given to the performance pledge
deposit already paid under sub-paragraph (i) hereof as part payment
of
such installment;
|
|
(iii)
|
the
Agency Right Fee for the Second Year of the Term of Agency in the
sum of
[***] shall be paid by NCN to Guiding Media on or before 30th
August,
2008; and
|
|
(iv)
|
the
Agency Right Fee for the Third Year of the Term of Agency in the
sum of
[***] shall be paid by NCN to Guiding Media on or before 30th
August,
2009.
|
|
(c)
|
In
the event of any variation in the quantity of the units comprised
in the
Media by reason of any adjustment in the global layout of the Airport,
the
parties hereto shall enter into negotiation to determine the increase
in
the Agency Right Fees for any resulting increase in the number of
units of
the Media and shall accept an agreed reduction in the Agency Right
Fees at
the rate of [***] for each unit of the Media thereby
reduced.
|
3
4. RIGHTS
& OBLIGATIONS OF GUIDING MEDIA
|
(a)
|
Guiding
Media hereby undertakes to Quo and NCN and agrees to take all necessary
action to ensure that throughout the subsistence of this Agreement
during
the Term of Agency:-
|
|
(i)
|
the
right hereby conferred upon Quo is and will be legally enforceable
and
effective;
|
|
(ii)
|
it
has and will continue to have the full and unfettered right and capacity
to grant the Agency right to Quo
hereunder;
|
|
(iii)
|
it
possesses and will continue to possess all requisite licenses and
approval
of relevant authorities for the commercial operation of the Media
as a
media of advertisement;
|
|
(iv)
|
all
the documents, papers and licenses provided by Guiding Media for
the
reference or consideration of Quo are authentic, legal and
effective;
|
|
(v)
|
it
has not and shall not grant any advertising right in respect of the
Media
to any other party; and
|
|
(vi)
|
all
its rights and capacity which is or will be requisite for its granting
of
and continuing to grant the Agency right hereunder to Quo has not
been and
shall not be subject to any dispute by the relevant authority or
be
subject to any pledge, mortgage or
encumbrance.
|
|
(b)
|
Guiding
Media shall grant an exclusive Agency right to Quo in respect of
the Media
during the Term of Agency and shall not offer any advertising right
in
respect of the Media to any other party or be engaged in any marketing
activity to invite, obtain or tout for advertising business from
any other
party.
|
|
(c)
|
Guiding
Media shall punctually pay and discharge all requisite fees or charges
payable to relevant authorities in order to secure the Agency right
for
the use and benefit of Quo hereunder save any except any such fee
or
charge which Quo is under an express obligation to pay
hereunder.
|
|
(d)
|
Guiding
Media shall liaise on behalf of Quo with all relevant authorities
in
connection with the Advertisement Project and any matter which
arises in
relation to the obligations of Guiding Media more particularly
set out in
this Clause 4.
|
5.
|
RIGHTS
& OBLIGATIONS OF
Quo
|
4
|
(a)
|
Quo (through
NCN on its behalf) shall pay the Agency Right Fees stipulated hereunder
punctually on or before the prescribed dates for the payment of
each
installment.
|
|
(b)
|
Quo
shall be entitled to the full benefit of an exclusive Agency in
respect of
advertisement through the Media throughout the Term of
Agency.
|
|
(c)
|
Quo
and Guiding Media agree to work closely together to maintain a dialogue
on
all situations relevant to the Advertisement Project and to exchange
their
views and co-ordinate their efforts accordingly and to hold regular
meetings for work co-ordination.
|
|
(d)
|
Quo
(through NCN on its behalf) shall pay periodically to Guiding Media
the
electricity charges and screen material installation charges in
respect of
the Advertisement Project.
|
|
(e)
|
Quo
shall abide by the law in its advertisement business and in particular
shall not be involved in any activity which may prejudice the
continual
operation of the Advertisement Project through the
Media.
|
6.
|
BUSINESS
RELATIONSHIP
|
(a)
|
The
parties hereby declare and agree that there is no business association
or
relationship between the parties otherwise than their contractual
relationship as stated expressly in this Agreement and each of the
parties
hereto are individual legal entities which has its own rights and
obligations and shall not be answerable or responsible for the liabilities
of the other party hereto in the event of any claim made by a third
party
in respect of that party’s indebtedness or liability arising in the course
of its business activities.
|
(b)
|
NCN
is involved as a party to this Agreement solely for the purpose of
its
assumption of a contractual obligation to Guiding Media to effect
the
relevant payments hereunder on behalf of Quo, it assumes no further
obligation in relation to the Advertisement Project, the Media or
the
Agency and in so far as any assumption to the contrary effect may
be
implied from the payments to be made by NCN hereunder such assumption
is
hereby specifically dispelled.
|
7.
|
CONFIDENTIALITY
|
|
(a)
|
All
information provided by one of the parties hereto to the other
in the
course of their negotiation for and making of this Agreement shall
not be
disclosed or divulged to a third party without the prior written
consent
of the party from whom such information
originated.
|
5
|
(b)
|
Except
where it is required to be disclosed under the law or the demand
of any
governing authority each of the parties hereto undertake to the
other to
maintain strict confidence on any matter or information concerning
this
Agreement or its implementation (other than information already
in the
public domain) which originates from or is provided by the other
party or
its business associate, agent or employee and in particular to
withhold
such information from the media or third parties. Disclosures of such
confidential information to a party’s company director and management
staff will be restricted by the extent to which it is necessary
for the
proper and normal operation of business activities
hereunder.
|
|
(c)
|
All
information obtained by a party to this Agreement in the course of
its
signing and implementation of this Agreement shall be kept confidential
and shall not be disclosed or divulged without the prior written
consent
of the other party and even with such consent should be disclosed
only for
the purpose of this Agreement. In the event of the cancellation of
this
Agreement the relevant information shall in accordance with the wish
of
the other party be destroyed or returned to the other party save
and
except where there is a dispute between the parties and such information
is being retained in connection with the
dispute.
|
|
(d)
|
This
Clause shall remain effective for a term of one calendar year after
the
expiration or sooner determination of this Agreement. In the event
of any
record or document relating to the Agency or the operation of the
Media
being required by the law to be retained for tax or other purposes
this
Clause shall remain effective for such records or documents throughout
the
period of retention of the same.
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8.
|
FORCE
MAJEURE
|
In
the
event of force majeure or other causes due to the change or adjustment in the
relevant policy of national or municipal or other relevant authorities affecting
the flow of travelers or business environment within the Airport which prevents
the continual implementation or performance of this Agreement the parties shall
promptly enter into discussion and upon the production of relevant documentary
proof of such event shall accordingly either alter the terms of this Agreement
or cancel this Agreement either entirely or partially. Neither party hereto
shall be liable to the other for any economic loss or legal liability arising
from such alteration, cancellation or partial cancellation of this Agreement.
Any payment which has been made paid by NCN (on behalf of Quo) in respect
of the portion of the Agency right which shall have been so cancelled or reduced
shall be refunded to NCN.
9.
|
RESOLUTION
OF DISPUTE
|
6
|
(a)
|
This
Agreement is made and shall be construed and interpreted and shall
take
effect under and in accordance with the law of the People’s Republic of
China.
|
|
(b)
|
In
the event of any dispute arising between the parties hereto in
relation to
this Agreement the parties should try to resolve the dispute
through
negotiation and if the dispute cannot be resolved in that manner
then the
matter shall be brought before the Court at the place of origin
of the
party making the claim and if both parties should have submitted
their
respective claims to the Court at their respective place of origin
then
the matter should be submitted to the Beijing Arbitration Commission
for
arbitration.
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10.
|
OTHER
TERMS
|
|
(a)
|
Each
party hereto shall bear its own tax liability for any tax or levy
arising
in relation to this Agreement under the laws and regulations of
the
People’s Republic of China.
|
|
(b)
|
This
Agreement shall take effect from the date on which all parties
hereto have
signed the same.
|
|
(c)
|
This
Agreement is signed in two identical counterparts, each of
the parties
hereto shall retain one of the counterparts and all counterparts
shall
have the same legal effect.
|
|
(d)
|
All
matters that have not been adequately provided for in the
terms of this
Agreement may be resloved by friendly negotiation between
the parties
hereto and upon the parties reaching consensus on such matter,
may be put
into a legal document as a supplement to these
presents. Supplementary agreements like that shall have legal
effects equal to this Agreement.
|
7
THE
SCHEDULE ABOVE REFERRED TO
/s/ Xxxxxx Xxx | /s/ Xxxxxxx Xxx | |
GUIDING
MEDIA ADVERTISING
LIMITED
|
NCN
MEDIA SERVICES LIMITED
|
|
Date
of Signing:
|
Date
of Signing:
|
|
November
12, 2007
|
November
12, 2007
|
/s/ Zhang Xx Xx |
SHANGHAI
QUO ADVERTISING
COMPANY
LIMITED
|
Date
of Signing:
|
November
12, 2007
|