Manager Non-Competition Agreement - Focus Media Holding Ltd. and Jiang Nanchun
MANAGER NON-COMPETITION AGREEMENT
THIS MANAGER NON-COMPETITION AGREEMENT (this "Agreement"), dated as of
November 29, 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 Jiang Nanchun [CHINESE CHARACTERS],
of 28th Floor, Zhao Feng World Trade Building, No. 369 Jiangsu Road, Shanghai,
China.
RECITALS
WHEREAS the Company and its subsidiaries operate a leading advertising
company (the "BUSINESS");
WHEREAS the Company and Mr. Jiang 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 Mr. Jiang as a
precondition to their investment in the Company, and Mr. Jiang is willing to
give such assurances;
WHEREAS it is a condition precedent under the Share Purchase Agreement
that the Company and Mr. Jiang 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, 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.
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"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 Mr. Jiang in the course of his employment by, or during his
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 Mr. Jiang, any idea or
information made or conceived or reduced to practice, in whole or in part,
by Mr. Jiang, 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.
"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 Mr. Jiang 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.
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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 No Other Employment. During the Term of Employment, Mr. Jiang shall
devote all his business time and best efforts to the furtherance of the
Company's business.
2.2 Confidential Information. Mr. Jiang hereby agrees that he shall not
disclose to others or use, whether directly or indirectly, any Confidential
Information regarding the Company or any Group Company. Mr. Jiang 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.
2.3 Non-competition. Mr. Jiang and the Company agree that any service
rendered by Mr. Jiang is unique and irreplaceable. Accordingly, Mr. Jiang hereby
agrees that, during the Term of Employment and for a period of two (2) years
thereafter, within the Territory, he shall not:
(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 his name (or any
part, variant or formative thereof) to any business which is, or as a result of
Mr. Jiang's 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 (except as
required by the duties and obligations of Mr. Jiang under any employment
agreement 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.
If, at any time of enforcement of this Section 2.3 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
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court or the arbitrator shall be allowed to revise the restrictions contained
herein to cover the maximum period, scope and area permitted by law.
2.4 Compensation for Undertakings. Mr. Jiang hereby acknowledges that the
salary provided for in his employment agreement with the Company, dated as of
April 28, 2004 (the "Employment Agreement"), constitutes sufficient
consideration for the undertakings given in this Section 2. Notwithstanding the
previous sentence, Mr. Jiang 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 CORPORATE OPPORTUNITY
During the Term of Employment, and without limiting the effect of
Section 2, Mr. Jiang shall not accept or invest, whether directly or indirectly,
in any opportunity (a "CORPORATE OPPORTUNITY") which (i) is in the line of the
Business of the Company or any Group Company, (ii) arises or becomes known to
Mr. Jiang as a result of Mr. Jiang's employment by, or service on the board of,
the Company or any Group Company or (iii) involves any of the assets of the
Company or any Group Company, unless, in any such case, both (a) Mr. Jiang has
first presented the Corporate Opportunity to the Board, together with such
materials as may be reasonably necessary for the Board to render an informed
decision as to whether the Company or any Group Company should accept or invest
in such Corporate Opportunity, and (b) the Board does not decide to pursue such
Corporate Opportunity at its next meeting held no less than thirty (30) days
following delivery of all the materials described in clause (a). In any vote by
the Board as to whether the Company should accept or invest in a Corporate
Opportunity, Mr. Jiang (to the extent he continues to serve on the Board) shall
recuse himself from such vote.
SECTION 4 REMEDIES
Mr. Jiang acknowledges that irreparable damage would result to the
Company if the provisions of Section 2 and Section 3 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 5 MISCELLANEOUS
5.1 Representations and Warranties.
(a) Mr. Jiang represents and warrants to the Company that Mr. Jiang
has the authorization, power and right to deliver, execute and fully perform his
obligations under this Agreement in accordance with its terms. Mr. Jiang 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 Mr. Jiang is subject. Mr. Jiang
will, to the fullest extent permitted by Applicable Law, indemnify and hold the
Company
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harmless for any breach of the representations set forth in this paragraph (a).
(b) The Company represents and warrants to Mr. Jiang 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 Mr. Jiang and hold Mr. Jiang harmless for any breach of its
representations set forth in this paragraph (b).
5.2 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 and shall be enforceable in accordance with its
terms.
5.3 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.
5.4 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 Mr. Jiang 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.
5.5 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.
5.6 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.
5.7 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 and supersedes any prior written or oral understanding
or agreements with respect thereto, including, without limitation, the
provisions of the Employment Agreement imposing non-compete obligation on Mr.
Jiang. 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
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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.
5.8 Consultation with Counsel. Mr. Jiang acknowledges (i) that he has
consulted with or has had the opportunity to consult with independent counsel of
his own choice concerning this Agreement and has been advised to do so by the
Company, and (ii) that he has read and understands the Agreement, is fully aware
of its legal effect, and has entered into it freely based on his own judgment.
5.9 Conflict. If one or more provisions of this Agreement are found to
conflict with any provision in a separate employment contract or any other
document entered into between the Company and Mr. Jiang or his Affiliate, the
provision or provisions of this Agreement shall supercede any such prior
provision to the contrary.
5.10 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.
5.11 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.
5.12 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 5.12, including the provisions concerning the appointment of
arbitrators, the provisions of this Section 5.12 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
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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 Trade Building,
No. 369 Jiangsu Road,
Shanghai, China
Attn: Jiang Nanchun [CHINESE CHARACTERS]
Tel: 86-21-32124661
Fax: 86-21-52400228
Founder
By: /s/ Jiang Nanchun
------------------------------------------
Name: Jiang Nanchun [CHINESE CHARACTERS]
Capacity: CEO
Address for notice:
28th Floor, Zhao Feng World Trade Building,
No. 369 Jiangsu Road,
Shanghai, China
Attn: Jiang Nanchun [CHINESE CHARACTERS]
Tel: 86-21-32124661
Fax: 86-21-52400228
Manager Non-compete Agreement
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