Trademark License Agreement - Focus Media Technology (Shanghai) Co. Ltd. and Focus Media Digital Information Technology (Shanghai) Co. Ltd.
Confidential Execution Copy
TRADEMARK LICENSE AGREEMENT
BY AND AMONG
FOCUS MEDIA TECHNOLOGY (SHANGHAI) CO., LTD.
FOCUS MEDIA DIGITAL INFORMATION TECHNOLOGY (SHANGHAI)
CO., LTD.
AND
COMPANIES LISTED IN APPENDIX 1 HEREOF
MARCH 28, 2005
<PAGE>
CONTENTS
Article 1 - Definition.............................................. 1
Article 2 - Grant of the Trademarks for Use......................... 2
Article 3 - License Fee for the Trademarks.......................... 3
Article 4 - Service Quality......................................... 3
Article 5 - Undertaking by Licensor................................. 3
Article 6 - Undertaking by Licensee................................. 4
Article 7 - Trademark Protection.................................... 4
Article 8 - Contract Term........................................... 4
Article 9 - Notice.................................................. 5
Article 10 - Default Liability...................................... 5
Article 11 - Force Majeure.......................................... 6
Article 12 - Miscellaneous.......................................... 6
Execution Page...................................................... 8
Appendix 1 - Licensed Advertisement Companies....................... 13
Appendix 2 - Copies of Trademark Registration Certificates.......... 14
<PAGE>
TRADEMARK LICENSE AGREEMENT
This TRADEMARK LICENSE AGREEMENT (this "AGREEMENT") is entered into as of March
28, 2005 in the People's Republic of China ("CHINA" or "PRC") by and among the
following three Parties:
(1) FOCUS MEDIA TECHNOLOGY (SHANGHAI) CO., LTD., a company of limited
liabilities incorporated in Changning District, Shanghai, with its legal
address at E, Room 1003, No.1027, Changning Road, Changning District,
Shanghai (the "LICENSOR");
(2) SHANGHAI FOCUS MEDIA ADVERTISEMENT CO., LTD., a company of limited
liabilities incorporated and existing under the laws of China, with its
legal address at Flat F Room 1003No. 1027 Changnin Road, Changnin
District, Shanghai("FOCUS MEDIA ADVERTISEMENT"); and
(3) COMPANIES listed in Appendix 1 hereof (the "LICENSED ADVERTISEMENT
COMPANIES").
(Focus Media Advertisement and Licensed Advertisement Companies shall
hereinafter be referred to together as "LICENSEE"; Licensor and Licensee as
"PARTIES" collectively, and "PARTY" individually.)
WHEREAS:
(1) Licensor (as defined below) is the owner of the Licensed Trademarks (as
defined below) in the People's Republic of China, and is willing to grant
the Licensed Trademarks to Licensee (as defined below) for its use; and
(2) Licensee wishes to use the Licensed Trademarks in its commercial
activities, and is willing to pay License Fee for its use of the Licensed
Trademarks.
NOW, THEREFORE, after friendly consultations between them, Licensor and Licensee
hereby agree in respect of the license of trademarks as follows:
ARTICLE 1 - DEFINITION
Unless otherwise specified in writing by the Parties, the following terms in
this Agreement shall be interpreted to have the following meanings:
"THIS AGREEMENT" means this Trademark License Agreement, and any amendments,
supplements or other changes made thereto in accordance
with the terms of this Agreement.
"LICENSEE" means Focus Media Advertisement and/or any one of the
Licensed Advertisement Companies.
Trademark License Contract(Eng)050331-CT
1
<PAGE>
"LICENSED means the trademarks set out in the trademark application
TRADEMARKS" documents listed in Appendix 2 hereof, such trademarks
intented to be filed and registered with the Trademark
Office of PRC and granted by Licensor in accordance with
this Agreement to Licensee for its use during the Licensed
Term (as defined below) in the Licensed Territory (as
defined below) in connection with the provision of
designated services.
"LICENSED SERVICES" means the advertisements business of designing,
manufacturing, agency and publicizing engaged by the
Licensee.
"LICENSED TERM" means five (5) years from [the effective date of this
Agreement].
"LICENSED TERRITORY" in relation to Focus Media Advertisement, means Shanghai
Municipility in relation to any of the Licensee, means the
territory in relation to such Party accordingly as listed
in Appendix 1.
"CHINA" or "PRC" means the People's Republic of China, for the purposes of
this Agreement, excluding the Hong Kong Special
Administrative Region, the Macao Special Administrative
Region and Taiwan region.
"LICENSE FEE" means the trademark license fees payable by Licensee in
accordance with this Agreement to Licensor for its use of
the Licensed Trademarks.
ARTICLE 2 - GRANT OF THE TRADEMARKS FOR USE
2.1 In accordance with the terms and conditions of this Agreement, Licensor
hereby grants to each of Licensees, in respect of the Licensed Trademarks,
a non-exclusive and non-transferable right for it to use such Licensed
Trademarks during the Licensed Term and in the Licensed Territory for the
purpose of provision of Licensed Services.
2.2 Unless otherwise agreed by Licensor, Licensee may not use directly or
indirectly, or authorize other parties to use, Licensed Trademarks in any
place outside the Licensed Territory.
2.3 After Licensor has granted Licensee the right to use the Licensed
Trademarks, Licensor shall remain the owner of the Licensed Trademarks,
with the right to further use, grant other parties to use, or otherwise
dispose of the Licensed Trademarks in accordance with laws. Licensee shall
only be entitled to the right of using the Licensed Trademarks within the
scope specifically authorized in this Agreement.
2.4 Each of Licensees agrees that, when providing the Licensed Services and in
connection with materials of advertisements, promotions and exhibitions
thereof, it shall identify
Trademark License Contract(Eng)050331-CT
2
<PAGE>
according to relevant provisions the Licensor's ownership in the Licensed
Trademarks, or specify other trademark signs as required by Licensor.
ARTICLE 3 - LICENSE FEE FOR THE TRADEMARKS
3.1 To use the Licensed Trademarks hereunder, Licensee shall pay to Licensor
the License Fee in accordance with this Agreement.
3.2 The License Fee shall be calculated in a fixed way, with the amount of
RMB1,000 per month as License Fee of each of Licensees and denominated in
Renminbi to the Licensor.
3.3 The License Fee under Article 3 hereof shall be calculated and paid on a
quarterly basis. Each of Licensees shall pay to Licensor the License Fee
of the current quarter prior respectively to January 10, April 10, July 10
and October 10 of each year (for each, the "PAYMENT DUE DATE") in
accordance with Article 3.2 hereof.
3.4 Each of Licensees shall, in accordance with this Article 3, pay promptly
the amounts due and payable to Licensor to the bank account designated by
Licensor. In case that Licensor is to change its bank account, Licensor
shall notify each of Licensees thereof in writing seven (7) working days
in advance.
ARTICLE 4 - SERVICE QUALITY
The service quality of the Licensed Services provided by Licensee using the
Licensed Trademarks shall meet up with the requirements of Licensor. Licensee
shall be subject to the inspection of Licensor for service quality, and shall
establish a strict quality control and guarantee system according to Licensor's
requirements, as to procure that the Licensed Services provided by it meet with
excellent quality level. Licensor shall have the right to carry out at any time
inspection and examination at the business premises of Licensee on the service
flow procedures and quality of the Licensed Services.
ARTICLE 5 - UNDERTAKING BY LICENSOR
Licensor hereby undertakes to Licensee as follows:
(1) As the legal owner of the Licensed Trademark, Licensor has the ability to
perform its obligations hereunder;
(2) during the Licensed Term prescribed herein, Licensor shall try its best to
complete the registration procedure of Licensed Trademark as soon as
possible,take necessary measures to renew the registration of the Licensed
Trademarks which has already obtained registration, as to maintain its
ownership in the Licensed Trademarks; and
(3) In case that Licensee is involved in any infringement dispute concerning
the Licensed Trademarks due to the license thereof hereunder, Licensor
shall guide and assist Licensee to solve such disputes.
Trademark License Contract(Eng)050331-CT
3
<PAGE>
ARTICLE 6 - UNDERTAKING BY LICENSEE
Licensee hereby undertakes irrevocably to Licensor as follows:
(1) In carrying out any and all business activities using the Licensed
Trademarks, Licensee shall endeavor to maintain the reputation and image
of the Licensed Trademarks, as to be desirable to upgrade the intangible
asset value of such Trademarks;
(2) Licensee undertakes that, upon being granted to use the Licensed
Trademarks, it shall guarantee strictly that the quality of the Licensed
Services provided by it using the Licensed Trademarks shall meet with the
service standards generally adopted by Licensor; in case of any
compensation as the result of its service quality, Licensee shall be
liable thereto, and shall report to Licensor any issue of service quality
dispute promptly and no later than three (3) days of the occurrence of
such dispute;
(3) during the Licensed Term hereunder, Licensee may only use the Licensed
Trademarks in relation to the provision of the Licensed Services
prescribed hereunder; and
(4) in case of any loss incurred to Licensor due to breaching by each of
Licensees of the undertakings above, such Licensee shall indemnify
Licensor fully for such loss as suffered by Licensor.
ARTICLE 7 - TRADEMARK PROTECTION
7.1 If Licensee finds any infringements by any third parties of the rights
contained in the Licensed Trademarks, Licensee shall notify Licensor
thereof immediately.
7.2 Any legal action to be taken within China to protect the Licensed
Trademarks shall however be taken by Licensor. Upon request of Licensor,
Licensee shall provide Licensor with all reasonable assistances and
cooperations in relation to such actions taken by Licensor.
ARTICLE 8 - AGREEMENT TERM
8.1 The Parties hereby confirm that this Agreement shall become
retrospectively effective as far as the date November 1, 2004 upon formal
execution thereof by the Parties; unless terminated earlier by the Parties
in writing, this Agreement shall be valid for a term of five (5) years
since November 1, 2004. Notwithstanding the provision in the preceding
sentence, as the rights and obligations of each of Licensees hereunder are
severable and independent from each other, upon agreement in writing by
Licensor, this Agreement may be terminated only in relation to any one of
Licensees, with such termination not subject to the agreement of the other
Licensees.
8.2 Upon termination of this Agreement, each Party shall continue to abide by
its obligations under Article 3 hereunder.
Trademark License Contract(Eng)050331-CT
4
<PAGE>
ARTICLE 9 - NOTICE
9.1 Any notice, request, demand and other correspondences made as required by
or in accordance with this Agreement shall be made in writing and
delivered to the relevant Party.
9.2 The abovementioned notice or other correspondences shall be deemed to have
been delivered when it is transmitted if transmitted by facsimile or
telex; it shall be deemed to have been delivered when it is delivered if
delivered in person; it shall be deemed to have been delivered five (5)
days after posting the same if posted by mail.
ARTICLE 10 - DEFAULT LIABILITY
10.1 The Parties agree and confirm that, if any Party (the "DEFAULTING PARTY")
breaches substantially any of the agreements made under this Agreement, or
fails substantially to perform any of the obligations under this
Agreement, such a breach shall constitute a default under this Agreement
(a "DEFAULT"), then the non-defaulting Party whose interest is damaged
thereby shall have the right to require the Defaulting Party to rectify
such Default or take remedial measures within a reasonable period. If the
Defaulting Party fails to rectify such Default or take remedial measures
within such reasonable period or within ten (10) days of the
non-defaulting Party notifying the Defaulting Party in writing and
requiring it to rectify the Default, then the non-defaulting Party shall
have the right, at its own discretion, to (1) terminate this Agreement and
require the Defaulting Party to indemnify it fully for the damage; or (2)
demand the enforcement of the Defaulting Party's obligations hereunder and
require the Defaulting Party to indemnify it fully for the damage.
10.2 The Parties agree that any of the following events shall be deemed to have
constituted the Default:
(1) Any of the Licensed Advertisement Companies or their respective
shareholders breach any provisions of the Shareholder's Voting
Rights Proxy Agreement entered into by it with Licensor on March 28,
2005;
(2) the shareholders of any of the Licensed Advertisement Companies
breach any provisions of the Call Option Agreement entered into by
it with Licensor on March 28, 2005;
(3) the shareholders of Focus Media Technology breach any provisions of
the Loan Agreement entered into by them respectively with the
Licensor on March 28, 2005 or
(4) The Licensees breach any provisions of the Technology License and
Service Agreement entered into by them any Focus Media Digital
Information Technology (Shanghai) Co., Ltd.(hereinafter "FOCUS MEDIA
DIGITAL"), a company with limited liability incorporated in
accordance with PRC laws and whose domicile is Room A72 Floor 28
No.369 Jiangsu Road Changning District, Shanghai Municipility on
March 28, 2005.
Trademark License Contract(Eng)050331-CT
5
<PAGE>
10.3 Notwithstanding any other provisions herein, the validity of this Article
10 shall not be affected by the suspension or termination of this
Agreement.
ARTICLE 11 - FORCE MAJEURE
In the event of earthquake, typhoon, flood, fire, war, computer virus, loophole
in the design of tooling software, internet system encountering hacker's
invasion, change of policies or laws, and other unforeseeable or unpreventable
or unavoidable event of force majeure, which directly prevents a Party from
performing this Agreement or performing the same on the agreed condition, the
Party encountering such a force majeure event shall forthwith issue a notice by
a facsimile and, within thirty (30) days, present the documents proving the
details of such force majeure event and the reasons for which this Agreement is
unable to be performed or is required to be postponed in its performance, and
such proving documents shall be issued by the notarial office of the area where
such force majeure event takes place. The Parties shall consult each other and
decide whether this Agreement shall be waived in part or postponed in its
performance with regard to the extent of impact of such force majeure event on
the performance of this Agreement. No Party shall be liable to compensate for
the economic losses brought to the other Parties by the force majeure event.
ARTICLE 12 - MISCELLANEOUS
12.1 This Agreement shall be prepared in the Chinese language in eighteen (18)
original copies, with each involved Party holding one (1) copy hereof.
12.2 The formation, validity, execution, amendment, interpretation and
termination of this Agreement shall be subject to the PRC Laws.
12.3 Any disputes arising hereunder and in connection herewith shall be settled
through consultations among the Parties, and if the Parties cannot reach
an agreement regarding such disputes within thirty (30) days of their
occurrence, such disputes shall be submitted to China International
Economic and Trade Arbitration Commission for arbitration in Shanghai in
accordance with the arbitration rules of such Commission, and the
arbitration award shall be final and binding on the Parties involved in
such dispute.
12.4 Any rights, powers and remedies empowered to any Party by any provisions
herein shall not preclude any other rights, powers and remedies enjoyed by
such Party in accordance with laws and other provisions under this
Agreement, and the exercise of its rights, powers and remedies by a Party
shall not preclude its exercise of its other rights, powers and remedies
by such Party.
12.5 Any failure or delay by a Party in exercising any of its rights, powers
and remedies hereunder or in accordance with laws (the "PARTY'S RIGHTS")
shall not lead to a waiver of such rights, and the waiver of any single or
partial exercise of the Party's Rights shall not preclude such Party from
exercising such rights in any other way and exercising the remaining part
of the Party's Rights.
Trademark License Contract(Eng)050331-CT
6
<PAGE>
12.6 The titles of the Articles contained herein shall be for reference only,
and in no circumstances shall such titles be used in or affect the
interpretation of the provisions hereof.
12.7 Each provision contained herein shall be severable and independent from
each of other provisions, and if at any time any one or more articles
herein become invalid, illegal or unenforceable, the validity, legality or
enforceability of the remaining provisions herein shall not be affected as
a result thereof.
12.8 Once executed, this Agreement shall replace any other legal documents
entered into by the Parties in respect of the same subject matter hereof.
Any amendments or supplements to this Agreement shall be made in writing
and shall take effect only when properly signed by the Parties to this
Agreement.
12.9 No Party shall assign any of its rights and/or obligations hereunder to
any parties other than the Parties hereof without the prior written
consent from the other Parties.
12.10 This Agreement shall be binding on the legal successors of the Parties.
12.11 The rights and obligations of each of the Licensees hereunder are
independent and severable from each other, and the performance by any of
Licensees of its other obligations hereunder shall not affect the
performance by any other of Licensees of their obligations hereunder.
12.12 Licensor shall, as to the registered Licensed Trademarks within three (3)
months of the date of the public announcement of the registration of the
trademarks, submit a copy of this Agreement to its Trademark Office for
filing, for the Trademark Office to announce for public knowledge. The
fees incurred during the filing process of this Agreement shall be borne
by each of Licensees themselves.
[the remainder of this page is left blank]
Trademark License Contract(Eng)050331-CT
7
<PAGE>
EXECUTION PAGE
IN WITNESS HEREOF, the Parties have caused this Trademark License Agreement to
be executed as of the date first hereinabove mentioned.
Shanghai Focus Media Advertisement Co., Ltd. (Company chop)
Signature by: /s/ Jason Nanchun Jiang
-----------------------
Name: Jason Nanchun Jiang
Position: Authorized Representative
Focus Media Technology (Shanghai) Co., Ltd. (Company chop)
Signature by: /s/ Jason Nanchun Jiang
-----------------------
Name: Jason Nanchun Jiang
Position: Authorized Representative
SICHUAN FOCUS MEDIA ADVERTISING AGENCY CO., LTD.
(Company chop)
Signature by: /s/ Jason Nanchun Jiang
-----------------------
Name: Jason Nanchun Jiang
Position: Authorized Representative
ZHEJIANG RUIHONG FOCUS MEDIA CULTURE COMMUNICATIONS CO., LTD.
(Company chop)
Signature by: /s/ Jason Nanchun Jiang
-----------------------
Name: Jason Nanchun Jiang
Position: Authorized Representative
CHONGQING GEYANG MEDIA CULTURE COMMUNICATIONS CO., LTD.
(Company chop)
Signature by: /s/ Jason Nanchun Jiang
-----------------------
Name: Jason Nanchun Jiang
Position: Authorized Representative
CHANGSHA FOCUS MEDIA CENTURY ADVERTISING CO., LTD.
(Company chop)
Signature by: /s/ Du Kang
---------------------
Trademark License Contract(Eng)050331-CT
8
<PAGE>
Name: Du Kang
Position: Authorized Representative
QINGDAO FOCUS MEDIA ADVERTISING AGENCY CO., LTD.
(Company chop)
Signature by: /s/ Zhang Junyan
----------------------
Name: Junyan Zhang
Position: Authorized Representative
DALIAN FOCUS MEDIA ADVERTISING AGENCY CO., LTD.
(Company chop)
Signature by: /s/ Xie Haobo
----------------------
Name: Haobo Xie
Position: Authorized Representative
YUNNAN FOCUS MEDIA CO., LTD.
(Company chop)
Signature by: /s/ Jason Nanchun Jiang
----------------------
Name: Jason Nanchun Jiang
Position: Authorized Representative
WUHAN GESHI FOCUS MEDIA ADVERTISING CO., LTD.
(Company chop)
Signature by: /s/ Jason Nanchun Jiang
----------------------
Name: Jason Nanchun Jiang
Position: Authorized Representative
SHANGHAI QIANJIAN ADVERTISING CO., LTD.
(Company chop)
Signature by: /s/ Jason Nanchun Jiang
----------------------
Name: Jason Nanchun Jiang
Position: Authorized Representative
GUANGZHOU FUKE ADVERTISING CO., LTD.
(Company chop)
Trademark License Contract(Eng)050331-CT
9
<PAGE>
Signature by: /s/ Jason Nanchun Jiang
----------------------
Name: Jason Nanchun Jiang
Position: Authorized Representative
ZHUHAI FOCUS MEDIA CULTURE COMMUNICATIONS CO., LTD.
(Company chop)
Signature by: /s/ Jason Nanchun Jiang
----------------------
Name: Jason Nanchun Jiang
Position: Authorized Representative
NANJING FOCUS MEDIA ADVERTISING AGENCY CO., LTD.
(Company chop)
Signature by: /s/ Jason Nanchun Jiang
----------------------
Name: Jason Nanchun Jiang
Position: Authorized Representative
TIANJIN FOCUS MEDIA TONGSHENG ADVERTISING CO., LTD.
(Company chop)
Signature by: /s/ Jason Nanchun Jiang
----------------------
Name: Jason Nanchun Jiang
Position: Authorized Representative
HEBEI TIANMA WEIYE ADVERTISING CO., LTD.
(Company chop)
Signature by: /s/ Jason Nanchun Jiang
----------------------
Name: Jason Nanchun Jiang
Position: Authorized Representative
XIAMEN FOCUS MEDIA ADVERTISING CO., LTD.
(Company chop)
Signature by: /s/ Jason Nanchun Jiang
----------------------
Name: Jason Nanchun Jiang
Position: Authorized Representative
Trademark License Contract(Eng)050331-CT
10
<PAGE>
XI'AN FOCUS MEDIA INFORMATION COMMUNICATION CO., LTD.
(Company chop)
Signature by: /s/ Junrong Zhang
---------------------
Name: Junrong Zhang
Position: Authorized Representative
Trademark License Contract(Eng)050331-CT
11
<PAGE>
APPENDIX 1
LICENSED ADVERTISMENT COMPANIES
COMPANY
NAME LICENSED AREA REGISTERED ADDRESS
---------------------------- ------------- ----------------------------------------------
Sichuan Focus Media Chengdu 1-1-6-603 No.151 North Kehua Road Wuhou
Advertising Agency Co., Ltd. District Chengdu
Zhejiang Ruihong Focus Hangzhou Room 909 Building C Huanglongshiji Plaza No.1
Media Culture Communications Hangda Road, Hangzhou
Co., Ltd.
Chongqin Geyang Focus Media Chongqin 25-3-4 Building A Shidaihaoyuan No.3 Qingnian
Culture Communications Co., Road Yuzhong District
Ltd.
Changsha Focus Media Century Changsha No. 692 Middle Furong Road, Changsha
Advertising Co., Ltd.
Qingdao Focus Advertising Qingdao Room 5 Floor 12 No.37, Donghai Road South
Agency Co., Ltd. District
Dalian Focus Media Dalian No. 45 Shanghai Road, Zhongshan District
Advertising Agency Co., Ltd. Dalian
Yunnan Focus Media Co., Ltd. Kunming Room 01 Floor 20 Building SOHOB Yinhai
International Flat, Kunming
Wuhan Geshi Focus Media Wuhan Room 1602 Wuhan Plaza No.358 Jiefang Avenue,
Advertising Co., Ltd. Wuhan
Nanjing Focus Media Nanjing Room 2317 Keyuan Hotel Nanjing High-tech
Advertising Agency Co., Ltd. Development Zone
Shanghai Qianjian Shanghai Room 820 No.706 Huashan Road Gaoqiao Town
Development Zone Co.Ltd. Pudong New Area, Shanghai Municipility
Zhuhai Focus Media Culture Zhuhai Room 801 Floor 8 Post Tower No.1072 Xiangzhou
Communication Co., Ltd. Fenghuang Road, Zhuhai
Tianjin Focus Media Tongshen Tianjin Room 6-4-301 Xinda Gardern Baiti Road Nankai
Advertisement Co., Ltd. District Tianjin
Hebei Tianma Weiye Shijiazhuang Room 1708 Taihe Tower No.19 Shibeixiao Street,
Advertising Co., Ltd. Shijiazhuang
Guangzhou Fuke Advertising Guangzhou Room 01 Floor 29 Youyage Tianyu Gardern No.158
Co., Ltd. Middle Linhe Road, Guangzhou
Xiamen Focus Media Xiamen Room 13D Guomao Tower South Hubin Road
Advertising Co., Ltd.
Xi'an Focus Media Culture Xi'an Roon 1810 No. 42 Gaoxin Road Gaoxin District,
Communication Co., Ltd. Xi'an
Trademark License Contract(Eng)050331-CT
12
<PAGE>
Trademark License Contract(Eng)050331-CT
13
<PAGE>
APPENDIX 2 - COPIES OF TRADEMARK REGISTRATION APPLICATION DOCUMENTS
Trademark License Contract(Eng)050331-CT
14