Loan Agreement - Focus Media Technology (Shanghai) Co. Ltd., Shanghai Focus Media Advertisement Co. Ltd. and Jimmy Wei Yu
Confidential Execution Copy
LOAN AGREEMENT
BY AND AMONG
JIMMY WEI YU
FOCUS MEDIA TECHNOLOGY (SHANGHAI) CO., LTD.
AND
SHANGHAI FOCUS MEDIA ADVERTISEMENT CO., LTD.
MARCH 28, 2005
<PAGE>
2
<PAGE>
CONTENTS
Article 1 - Definition...................................................... 1
Article 2 - Acknowledgement of the Creditor's Rights and Liabilities........ 2
Article 3 - Interest for the Borrowings..................................... 3
Article 4 - Repayment of the Borrowings..................................... 3
Article 5 - Taxes........................................................... 3
Article 6 - Compensation upon Breaching..................................... 5
Article 7 - Confidentiality................................................. 5
Article 8 - Notice.......................................................... 5
Article 9 - Default Liability............................................... 5
Article 10 - Miscellaneous.................................................. 6
Appendix 1 - List of Original Borrowing Arrangements........................ 9
Appendix 2 - List of Transferred Borrowing Arrangements..................... 11
Appendix 3 - Updated List of Borrowing Arrangements......................... 12
<PAGE>
LOAN AGREEMENT
This LOAN AGREEMENT (this "AGREEMENT") is entered into as of March 28, 2005 by
and among the following three Parties:
(1) JIMMY WEI YU, a citizen of the People's Republic of China (with his/her ID
No. 310106731015081) ("BORROWER");
(2) FOCUS MEDIA TECHNOLOGY (SHANGHAI) CO., LTD., a wholly foreign invested
company incorporated and existing under the laws of China, with its legal
address at E, Room 1003, No. 1027, Changning Road, Changning District,
Shanghai ("FOCUS MEDIA TECHNOLOGY" or "LENDER"); and.
(3) SHANGHAI FOCUS MEDIA ADVERTISEMENT CO., LTD., a company of limited
liabilities incorporated and existing under the laws of China, with its
legal address at F, Room 1003, No.1027, Changning Road, Changning
District, Shanghai ("FOCUS MEDIA ADVERTISEMENT").
(In this Agreement, the above Parties shall hereinafter be referred to as
"PARTY" individually, and "PARTIES" collectively.)
WHEREAS:
(1) Jimmy Wei Yu borrowed monies from Focus Media Technology and Focus Media
Advertisement during the period from 2003 to December 2004, for its
investments in advertisement companies in China, with the brief account of
the arrangements of such borrowings listed in Appendix 1 hereof;
(2) Upon agreement by the Parties concerned, Focus Media Advertisement shall
transfer its rights and obligations under the borrowing arrangements
listed in Appendix 2 hereof to Focus Media Technology, for Focus Media
Technology and Jimmy Wei Yu to continue, as relevant parties thereto, to
perform and enjoy their respective obligations and rights under such
transferred borrowing arrangements; and
(3) In order to specify the rights and obligations of the Parties under the
abovementioned borrowing arrangements, the Parties have hereby reached the
following agreement:
ARTICLE 1 DEFINITION
1.1 The following terms in this Agreement shall be interpreted to have the
following meanings:
"TRANSFERRED BORROWING ARRANGEMENTS" shall mean the Borrowing arrangements
listed in Appendix 2 hereof;
"CONTRACT TRANSFER" shall have the meaning ascribed thereto in Article
2.2;
1
<PAGE>
"BORROWINGS" shall mean all borrowings listed in Appendix 3 hereof;
accordingly, "BORROWING" shall mean any of the Borrowings;
"TARGET COMPANIES" shall mean Dalian Focus Media Advertisement Co., Ltd.,
Qingdao Focus Media Advertising Co., Ltd., Changsha Focus Media Century
Advertising Co., Ltd., Shanghai Qianjian Advertising Co., Ltd. and
Shanghai Focus Media Advertising Agency Co., Ltd.; accordingly, "TARGET
COMPANY" shall mean any of the above Target Companies;
"AMOUNTS" shall mean, in respect of the Borrowings, the outstanding
amounts as listed in Appendix 3;
"EFFECTIVE DATE" shall mean the date on which the Parties duly execute
this Agreement;
"CHINA" or "PRC" shall mean 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;
"REPAYMENT NOTICE" shall have the meaning ascribed thereto in Article 4.1;
"BORROWING TERM" shall have the meaning ascribed thereto in Article 4.2.
1.2 In this Agreement, the relevant terms when so used shall be interpreted to
have the following meanings:
"ARTICLE" shall mean the Articles hereof, unless otherwise specified in
the context hereof;
"TAXES" shall be interpreted as to include any taxes, fees, duties or
other charges of a similar nature (including but not limited to any
penalties and interests imposed in relation to the unpaid or delayed
payment of such Taxes);
"BORROWER" and "LENDER" shall be interpreted as to include the permitted
successors and assigns of the Parties for each of their own interest;
1.3 Except as otherwise stated in the context herein, all references herein to
this Agreement or any other agreements or documents shall be interpreted
as to refer to the amendments, changes, replacements or supplements
already made or to be made from time to time, to or of this Agreement or,
as the case may be, such other agreements or documents.
1.4 The titles in this Agreement are inserted for convenience in reading only.
1.5 Unless otherwise required in the context, words in plural shall include in
meaning their singular forms, and vice versa.
ARTICLE 2 ACKNOWLEDGEMENT OF THE CREDITOR'S RIGHTS AND LIABILITIES
2
<PAGE>
2.1 Borrower hereby acknowledges that, as of the date hereof, it has received
Borrowings from Focus Media Advertisement for a total sum of Renminbi
three hundred fifty thousand (RMB350,000) and Borrowings from Focus Media
Technology Renminbi four million seven hundred and thirty five thousand
(RMB4,735,000). The Parties hereby acknowledge that the Borrowings granted
by Focus Media Advertisement comprise monies actually paid by Focus Media
Advertisement and monies paid by third parties designated by Focus Media
Advertisement on behalf of Focus Media Advertisement, and that the
Borrowings granted by Focus Media Technology comprise monies actually paid
by Focus Media Technology and monies paid by third parties designated by
Focus Media Technology on behalf of Focus Media Technology.
2.2 The Parties agree that, from the Effective Date, the rights enjoyed by
Focus Media Advertisement under the Transferred Borrowing Arrangements
listed in Appendix 2 shall be transferred to Focus Media Technology (the
"CONTRACT TRANSFER").
2.3 The Parties acknowledge that Borrower shall, upon completion of the
Contract Transfer, perform its repayment obligations to Focus Media
Technology and other obligations hereunder in accordance with this
Agreement, with all such obligations set out in Appendix 3.
ARTICLE 3 INTEREST FOR THE BORROWINGS
Lender acknowledges that it shall not charge any interest on the Borrowings.
ARTICLE 4 REPAYMENT OF THE BORROWINGS
4.1 Lender may, at any time during the Borrowing Term (as defined below) by
delivery of a repayment notice (the "REPAYMENT NOTICE") to Borrower thirty
(30) days in advance, demand at its absolute discretion Borrower to repay
part or all of the Amounts in relation to any of the Target Companies.
4.2 The Borrowing Term for the Borrowings hereunder shall commence from the
dates on which the relevant Borrowings are granted as set out in Appendix
1 hereof and shall continue and last for ten (10) years since the
Effective Date hereof (the "BORROWING TERM"). During the Borrowing Term,
Borrower may not, without the prior written consent of Lender, apply out
of its own wish at any time to repay the Amounts in advance; Lender shall
have the right to demand, in accordance with Article 4.1 hereof, Borrower
to repay the Amounts in advance.
4.3 Upon expiry of the thirty (30) day period set out in the Repayment Notice,
Borrower shall repay the Amounts in cash, or make such repayments in other
forms as decided by the board of directors of Lender by means of duly
adopted board resolutions in accordance with its articles of association
and the applicable laws and regulations.
ARTICLE 5 TAXES
Any and all Taxes in relation to the Borrowings shall be borne by Lender.
3
<PAGE>
4
<PAGE>
ARTICLE 6 COMPENSATION UPON BREACHING
Borrower undertakes that, if it breaches any of its obligations hereunder to
result in any actions, charges, claims, costs, damages, demands, fees,
liabilities, losses and procedures incurred to or suffered by Lender, it shall
be liable to Lender for compensation thereof accordingly.
ARTICLE 7 CONFIDENTIALITY
7.1 No matter if this Agreement is terminated or not, Borrower and Focus Media
Advertisement shall be obliged to keep in confidence (i) the execution,
performance and contents of this Agreement; (ii) the commercial secret,
proprietary information and customer information in relation to Lender
which they may become aware of or obtain as the result of their execution
or performance hereof; and (iii) the commercial secret, proprietary
information and customer information in relation to the Target Companies
which they may become aware of or obtain as the shareholder of such Target
Companies (collectively, "CONFIDENTIAL INFORMATION"). Borrower and Focus
Media Advertisement may use such Confidential Information only for the
purpose of performing their respective obligations under this Agreement.
Borrower and Focus Media Advertisement shall not disclose the above
Confidential Information to any third parties without the written consent
from Lender, or they shall bear the default liability and indemnify the
losses.
7.2 Upon termination of this Agreement, Borrower and Focus Media Advertisement
shall, upon demand by Lender, return, destroy or otherwise dispose of all
the documents, materials or software containing the Confidential
Information and suspend using such Confidential Information.
7.3 Notwithstanding any other provisions herein, the validity of this Article
shall not be affected by the suspension or termination of this Agreement.
ARTICLE 8 NOTICE
8.1 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.
8.2 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 9 DEFAULT LIABILITY
9.1 Without limiting the generality of Article 6 hereof, any of the following
events shall constitute the default on the part of Borrower:
5
<PAGE>
(1) Borrower breaches any of the provisions under the Shareholder's
Voting Rights Proxy Agreement, Equity Pledge Agreement or Call
Option Agreement entered into by Borrower respectively with Lender,
Focus Media Advertisement, Jason Nanchun Jiang and other relevant
parties on March 28, 2005; or
(2) any Target Company breaches any of the provisions under the
Technology License and Service Agreement, Shareholder's Voting
Rights Proxy Agreement, Equity Pledge Agreement, Call Option
Agreement or Trademark License Agreement entered into by such Target
Company respectively with any other Target Company, Lender, Focus
Media Advertisement and other relevant parties on March 28, 2005.
9.2 Notwithstanding any other provisions herein, the validity of this Article
shall not be affected by the suspension or termination of this Agreement.
ARTICLE 10 MISCELLANEOUS
10.1 This Agreement shall be prepared in the Chinese language in three (3)
original copies, with each involved Party holding one (1) copy hereof.
10.2 The formation, validity, execution, amendment, interpretation and
termination of this Agreement shall be subject to the PRC Laws.
10.3 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 Shanghai Branch for arbitration
in Shanghai in accordance with the arbitration rules of such Commission,
and the arbitration award shall be final and binding on all Parties.
10.4 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.
10.5 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.
10.6 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.
10.7 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
6
<PAGE>
unenforceable, the validity, legality or enforceability of the remaining
provisions herein shall not be affected as a result thereof.
10.8 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. Notwithstanding the provision in the preceding sentence, if the
amendment to this Agreement involves only Borrowing arrangements other
than those listed in Appendix 2, such amendment or supplement may then be
only subject to the consent by Lender and Borrower, not to the consent of
Focus Media Advertisement.
10.9 Neither Borrower nor Focus Media Advertisement shall assign any of its
rights and/or obligations hereunder to any third parties without the prior
written consent from Lender; Lender shall have the right, after
notification to the other Parties, assign any of its rights and/or
obligations hereunder to any third parties at its designation.
10.10 This Agreement shall be binding on the legal successors of the Parties.
[THE REMAINDER OF THIS PAGE IS LEFT BLANK]
7
<PAGE>
[EXECUTION PAGE]
IN WITNESS HEREOF, the Parties have caused this Loan Agreement to be executed as
of the date and in the place first hereinabove mentioned.
JIMMY WEI YU
Signed by: /s/ Jimmy Wei Yu
-----------------------------
Name: Jimmy Wei Yu
FOCUS MEDIA TECHNOLOGY (SHANGHAI) CO., LTD.
(Corporate Seal)
Signed by: /s/ Jason Nanchun Jiang
-----------------------------
Name: Jason Nanchun Jiang
Position: Legal Representative
SHANGHAI FOCUS MEDIA ADVERTISEMENT CO., LTD.
(Corporate Seal)
Signed by: /s/ Jason Nanchun Jiang
-----------------------------
Name: Jason Nanchun Jiang
Position: Legal Representative
8
<PAGE>
APPENDIX 1
LIST OF ORIGINAL BORROWING ARRANGEMENTS
DATE OF PRINCIPAL
LOAN AMOUNT OF OUTSTANDING PURPOSE OF THE
PARTIES GRANTED BORROWING AMOUNT BORROWING
------------------------- ------- ------------ ------------ --------------------------------
1 Borrower: Jimmy Wei Yu RMB50,000 RMB50,000 Acquisition of 10% equity
Lender: Focus Media interest of Dalian Focus Media
Advertisement Advertisement Co., Ltd.
2 Borrower: Jimmy Wei Yu RMB50,000 RMB50,000 Acquisition of 10% equity
Lender: Focus Media interest of Qingdao Focus Media
Advertisement Advertising Co., Ltd.
3 Borrower: Jimmy Wei Yu RMB50,000 RMB50,000 Acquisition of 10% equity
Lender: Focus Media interest of Changsha Focus
Advertisement Media Century Advertising Co.,
Ltd.
4 Borrower: Jimmy Wei Yu RMB200,000 RMB200,000 Acquisition of 10% equity
Lender: Focus Media interest of Shanghai Qianjian
Advertisement Advertising Co., Ltd.
5 Borrower: Jimmy Wei Yu RMB100,000 RMB100,000 Acquisition of 10% equity
Lender: Focus Media interest of Shanghai Focus
Technology Media Advertising Agency Co.,
Ltd.
6 Borrower: Jimmy Wei Yu RMB4,500,000 RMB4,500,000 Increase of the registered
Lender: capital of Focus Media
Focus Media Technology Advertisement to the amount of
RMB50,000,000 in all.
7 Borrower: Jimmy Wei Yu RMB35,000 RMB35,000 Acquisition of 10% equity
Lender: interest of Zhuhai Focus Media
Focus Media Technology Culture Communications Co., Ltd.
9
<PAGE>
8 Borrower: Jimmy Wei Yu RMB100,000 RMB100,000 Acquisition of 10% equity
Lender: interest of Guangzhou Fuke
Focus Media Technology Advertising Co., Ltd.
10
<PAGE>
APPENDIX 2
LIST OF TRANSFERRED BORROWING ARRANGEMENTS
DATE OF PRINCIPAL
ORIGINAL LOAN AMOUNT OF OUTSTANDING PURPOSE OF THE
PARTIES GRANTED BORROWING AMOUNT BORROWING
------------------------- ------- ------------ ------------ --------------------------------
1 Borrower: Jimmy Wei Yu RMB50,000 RMB50,000 Acquisition of 10% equity
Lender: Focus Media shares of Dalian Focus Media
Advertisement Advertisement Co., Ltd.
2 Borrower: Jimmy Wei Yu RMB50,000 RMB50,000 Acquisition of 10% equity
Lender: Focus Media shares of Qingdao Focus
Advertisement Media Advertising Co., Ltd.
3 Borrower: Jimmy Wei Yu RMB50,000 RMB50,000 Acquisition of 10% equity
Lender: Focus Media shares of Changsha Focus
Advertisement Media Century Advertising
Co., Ltd.
4 Borrower: Jimmy Wei Yu RMB200,000 RMB200,000 Acquisition of 10% equity
Lender: Focus Media shares of Shanghai Qianjian
Advertisement Advertising Co., Ltd.
11
<PAGE>
APPENDIX 3
UPDATED LIST OF BORROWING ARRANGEMENTS
PRINCIPAL
AMOUNT OF OUTSTANDING
PARTIES BORROWING AMOUNT PURPOSE OF THE BORROWING
------------------------- --------- ------------ ------------------------------------------
1 Borrower: Jimmy Wei Yu RMB50,000 RMB50,000 Acquisition of 10% equity shares of
Lender: Focus Media Dalian Focus Media Advertisement Co., Ltd.
Technology
2 Borrower: Jimmy Wei Yu RMB50,000 RMB50,000 Acquisition of 10% equity shares of
Lender: Focus Media Qingdao Focus Media Advertising Co., Ltd.
Technology
3 Borrower: Jimmy Wei Yu RMB50,000 RMB50,000 Acquisition of 10% equity shares of
Lender: Focus Media Changsha Focus Media Century Advertising
Technology Co., Ltd.
4 Borrower: Jimmy Wei Yu RMB200,000 RMB200,000 Acquisition of 10% equity shares of
Lender: Focus Media Shanghai Qianjian Advertising Co., Ltd.
Technology
5 Borrower: Jimmy Wei Yu RMB100,000 RMB100,000 Acquisition of 10% equity shares of
Lender: Focus Media Shanghai Focus Media Advertising Agency
Technology Co., Ltd.
6 Borrower: Jimmy Wei Yu RMB4,500,000 RMB4,500,000 Increase of the registered capital of
Lender: Focus Media Focus Media Advertisement to the amount
Technology of RMB50,000,000 in all.
7 Borrower: Jimmy Wei Yu RMB35,000 RMB35,000 Acquisition of 10% equity interest of
Lender: Guangzhou Fuke Advertising Co., Ltd.
Focus Media Technology
8 Borrower: Jimmy Wei Yu RMB100,000 RMB100,000 Acquisition of 10% equity interest of
Lender: Guangzhou Fuke Advertising Co., Ltd.
Focus Media Technology
12
<PAGE>
13