Deed of Non-Competition Undertaking and Release - Xinhua Finance Media Ltd.
DEED OF NON-COMPETITION UNDERTAKING AND RELEASE
THIS DEED is entered into on the 22nd day of September 2006
BY
[Name of the Subject], holder of People's Republic of China identity card number
[ID number of the Subject] (the "SUBJECT")
IN FAVOUR OF
[Name of the PRC entity], a limited liability company incorporated under the
laws of the PRC and having its registered office at [address of the PRC entity]
(the "COMPANY")
AND
XINHUA FINANCE MEDIA LIMITED, a company incorporated in the Cayman Islands with
registration number 157511 and having its registered office located at Century
Yard, Cricket Square, Hutchins Drive, P.O. Box 2681GT, George Town, Grand
Cayman, British West Indies (the "XFM")
WHEREAS:
A. All of the outstanding interest in the Company not already beneficially owned
by XFM (the "BSG EQUITY") has or will be beneficially acquired by XFM pursuant
to, inter alia, the subscription agreement to be entered into between XFM and
the Subject (the "SUBSCRIPTION AGREEMENT").
B. It is a condition of the closing of the transactions contemplated by the
Subscription Agreement and the acquisition by XFM of the BSG Equity that the
Subject execute and deliver this Agreement.
THIS DEED WITNESSES as follows:
1. Definitions. In this Deed the following words shall have the following
meanings:
"AFFILIATES" of a Person means any other Person that, directly or
indirectly, through one or more intermediaries, Controls, is Controlled by,
or is under common Control with, such Person or, in the case of a natural
Person, such Person's spouse, parents and descendants (whether by blood or
adoption and including stepchildren);
"CLIENT" means an individual or entity to whom any member of the Company
has provided any services or products in respect of the businesses of the
Company as at the date of this Deed or at any time during the Non-Compete
Period;
"CONTROL", "CONTROLS", "CONTROLLED" (or any correlative term) means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management of a Person, whether through the ownership of
voting securities, by contract, credit
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arrangement or proxy, as trustee, executor, agent or otherwise. For the
purpose of this definition, a Person shall be deemed to Control another
Person if such first Person, directly or indirectly, owns or holds more
than 50% of the voting equity interests in such other Person;
"GROUP" means the Company, [affiliates of the Company], XFM and any of
their subsidiaries and Affiliates;
"PERSON" or "PERSONS" means any natural person, corporation, company,
association, partnership, organization, business, firm, joint venture,
trust, unincorporated organization or any other entity or organization, and
shall include any governmental authority; and
"TERRITORY" means the People's Republic of China, including the Hong Kong
Special Administrative Region, Macau Special Administrative Region and
Taiwan.
2. Non Competition. The Subject hereby agrees that he shall not (without the
written consent of the Company and XFM) for the period of four (4) years
from the date hereof (the "NON-COMPETE PERIOD"), neither him nor any of his
Affiliates will in the Territory:
(a) either on his own account or through any of his Affiliates, or in
conjunction with or on behalf of any other person, will own or be
engaged, concerned or interested directly or indirectly whether as
shareholder, director, employee, partner, agent or otherwise carry on
any business in direct competition with the businesses of the Group or
any of its Affiliates as at the Relevant Date; and
(b) either on his own account or through any of his Affiliates or in
conjunction with or on behalf of any other Person, employ, solicit or
entice away or attempt to employ, solicit or entice away from any
member of the Group or its Affiliates who is or shall have been at the
date of or within twelve (12) months prior to such cessation a
director, officer, legal representative, manager or employee of the
Group or any of its Affiliates whether or not such person would commit
a breach of contract by reason of leaving such employment.
3. Nonsolicitation of Clients. During the Non-Compete Period, the Subject
shall not, in the Territory, other than in connection with his employment
with and for the benefit of XFM, directly or indirectly, either
individually or as a principal, partner, member, manager, agent, employee,
employer, consultant, independent contractor, stockholder, joint venturer
or investor, or as a director or officer of any corporation, limited
liability company, partnership or other entity, or in any other manner or
capacity whatsoever,
(a) solicit or divert or attempt to solicit or divert from the Group or
any of its Affiliates any business with any Client;
(b) solicit or divert or attempt to solicit or divert from the Group any
business with any person or entity who was being solicited as a Client
by the Group;
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(c) induce or cause, or attempt to induce or cause, any salesperson,
supplier, vendor, representative, independent contractor, broker,
agent or other person transacting business with any member of the
Group to terminate or modify such relationship or association or to
represent, distribute or sell services or products in competition with
services or products of the Group; or
(d) otherwise provide any services or products to any Client that are or
have been provided by any member of the Group.
4. Consideration. In consideration of the Subject's compliance with the
non-competition undertaking as set out herein, XFM shall allot to the
Subject [number of shares] Class A Common Shares of US$0.001 each in the
share capital of XFM ("SHARES") to the Subject as soon as reasonably
practicable following the execution and delivery by XFM of this Deed.
5. Separate Obligations. Each and every obligation under Clauses 2 and 3 shall
be treated as a separate obligation and shall be severally enforceable as
such and in the event of any obligation or obligations being or becoming
unenforceable in whole or in part such part or parts as are unenforceable
shall be deleted from Clauses 2 or 3 and any such deletion shall not affect
the enforceability of all such parts of Clauses 2 and 3 as remain not so
deleted.
6. Reasonableness. While the restrictions contained in Clauses 2 and 3 are
considered by the parties to be reasonable in all the circumstances, it is
recognised that restrictions of the nature in question may fail for
technical reasons unforeseen and accordingly it is hereby agreed and
declared that if any of such restrictions shall be adjudged to be void as
going beyond what is reasonable in all the circumstances for the protection
of the interests of the Group but would be valid if part of the wording
thereof were deleted or the periods thereof reduced or the range of
activities or area dealt with thereby reduced in scope the said restriction
shall apply with such modifications as may be necessary to make it valid
and effective.
7. Equitable Relief. The Parties agree that Company's rights under this Deed
are special and unique, and that any violation thereof by the Subject would
not be adequately compensated by money damages, and the Subject hereby
grants to any relevant Person the right to specifically enforce (including
injunctive relief or analogous proceedings) the terms of this Deed. In any
proceeding, in equity or law, the Subject specifically waives any defense
that there is an adequate remedy at law for any violations of the terms of
this Deed.
8. Release. The Subject hereby irrevocably, unconditionally and absolutely
releases (i) the Company and XFM, and (ii) any subsequent holder of title
of any part of the interest in the Company, of any liabilities, past,
present or future of any nature and howsoever arising in connection with
the transfer of the interest in the Company to any third party.
9. Governing Law and Jurisdiction. This Deed shall be governed by and
construed in accordance with the laws of Hong Kong and the parties hereby
irrevocably submit to the non-exclusive jurisdiction of the Hong Kong
courts.
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IN WITNESS WHEREOF this instrument has been executed and delivered as a deed by
the Subject on day and year first above written.
SIGNED, SEALED AND DELIVERED )
By [name of the Subject] )
in the presence of: )
)
)
)
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Signature of Witness )
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Name of Witness
[Name of the PRC entity]
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per:
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Authorized Signatory
XINHUA FINANCE MEDIA LIMITED
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per:
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Authorized Signatory
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