Business Cooperation Agreement - Shandong Sanlian Group Co. Ltd., Shandong Economic Observing Newspaper Co. Ltd., Economic Observer Press Office and Beijing Jingguan Xincheng Advertising Co. Ltd.
Translation
Execution Copy
REVISED AND RESTATED BUSINESS COOPERATION AGREEMENT
AMONG
SHANDONG SANLIAN GROUP CO., LTD.
SHANDONG ECONOMIC OBSERVING NEWSPAPER CO., LTD.
ECONOMIC OBSERVER PRESS OFFICE
AND
BEIJING JINGGUAN XINCHENG ADVERTISING CO., LTD.
DATED NOVEMBER, 2006, BEIJING
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TABLE OF CONTENTS
Definition
Transfer of advertising agency and the newspaper company
Intellectual property
Distribution business consulting services
Printing business management services
Treatment of prior agreements
Consideration
Representations and warranties
Notice
Revision and termination of the agreement
Liabilities for breach
Term of the agreement and renewal upon expiration
Payment of taxes
Resolution of dispute
Governing law and jurisdiction
Waiver and transfer
Miscellaneous
Appendix 1 Representations and warranties
Appendix 2 List of Intellectual properties
Appendix 3 List of prior agreements with other parties to be continued
Attachment 1 Letter of Confirmation
Attachment 2 Letter of Confirmation regarding the Termination of Agreements
Attachment 3 Letter of Confirmation regarding Newspaper Co.'s Transfer of
Contracts
Attachment 4 Letter of Confirmation regarding EOPO's Transfer of Contracts
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This business cooperation agreement (the "Agreement") was executed and delivered
on November 6, 2006 in Beijing, People's Republic of China by the parties listed
below:
Party A: Shandong Sanlian Group Co., Ltd. ("Sanlian Group")
Party B: Shandong Economic Observing Newspaper Co., Ltd. ("Newspaper Co.")
Party C: Economic Observer Press Office ("EOPO")
Party D: Beijing Jingguan Xincheng Advertising Co., Ltd. ("JGXC")
The above parties to the Agreement are collectively referred to as
"parties", and each as a "party".
Whereas:
1. EOPO is a publishing entity established and subsisting under Chinese
law; it is a legal public institution registered with the Business
Institution Registration and Administration Bureau of Shandong
Provincial Government;
2. Sanlian Group is a company with limited liability registered under
Chinese law; it is the sponsor and administrator of EOPO;
3. Newspaper Co. is a company with limited liability registered under
Chinese law and a subsidiary of Sanlian Group; it used to be the agent
for EOPO's advertising and related business;
4. JGXC is a company limited by shares registered under Chinese law; it
is a legal and registered advertising operator;
5. The parties entered into a "Business Cooperation Agreement" on May 10,
2006 and later executed a "Supplementary Agreement on 'Business
Cooperation Agreement'" on June 10, 2006; now the parties unanimously
undertake to amend and restate the above-referenced "Business
Cooperation Agreement" and the "Supplementary Agreement"; the parties
agree to abide by the rights and obligations under the amended and
restated "Business Cooperation Agreement".
Subsequent to friendly consultation and in accordance with Chinese law, the
parties hereby enter into the following agreements:
1. DEFINITION
Unless otherwise defined in the context, the following terms shall, when used in
the Agreement, have the meaning set forth therein:
1.1 "Authorized intellectual property": Any intellectual property that
EOPO is authorized by any third party to use anywhere in the world.
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1.2 "Third party": Any legal person, non-legal person, private enterprise,
or natural person other than any signatory hereof.
1.3 "Advertising Revenue": Any consideration or other form of payment made
by any client or third party to JGXC for designing, producing, or
releasing advertisement or for providing other advertising service.
1.4 Economic Observer: Unless otherwise defined herein, the newspaper
currently named Economic Observer and its predecessor, its successor
or substitute under a new name or masthead, as well as other financial
publication and any or all appendices, supplements, additional
editions, derivative publications, whether in print or electronic
format or in any other format or media that EOPO publishes from time
to time.
1.5 "Economic Observer's distribution business": Economic Observer 's
distribution business including distributing, wholesaling and
retailing.
1.6 "Economic Observer's advertising business": Any business related to
any form of advertising contained in or related to Economic Observer.
For the sake of clarity, this refers to advertising in a certain media
or format directly or indirectly introducing or promoting or marketing
any merchandise, service and brand name.
1.7 "Agreement works": Works defined in Section 3.2.1 hereof.
1.8 "Cooperation Agreement": "Cooperation Agreement in relation to
Economic Observer" executed and delivered on April 20, 2006 by Xinhua
Financial Limited, Shandong Economic Observing Newspaper Co., Ltd.,
Shandong Sanlian Group Co., Ltd., Economic Observer Press Office and
Beijing Jingguan Xincheng Advertising Co., Ltd.
1.9 "Application to register a trademark": Application to register a
trademark as set forth in Section 3.3 hereof.
1.10 "Existing agreement with other parties": as defined in Section 6.2
hereof.
1.11 "Term of the agreement": as set forth in Section 6 hereof, the entire
period from the date on which the agreement comes into effect to the
date on which the agreement is terminated including any extended
period effected by any renewal or extension hereof.
1.12 "Domain name": Any domain or website name that EOPO directly or
indirectly already owns or will establish, including but not limited
to the domain disclosed in Appendix 1.
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1.13 "Intellectual property": Any intellectual property or title to any
intangible asset that pertains to any text (including in other
languages), logo or design (including any transformation in any
recognizable form) related to or used in Economic Observer or using
Economic Observer, including but not limited to any or all of the
following: trademark, business name, service logo and trade dress as
well as any good will associated with any trademark, business name,
company name, business entity name, trade name, service logo and trade
dress; patent, concept, prototype, drawing, design, company or
institution logo, trade dress; distinctive outlook; identity mark;
official mark; masking layer; utility models; domain names and
internet protocol addresses and other internet identity marks, virtual
character and other source identification or business identity marks
as well as all goodwill associated with the preceding items; copyright
and work with a claim to authorship (or copyright); databases;
drawings; concept design; marketing, sales and client databases and
strategies, client lists; technologies; business proprietary
information, including proprietary expertise, inventions, invention
disclosure, inventor's notes, improvements on inventions; discovery,
recipes, standards and processes; any kind of computer software
(whether in the form of source codes or object codes); application
software programming interface; protocols; any right to renew, extend,
re-release, continued or separate application, application and/or
register any of the preceding items; and all applications submitted to
relevant registration authorities in order to register or protect any
of the above-referenced intellectual properties. The preceding
intellectual properties include internally produced intellectual
properties and licensed intellectual properties.
1.14 "Copyright": Copyright of any works of the agreement incorporating or
pertaining to all transferable rights, including but not limited to
right to duplicate, release, lease, exhibit, show/display, broadcast,
internet broadcast, photograph, adapt, translate and compile, etc.,
and neighboring rights (including but not limited to the rights that
accrue to performers, audio-video producers, broadcasting TV
institutions and print publishers as a result of transmitting a
certain works) and other rights associated with copyright.
1.15 "Privately owned intellectual property": Intellectual property owned
or held by EOPO anywhere in the world.
1.16 "China": People's Republic of China, including Hong Kong and Macau
special administrative regions and Taiwan.
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2. TRANSFER OF ADVERTISING AGENCY AND THE NEWSPAPER COMPANY
2.1 In accordance with the provisions of the agreement, EOPO grants the
advertising agency for the advertising business of Economic Observer
to JGXC and irrevocably agrees to JGXC having sole and exclusive right
to advertising agency, advertising rate-setting and advertising sales
for the advertising business of Economic Observer during the term of
the agreement.
2.2 During the term of the agreement, without JGXC's written consent in
advance, EOPO shall not accept directly or through any third party or
authorizing any third party to accept or server as agent for any of
the advertising business of Economic Observer.
2.3 During the term of the agreement, without JGXC's written consent in
advance, EOPO shall not transfer or partially transfer to, yield to,
authorize or permit any third party the advertising agency for the
advertising business of Economic Observer; EOPO shall ensure that no
third party has any claim against JGXC regarding the advertising
business prior to the execution of the agreement.
2.4 Simultaneous with the execution of the agreement, EOPO shall issue to
JGXC a "Letter of Confirmation" in form and substance as set forth in
Attachment 1 ("Letter of Confirmation") hereof, thereby acknowledging
JGXC as the exclusive advertising agent for Economic Observer. EOPO
agrees to introduce, when appropriate and in Economic Observer and
related promotional material and media, JGXC as the exclusive
advertising agent for Economic Observer.
2.5 While exercising its advertising agency, JGXC may act as an agent of
EOPO or in the name of the general advertising agent of Economic
Observer, or act in its own name, JGXC, including but not limited to
signing, in its own name, contracts with clients or their
representatives.
2.6 Without JGXC's written consent in advance, EOPO shall not release any
advertisement in exchange for any other form of consideration from
clients. EOPO undertakes that, subject to JGXC delivery or provision
to EOPO the consideration as set forth in Section 7.1 hereof, all
revenue related to the advertising business of Economic Observer shall
accrue to JGXC.
2.7 JGXC shall execute its advertising agency with due care and in good
faith and shall not be obligated to pay EOPO any fees other than
delivering or providing to EOPO the consideration as set forth in
Section 7.1 hereof.
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2.8 To facilitate JGXC's delivery of its advertising agency in accordance
with the provisions herein, EOPO shall exert its utmost to ensure
sufficient support in terms of newspaper layout, personnel and
facilities.
2.9 JGXC may make recommendations with regard to advertising format,
layout and space allocation, which EOPO should endeavor to accommodate
except where doing so would contravene the law or violate government
directives.
2.10 During the term of the agreement and where permissible under the law
of the state, the parties hereto agree that JGXC shall have the right
to demand that Sanlian Group and EOPO transfer EOPO to JGXC or its
designee thereby rendering JGXC or its designee 100% owner of EOPO or
in a position equivalent to the above-referenced 100% owner under
Chinese law, the consideration and terms of which shall be negotiated
separately between the two parties. Before the termination of the
agreement and unless with the written consent in advance by JGXC,
Sanlian Group and EOPO undertake not to transfer to a third party any
of the right to publish or issue, manage or operate the advertising
business of Economic Observer or encourage, permit or do anything that
cause the cancellation or non-renewal of any of the right to publish
or issue, and not to transfer, sell or pledge to a third party any of
EOPO's assets or businesses. The parties hereby agree to execute a
separate agreement on the transfer of Economic Observer in order to
define the rights and obligations of the parties hereto and thereto.
3. INTELLECTUAL PROPERTY
3.1 General provisions for the transfer of intellectual property
3.1.1 During the term of the agreement and where permissible under the
law then in effect, EOPO agrees to transfer to JGXC, at the
request of the latter from time to time, all or part of the
intellectual properties that it owns then.
3.1.2 Where, as required under applicable law, the transfer of
intellectual property cannot be effected without the mandatory
approval, filing, registration or other legal procedure, EOPO
shall complete the procedures for obtaining approval, filing or
change registration in compliance with relevant law or regulation
within thirty days of the later of:
1) JGXC making a written request; or
2) The date on which the transfer becomes permissible under the
law or regulation.
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3.1.3 Notwithstanding the provisions in Section 3.1.2 hereof, if the
required approval, filing and registration cannot be completed
due to a reasonable delay caused by procedural deadlines imposed
by the law or regulations, EOPO shall ensure, in a manner
acceptable to JGXC, that an irrevocable application for transfer
is submitted, before the above-referenced deadlines, to the
relevant authorities processing such approval, filing or
registration.
3.1.4 The intellectual property to be transferred by EOPO to JGXC
shall be delivered on the date when the required approval is
obtained or change of registration effected; where the applicable
law and regulation does not require approval or mandatory
registration for the transfer of any intellectual property,
regardless whether filing or voluntary registration is necessary,
the intellectual in question shall be delivered automatically on
later of the date when JGXC makes a written request as set forth
in Section 3.1.1 hereof or the date when EOPO acquires the said
intellectual property. If a given intellectual property can be
covenanted as directly belonging to JGXC, EOPO shall ensure that
the said intellectual property, upon its coming into existence,
directly belongs to JGXC.
3.1.5 Upon the delivery of the intellectual property, all the rights
and benefits derived from or associated with EOPO shall pass to
JGXC.
3.1.6 Within thirty days of delivering the intellectual property or
other reasonable time frame acceptable to JGXC, EOPO shall
deliver the said intellectual property's embodiment of rights,
derivatives and all related material.
3.1.7 All the taxes and expenses associated with the transfer of
intellectual property set forth herein shall be borne by the
relevant parties in compliance with the law.
3.1.8 Prior to JGXC obtaining legal title to a given intellectual
property, where permissible under the law, EOPO shall authorize
JGXC to use the said intellectual property and further agree that
JGXC shall authorize others to use the said intellectual property
in order to satisfy an operational need. Without the written
consent in advance by JGXC, EOPO shall not transfer to or
authorize the use by a third party, or use the said intellectual
property in a manner potentially detrimental to the interest of
JGXC.
3.1.9 EOPO shall take all measures necessary to protect intellectual
property and be in compliance with all applicable laws and
contractual obligations. At the request of JGXC, EOPO shall exert
its utmost perfect its systems, policies and measures for the
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protection of intellectual property. In the event of any third
party's violation of the law or contract, or infringement of or
damage to intellectual property, or EOPO's or JGXC's rights and
benefits associated with intellectual property, EOPO shall, at
the request of JGXC, endeavor to take measures to stop the said
infringement or breach of contract such that the losses be
minimized.
3.1.10 EOPO shall not, in whatever manner, either through action or
non-action, impair its intellectual property or cause any adverse
effect on the intellectual property that JGXC shall acquire, own
and utilize in accordance with the agreement.
3.1.11 EOPO shall disclose to JGXC, sufficiently, completely and
without omission, any third party's reserved rights on
intellectual property already in existence at the time of
execution hereof.
3.1.12 EOPO hereby commits itself to the covenant that, from the date
of execution hereof to date of the delivery of the intellectual
property to JGXC, EOPO shall:
(1) not exercise or authorize others to exercise the
intellectual property that shall be transferred to JGXC;
(2) not engage in any action that may obstruct or adversely
affect the registration, renewal or maintenance of validity
in China or elsewhere of the intellectual property by JGXC
or its affiliates, including but not limited to transferring
the said intellectual property to a third party, or
authorizing its use by a third party, or placing any pledge,
lien or any other condition or restriction on the said
intellectual property;
(3) not call into question, at the time when, under the
provisions of the law, JGXC lawfully acquires or is
authorized to use the intellectual property, the validity
and exclusivity of JGXC's entitlement to the intellectual
property or the legal right to usage as a party authorized
to use the intellectual property, and
(4) assist JGXC to execute all necessary documents and provide
to JGXC, in a timely manner, all the information reasonably
required for the delivery or authorized use of the
intellectual property; and
3.1.13 Section 3.2, Section 3.3 or Section 3.4 hereof does not limit
the generality of Section 3.1 hereof.
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3.2 Transfer of copyright
3.2.1 Where permissible under the law, the copyright that EOPO
transfers to JGXC shall include the copyright of the following
works: from the date on which EOPO was established till the date
of termination of the agreement, any works that Economic Observer
published, carried, utilized and linked to, including but not
limited to works of literature, oral literature, music, drama,
folk arts, dance, acrobatic arts, fine arts, photography, movies
and movie-type of works, graphic works such as engineering
design, product design, maps, illustrations and models, computer
software, other works protected under Chinese law, regulations
and intentional conventions that China is a signatory thereto or
participant thereof, any collections, adaptations, translations,
annotations, editions of the above-referenced works ("agreement
works"), regardless whether EOPO created these works internally,
commissioned others to create them, or others created them or
provided them to EOPO of their own initiative, and regardless
whether EOPO made payment to obtain or publish the said works.
3.2.2 The copyright that EOPO transfers to JGXC is limited to the
copyright of the agreement works that EOPO owns, possesses, has
obtained or is licensed to use under applicable laws,
regulations, conventions and/or contracts, agreements, license
and authorization during the term hereof.
3.2.3 Without the written consent in advance by JGXC, EOPO shall not
use any of the agreement works in a publication, website or other
media other than Economic Observer. For the sake of clarity,
Economic Observer referenced in this section means the newspaper
published by EOPO with the publication series number of CN37-0027
as well as its subsequent publication under a new name or new
masthead.
3.2.4 To the extent permissible under the law, from the date of
execution hereof, EOPO shall covenant with the authors of the
agreement works that JGXC shall exercise the property rights to
the copyright of the said works.
3.2.5 Notwithstanding the transfer of the copyright, the authors of
the agreement works continue to be entitled to their rights of
the person regarding the right of authorship, the right of
revision and the right of keeping the integrity of the work,
unless the law provides otherwise.
3.3 Transfer of trademarks
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3.3.1 EOPO agrees to transfer to JGXC, where permissible under the
law, the trademark registration application identified in
Appendix 2 herein ("Trademark registration application"), and
JGXC agrees to accept then the trademark registration
application.
3.3.2 Within thirty days after JGXC makes a written request as set
forth in Section 3.1.1 hereof, EOPO shall follow the legal
procedures required under Chinese law and regulations for
transferring a trademark registration application or follow a
procedure acceptable to JGXC in order that an irrevocable
application to transfer a trademark registration be submitted to
the State Trademark Bureau.
3.4 Transfer of the domain name
3.4.1 EOPO agrees to transfer to JGXC, where permissible under the
law, the domain name disclosed in Appendix 2 herein and
associated website, and JGXC agrees to accept then the domain
name disclosed in Appendix 2 herein.
3.4.2 To effect the transfer of the domain name referenced to in
Section 3.4.1 hereof, within thirty days after JGXC makes a
written request as set forth in Section 3.1.1 hereof, EOPO shall
follow the legal procedures required under Chinese law and
regulations for transferring a domain name or changing the owner
of a domain name, and simultaneously complete the procedures for
changing the telecommunications and information services business
license and/or related other filing procedures for a transfer of
domain name, and follow a procedure acceptable to JGXC in order
that the change of registration of the domain name owner be
completed with the domain name registration authorities.
4. DISTRIBUTION BUSINESS CONSULTING SERVICES
4.1 To increase the distribution of Economic Observer and further expand
the advertising business of Economic Observer, EOPO agrees to follow
the provisions herein and commission JGXC to provide information
consulting and management consulting services regarding the
distribution business of Economic Observer. JGXC shall deliver these
services with due diligence and in good faith.
4.2 As requested by EOPO form time to time, JGXC shall recommend overall
plans and case reviews with regard to the distribution plans and
distribution proposals of Economic Observer, including but not limited
to providing consultation and recommendations on the total volume of
distribution, regional distribution volumes, methods of distribution,
channels of distribution, review of distribution contracts, format and
terms of the distribution contracts.
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4.3 To facilitate the provision of the consulting services, EOPO shall
disclose to JGXC the details of information, both existing and those
to arise during the term hereof, on all drafts of distribution
contracts, name of distributors, distribution volume, distribution
price, distribution region, distribution revenue allocation, etc.
5. PRINTING BUSINESS MANAGEMENT SERVICES
5.1 To increase the distribution of Economic Observer and further expand
the advertising business of Economic Observer, EOPO agrees to follow
the provisions herein and commission JGXC to assist EOPO with the
management of the printing business of Economic Observer. JGXC shall
deliver these services with due diligence and in good faith.
5.2 EOPO shall execute printing contracts based on standard printing costs
verified by JGXC Prior to executing any printing contract with any
third party, EOPO shall submit the draft of the printing contract to
JGXC five business days before its execution; the said draft shall
disclose in detail the significant terms such as the names of the
parties to the contract, quantity of printing, printing price, region,
and printing costs, etc.
6. TREATMENT OF PRIOR AGREEMENTS
6.1 EOPO and Newspaper Co. hereby confirm that they shall terminate all
the contracts, agreements or arrangements, as listed in Attachment 2
hereof, that EOPO and Newspaper Co. entered into prior to the date of
execution hereof but have not yet fully performed and that they shall
execute "Letter of confirmation regarding the termination of
agreements" in a form as set forth in Attachment 2 hereof.
6.2 Where EOPO and a third party entered into, or Newspaper Co. and a
third party entered into prior contracts, agreements or arrangements
with respect to advertising, intellectual property, distribution and
printing business ("prior agreements with other parties") that, on the
date of execution hereof, have not been fully performed, EOPO or
Newspaper Co. shall exert their utmost to perform these agreements
with other parties to completion in a reasonable manner, to the extent
not contravening the agreement and not having a direct or indirect
adverse effect on JGXC's interests, unless JGXC demands otherwise.
6.3 With regard to those prior agreements with third parties, as listed in
Appendix 3 hereof, that pertain to advertising business, Newspaper Co.
and JGXC hereby agree that Newspaper Co. shall transfer to JGXC the
rights and benefits under the said contracts, agreements or
arrangements, and that they shall execute "Letter of Confirmation
Regarding the Transfer of Contractual Rights and Benefits" in a form
as set forth in Attachment 3 hereof.
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6.4 With regard to those prior agreements with third parties, as listed in
Attachment 4 hereof, that pertain to advertising business, EOPO and
JGXC hereby agree that EOPO shall transfer to JGXC the rights and
benefits under the said contracts, agreements or arrangements, and
that they shall execute "Letter of confirmation regarding the transfer
of contractual rights and benefits" in a form as set forth in
Attachment 4 hereof.
6.5 Unless the law provides otherwise, from the date of execution hereof,
EOPO and Newspaper Co. shall not execute or enter into any agreement
or arrangement without the written consent by JGXC in advance; EOPO
shall not make any payment to Newspaper Co. without the signature and
consent of JGXC's chief financial officer. For the sake of clarity,
JGXC's chief financial officer refers to the chief financial officer
as defined in JGXC's Articles of Association, or another person by
right of a written authorization from the chief financial officer.
7. CONSIDERATION
7.1 Commencing from the date of execution hereof, JGXC shall pay EOPO, an
annual basic advertising agency fee in the amount of RMB 1,000,000
(one million Renminbi). The rate of the advertising agency fee set
forth herein may be adjusted by the parties through consultation
taking into consideration the market situation and the evolution of
the advertising business of Economic Observer.
7.2 The total amount referenced in Section 7.1 hereof shall be paid by
JGXC in equal monthly installments. EOPO agrees that the
above-referenced consideration to be paid by JGXC already incorporates
the compensation for transferring or licensing intellectual property
to JGXC as set forth in Section 3.1.1 hereof, unless the law provides
otherwise.
8. REPRESENTATIONS AND WARRANTIES
8.1 On the date of execution hereof, EOPO and Newspaper Co. make the
representations and warranties to JGXC that the information disclosed
in the appendices hereof is true, accurate, complete, and without
omission or being misleading, and acknowledge that the said warranty
constitutes the basis on which JGXC enters the agreement.
8.2 Each representation and warranty shall be construed as a separate
warranty.
8.3 EOPO undertakes to immediately give written notice to JGXC if EOPO
becomes aware that, events subsequent to the date of execution hereof
have rendered any of the representations and warranties to be untrue,
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inaccurate or misleading in any respect such that there is a material
adverse effect on the rights of JGXC
9. NOTICE
9.1 Unless otherwise provided herein, when any party is giving a notice in
accordance with or associated with the agreement, the said notice
shall be in writing. If delivered in person, or transmitted by
facsimile, or delivered by EMS, then it is deemed delivered if it is
delivered to the addresses or facsimile numbers listed below, or
delivered to other addresses or facsimile numbers provided by the
recipient in advance.
Economic Observer Press Office
Address: Building 7, Xinghua East Lane A, Heping Street, Dongcheng
District, Beijing
Postal Code: 100013
Telephone: 010-64209021
Facsimile: 010-64297071
Attention: ZHANG, Lijuan
Shandong Sanlian (Group) Co., Ltd.
Address: 20 Tuquan North Road, Jinan, Shandong
Postal Code: 250011
Telephone: 0531-83536605
Facsimile: 0531-86099847
Attention: ZHU, Aijun
Shandong Economic Observing Newspaper Co., Ltd.
Address: Building 7, Xinghua East Lane A, Heping Street, Dongcheng
District, Beijing
Postal Code: 100013
Telephone: 010-64209021
Facsimile: 010-64297071
Attention: ZHANG, Lijuan
Beijing Jingguan Xincheng Advertising Co., Ltd.
Address: Building 7, Xinghua East Lane A, Heping Street, Dongcheng
District, Beijing
Postal Code: 100013
Telephone: 010-64209021
Facsimile: 010-64297071
Attention: ZHANG, Lijuan
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9.2 Unless otherwise provided herein, any notice, if transmitted by
facsimile, shall be deemed delivered immediately if it is transmitted
without error messages to the facsimile number of the recipient listed
above during 8:00-17:00, Beijing Time, on a statutory business day,
except that, immediately thereafter, the said notice shall be
delivered by EMS to the recipient as a form of confirmation. Any
notice, if delivered by EMS, shall be deemed already delivered 5 days
after it is dispatched to the address of the recipient.
10. REVISION AND TERMINATION OF THE AGREEMENT
10.1 Any amendment to this Agreement shall not be valid without the
unanimous consent of the parties, the approval of the board of
directors of JGXC, and execution of supplemental agreement. Any
unilateral change to this agreement by any party has no legal effect.
10.2 Unless provided otherwise herein, no party shall terminate the
agreement prior to the expiration of the term hereof. If any party
terminates the agreement without the approval from the other parties,
the said party shall be held liable for compensation in compliance
with the provisions hereunder.
10.3 Notwithstanding the foregoing provisions, JGXC's board of directors
may pass a resolution by vote and give written notice to the other
parties in order to terminate the agreement.
11. LIABILITIES FOR BREACH
11.1 In the event one party breaches any of the contractual obligations
hereunder or any representation and warranty and causes any direct
losses or foreseeable indirect losses to the other party, the
breaching party shall make full compensation or indemnity for the
losses sustained by the other party. The said other party shall have
the right to make deductions or withholdings from any amount owing to
the breaching party.
11.2 If one party breaches the agreement and causes losses to the other
party, the said other party shall take appropriate measures to prevent
the losses from increasing, otherwise, the said other party shall be
held responsible for the increase of the loss; on the other hand, the
breaching party shall be responsible for the reasonable expenses
incurred by the said other party for preventing the loss from
increasing.
11.3 The parties fully understand and agree that the covenants hereunder
constitute important components of the cooperation agreements,
violation of which may result in a fundamental breach of the
cooperation
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agreements and the loss caused by one party's breach hereof to the
other party may exceed and substantially surpass the considerations
covenanted herein. The parties acknowledge that all the provisions
herein, including but not limited to Section 11 hereof on breaching
party's obligations, result from fair and sufficient consultation
among the parties, who irrevocably agree that the breaching party
shall, under no circumstances, present any claim or plea for reducing
the obligation of the breaching party on the ground that it is grossly
unconscionable or that the indemnity exceeds the consideration of the
contract.
11.4 If EOPO wishes to terminate the agreement prior to the expiry date,
EOPO shall compensate JGXC for all the resulting losses, including but
not limited to any direct loss, indirect loss, loss of JGXC's
anticipated profit during the term hereof assuming the agreement is
not terminated (annual profit shall be based on JGXC's actual
operating revenue and reasonable projection of growth rate), as well
as all direct or indirect losses resulting or potentially resulting
from obligatory compensations to third parties.
11.5 With the approval of its board of directors, JGXC may give written
notice to the other parties to terminate the agreement and hold EOPO
liable for breaching of contract under Section 11.4 hereof if any of
the following situations implicating EOPO occurs:
11.5.1 EOPO violates the provisions under Section 2 hereof,
including but not limited to transferring to others or
permitting others to operate all or part of the advertising
agency of Economic Observer, or refusing to place
advertisement without a valid reason, or committing material
errors of omitting, misplacing advertisement, or causing, in
any other manner, material adverse effect on the advertising
business of Economic Observer, or causing the loss of all or
part of the exclusive advertising agency of Economic
Observer, and after receiving the written notice from JGXC
demanding remedy, EOPO failing to remedy the situation
within a reasonable time frame in compliance with JGXC's
demand;
11.5.2 EOPO violates the provisions under Section 3 hereof,
causing the transfer of intellectual property hereunder to
completely or partially fall through, or preventing the
transfer of any or all material intellectual property, or
causing material impairment to JGXC's rights and benefits
deriving from the said intellectual property, and after
receiving the written notice from JGXC demanding remedy,
EOPO failing to remedy the situation within a reasonable
time frame in compliance with JGXC's demand;
11.5.3 EOPO violates the provisions under Section 4 or 5 hereof,
causing complete or partial failure of service objectives
for distribution
16
<PAGE>
consulting and printing management, and after receiving the
written notice from JGXC demanding remedy, EOPO failing to
remedy the situation within a reasonable time frame in
compliance with JGXC's demand; or
11.6 EOPO, Sanlian Group and Newspaper Co. are liable jointly and severally
for their respective obligations and undertakings hereunder.
12. TERM OF THE AGREEMENT AND RENEWAL UPON EXPIRATION
12.1 The Agreement comes into force on the date of establishment and
thereby replaces "Business Cooperation Agreement" executed by the
parties on May 10, 2006 and "Supplementary Agreement to 'Business
Cooperation Agreement'" executed on June 10, 2006; the agreement shall
have a term of fifty (50) years commencing from the date of execution.
12.2 Upon expiry of the term hereof, the agreement automatically renews
itself without the parties incurring any additional expenses for the
renewal.
13. PAYMENT OF TAXES
13.1 The parties shall pay taxes and fees in accordance with Chinese law
and applicable tax regulations then in effect, of which, EOPO shall
pay taxes during the process of and associated with the issuance of
advertisement while JGXC shall pay taxes during the process of and
associated with advertising agency.
14. RESOLUTION OF DISPUTE
14.1 Any disputes arising out of or in connection with the agreement shall
be resolved through consultation among the parties as a first resort;
in the event the dispute resolution through consultation proves
unsuccessful, the parties shall then refer the dispute to China
International Economic and Trade Arbitration Commission and submit
themselves to the arbitration rules of the said Commission in effect
at the time of application for arbitration; the judgment of the
arbitration tribunal shall be final and binding on the parties hereto.
14.2 During the process of dispute resolution, except for the matters in
dispute, the parties shall continue and abide by the other provisions
hereof and fulfill their other obligations hereunder.
17
<PAGE>
15. GOVERNING LAW AND JURISDICTION
15.1 The agreement shall be governed by and construed in accordance with
the laws of the People's Republic of China.
16. WAIVER AND TRANSFER
16.1 Any party's waiver at any time of any entitlement under any provision
hereof does not affect the said party's subsequent entitlement under
the said provision or its entitlement under any other provisions
hereof.
16.2 Any party shall not transfer any of its rights and/or obligations
hereunder to any non-party hereto without the written consent by the
other parties.
17. MISCELLANEOUS
17.1 Matters requiring hereunder the written consent by JGXC or any waiver
by JGXC of a right hereunder shall be approved of only through a vote
by the board of directors of JGXC, unless the board of directors of
JGXC passes a resolution to the contrary.
17.2 The section headings herein are for convenience only and shall not
affect the construction hereof.
17.3 If any term or provision herein is declared by any applicable law to
be illegal or unenforceable, the said provision shall be deemed
deleted from the agreement and null whilst the agreement remains valid
and shall be deemed no to contain the said provision in its original
composition. The parties shall, through consultation, replace the
provision that is deemed depleted with one that is acceptable and
satisfactory to the parties, legal and valid.
17.4 The time, date and deadline provided hereunder are of the essence
hereof, any violation of the time, date or deadline provided hereunder
shall be deemed a breach of contract.
17.5 All expenses incurred to cause the agreement to come into force
legally, including but not limited to fees for notary public services,
stamping and registration, shall be borne by the related parties in
accordance with Chinese law or by the party incurring the expense.
17.6 The appendices hereto constitute an integral part hereof and shall be
of equal validity as the agreement proper.
18
<PAGE>
17.7 The agreement is composed of four counterparts, the parties each
holding one counterpart, all of which having equal legal force.
[Signature page to follow]
19
<PAGE>
Signature page for "Business Cooperation Agreement"
Economic Observer Press Office
[Company chop of Economic Observer
Press Office]
Authorized representative: /s/
----------------------------------------
Shandong Sanlian (Group) Co., Ltd.
[Company chop of Shandong Sanlian
(Group) Co., Ltd.]
Authorized representative: /s/
----------------------------------------
Shandong Economic Observing Newspaper
Co., Ltd. [Company chop of Shandong
Economic Observing Newspaper Co.,
Ltd.]
Authorized representative:
----------------------------------------
Beijing Jingguan Xincheng Advertising
Co., Ltd. [Company chop of Beijing
Jingguan Xincheng Advertising Co.,
Ltd.]
Authorized representative: /s/
----------------------------------------
20
<PAGE>
APPENDIX 1 REPRESENTATIONS AND WARRANTIES
EOPO and Newspaper Co. (collectively the "Representing Parties"), on the date of
execution hereof, jointly and severally represent and warrant the following:
1 General representation and warranty
1.1 The Representing Parties are legal persons of a subsisting and
reputable business institution or corporation established under
Chinese law;
1.2 The Representing Parties possess all the power, authorization and
approval (from government or other entities) necessary to execute and
fully perform the agreement and fulfill the obligations under each
related agreement executed in accordance with the agreement;
1.3 The Representing Parties have taken all necessary measures such that
they have full legal power to enter into the agreement; the
representatives executing the agreement on behalf of the Representing
Parties have obtained full authorization necessary for executing the
agreement, therefore by the power of the letter of authorization or by
reason of the representatives as employees of the Representing
Parties, the agreement they executed shall be binding on the
Representing Parties.
1.4 Execution and performance hereof shall not contravene any Chinese law,
government decree or court judgment or cause the Representing Parties
to breach any contract with a third party;
1.5 With respect to the subject hereof, the Representing Parties are not
implicated in any pending law suit, arbitration, or judicial,
administrative or other procedures or government investigation, or
threat of any of the preceding that the Representing Parties are aware
of in their best faith;
1.6 All the documents, data, information and undertakings provided by the
Representing Parties to the other parties are true, accurate and
complete without omission or being misleading.
2. Regarding the agreement
2.1 The appendices hereto have already made a full and complete disclosure
of all the contracts, agreements or arrangements that EOPO and
Newspaper Co. have entered regarding advertising, intellectual
property, distribution, printing and related businesses or affairs, or
that may affect JGXC's rights hereunder, or that may rival or
contradict the agreement;
2.2 The contracts or agreements disclosed in the appendices hereto are
legal and valid, and, to the best knowledge of EOPO and Newspaper Co.,
no circumstances exist that may affect the full performance of the
said
21
<PAGE>
contracts or agreements, or cause any parties thereto to breach the
contract or demand compensation or file other claims.
3. Regarding intellectual property
3.1 Disclosure: The Appendix 2 hereto has made, without omission, a full
and complete disclosure of the intellectual property inventory, the
particulars of which include:
(i) All intellectual properties under the category of privately owned
intellectual property that have been or are in the process of
being registered, including but not limited to patent, domain
name, trademark, business name, service logo, copyright, and
applications for any of the preceding;
(ii) Substantial approval and renewal of approval of privately owned
intellectual property to third parties;
(iii) Approval of intellectual property and any renewal of approval
received of the said intellectual property;
(iv) Other than those provided herein, any substantial obligations of
exclusiveness and non-competition that are binding on EOPO, as
well as any reservation placed by a third party on intellectual
property.
3.2 Overview
3.2.1 All the intellectual properties are legally owned by EOPO as the
beneficial owner, or are authorized by the title owner who
consents to its legal use by the authorized; EOPO possesses full
legal titles and associated rights to the said intellectual
properties, free from any legal encumbrance for its performance
hereof;
3.2.2 Up until the date of execution hereof, EOPO is in possession of
no intellectual property, undisclosed to JGXC, that has already
been registered with the applicable government agency or other
registration authority, or that an application for registration
thereof has already been submitted.
3.2.3 Other than the domain name disclosed in Appendix 2 hereto, EOPO
is in possession or direct or indirect control of no other
domain.
3.2.4 Up until the date of execution hereof, EOPO does not own any
trademark, nor has it filed any undisclosed application for the
registration of any trademark.
3.2.5 EOPO has already filed an application with the Trademark Bureau
of the State Administration of Industry and Commerce to register
a trademark disclosed in Appendix 2 hereto, and, to the best
knowledge of EOPO, there is no substantial encumbrance in
existence to prevent EOPO from obtaining the registration
thereof.
22
<PAGE>
3.3 License
3.3.1 Other than those disclosed in Appendix 2 hereto, no third party
has been licensed by EOPO for the use of any intellectual
property.
3.4 No infringement by EOPO
3.4.1 EOPO did not infringe, is not infringing and will not infringe
upon the intellectual property of any third party.
3.4.2 No third party has ever filed any claims declaring that EOPO
infringed, is infringing or may infringe upon the intellectual
property of any third party, or disputing the intellectual
property owned or used by EOPO. To the best knowledge of EOPO, no
circumstances exist that may give rise to the above-referenced
claims or disputes.
3.5 No infringement by third parties
3.5.1 To the best knowledge of EOPO, no third party infringed, is
infringing or may infringe upon the intellectual property owned
or used by EOPO
3.5.2 EOPO has never filed any claims declaring that a third party
infringed, is infringing or may infringe upon the intellectual
property owned or used by EOPO, or disputing the intellectual
property owned or used by a third party. To the best knowledge of
EOPO, no circumstances exist that may give rise to the
above-referenced claims or disputes.
3.5.3 After the transfer, EOPO has not behaved in any manner, either
through action or non-action, which may be detrimental to JGXC
enforcing its rights to the intellectual properties owned or used
by EOPO
3.6 Restrictions on rights
3.6.1 The intellectual properties owned or used by EOPO are not
subject to any security interest, except for the restrictions set
forth herein
3.6.2 Other than the agreement, there is no agreement or arrangement
that restrict EOPO's disclosure, use or transfer of intellectual
property, or granting a third party any rights to the
intellectual property.
3.7 Loss of rights
3.7.1 The intellectual property owned or used by EOPO will be lost or
shall not be terminated as a result of the transfer or the
performance hereof.
3.7.2 EOPO has not behaved in any manner, either through action or
non-action,, no situation has arisen or may arise, such that may
cause the cancellation, enforced licensing, abolishing or
amendment of any of the intellectual property, or may cause an
23
<PAGE>
pending application to be denied or unable to be registered as a
valid intellectual property.
24
<PAGE>
APPENDIX 2 LIST OF INTELLECTUAL PROPERTIES
1. Self-owned intellectual properties
(1) Domain name: EOPO is in possession or direct or indirect control of no
other domain other than the domain names disclosed listed below:
Chinese domain name English domain name Universal website Internet name
------------------- -------------------- -------------------- --------------------------------
www.[Chinese Characters].cn www.eeo.com.cn [Chinese Characters] [Chinese Characters]
www.[Chinese Characters].com www.eobserver.com.cn (Economic Observer) (Economic Observer Press Office)
www.[Chinese Characters].net
www.[Chinese Characters].com
www.[Chinese Characters].net
www.[Chinese Characters].com
www.[Chinese Characters].com
www.[Chinese Characters].com
www.[Chinese Characters].com
(2) Regarding trademarks: EOPO does not own any trademark, nor has it
filed any undisclosed application for the registration of any
trademark other than the following registered trademark applications
that have been submitted to the Trademark Bureau of the State
Administration of Industry and Commerce:
Date of processing
Trademark the application
Text/Graphic for registration Applicable category
------------ ------------------ -----------------------------------
The Economic Observer May 25, 2005 9 Science, navigation, land
[Chinese Characters] survey, electrical,
[Chinese Characters] photography, movies, optics,
scales, instruments of
measurement, signal, testing
(supervision), ambulance
(rescue) and instructional
instruments and devices,
recording, communications,
device for displaying sound
and image, magnetic data
medium, recording disc,
automatic vending machine and
coin-
25
<PAGE>
operated mechanical structure,
cash register, computer and
data processing facility, fire
extinguisher
The Economic Observer May 25, 2005 16 Different types of paper,
[Chinese Characters] paper board and products,
[Chinese Characters] printed matter, stapling
products, photos, stationery,
glues for stationery or home
use, fine arts products,
brush-pencil, typewriter and
office products (other than
furniture), education or
instructional products (other
than instruments), packaging
plastic materials (different
types), paper cards, printing
types, printing form
The Economic Observer May 25, 2005 35 Advertising, enterprise
[Chinese Characters] operation, enterprise
[Chinese Characters] management, office
administration
The Economic Observer May 25, 2005 40 Material processing
[Chinese Characters]
[Chinese Characters]
The Economic Observer May 25, 2005 41 Education, provision of
[Chinese Characters] training, entertainment,
[Chinese Characters] arts and sports activities
The Economic Observer May 25, 2005 42 Science and technology service
[Chinese Characters] and related research and
[Chinese Characters] design services; industrial
analysis and research,
computer hardware and software
design and
26
<PAGE>
development; legal services
EEO.COM.CN May 25, 2005 9 Science, navigation, land
[Chinese Characters] survey, electrical,
photography, movies, optics,
scales, instruments of
measurement, signal, testing
(supervision),
ambulance(rescue) and
instructional instruments and
devices, recording,
communications, device for
displaying sound and image,
magnetic data medium,
recording disc, automatic
vending machine and
coin-operated mechanical
structure, cash register,
computer and data processing
facility, fire extinguisher
EEO.COM.CN May 25, 2005 16 Different types of paper,
[Chinese Characters] paper board and products,
printed matter, stapling
products, photos, stationery,
glues for stationery or home
use, fine arts products,
brush-pencil, typewriter and
office products (other than
furniture), education or
instructional products (other
than instruments), packaging
plastic materials (different
types), paper cards, printing
types, printing form
EEO.COM.CN May 25, 2005 35 Advertising, enterprise
27
<PAGE>
[Chinese Characters] operation, enterprise
management, office
administration
EEO.COM.CN May 25, 2005 40 Material processing
[Chinese Characters]
EEO.COM.CN May 25, 2005 41 Education, provision of
[Chinese Characters] training, entertainment,
arts and sports activities
EEO.COM.CN May 25, 2005 42 Science and technology service
[Chinese Characters] and related research and
design services; industrial
analysis and research,
computer hardware and software
design and development; legal
services
[Chinese Characters] July 6, 2005 16 Different types of paper,
CHINA BLUE paper board and products,
CHIP REAL ESTATE printed matter, stapling
And graphics products, photos, stationery,
glues for stationery or home
use, fine arts products,
brush-pencil, typewriter and
office products (other than
furniture), education or
instructional products (other
than instruments), packaging
plastic materials (different
types), paper cards, printing
types, printing form
[Chinese Characters] July 6, 2005 41 Education, provision of
CHINA BLUE training, entertainment,
CHIP REAL ESTATE arts and sports activities
And graphics
[Chinese Characters] July 6, 2005 16 Different types of paper,
The Economic Observer paper board and products,
Forum and graphics printed
28
<PAGE>
matter, stapling products,
photos, stationery, glues for
stationery or home use, fine
arts products, brush-pencil,
typewriter and office products
(other than furniture),
education or instructional
products (other than
instruments), packaging
plastic materials (different
types), paper cards, printing
types, printing form
[Chinese Characters] July 6, 2005 41 Education, provision of
The Economic Observer training, entertainment,
Forum and graphics arts and sports activities
[Chinese Characters] June 3, 2006 16 Different types of
The Most Respected (Note: date paper, paper board and
Companies of China of application, products, printed matter,
And graphics not date of stapling products, photos,
processing) stationery, glues for
stationery or home use, fine
arts products, brush-pencil,
typewriter and office products
(other than furniture),
education or instructional
products (other than
instruments), packaging
plastic materials (different
types), paper cards, printing
types, printing form
[Chinese Characters] June 3, 2006 41 Education, provision of
The Most Respected (Note: date of training, entertainment,
Companies of China application, not arts and sports activities
And graphics date of
processing)
[Chinese Characters] June 3, 2006 16 Different types of
(Note: date of
29
<PAGE>
Marketing application, not paper, paper board and
And graphics date of products, printed matter,
processing) stapling products, photos,
stationery, glues for
stationery or home use, fine
arts products, brush-pencil,
typewriter and office products
(other than furniture),
education or instructional
products (other than
instruments), packaging
plastic materials (different
types), paper cards, printing
types, printing form
[Chinese Characters] June 3, 2006 41 Education, provision of
Marketing (Note: date of training, entertainment,
And graphics application, not arts and sports activities
date of
processing)
30
<PAGE>
APPENDIX 3 LIST OF PRIOR AGREEMENTS WITH OTHER PARTIES TO BE CONTINUED
This is a list of agreements mainly related to distribution and printing of
publications of Shandong Economic Observing Newspaper Co., Ltd. and Economic
Observer Press Office.
31
<PAGE>
ATTACHMENT 1 LETTER OF CONFIRMATION
Economic Observer Press Office ("EOPO") has designated Beijing Jingguan
Xincheng Advertising Co., Ltd. as Economic Observer's exclusive general
advertising agent. This is confirmed as follows:
1. Beijing Jingguan Xincheng Advertising Co., Ltd. is officially designated by
EOPO as the exclusive general agent ("General Agent") of Economic
Observer's advertising business.
2. The above-referenced Economic Observer include the currently named Economic
Observer [Chinese Characters] and its successor or substitute
under a new name or masthead, as well as other financial publications and
any or all appendices, supplements, additional editions, derivative
publications, whether in print or electronic format or in any other format
or media that EOPO publishes from time to time.
3. General Agent is empowered, in the capacity of agent, to enter into
contracts related to the advertising business of Economic Observer.
4. Advertising clients wishing to enter into any advertising contract with
EOPO shall submit an application to General Agent; once the written consent
of General Agent is obtained in advance, arrangements are then made for the
execution thereof with the relevant departments of EOPO.
5. This letter of confirmation comes into force on the date of execution and
delivery for a term of fifty years; the said term shall be extended to the
extent that the term of cooperation between EOPO and General Agent is
extended or updated.
In witness of the preceding on this [__]day of [__________], 2006
Economic Observer Press Office
[Company chop of Economic Observer Press
Office]
Legal representative: /s/
------------------
32
<PAGE>
ATTACHMENT 2 LETTER OF CONFIRMATION REGARDING THE TERMINATION OF AGREEMENTS
Economic Observer Press Office ("EOPO") and Shandong Economic Observing
Newspaper Co., Ltd. ("Newspaper Co.") entered this letter of confirmation on
[__________] in the presence of the authorized representative of Beijing
Jingguan Xincheng Advertising Co., Ltd..
1. EOPO and Newspaper Co. hereby acknowledge that the contracts or agreements
("the prior agreements with other parties") listed in Section 3 hereof
below were entered into on the dates indicated by the two parties. The
parties have reached agreement through consultation to the termination, on
the date of execution hereof, of the prior agreements with other parties,
absolving the parties of any rights or obligations under the provisions of
the prior agreements with other parties.
2. EOPO and Newspaper Co. hereby agree: commencing on the date of execution
hereof, the two parties each irrevocably and unconditionally abandon any
claims for compensation under the prior agreements with other parties,
shall not make subject the other party to any demands, request, pleas or
claims under the prior agreements with other parties, or subject the other
party to any demands, request, pleas or claims associated with the prior
agreements with other parties, regardless of whether the subject matter of
the said demands, request, pleas or claims arises before or after the
execution hereof.
3. The contracts and agreements to be terminated hereby include:
Title Date of execution Abstract Amount (in RMB)
----- ----------------- -------- ---------------
1. "Agreement" July 22, 2005 EOPO grants to Newspaper Co. Level 1 n/a
agency for wholesale distribution,
exclusive advertising agency and other
non-editorial business agency for Economic
Observer, whose range of operation is
China(including Hong Kong and Taiwan) and
other permissible regions
2. "Agency Agreement January 1, 2004 EOPO commissions the Beijing sales EOPO makes an annual
(business training subsidiary of Shandong Yuan Chuang payment of RMB
in branding and Newspaper Development Co., Ltd. 2,400,000.00 (two
promotion (predecessor of Newspaper Co.) to provide million four hundred
services)" all-year-round business training in sales thousand RMB) to EOPO
and branding
3. "Agency Agreement March 1, 2005 EOPO commissions the Beijing sales EOPO makes an annual
subsidiary of Shandong Yuan payment
33
<PAGE>
(business training Chuang Newspaper Development Co., of RMB 2,880,000.00
in branding and Ltd.(predecessor of Newspaper Co.) to (two million eight
promotion provide all-year- round business training hundred and eithty
services)" in sales and branding thousand RMB) to EOPO
4 "Agency Agreement March 1, 2005 EOPO commissions the Beijing sales EOPO makes an annual
(news gathering subsidiary of Shandong Yuan Chuang payment of RMB
and editorial Newspaper Development Co., 2,160,000.00 (two
business services)" Ltd.(predecessor of Newspaper Co.) to million one hundred
provide news gathering and editorial and sixty thousand
business services RMB) to EOPO
5 "Agency Agreement March 1, 2005 EOPO commissions the Beijing sales EOPO makes an annual
(sales business subsidiary of Shandong Yuan Chuang payment of RMB
training services)" Newspaper Development Co., 4,520,000.00 (four
Ltd.(predecessor of Newspaper Co.) to million five hundred
provide sales training services and twenty thousand
RMB) to EOPO
Economic Observer Press Office [Company
chop of Economic Observer Press Office]
Authorized representative: /s/
-------------
Shandong Economic Observing Newspaper
Co., Ltd. [Company chop of Shandong
Economic Observing Newspaper Co., Ltd.]
Authorized representative:
-------------
Witness:
Beijing Jingguan Xincheng Advertising
Co., Ltd. [Company chop of Beijing
Jingguan Xincheng Advertising Co., Ltd.]
Authorized representative: /s/
-------------
34
<PAGE>
ATTACHMENT 3
LETTER OF CONFIRMATION REGARDING NEWSPAPER CO.'S TRANSFER OF CONTRACTS
This letter of confirmation is concluded by Shandong Economic Observing
Newspaper Co., Ltd. (formerly known as Shandong Yuan Chuang Newspaper
Development Co., Ltd., "Newspaper Co.") and Beijing Jingguan Xincheng
Advertising Co., Ltd. ("JGXC") on [May 10, 2006].
1. Newspaper Co. hereby warrants that the contracts and agreements that
Newspaper Co. as a party executed with relevant parties ("prior agreements
with other parties") listed in the appendix hereto are true, valid and
complete without omissions or being materially misleading.
2. Based upon consensus achieved through consultation between Newspaper Co.
and EOPO, Newspaper Co. agrees to transfer the rights, benefits and revenue
that it owns or obtains under prior agreements with other parties to JGXC,
the latter hereby agrees to be the transferee of Newspaper Co.'s rights
under prior agreements with other parties.
3. Without any delay after the execution hereof, at the request of JGXC and in
a manner satisfactory to JGXC, Newspaper Co. undertakes to give notice to
the other parties to the prior agreements with other parties to the effect
that Newspaper Co.'s rights or benefits have already been transferred to
JGXC.
4. Regardless of whether Newspaper Co. gives notice to the other parties to
the prior agreements with other parties to the effect that Newspaper Co.'s
rights or benefits have already been transferred to JGXC, commencing from
the date of execution hereof, when any third party payment under prior
agreements with other parties or any other benefits are received, Newspaper
Co. shall, without any delay, give written notice to JGXC and, at the
request of JGXC, transmit or transfer the said payment or benefits to JGXC.
The board of directors of JGXC has the power to determine, based on its own
needs and at its sole discretion, whether to permit Newspaper Co. to keep
the said payment or benefits, and whether to make a corresponding deduction
from or charge against any amount owed by JGXC to Newspaper Co.
5. The appendix hereto lists the contracts and agreements to be transferred
hereby:
Shandong Economic Observing Newspaper
Co., Ltd. [Company chop of Shandong
Economic Observing Newspaper Co., Ltd.]
Authorized representative: /s/
-------------
Beijing Jingguan Xincheng Advertising
Co., Ltd. [Company chop of Beijing
Jingguan Xincheng Advertising Co., Ltd.]
Authorized representative: /s/
-------------
35
<PAGE>
Exhibit to Letter of Confirmation Regarding Newspaper Co.'s Transfer of
Contracts
Date of
No. Title Party execution Term Amount Abstract
--- --------------- ------------------------- ---------- ------------------- ---------- -------------------
1 Agency contract Shang Tuo Zhi Yang 2006.1.4 2006.5.1-2009.4.30 Shang Tuo Co. as
International Advertising agent for real
(Beijing) Co., Ltd. estate ads
2 Agency contract Shang Tuo Zhi Yang 2006.1.4 2006-2008 Concluding annual
International Advertising confidentiality
(Beijing) Co., Ltd. agreement, excess
at 20% discount
3 Agency contract Beijing Wu Zhou on-line 2006.1.4 2006.1.1-2007.12.31 Concluding annual
JGXC, Ltd. confidentiality
agreement
4 Cooperation Jing Guan Paper(China) 2006.2.10 2006.7.31 Concluding layout
agreement Investment Co., Ltd. agreement,
performance
uncompleted
5 Cooperation Guangdong Provincial 2006.2.16 2006.1.1-2006.12.31 1,285,630 Concluding GPAC's
agreement Advertising Co., Ltd. bottom protection
placement
agreement, 720K
already placed
6 Cooperation Guangzhou Shang Dao 2006.2.16 2006.1.1-2006.12.31 Concluding agency
agreement Advertising Co., Ltd. agreement for Hong
Ta Group and
discount, no
placement
7 Cooperation Beijing Dian Tong Ad Co., 2006.2.17 Concluding annual
agreement Ltd. bottom protection
agreement and bonus
policy
8 Exchange and New Continental (Beijing) 2006.2.27 2006.9 168,000 Concluding profit
cooperation Consulting Co., Ltd. allocation ratio
agreement
36
<PAGE>
9 Cooperation Guangdong Provincial 2006.2.27 2006.1.1-2006.12.31 Concluding annual
agreement Advertising Co., Ltd. bottom protection
agreement and bonus
policy
10 Cooperation Chuan Li 2006.2.28 2006.1.1-2006.12.31 Concluding annual
agreement bottom protection
agreement and bonus
policy
11 Cooperation Shang Tuo Zhi Yang, 2006.3.1 2006.3 Assisting Shang Tuo
agreement Shenzhen Fan Lan to conclude real
Advertising estate alliance
agreement
12 Exchange and Beijing Zhi Bo Hao Hai 2006.3.22 Space swap, 19 IBM
cooperation Advertising Media Co., laptops,
agreement Ltd. performance not
completed
13 Cooperation China Ping An Insurance 2006.3.22 2006.12.31 700,000 Concluding
agreement Corporation cooperation
agreement and
discount
14 Exchange and Yu Long Computer Telecom 2006.1.12 2006.3 321,784 Space swap, 25 CECT
cooperation Science & Technology laptops,
agreement (Shenzhen) Co., Ltd. performance not
completed
15 Cooperation Beijing Ying Tong De Hong 2005.12.21 2005.11-2006.12.31 937,440 Concluding
agreement Advertising Co., Ltd. cooperation
agreement and
discount; already
back pedaled, ad
not fully used
16 Exchange and Beijing Tian Di Fei Chi 2005.10.18 2006.9 month end n/a Performance not
cooperation Marketing Strategy Co., completed
agreement Ltd.
17 Exchange and Shanghai Advertising 2005.10.10 2006.2.28 261,320 Swap 1 Ya Jia Hua
cooperation Corporation car, performance
agreement uncompleted
18 Exchange and Jing Asia International 2005.10.18 2006.4.16 n/a Performance
cooperation Management (Beijing) Co., uncompleted
agreement Ltd.
37
<PAGE>
19 Exchange and Shenzhen Long Ying 2005.10.24 2006 year end 1,418,100 Performance
cooperation Advertising Co., Ltd. uncompleted
agreement
20 Exchange and Century Jun Ying Golf 2005.11.14 2006 year end n/a Performance
cooperation Sports Marketing Co., Ltd. uncompleted
agreement
21 Exchange and Beijing Chuan Shi Shi 2005.8.15 2006 year end 271,600 Performance
cooperation Kong Advertising Co., Ltd. uncompleted
agreement
22 Exchange and Beijing Hua Qi Digital 2005.12.12 2006 year end 198,454 Swap merchandise
cooperation Info Science & Technology returned, space not
agreement Co., Ltd. fully used
23 Cooperation Beijing Shan Shan 2005.12.12 2006 year end Bottom Performance
agreement Advertising Co., Ltd. protection uncompleted
grand
agreement
24 Exchange and Beijing Chuan Shi Shi 2005.12.14 2006 year end 30,000 Swap merchandise
cooperation Kong Advertising Co., Ltd. returned, space not
agreement fully used
25 Cooperation Beijing Observer 2005.7.15 2006.12.31 performance
agreement Advertising Corporation uncompleted
26 Golf Beijing Xing Yu Zhi Ti 2005.7.15 2006.12.31 Swap
consulting Development Co., Ltd.
exchange
agreement
27 Exchange and Shenzhen Financial 2006.1.18 n/a The parties swap
cooperation Advertising Co., Ltd. ads in the
agreement newspaper
designated by the
other party
38
<PAGE>
ATTACHMENT 4
LETTER OF CONFIRMATION REGARDING EOPO'S TRANSFER OF CONTRACTS
This letter of confirmation is concluded by Economic Observer Press Office
("EOPO") and Beijing Jingguan Xincheng Advertising Co., Ltd. ("JGXC") on
[____________].
1. EOPO hereby warrants that the contracts and agreements that EOPO as a party
executed with relevant parties ("prior agreements with other parties")
listed in the appendix hereto are true, valid and complete without
omissions or being materially misleading.
2. Based upon consensus achieved through consultation between EOPO and JGXC,
EOPO agrees to transfer the rights, benefits and revenue that it owns or
obtains under prior agreements with other parties to JGXC, the latter
hereby agrees to be the transferee of EOPO's rights under prior agreements
with other parties.
3. Without any delay after the execution hereof, at the request of JGXC and in
a manner satisfactory to JGXC, EOPO undertakes to give notice to the other
parties to the prior agreements with other parties to the effect that
EOPO's rights or benefits have already been transferred to JGXC.
4. Regardless of whether EOPO gives notice to the other parties to the prior
agreements with other parties to the effect that EOPO's rights or benefits
have already been transferred to JGXC, commencing from the date of
execution hereof, when any third party payment under prior agreements with
other parties or any other benefits are received, EOPO shall, without any
delay, give written notice to JGXC and, at the request of JGXC, transmit or
transfer the said payment or benefits to JGXC. The board of directors of
JGXC has the power to determine, based on its own needs and at its sole
discretion, whether to permit EOPO to keep the said payment or benefits,
and whether to make a corresponding deduction from or charge against any
amount owed by JGXC to EOPO.
5. The appendix hereto lists the contracts and agreements to be transferred
hereby:
Economic Observer Press Office [Company chop of Economic Observer Press Office]
Authorized representative: /s/
--------------------------------
Beijing Jingguan Xincheng Advertising Co., Ltd. [Company chop of Beijing
Jingguan Xincheng Advertising Co., Ltd.]
Authorized representative: /s/
--------------------------------
39
<PAGE>
Exhibit to Letter of Confirmation Regarding EOPO's Transfer of Contracts
Date of
No. Title Party execution Term Amount Abstract
--- ---------------- ------------------------- ---------- ------------- --------- -------------------
1 Exchange and Xia Xing Electronics 2006.1.9 99,000 Space swap for Xia
cooperation Xing laptops,
agreement performance not
completed
2 Cooperation Baoding Ke Mei Trading 2006.1.8 2006.1 - Concluding ad
agreement Co., Ltd. 2006.12.31 placement agreement
3 Exchange and Huizhou TCL Computer 2005.4.28 Space swap for TCL
cooperation Science & Technology Co., laptops,
agreement Ltd. performance not
completed
4 Exchange and Jing Guan Paper (China) 2006.2.10 2006.7.31 Concluding layout
cooperation Investment Co., Ltd. agreement,
agreement performance
uncompleted
5 Cooperation Shi Shi Yong Ye 2005.9.9 2005.9.1 - Concluding annual
agreement Advertising Co., Ltd. 2006.9.1 master agreement
6 Cooperation Guangzhou Chuang Mei 2005.9.18 2005.12.31 250,000 Concluding agency
agreement Advertising Co., Ltd. & cooperation
agreement
7 Exchange and Ad Department of CCTV 2005.8.31 2006.5.31 800,000 Swap TV ad, 450K
cooperation remaining
agreement
8 Exchang and Shanghai Ju Zhong 2005.9.6 1 year 1,000,000 Swap respective
cooperation Objective Media Co., Ltd. media, 600K
agreement remaining
9 Exchange and Beijing Modern Business 2005.11.14 2006 year end 80,000
cooperation Newspaper
agreement
10 Exchange and Beijing Au Mei Di Ya 2005.12.16 2006 year end n/a Performance
cooperation Advertising Co., Ltd. uncompleted
agreement
40
<PAGE>
11 Exchange and Beijing Ya Li Jian 2005.12.12 2007 year end 2,400,000 Performance
cooperation Leisure Co., Ltd. uncompleted
agreement
12 Periodicals ad Haier 2005.3.9 2005.12.31 400,000 400,000 of ads
release already used up
activities
13 Run Yao Clothing Run Yao Clothing 2005.3.15 2006.3.15 128,730 Merchandise swap,
Development Co. Development Co. Ltd. 10% discount
Ltd. Agreement
14 Cooperation Beijing Huan Yu Shen Hua 2005.3.25 2006.3.25 200,000 The other party
agreement with International Cultural provides 200K golf
Beijing Huan Yu Media Co., Ltd. sports training
Shen Hua services
International
Cultural Media
Co., Ltd.
15 Economic Shenzhen Lang Qi Yacht 2005.5.31 2008.5.31 937,440 Swap, performance
Observer and Society uncompleted
Lang Qi Yacht
Society
cooperation
agreement
16 Economic Beijing People's Art 2005.5.30 2006.5.30 413,100 Swap
Observer and Centre
Beijing People's
Art Centre
cooperation
agreement
17 Economic Beijing Tian Zhu Country 2005.5.31 2005.12.31 80,000 Swap
Observer and Sports Club
Beijing Tian Zhu
Country Sports
Club cooperation
agreement
18 Print media Ming Ji Storage (Shanghai
advertising Waigaoqiao Free
agreement
41
<PAGE>
Trade Zone) Co., Ltd.
19 Periodicals Haier Group Commodities
advertising Promotion HQ, Qngdao
release business Haier Marketing
agreement Strategies Co., Ltd.
20 Business Beijing Zhong Yong Heng
undertaking Accounting, LLP
21 Economic Beijing Shang Tuo
Observer real Advertising Co., Ltd.,
estate Shenzhen Fan Lan
advertising Advertising Co., Ltd.
agency agreement
22 Economic Beijing HSBC Investment
Observer and Co., Ltd.
Beijing HSBC
Investment Co.,
Ltd. agreement
23 Economic Beijing Ping An Life 2005.7.4 250,700 Swap
Observer and Insurance Co., Ltd.
Beijing Ping An
Life Insurance
Co., Ltd.
exchange
agreement
26 Guangzhou Jia De Guangzhou Jia De 2005.7.25 581,232 Ad placement
Properties Co., Properties Co., Ltd.
Ltd. and
Economic
Observer
advertising
agreement
27 Cooperation CCTV Golden Bridge 2005.7.29 2006.6.30 500,000 Resources swap
agreement International Advertising
Co., Ltd.
29 Shanghai GM Auto Shanghai GM Auto Co., Ltd. 2005.7.22 2005.12.31 Auto swap,
Swap Agreement performance not
completed
42