Consulting Agreement - Jia Luo Business Consulting (Shanghai) Co. Ltd. and Shanghai Camera Media Investment Co. Ltd.
DATED AS OF THE DAY OF NOVEMBER 1, 2006
JIA LUO BUSINESS CONSULTING (SHANGHAI) CO., LTD.
AND
SHANGHAI CAMERA MEDIA INVESTMENT CO., LTD.
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CONSULTING AGREEMENT
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CONSULTING AGREEMENT
THIS AGREEMENT (the "AGREEMENT") is entered into as of this 1st day of November,
2006
BETWEEN
JIA LUO BUSINESS CONSULTING (SHANGHAI) CO., LTD., a company incorporated under
the laws of the PRC with a registered address of Room 240, No. 227 Yue Shan
Road, Pudong New District, Shanghai, PRC ("JIA LUO")
AND
SHANGHAI CAMERA MEDIA INVESTMENT CO., LTD., a company incorporated under the
laws of the PRC with a registered address of 3B10, No. 168 Tianshan Zhi Road,
Changning District, Shanghai, PRC ("SCM")
WHEREAS
A. SCM is engaged in the Business (defined hereinafter) and Jia Luo has a team
of personnel having expertise in media related businesses and advertising
which is required by SCM.
B. SCM wishes to engage Jia Luo to provide the Services (defined hereinafter)
and Jia Luo agrees to provide the Services in accordance with the terms and
conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and conditions set
forth hereinafter and for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE 1 DEFINITIONS AND INTERPRETATIONS.
1.1 In this Agreement, unless the context requires otherwise:
(a) words importing the singular shall include the plural and vice versa
and words importing a gender include every gender;
(b) words denoting persons shall include bodies corporate or
unincorporate, firms, partnerships, joint ventures, associations of
persons, government departments or agencies, organisations or trusts
(whether or not having a separate legal personality);
(c) references to "party" or "parties" in this Agreement are to a party or
to the parties to this Agreement;
(d) references to a party to this Agreement shall include its successors
and
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permitted assigns; and
(e) references to this Agreement or to a document or agreement in this
Agreement shall be construed as a reference to this Agreement or that
document or agreement as amended or re-executed from time to time.
1.2 Unless the context otherwise requires, the terms below shall have the
following meanings:
"BUSINESS" means advertising businesses and other related businesses
carried on by SCM;
"BUSINESS DAY" means any day on which banks are generally open for business
in PRC;
"HONG KONG" means the Hong Kong Special Administrative Region of the PRC;
"PRC" means the People's Republic of China;
"SERVICE FEE" has the meaning ascribed to it in Article 3.1; and
"SERVICES" has the meaning ascribed to it in Article 2.2.
ARTICLE 2 PROVISION OF SERVICES.
2.1 SCM hereby appoints Jia Luo as its provider of the Services on and subject
to the terms and conditions of this Agreement.
2.2 Jia Luo shall provide the following services (the "SERVICES") to SCM
subject to the terms and conditions of this Agreement:
a) provide consulting services relating to the Business;
b) advise on the delivery of advertising content by SCM;
c) advise on human resource needs and related services including, but not
limited to, secondment of staff to SCM as may be required by SCM in
its operation of the Business;
d) advise on commercialization of SCM's content;
e) advise on improving to SCM's financial performance;
f) advise on potential listing of SCM or SCM's affiliated companies;
g) provide other services as may be required by SCM from time to time.
ARTICLE 3 SERVICE FEE.
3.1 In consideration for the provision of the Services, SCM shall by no later
than fourteen (14) days after Jia Luo has issued its invoice for the
relevant services, pay to Jia Luo the service fee set out in such invoice
for the services described therein (the "SERVICE FEE"). If there is any
dispute with respect to the Service Fee, the parties shall settle such
dispute through friendly consultation.
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3.2 The Service Fee shall be paid in accordance with Article 3.2 by cash,
transfer cheque or bank transfer or using such other method as may be
acceptable to Jia Luo to the account of Jia Luo, details of which shall be
notified to SCM in a notice served on SCM by Jia Luo from time to time.
ARTICLE 4 TERM AND TERMINATION.
4.1 Unless otherwise terminated pursuant to Clause 4.2, the term of this
Agreement shall commence from the date hereof and shall continue in full
force and effect until 31 December 2023. Upon expiry of the said term, this
Agreement shall be automatically extended for and additional term of not
less than ten (10) years, the exact term of extension shall be determined
by the parties in writing.
4.2 This Agreement may be terminated by Jia Luo or SCM at any time without
compensation by written notice served on the other party in accordance with
the terms of this Agreement 30 Business Days' prior to such termination.
4.3 In the event either party materially breaches this Agreement and fails to
remedy such breach to the satisfaction of the non-defaulting party within
10 Business Days from the date it receives written notice of such breach
from the defaulting party, without prejudice to any legal or other rights
or remedies which either party may have, the non-defaulting party has the
right to terminate this Agreement immediately by written notice to the
defaulting party in the event either party materially breaches this
Agreement.
ARTICLE 5 SUCCESSORS AND ASSIGNS.
5.1 This Agreement shall be binding upon and enure to the benefits of the
parties and their respective successors and permitted assigns.
5.2 No party hereto may assign or transfer any of its rights or obligations
under this Agreement to any third party without the prior written consent
of the other party.
ARTICLE 6 GOVERNING LAW AND DISPUTE RESOLUTION.
6.1 This Agreement shall be governed by and construed in accordance with the
laws of the PRC.
6.2 Any dispute, controversy or claim arising out of or in connection with this
Agreement, including any question regarding its existence, validity or
termination, shall be settled through friendly consultation between the
parties. In the event that no settlement is reached within 30 Business Days
from the date of notification by either party to the other that it intends
to submit a dispute, controversy or claim to arbitration, then such
dispute, controversy or claim shall be finally resolved by arbitration
under the arbitration rules of the China International Economic and Trade
Arbitration Commission ("CIETAC") as at present in force, which rules are
deemed to be incorporated by reference into this Article.
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6.3 The place of arbitration shall be Shanghai, PRC.
6.4 The tribunal shall consist of three arbitrators. Two arbitrators shall be
selected by the respective parties. The third arbitrator shall be selected
by agreement between the parties or, failing agreement within 10 Business
Days of the appointment of the two party-nominated arbitrators, by the
chairman of CIETAC.
ARTICLE 7 ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement and understanding between the
parties in connection with the transactions hereby contemplated. This Agreement
supersede all previous agreements, arrangements and understandings between the
parties with regard to such transaction which shall cease to have any further
force or effect.
ARTICLE 8 CONFIDENTIALITY.
The parties agree to keep the terms and conditions of this Agreement strictly
confidential. The Agreement or the terms and conditions thereof will only be
disclosed if and to the extent necessary under the laws and regulations of the
PRC.
ARTICLE 9 NOTICES.
9.1 Notices or other communications required to be given by any party pursuant
to this Agreement shall be in writing in English and in Chinese and may be
delivered personally or sent by registered airmail or postage prepaid, by a
recognised courier service or by facsimile transmission to the address of
the other party set forth below. The dates on which such notices shall be
deemed to have effectively given shall be determined as follows:
(a) notices given by personal delivery shall be deemed effectively given
on the date of personal delivery.
(b) notices given by registered airmail or postage prepaid shall be deemed
effectively given on the tenth Business Day after the date on which
they were mailed (as indicated by the postmark).
(c) notices by courier shall be deemed effectively given on the fifth
Business Day after they were sent by recognised courier service.
(d) notices given by facsimile transmission shall be deemed effectively
given on the first Business Day following the date of successful
transmission and receipt as evidenced by the transmission report.
JIA LUO
JIA LUO BUSINESS CONSULTING (SHANGHAI) CO., LTD.
Unit 3905-3909, 1 Grand Gateway, 1 HongQiao Lu
Shanghai, PRC, 200030
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For the attention of: Mr. Stephen Cheung
Telephone No.: (8621) 6113-5962
Facsimile No.: (8621) 6448-4955
SCM
SHANGHAI CAMERA MEDIA INVESTMENT CO., LTD.
2nd Floor, Da Zhong Finance Building,
1033 Yan An Road West
Shanghai 200050
PRC
For the attention of: Mr. Zhang Guanming
Telephone No.: 021-61612110
Facsimile No.: 021-61612108
With a copy to Richard Wang & Co.:
18th Floor, Union Building
100 Yan An Road East
Shanghai 200002
P.R.C.
Attention: Miss Catherine Chen
Telephone No.: (8621) 6326 5800
Facsimile No.: (8621) 6321 8890
9.2 Any party may at any time change its address for service by notice in
writing delivered to the other party in accordance with the terms hereof.
ARTICLE 10 MISCELLANEOUS.
10.1 Time shall be of the essence of this Agreement.
10.2 The headings in this Agreement are inserted for convenience only and shall
not affect the construction of this Agreement.
10.3 This Agreement may not be amended or modified except in writing signed by
all parties, and any amendment and supplement to this Agreement shall form
part of this Agreement and shall have the same legal effect as this
Agreement.
10.4 Any provision of this Agreement which is invalid, illegal or unenforceable
in any jurisdiction shall, as to that jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability, without
affecting in any way the remaining provisions hereof in such jurisdiction
or rendering that or any other provision of this Agreement invalid, illegal
or unenforceable in any other jurisdiction.
10.5 This Agreement may be executed in any number of counterparts, all of which
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taken together shall constitute one and the same agreement, and either
party may enter into this Agreement by executing a counterpart.
10.6 This Agreement shall be executed in both the English and Chinese languages
and in the event of any discrepancy between the two versions, the parties
hereto shall negotiate in good faith to resolve the discrepancy provided
that if such good faith negotiation does not resolve in a resolution, then
the Chinese version of this Agreement shall prevail.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
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IN WITNESS WHEREOF, the parties hereto have caused their authorised
representatives to execute this Agreement as of the date first written above.
JIA LUO BUSINESS CONSULTING (SHANGHAI) CO., LTD.
[Company chop of Jia Luo Business Consulting (Shanghai) Co., Ltd.]
By: /s/
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Name: Graham Earnshaw
Title: Legal Representative
SHANGHAI CAMERA MEDIA INVESTMENT CO., LTD.
[Company chop of Shanghai Camera Media Investment Co., Ltd.]
By: /s/
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Name: Zhang Guanming
Title: Legal Representative