Confidential Execution Copy
BY AND BETWEEN
SHANGHAI FOCUS MEDIA ADVERTISEMENT CO., LTD.
FOCUS MEDIA TECHNOLOGY (SHANGHAI) CO., LTD.
MARCH 28, 2005
Article 1 - Purpose of the Trust................................................................ 1
Article 2 - Trusted Property.................................................................... 1
Article 3 - Beneficiary of the Trust............................................................ 2
Article 4 - Delivery of the Trusted Property.................................................... 2
Article 5 - Calculation and Payment of the Trust Benefit........................................ 3
Article 6 - Representations, Warranties and Undertakings........................................ 3
Article 7 - Term and Termination of the Trust................................................... 4
Article 8 - Notice.............................................................................. 5
Article 9 - Default Liability................................................................... 5
Article 10 - Miscellaneous...................................................................... 5
Execution Page.................................................................................. 7
THIS TRUST AGREEMENT (this "AGREEMENT") is entered into as of March 28, 2005 in
Shanghai of the People's Republic of China (the "PRC") by and between the
following two Parties:
(1) SHANGHAI FOCUS MEDIA ADVERTISEMENT CO., LTD., (the "TRUSTOR");
Registered Address: F, Room 1003, No.1027, Changning Road, Changning
Legal Representative: Jason Nanchun Jiang
(2) FOCUS MEDIA TECHNOLOGY (SHANGHAI) CO., LTD., (the "TRUSTEE");
Registered Address: E, Room 1003, No.1027, Changning Road, Changning
Legal Representative: Jason Nanchun Jiang
(The Parties shall hereinafter be referred to as a "PARTY" individually, and
Trustor and Trustee will jointly invest in Focus Media Digital Information
Technology (Shanghai) Co., Ltd. ("FOCUS MEDIA DIGITAL"), with Trustor holding
directly ninety percent (90%) of the equity interest of Focus Media Digital,
Trustee holding directly one percent (1%) of the equity interest of Focus Media
Digital, and the remaining nine percent (9%) of the equity interest of Focus
Media Digital to be held by Trustee in the form of trust in accordance with the
entrustment by Trustor and the provisions of this Agreement.
NOW, THEREFORE, in order to specify the rights and obligations of the Parties
under the Trust, after friendly consultations between them, the Parties hereby
agree as follows:
ARTICLE 1 PURPOSE OF THE TRUST
In accordance with the entrustment by Trustor and the provisions of this
Agreement, Trustee will hold, in its own name, the Trusted Property (as defined
below), and will manage, operate and dispose of the Trusted Property, as to
effectuate the value of the Trusted Property and protect the interests of
Trustor and Trustee.
ARTICLE 2 TRUSTED PROPERTY
The trusted property under this Agreement (the "TRUSTED PROPERTY") shall include
any one or all of the followings:
2.1 The trusted capital provided by Trustor to Trustee according to Article
4.1 hereof, which is of the amount Renminbi ninety thousand (RMB90,000)
(the "TRUSTED CAPITAL");
2.2 The nine percent (9%) of the equity interest of Focus Media Digital
acquired by Trustee using the Trusted Capital (the "TRUSTED EQUITY
2.3 Any revenues or property of whatever form obtained by Trustee through its
management, operation and disposal of the Trusted Capital or Trusted
Equity Interest, including but not limited to:
(i) bonus, profit distributions and distributable profits generated or
gained from Trusted Equity Interest, or the registered capital
increased from the distributable profits;
(ii) capitals obtained from disposal of part or all of Trusted Equity
(iii) properties formed in whatever form from the re-investment using the
revenues or properties mentioned above.
2.4 Properties formed or obtained from compensations made for, or otherwise
formed or obtained in connection with the loss or damage of one or more
items listed above.
ARTICLE 3 BENEFICIARY OF THE TRUST
3.1 The relationship of the Trust hereunder is of the self-benefited trust,
with the Trustor being the beneficiary of the Trust (the "BENEFICIARY").
3.2 During the term of the Trust, subject to no violation of applicable laws
and regulations, Trustor shall have the right to transfer the trust
benefit right; to transfer its trust benefit right, Trustor is only
required to give a [one (1) month prior] notice thereof in writing to
Trustee, being not subject to prior consent from Trustee. From the date on
which Trustor notifies in writing Trustee of the transfer of the trust
benefit right, the new Beneficiary shall enjoy the trust benefit right,
and shall therefore enjoy all rights and assume all obligations of
3.3 Trustee shall deliver the revenues and other benefits obtained from the
Trusted Property to Beneficiary in accordance with Article 5 of this
ARTICLE 4 DELIVERY OF THE TRUSTED PROPERTY
4.1 Trustor shall, within five (5) working days of the execution of the
agreement about transfer of Focus Media Digital's equity interest by
Trustee with the relevant existing shareholder of Focus Media Digital (the
"SELLER"), remit the Trusted Capital into the bank account designated by
4.2 Once Seller has received the Trusted Capital as mentioned above, Trustor
shall be deemed to have delivered the Trusted Property to Trustee.
ARTICLE 5 CALCULATION AND PAYMENT OF THE TRUST BENEFIT
5.1 Any and all revenues generated from the Trusted Equity Interest, or
obtained from the operation by Trustee of the Trusted Property shall be
trust benefits (the "TRUST BENEFITS"), which shall belong to Beneficiary.
5.2 Where the value of the Trusted Equity Interest is increased from the
capital reserve funds, public welfare funds and undistributed profits made
as provision funds by Focus Media Digital, or from the increase of
registered capital directly from profits by Focus Media Digital, the
increased part in value shall be the Trust Benefits, which shall belong to
5.3 As for any and all bonus, profit distributions or Trust Benefits in any
other forms obtained by Trustee from Focus Media Digital, Trustee shall,
within five (5) working days of its receipt of such Trust Benefits, remit
such Trust Benefits into the bank account designated by Beneficiary.
5.4 In case of capitals obtained from transfer or otherwise disposal of all
the Trusted Equity Interest by Trustee at the instruction of Trustor, such
capitals shall belong to Beneficiary, and Trustee shall, within five (5)
working days of its receipt of such capitals, remit such capitals into the
bank account designated by Beneficiary.
ARTICLE 6 REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
6.1 The Parties hereof each represents and warranties that:
6.1.1 it is a company of limited liabilities duly registered and legally
existing under the PRC laws with independent legal person status,
and with full and independent legal status and legal capacity to
execute, deliver and perform this Agreement, and may act
independently as a subject of actions; and
6.1.2 it has full corporate power and authority to execute and deliver
this Agreement and all the other documents to be entered into by it
in relation to the transaction contemplated hereunder, and it has
full power and authority to complete the transaction contemplated
6.2 Trustee hereby undertakes that:
6.2.1 Trustee shall properly manage, operate and dispose of the Trusted
Property in the interest of Beneficiary, and without the prior
written consent from Trustor, Trustee shall not transfer or
otherwise dispose of the Trusted Property, or create any encumbrance
or other third party's interest on or in the Trusted Property;
6.2.2 Trustee shall not engage in any activity that will harm the interest
6.2.3 Trustee shall exercise, on the request and at the instruction of
Trustor, the voting rights and other shareholder's rights enjoyable
by it for its holding the Trusted Equity Interest as set out in the
Articles of Association of Focus Media Digital;
6.2.4 Trustee shall transfer, on the request and at the instruction of
Trustor, the Trusted Property, or otherwise dispose of the same as
required by Trustor;
6.2.5 Trustee shall promptly deliver the Trust Benefits or return the
Trusted Property to Beneficiary;
6.2.6 in case of any event occurring during the operation of the Trustee
Capital which may threaten the security of the Trusted Capital or
harm the benefits of Beneficiary, or receipt by Trustee of any
notice or information concerning the Trusted Capital, Trustee shall
report the same to Trustor within five (5) working days of its
awareness of such event or receipt of such notice or information;
6.2.7 in case of any loss suffered by Beneficiary due to breach by Trustee
of this Agreement or any applicable laws and regulations, Trustee
shall fully indemnify Beneficiary for the loss.
ARTICLE 7 TERM AND TERMINATION OF THE TRUST
7.1 This Agreement shall become effective from the date on which Trustor
delivers the Trusted Property to Trustee.
7.2 This Agreement may be terminated under the following circumstances:
(i) upon delivery by Trustee of the whole Trusted Property to
Beneficiary in accordance with Article 5.4, the Trust shall be
(ii) upon one (1) month prior notice in writing by either Party to the
other Party to terminate the Trust hereunder, the Trust hereunder
shall be terminated at the expiration of such one (1) month period,
or at a later date specified in the notice; and
(iii) the Trust hereunder shall be terminated upon occurrence of any event
that leads to such termination in accordance with the laws.
7.3 Upon termination of the Trust hereunder, the Trusted Property shall belong
to Beneficiary. Where the Trust hereunder is terminated according to
Article 7.2(ii) or (iii), Trustee shall act at the instruction of Trustor
(i) pay, within five (5) working days of the termination of the Trust
hereunder, the Trusted Property to the bank account designated by
(ii) take all necessary actions immediately, from the date on which the
Trust hereunder is terminated, to transfer the Trusted Equity
Interest to Trustor or any entity or individual designated by
Trustor, and pay, within five (5) working
days of the completion of the transfer of the Trusted Equity
Interest, the Trusted Property to the bank account designated by
ARTICLE 8 NOTICE
8.1 Any notice, request, demand and other correspondences made as required by
or in accordance with this Agreement shall be made in writing and
delivered to the relevant Party.
8.2 The abovementioned notice or other correspondences shall be deemed to have
been delivered when it is transmitted if transmitted by facsimile or
telex; it shall be deemed to have been delivered when it is delivered if
delivered in person; it shall be deemed to have been delivered five (5)
days after posting the same if posted by mail.
ARTICLE 9 DEFAULT LIABILITY
9.1 The Parties agree and confirm that, if any Party (the "DEFAULTING PARTY")
breaches substantially any of the agreements made under this Agreement, or
fails substantially to perform any of the obligations under this
Agreement, such a breach shall constitute a default under this Agreement
(a "DEFAULT"), then the non-defaulting Party (the "NON-DEFAULTING PARTY")
shall have the right to require the Defaulting Party to rectify such
Default or take remedial measures within a reasonable period. If the
Defaulting Party fails to rectify such Default or take remedial measures
within such reasonable period or within ten (10) days of the
non-Defaulting Party notifying the Defaulting Party in writing and
requiring it to rectify the Default, then the non-Defaulting Party shall
have the right, at its own discretion, to (1) terminate this Agreement and
require the Defaulting Party to indemnify it fully for the damage; or (2)
demand the enforcement of the Defaulting Party's obligations hereunder and
require the Defaulting Party to indemnify it fully for the damage.
9.2 Notwithstanding any other provisions herein, the validity of this Article
9 shall not be affected by the suspension or termination of this
ARTICLE 10 MISCELLANEOUS
10.1 This Agreement shall be prepared in the Chinese language in two (2)
original copies, with each involved Party holding one (1) copy hereof.
10.2 The formation, validity, execution, amendment, interpretation and
termination of this Agreement shall be subject to the PRC Laws.
10.3 Any disputes arising hereunder and in connection herewith shall be settled
through consultations between the Parties, and if the Parties cannot reach
an agreement regarding such disputes within thirty (30) days of their
occurrence, such disputes shall be submitted to China International
Economic and Trade Arbitration Commission, Shanghai Branch for arbitration
in Shanghai in accordance with the arbitration rules of
such Commission, and the arbitration award shall be final and binding on
the Parties involved in such dispute.
10.4 Any rights, powers and remedies empowered to any Party by any provisions
herein shall not preclude any other rights, powers and remedies enjoyed by
such Party in accordance with laws and other provisions under this
Agreement, and the exercise of its rights, powers and remedies by a Party
shall not preclude its exercise of its other rights, powers and remedies
by such Party.
10.5 Any failure or delay by a Party in exercising any of its rights, powers
and remedies hereunder or in accordance with laws (the "PARTY'S RIGHTS")
shall not lead to a waiver of such rights, and the waiver of any single or
partial exercise of the Party's Rights shall not preclude such Party from
exercising such rights in any other way and exercising the remaining part
of the Party's Rights.
10.6 The titles of the Articles contained herein shall be for reference only,
and in no circumstances shall such titles be used in or affect the
interpretation of the provisions hereof.
10.7 Each provision contained herein shall be severable and independent from
each of other provisions, and if at any time any one or more articles
herein become invalid, illegal or unenforceable, the validity, legality or
enforceability of the remaining provisions herein shall not be affected as
a result thereof.
10.8 Any amendments or supplements to this Agreement shall be made in writing
and shall take effect only when properly signed by the Parties to this
10.9 This Agreement shall be binding on the legal successors of the Parties.
[THE REMAINDER OF THIS PAGE IS LEFT BLANK]
IN WITNESS HEREOF, the Parties have caused this Trust Agreement to be executed
in Shanghai as of the date first hereinabove mentioned.
SHANGHAI FOCUS MEDIA ADVERTISEMENT CO., LTD.
Signed by: /s/ Jason Nanchun Jiang
Name: Jason Nanchun Jiang
Position: Legal Representative
FOCUS MEDIA TECHNOLOGY (SHANGHAI) CO., LTD.
Signed by: /s/ Jimmy Wei Yu
Name: Jimmy Wei Yu
Position: Authorized Representative