EX-10.78 SHAREHOLDERS' VOTING RIGHTS PROXY AGREEME



 





Exhibit 10.78




Confidential




SHAREHOLDERS’ VOTING RIGHTS




PROXY AGREEMENT




among




Suyang Zhang




New Allyes Information Technology (Shanghai) Co., Ltd




and




Shanghai Quanshi Advertisement Co., Ltd.




 









 






SHAREHOLDERS’ VOTING RIGHTS PROXY AGREEMENT




This Shareholders’ Voting Rights Proxy Agreement (this “Agreement”) is entered into as of May
17, 2005 by and among the following Parties:




	(1)	 	New Allyes Information Technology (Shanghai) Co., Ltd (hereinafter “Company”)


Registered Address: Room E-G, Floor 28 Zhaofeng Shimao Tower, 369 Jiangsu Road, Shanghai
	 
	(2)	 	Shanghai Quanshi Advertisement Co., Ltd. (hereinafter “SH Quanshi”)


Registered Address: Room C-3, Floor 28, 369 Jiangsu Road, Changning District, Shanghai
	 
	(3)	 	Suyang Zhang (hereinafter “Shareholder”)


Identify Card Number: 310107581124243

Address: Room 64, No.9 of No.74 Lane, Wuning Road, Shanghai





WHEREAS:





	1.	 	The Shareholder holds a portion of 50% of the equity interest in SH Quanshi;
	 
	2.	 	The Shareholder intend to entrust the Company with the exercises of their voting rights in SH
Quanshi while the Company is willing to accept such entrustment.





The Parties hereby have reached the following agreement upon friendly consultations:



Article 1 Voting Rights Entrustment





	1.1	 	The Shareholder hereby irrevocably entrusts the Company to exercise the following rights as
shareholder of SH Quanshi in accordance with the then effective articles of association of SH
Quanshi (collectively, the “Entrusted Rights”):






	 	(1)	 	Attending shareholders’ meetings of SH Quanshi as proxy of the Shareholder;
	 
	 	(2)	 	Exercising voting rights as proxy of the Shareholders, on all issues discussed and
resolved by the shareholders’ meeting;
	 
	 	(3)	 	Proposing to convene the temporary shareholders’ meeting;
	 
	 	(4)	 	Other shareholders’ voting rights under the articles of association of SH Quanshi
(including other shareholders’ voting rights prescribed by the amendment of the articles
of association).




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	1.2	 	The Shareholder acknowledges and assumes relevant liabilities for any legal consequences of
the Company’s exercise of the foregoing Entrusted Rights.
	 
	1.3	 	The Shareholder hereby acknowledge that the Company is not required to seek advice from the
Shareholder prior to their respective exercise of the foregoing Entrusted Rights. However, the
Company shall inform the Shareholder in a timely manner of any resolution or proposal on
convening interim shareholders’ meeting after such resolution or proposal is made.





Article 2 Right to Information





	2.1	 	For the purpose of exercising the Entrusted Rights under this Agreement, the Company is
entitled to know the information with regard to SH Quanshi’s operation, business, clients,
finance, staff, etc., and shall have access to relevant materials of SH Quanshi. SH Quanshi
shall adequately cooperate with the Company in this regard.





Article 3 Exercise of Entrusted Rights





	3.1	 	The Company shall en-entrust the special inner staff(s) of its company to exercise any or all
Entrusted Rights within the scope of Article 1, Shareholder shall acknowledges and assumes
relevant legal liabilities.
	 
	3.2	 	The Shareholder will provide adequate assistance to the exercise of the Entrusted Rights by
the Company, including execution of the resolutions of the shareholders’ meeting of SH Quanshi
or other pertinent legal documents made by the Company when necessary (e.g., when it is
necessary for examination and approval of or registration or filing with governmental
departments).
	 
	3.3	 	If at any time during the term of this Agreement, the entrustment or exercise of the
Entrusted Rights under this Agreement is unenforceable for any reason except for default of
the Shareholder or SH Quanshi, the Parties shall immediately seek a most similar substitute
for the unenforceable provision and, if necessary, enter into supplementary agreement to amend
or adjust the provisions herein, in order to ensure the realization of the purpose of this
Agreement.





Article 4 Exemption and Compensation





	4.1	 	The Parties acknowledge that the Company shall not be requested to be liable for or
compensate (monetary or otherwise) other Parties or any third party due to exercise of
Entrusted Rights.
	 
	4.2	 	The Shareholder and SH Quanshi agree to compensate the Company for and hold it harmless
against all losses incurred or likely to be incurred by it due to exercise of




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	 	 	the Entrusted Rights, including without limitation any loss resulting from any litigation,
demand arbitration or claim initiated or raised by any third party against it or from
administrative investigation or penalty of governmental authorities. However, the Shareholder
and SH Quanshi will not compensate for losses incurred due to wilful misconduct or gross
negligence of the Company.





Article 5 Representations and Warranties





	5.1	 	The Shareholder hereby represents and warrants that:






	 	5.1.1	 	He is a PRC citizen with full capacity 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.
	 
	 	5.1.2	 	He has full right and authorization to execute and deliver this
Agreement and other documents that are related to the transaction referred to herein
and to be executed by them. He has full right and authorization with respect to
consummate the transaction referred to herein. This Agreement shall be executed and
delivered by the Shareholder lawfully and properly. This Agreement constitutes the
legal and binding obligations on him and is enforceable on him in accordance with
its terms and conditions hereof.
	 
	 	5.1.4	 	He is enrolled and a legal shareholder of SH Quanshi as of the effective
date of this Agreement, and except the rights created by this Agreement, there
exists no third party right on the Entrusted Rights. Pursuant to this Agreement, the
Company may fully and sufficiently exercise the Entrusted Rights in accordance with
the then effective articles of association of SH Quanshi.






	5.2	 	The Company and SH Quanshi hereby respectively represents and warrants that:






	 	5.2.1	 	it is a company with limited liability properly registered and legally
existing under the laws of its registration place, with an independent corporate
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
	 
	 	5.2.2	 	it has/guarantee to obtain the 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 has/guarantee to
obtain the full power and authority to consummate such transaction.




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	5.3	 	SH Quanshi hereby represents and warrants that:






	 	5.3.1	 	the Shareholder is enrolled shareholder holding a portion of 50% of the
equity interest in SH Quanshi as of the effective date of this Agreement. Pursuant
to this Agreement, the Company may fully and sufficiently exercise the Entrusted
Rights in accordance with the then effective articles of association of SH Quanshi.





Article 6 Term of Agreement





	6.1	 	This Agreement takes effect from the date of due execution of all the Parties hereto, unless
terminated in advance by written agreement of all the Parties, otherwise this Agreement shall
keep efficient without limit if only the shareholder still holds equity in SH Quanshi.





Article 7 Notice





	7.1	 	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.
	 
	7.2	 	The abovementioned notice or other correspondences shall be deemed to have been delivered
when (i) it is transmitted if transmitted by facsimile, or (ii) it is delivered if delivered
in person, or (iii) when five (5) days have elapsed after posting the same if posted by mail.





Article 8 Default Liability





	8.1	 	The Parties agree and confirm that, if any of the Parties (the “Defaulting Party”) breaches
substantially any of the provisions herein or fails substantially to perform any of the
obligations hereunder, such a breach or failure shall constitute a default under this
Agreement (a “Default”). In such event any of the other Parties without default (a
“Non-defaulting Party”) who incurs losses arising from such a Default 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 a Non-defaulting Party’s
notifying the Defaulting Party in writing and requiring it to rectify the Default, then (1)the
Company shall have the right to terminate this Agreement and require the Defaulting Party to
indemnify all damages if the Shareholder or SH Quanshi is the Defaulting Party, or (2) the
Non-defaulting Party shall have the right to require the Defaulting Party to indemnify the
damages, otherwise the Non-defaulting Party hasn’t any right to termination or release this
Agreement or the entrustment under this Agreement under any circumstances.




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	8.2	 	The rights and relieves prescribed in this Agreement are accumulative and don’t exclude any
other rights or relieves ruled by the laws.
	 
	8.3	 	Notwithstanding any other provisions herein, the validity of this Article shall not be
affected by the suspension or termination of this Agreement.





Article 9 Miscellaneous





	9.1	 	This Agreement shall be prepared in Chinese language in 3 original copies, with each involved
Party holding 1 hereof.
	 
	9.2	 	The conclusion, validity, execution, amendment, interpretation and termination of this
Agreement shall be governed by laws of the PRC.
	 
	9.3	 	Any disputes arising from and in connection with this Agreement shall be settled through
consultations among the Parties involved, and if the Parties involved fail to reach an
agreement regarding such a dispute within thirty (30) days of its occurrence, such dispute
shall be submitted to [China International Economic and Trade Arbitration Commission Shanghai
Branch] for arbitration in [Shanghai] in accordance with the arbitration rules of such
commission, and the arbitration award shall be final and binding on all the Parties involved.
	 
	9.4	 	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 a Party’s exercise of any of its rights, powers
and remedies shall not preclude its exercise of other rights, powers and remedies of it.
	 
	9.5	 	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 or exercising the remaining
part of the Party’s Rights.
	 
	9.6	 	The titles of the Articles contained herein are for reference only, and in no circumstances
shall such titles be used for or affect the interpretation of the provisions hereof.
	 
	9.7	 	Each provision contained herein shall be severable and independent from each of other
provisions. 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 thereby.




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	9.8	 	Any amendments or supplements to this Agreement shall be made in writing and shall take
effect only when properly signed by the Parties to this Agreement.
	 
	9.9	 	Any party shall not assign any of their rights and/or transfer any of their obligations
hereunder to any third parties without prior written consent from other parties.
	 
	9.10	 	This Agreement shall be binding on the legal successors of the Parties.





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IN WITNESS HEREOF, the following Parties have caused this Shareholders’ Voting Rights Proxy
Agreement to be executed as of the date and in the place first here above mentioned.



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New Allyes Information Technology (Shanghai) Co., Ltd.

(Company chop)




/s/ Jiangang Wang

Position: Authorized Representative




Shanghai Quanshi Advertisement Co., Ltd.

(Company chop)




/s/ Hailong Zhu

Position: Authorized Representative




Suyang Zhang

/s/ Suyang Zhang





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