exv10w4w10






			
	 	 	 
	

[Translation of Chinese original]
	 	Exhibit 10.4.10






Non-competition Agreement



The Non-competition Agreement (hereinafter referred to as the “Agreement”) is made on
December 25, 2009 in Beijing, China by and among the following parties:





	(1)	 	Shanghai Hongmen Advertising Co., Ltd., a limited liability company incorporated and existing
in accordance with the laws of China, with its registered address at P-1 Building, No. 7523
Beiqing Highway, Chonggu Town, Qingpu District, Shanghai, China (hereinafter referred to as
“Hongmen” or “Company”);
	 
	(2)	 	Pacific Asia Mode Cube Limited, a limited liability company incorporated and existing in
accordance with the laws of Hong Kong, with its registered address at Room 2703, 27/F, The
Centrium, 60 Wyndham Street, Central, Hong Kong, China (hereinafter referred to as “PAMC”);
	 
	(3)	 	Redgate Interactive Advertising (Beijing) Co., Ltd., a limited liability company incorporated
and existing in accordance with the laws of China, with its registered address at Rm. 804,
2/F, No. 19 Jianwai Avenue, Chaoyang District, Beijing, China (hereinafter referred to as
“Redgate”, jointly with PAMC referred to as “Investors”); and




(Hongmen, Redgate and PAMC are collectively referred to as “Party A”)





	(4)	 	Chengye Guo (hereinafter referred to as “Party B”), with the ID Card number of
110102195603230419, domicile: Room 303, Unit 4, Building 7, Block 2, Shuanghuayuan Nanli,
Chaoyang District, Beijing, China




(The aforesaid parties are collectively referred to as the “Parties” and individually as a
“party”.)




Whereas,





	(1)	 	Hongmen is a limited liability company engaging in design, production, release and
agency of various advertisements, image production and enterprise image planning;
	 
	(2)	 	Redgate and Party B entered into the equity transfer agreement on December 5, 2009 concerning
transfer of 15% of Hongmen’s equity interest (“Equity Transfer Agreement”);
	 
	(3)	 	Party B will not hold any equity interest of the company upon the completion of the said
equity transaction and Article 2.4 of the Contract;
	 
	(4)	 	Party B is aware that Party B’s violation of non-competition business as specified in the
Agreement within five (5) years after the completion of the transfer of Hongmen’s equity
interest held by Party B according to the Equity Transfer Agreement will damage materially
Party A’s interests;
	 
	(5)	 	Party B agrees to perform the non-competition obligation according to the Agreement in 




 









 






	 	 	order to protect Party A’s interests.




NOW, THEREFORE, the Parties hereby enter into the following Agreement through equal and amiable
negotiation in accordance with existing applicable laws, regulations and rules of the People’s
Republic of China (hereinafter referred to as “China”; unless otherwise stipulated herein, it
excludes Hong Kong SAR, Macao SAR and Taiwan Region).




I. Definitions




1.1 Related Party



For the purpose of the Agreement, Related Party of any individual or entity includes (1)any kind of
organization in which such individual or entity acts as management personnel, director or is a
partner or owns 10% or more of actual interests held independently or jointly with the Related
Party, whether directly or indirectly; (2) 10% or more of the actual interests of such individual
or entity is held directly or indirectly by the Related Party; (3) 10% or more of the actual
interests of such individual or entity and the Related Party is held by the same person or entity
directly or indirectly; (4) any trust or other properties in which the individual or entity owns
material actual interests or acts as a trustee (or other similar position); and (5) the person who
lives with the individual, or acts as a director or management personnel of such entity or its
parent company or subsidiary, or any relative or spouse of such director or management personnel,
or any of the spouse’s relative.




1.2 Competitive Business



Competitive Business refers to any business competitive with Party A, including, but not limited
to, any activity as follows: 1) development and production of any product which is competitive with
or similar to the product being developed or produced by Party A; 2) sale, by means of direct sale
or distribution via network, transaction or otherwise, of the products produced by a third person
which are competitive with or similar to those distributed, transacted or sold by Party A; 3)
provision in any way of the services which are competitive with or similar to those provided by
Party A; the aforesaid products or services include any product or service which is being developed
by Party A or which is being planned or developed when Aoxue holds the equity; or 4) any other
characteristics competitive with Party A.




II. Non-competition




2.1 Non-competition Period



The Parties hereby agree that, for the purpose of the Agreement, “Non-competition Period” means a
period of five (5) years after execution of the Agreement.








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2.2 Non-competition Scope



The Parties hereby agree that, for the purpose of the Agreement, “Non-competition Scope” means all
over the world, including, but not limited to, Virgin Islands (British), CAY Cayman Islands, the
People’s Republic of China (including Hong Kong SAR, Macao SAR and Taiwan Region; hereinafter
referred to as “China”) and any other country and region where Party A is developing or will
develop businesses.




2.3 Non-competition Obligation



Without Party A’s prior written consent, Party B warrants that, within the non-competition period
and to the extent of non-competition scope and businesses, it will not, and will not via its
Related Parties:





	1)	 	conduct any activity damaging Party A’s interests or infringe upon Party A’s legal interests
(for the purpose of Article 2.3, “Party A” in Article 2.3 hereof shall be construed as
including Party A and its subsidiaries, parent companies or any Related Party); or
	 
	2)	 	incite, entice, instigate or procure otherwise any of Party A’s employees to terminate the
employment relationship with Party A, except for the actions taken by Party B with Party A’s
written consent during the relevant period for performance of its duties;
	 
	3)	 	incite, entice, instigate or procure otherwise any of Party A’s cooperators, suppliers,
contractors or clients (including, but not limited to, Shanghai Health Pest Control Company,
mosquito-control light box producer, advertising companies and advertising operation releaser)
to terminate the cooperation relationship with Party A, or conduct any activity which may
create adverse effect upon the cooperation relationship between Party A and such partners,
suppliers, contractors or clients;
	 
	4)	 	provide any consulting service or other assistance to other persons directly or indirectly in
its own name or as the representative or employee of other individuals or organizations, so as
to assist other persons in conducting competitive businesses;
	 
	5)	 	engage in or take part in, directly or indirectly, any business or activity in any way
(including but not limited to investment, merger and acquisition, association, joint venture,
cooperation, partnership, contracting or lease operation or equity participation) which is or
may be competitive with any of Party A’s existing or future businesses, whether independently
or jointly with others.





2.4 Non-competition Compensations





	1)	 	In consideration of Party B’s performance of the non-competition obligation under the
Agreement, Party A agrees to pay via PAMC the non-competition compensations to Party B on a
lump-sum basis in USD equivalent to RMB two million two hundred and forty thousand
(RMB2,240,000).
	 
	2)	 	The non-competition compensations shall be paid as follows: within one (1) month after Party




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	 	 	A and its affiliates are listed in America, PAMC shall pay to Party B on a lump-sum basis in
USD equivalent to RMB two million two hundred and forty thousand (RMB2,240,000) (calculated at
the exchange rate of US dollar against RMB on the date of remittance).





III. Applicable Law and Dispute Settlement




3.1 Applicable Law



The Agreement shall be governed by and construed in accordance with Chinese laws.




3.2 Dispute Settlement





	1)	 	Any and all dispute arising from or relating to the Agreement shall be settled through
amiable negotiation between the Parties. Where a certain dispute cannot be settled through
negotiation within sixty (60) days after one party sends a notice to the other, such dispute
(including disputes about the validity or existence of the Agreement) shall be submitted to
China International Economic and Trade Arbitration Commission Shanghai Sub-commission for
arbitration according to its arbitration rules in force then.
	 
	2)	 	Arbitral awards shall be final and binding upon the Parties, and may be enforced in
accordance with pertinent clauses.
	 
	3)	 	Unless otherwise ruled, Arbitration fee shall be for the account of the losing party. Where
one party has to enforce arbitral awards by virtue of any kind of lawsuit, the breaching party
shall be responsible for all reasonable costs and expenses incurred therefrom, including, but
not limited to, reasonable attorney fee and the costs and expenses of any additional lawsuit
or enforcement incurred by the other party as a result of application for enforcement of
arbitral awards.
	 
	4)	 	The Parties shall perform the Agreement continually in all aspects during the settlement of
disputes, except for those in dispute.





IV. Remedies for Breach of Contract



4.1 It is agreed that Party B shall assume the liability for breach of contract if Party B
breaches the non-competition obligations as specified in Article 2 hereof, all incomes received
from violation of such obligation (such as engagement in the work competitive with Party A) shall
vest in Party A, and Party B shall compensate Party A for all the actual losses arising therefrom.
In addition, Party A shall have the right to require Party B to stop immediately conducting any
activity relating to competitive business.



4.2 Party B acknowledges that damages as mentioned in Article 4.1 above shall not constitute


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sufficient remedy for its breach of contract. Party B agrees that Party B shall compensate Party A
for all costs, liabilities or losses (including, but not limited to, interest and attorney fee paid
or incurred as a result of breach of contract) to Party A if any expenses, liabilities or any
losses (including but not limited to profit loss of Party A) are incurred by Party A due to Party
B’s breach of the Agreement.



4.3 Party B agrees that Party B shall resign its position (if any) in Party A immediately and waive
any potential compensation against Party A due to such resignation if Party B breaches the
Agreement.



4.4 Party A agrees that the Contract shall be terminated automatically and it shall compensate
RMB2,240,000 to Party B unconditionally where PAMC fails to pay the non-competition compensations
to Party B on schedule according to Article 2.4 hereof and the equity interest of the Company held
by Party B has bee transferred to the Investors.




V. Effectiveness and Term



The Agreement shall take effect with signatures of the Parties and remain effective until
the non-competition period as mentioned in Article 2.1 hereof expires. However, the termination of
the Agreement shall not prejudice the right of the non-breaching party to claim against the
breaching party according to the Agreement.




VI. Miscellaneous



6.1 Entire Agreement: the Agreement, as well as its schedules and appendices (if any), shall be the
final document which can specify the Parties’ intentions completely and exactly, constitute the
entire agreement between the Parties concerning the subject matter of the Agreement and substitute
for all prior written and oral agreements, contracts, understandings and letters (including, but
not limited to, the Investment Framework Agreement and the Non-competition Agreement executed by
the Parties on December 19, 2007) between the Parties concerning the subject matter hereof; there
are no prior statements, warrants or agreements concerning the Agreement. Without the written
consent of the Parties, modifications to, addition and deletion of the terms and conditions of the
Agreement shall not be binding upon the Parties.



6.2 Waiver: waiver of any default or negligence hereunder shall not constitute the waiver of any
other default or negligence, no matter whether the natures are similar. Any single or partial
exercise of any right hereunder shall not exclude any future exercise of such right. Waiver may be
valid only when the written document bearing the signature of the authorized representative of the
waiving party has been sent and such document can be deemed as a waiver decision in the literal
meaning.




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6.3 Severability: where any of the terms or provisions of the Agreement is held invalid for reasons
whatsoever, the invalidity shall not affect the remaining terms and provisions of the Agreement
unless it has materially affected the continual performance of the whole agreement, and such
invalid term or provision shall be deemed deleted from the Agreement. The Parties may negotiate to
enter into a supplemental agreement to specify relevant issues.



6.4 A Third-Party Interest: the Agreement shall be binding upon and inure to the benefit of each
party hereto and its successors and the assigns permitted by the Parities. No terms of the
Agreement may be deemed as granting expressly or impliedly any right, remedy or obligation to any
individual or entity other than the Parties and their respective successors and the assigns
permitted by the Parties.



6.5 Notice: all notices, demands, requests, acknowledges or other communications in connection with
the Agreement must be made in writing and sent to the addressee’s address as follows (or any other
address notified in writing) in person, by carrier or registered letter with receipt. A notice,
demand, request, acknowledge or other communication in connection with the Agreement shall be
deemed as served: 1) upon delivery in case of delivery in person; 2) three (3) days after delivery
to the carrier in case of delivery by carrier; if it is served within three (3) days, the actual
service day shall apply; 3) five (5) days after mailing in case of service by registered letter (or
airmail letter sent abroad); if it is served within five (5) days, the actual service day shall
apply.



To: Shanghai Hongmen Advertising Co., Ltd.




     Add.: 2/F, Tower 1A, No. 345 Lane, Xinhua Road, Shanghai, China



     Attn.: Kaihua Zhu



     Tel: 021-62810161



     Fax: 021-52540919



To: Pacific Asia Mode Cube Limited




     Add.: 8/F, Tower B, International Plaza, 19 Jianguomenwai Avenue, Beijing, China



     Attn.: Yin Zhu



     Tel: 010-58692980



     Fax: 010-58692960



To: Redgate Interactive Advertising (Beijing) Co., Ltd.




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     Add.: Room 804, Building 2, 19 Jianguomenwai Avenue, Chaoyang, Beijing, China



     Attn.: Yin Zhu



     Tel: 010-58692980



     Fax: 010-58692960



To: Chengye Guo




     Add.: Room 303, Unit 4, Building 7, Block 2, Shuanghuayuan Nanli, Chaoyang District, Beijing,
China



     Tel: 13901210748



     Fax: 010-66052850


6.6 Headings: The headings of all articles of the Agreement are inserted only for reference and may
not deemed as interpretation of the Agreement or affect the meanings of the Agreement in any way.



6.7 Publicity: unless otherwise contrarily provided in laws and regulations, or if one party hereto
breaches the Agreement, neither party nor its agent may make any public statement concerning the
Agreement, or any other document or subsequent documents concerning the matters of the Agreement,
without the prior written consent of the other party (such content may not be withheld without any
justified reasons).



6.8 Language: the Agreement shall be written in Chinese.



6.9 Counterparts: the Agreement shall be made in four (4) copies, one for each party.



(Execution Page below)









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(Execution Page)



The Parties hereby sign the Agreement on the date first written above.




	 	 	 	 	 
	Party A:



Shanghai Hongmen Advertising Co., Ltd.

 	 	 
	Signature:  	/s/ Yue Jin
 	 	 
	 	Name:  	Yue Jin 	 
	 	Title:  	chairman 	 
	 
	Pacific Asia Mode Cube Limited

 	 	 
	Signature:  	/s/ BRACK, Peter Bush
 	 	 
	 	Name:  	BRACK, Peter Bush 	 
	 	Title:  	CEO 	 
	 
	Redgate Interactive Advertising (Beijing) Co., Ltd. \

 	 	 
	Signature:  	/s/ Yin Zhu
 	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 
	Party B:



Chengye Guo

 	 	 
	Signature:  	/s/ Chengye Guo
 	 	 
	 	 	 
	 	 	 
	 



Execution Page of Non-competition Agreement