e20vfza
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
TO
FORM 20-F
(Mark One)
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Registration statement pursuant to Section 12(b) or 12(g) of the Securities Exchange Act of 1934 |
or
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þ |
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Annual report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 |
For the fiscal year ended December 31, 2009
or
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Transition report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 |
For the transition period from to
or
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Shell company report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 |
Date of event requiring this shell company report
Commission file number 001-33821
VisionChina Media Inc.
(Exact Name of Registrant as Specified in Its Charter)
Cayman Islands
(Jurisdiction of Incorporation or Organization)
1/F Block No.7 Champs Elysees
Nongyuan Road, Futian District
Shenzhen 518040
Peoples Republic of China
(Address of Principal Executive Offices)
Limin Li, telephone: (86 755) 8293-2222; fax: (86 755) 8298-1111
At the address of the Company set forth above
(Name, Telephone, E-mail and/or Facsimile number and Address of Company Contact Person)
Securities registered or to be registered pursuant to Section 12(b) of the Act:
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Title of Each Class |
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Name of Each Exchange on Which Registered |
Common Shares, par value US$0.0001 per share
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Nasdaq Global Market* |
American Depositary Shares, each representing one Common Share
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Nasdaq Global Market |
Securities registered or to be registered pursuant to Section 12(g) of the Act:
None
Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act:
None
Indicate the number of outstanding shares of each of the Issuers classes of capital or common
stock as of the close of the period covered by the annual report.
72,140,684 Common Shares
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of
the Securities Act. Yes o No þ
If this report is an annual or transition report, indicate by check mark if the registrant is not
required to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934. Yes o No þ
Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by
Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for
such shorter period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days.
Yes þ No o
Indicate by check mark whether the registrant has submitted electronically and posted on its
corporate Web site, if any, every Interactive Data File required to be submitted and posted
pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months
(or for such shorter period that the registrant was required to submit and post such files). Yes o No o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer,
or a non-accelerated filer. See definition of accelerated filer and large accelerated filer in
Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer o
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Accelerated filer þ
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Non-accelerated filer o |
Indicate by check mark which basis of accounting the registration has used to prepare the financial
statements included in this filing:
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U.S. GAAP þ
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International Financial Reporting Standards as issued by the International Accounting Standards Board o
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o Other |
If Other has been checked in response to the previous question, indicate by check mark which
consolidated financial statement item the registrant has elected to follow.
Item 17 o Item 18 o
If this is an annual report, indicate by check mark whether the registrant is a shell company
(as defined in Rule 12b-2 of the Securities Exchange Act of 1934). Yes o No þ
(APPLICABLE ONLY TO ISSUERS INVOLVED IN BANKRUPTCY PROCEEDINGS DURING THE PAST FIVE YEARS)
Indicate by check mark whether the registrant has filed all documents and reports required to
be filed by Sections 12,13 or 15(d) of the Securities Exchange Act of 1934 subsequent to the
distribution of securities under a plan confirmed by a court. Yes o No o
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* |
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Not for trading, but only in connection with the listing on the Nasdaq Global Market of the
American Depositary Shares |
VISIONCHINA MEDIA INC.
ANNUAL REPORT ON FORM 20-F
Table of Contents
2
CONVENTIONS THAT APPLY TO THIS ANNUAL REPORT ON FORM 20-F
Unless otherwise indicated, references in this annual report to:
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ADSs refers to our American depositary shares, each of which represents one
common share, and ADRs refers to the American depositary receipts that may evidence
our ADSs; |
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China or the PRC refers to the Peoples Republic of China, excluding, for the
purpose of this annual report only, Taiwan, Hong Kong and Macau; |
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local operating partners refers to the local television stations with which we
established our direct investment entities, or the local mobile digital television
operating companies with which we entered into exclusive agency agreements or from
which we buy advertising time; |
In 2009, the local television stations with which we established our direct investment
entities included: Chengdu Television Station, Shenzhen Media Group, Jilin Television Station,
Haerbin Television Station, Dalian Television Station, Henan Cable Television Network Group Co.,
Ltd., Hubei Broadcast and Television General Station, Wuxi Broadcast and Television Group, Suzhou
Broadcast and Television General Station, Changzhou Television Station, and Ningbo Broadcast and
Television Group.
In 2009, the local mobile digital television operating companies with which we entered into
exclusive agency agreements included: Beijing Beiguang Media Mobile Television Co., Ltd, Beijing
Beiguang Metro Media Co., Ltd., Shenzhen Mobile Television Co., Ltd., Guangzhou Pearl River Mobile
Multimedia Television Co., Ltd., Guangzhou Metro Television Co.,
Ltd., Nanjing Guangdian Mobile Television Development Co., Ltd., Chengdu
China Digital Mobile Television Co., Ltd., Wuxi Guangtong Digital Mobile Television Co., Ltd.,
Ningbo China Mobile Television Development Co., Ltd., Shanxi Dazhong Mobile Television Co., Ltd.,
Jilin Mobile Television Co., Ltd., Dalian Mobile Digital Television Co., Ltd., Hubei China Mobile
Television Co., Ltd., Liaoning Beidou Xingkong Digital Television Media Co., Ltd., Hangzhou
Guangdian Buses Mobile Multimedia Co., Ltd., Tianjin North Mobile Multimedia Television Co., Ltd.,
Xiamen Radio and Television Digital Media Co., Ltd., and Suzhou China Mobile Television Co., Ltd.
In 2010, we entered into exclusive agency agreements with three other local mobile digital
television operating companies, which are Changzhou China Mobile Television Company Limited,
Shanghai Metro Television Company Limited, and Changsha Guangdian Digital Mobile Television Co.,
Ltd.
In 2009, the local mobile digital television operating companies from which we buy advertising
time included Changzhou China Mobile Television Company Limited, Henan Cable China Mobile
Television Company Limited and Haerbin China Mobile Television Company Limited.
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RMB or Renminbi refers to the legal currency of China; $, dollars, US$
and U.S. dollars refer to the legal currency of the United States; |
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shares or common shares refers to our common shares; preferred shares refers
to our Series A convertible redeemable preferred shares and Series B convertible
preferred shares; and |
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we, us, our company, our and VisionChina refer to VisionChina Media Inc.,
a Cayman Islands company, its predecessor entities and subsidiaries, and its
consolidated affiliated entities and their subsidiaries. Although VisionChina does not
directly or indirectly own any equity interest in its consolidated affiliated
entities, VisionChina effectively controls these entities through a series of
contractual arrangements. We treat our consolidated affiliated entities as variable
interest entities and have consolidated their financial results in our financial
statements in accordance with generally accepted accounting principles in the United
States, or U.S. GAAP. |
This annual report includes our audited consolidated financial statements for the years ended
December 31, 2007, 2008 and 2009 and as of December 31, 2008 and 2009.
Our ADSs is listed on the Nasdaq Global Market under the symbol VISN.
Part I
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Item 1. |
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Identity of Directors, Senior Management and Advisers |
Not Applicable.
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Item 2. |
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Offer Statistics and Expected Timetable |
Not Applicable.
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A. |
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Selected Financial Data |
The following selected condensed consolidated statement of operations data for the years ended
December 31, 2007, 2008 and 2009 and the condensed consolidated balance sheet data as of December
31, 2008 and 2009 have been derived from our consolidated financial statements, which are
included elsewhere in this annual report. The following selected condensed consolidated statement
of operations data for the period from April 8, 2005 (date of inception) to December 31, 2005 and
the year ended December 31, 2006 and the condensed consolidated balance sheet data as of December
31, 2005, 2006 and 2007 have been derived from our consolidated financial statements, which are not
included elsewhere in this annual report. You should read the selected condensed consolidated
financial data in conjunction with the financial statements and the related notes included
elsewhere in this annual report and Item 5. Operating and Financial Review and Prospects. Our
consolidated financial statements are prepared and presented in accordance with U.S. GAAP. Our
historical results do not necessarily indicate our results expected for any future periods.
3
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For the |
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Period |
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For the Year Ended |
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from April |
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December 31, |
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8, 2005 to |
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December 31, 2005 |
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2006 |
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2007 |
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2008 |
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2009 |
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(US$, except number of shares) |
Condensed Consolidated Statement of
Operations Data: |
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Revenues |
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Advertising service revenues |
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2,033,284 |
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27,489,391 |
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103,515,250 |
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120,686,086 |
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Advertising equipment revenues |
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290,521 |
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1,839,598 |
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1,896,200 |
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565,392 |
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Total revenues |
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290,521 |
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3,872,882 |
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29,385,591 |
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104,080,642 |
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120,686,086 |
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Cost of revenues |
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Advertising service cost |
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3,967,081 |
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12,801,957 |
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40,602,022 |
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61,104,381 |
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Advertising equipment cost |
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261,504 |
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1,639,895 |
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1,583,325 |
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475,432 |
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Total cost of revenues |
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261,504 |
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5,606,976 |
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14,385,282 |
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41,077,454 |
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61,104,381 |
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Gross profit (loss) |
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29,017 |
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(1,734,094 |
) |
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15,000,309 |
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63,003,188 |
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59,581,705 |
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Operating expenses |
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386,215 |
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2,067,291 |
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5,098,576 |
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20,126,107 |
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32,046,119 |
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Government grant |
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125,953 |
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538,085 |
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Loss from equity method investees |
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(104,475 |
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(469,841 |
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(1,262,273 |
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(484,969 |
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(998,606 |
) |
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Operating (loss) profit |
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(461,673 |
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(4,145,273 |
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8,639,460 |
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42,392,112 |
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27,075,065 |
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Interest income |
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45,264 |
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98,873 |
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505,888 |
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3,480,212 |
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1,860,017 |
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Interest expense |
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(109,590 |
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Government grant |
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672,515 |
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Other expenses |
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(22,608 |
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(95,719 |
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(38,491 |
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(1,278 |
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Net (loss) income before income taxes |
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(416,409 |
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(4,069,008 |
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9,049,629 |
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46,506,348 |
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28,824,214 |
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Income tax benefits(expenses) |
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332,386 |
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212,325 |
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(2,348,354 |
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Net loss attributable to
non-controlling interest |
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11,343 |
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91,277 |
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127,043 |
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Net (loss) income attributable to
VisionChina Media Inc. shareholders |
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(416,409 |
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(4,069,008 |
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9,393,358 |
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46,809,950 |
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26,603,003 |
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Deemed dividend on convertible
redeemable preferred shares |
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1,583,333 |
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6,625,262 |
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Net (loss) income attributable to
holders of common shares |
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(416,409 |
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(5,652,341 |
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2,768,096 |
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46,809,950 |
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26,603,003 |
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Net (loss) income per common share: |
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Basic |
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(0.02 |
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(0.26 |
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0.11 |
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0.67 |
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0.37 |
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Diluted |
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(0.02 |
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(0.26 |
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0.11 |
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0.65 |
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0.37 |
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Shares used in computation of net
(loss) income per share: |
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Basic |
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22,000,000 |
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22,000,000 |
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24,709,522 |
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70,064,663 |
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71,686,900 |
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Diluted |
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22,000,000 |
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22,000,000 |
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25,771,702 |
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72,404,916 |
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72,676,438 |
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Share-based compensation expenses
during the related periods included
in: |
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Cost of revenues |
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37,576 |
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34,431 |
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39,847 |
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63,477 |
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Selling and marketing expenses |
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5,374 |
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135,722 |
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1,163,623 |
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3,698,329 |
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General and administrative expenses |
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35,802 |
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51,209 |
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263,587 |
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570,305 |
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Note: |
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Noncontrolling interest for the period from April 8,
2005 to December 31, 2005, the years ended December 31,
2006, 2007 and 2008 has been reclassified in accordance with
Financial Accounting Standard Board, or FASB, Accounting
Standards Codification, or ASC, 810
Consolidation. |
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As of December 31, |
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2005 |
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2006 |
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2007 |
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2008 |
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2009 |
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(US$, except number of shares) |
Condensed Consolidated
Balance Sheet Data: |
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Cash and cash equivalents |
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2,599,078 |
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5,215,693 |
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131,139,659 |
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163,248,286 |
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68,834,087 |
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Total assets |
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6,040,923 |
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17,043,776 |
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175,300,276 |
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293,639,567 |
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388,915,736 |
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Total current liabilities |
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247,117 |
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1,241,783 |
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10,618,779 |
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42,304,706 |
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102,935,518 |
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Series A
convertible redeemable preferred shares |
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15,220,327 |
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Common shares |
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2,200 |
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2,200 |
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6,839 |
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7,182 |
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7,214 |
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Total VisionChina Media
Inc. shareholders
equity |
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5,793,806 |
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581,666 |
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164,028,819 |
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245,073,214 |
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272,981,356 |
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Number of common shares
issued and outstanding |
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22,000,000 |
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22,000,000 |
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68,386,838 |
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71,819,442 |
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72,140,684 |
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Note: |
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Noncontrolling interest as of December 31, 2005, 2006,
2007 and 2008 has been reclassified in accordance with FASB
ASC 810. |
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As of December 31, |
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2007 |
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2008 |
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2009 |
Selected Operating Data: |
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Number of digital
television displays in
our mobile digital
television advertising
network: |
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Exclusive agency cities |
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31,476 |
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57,250 |
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79,571 |
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Direct investment cities |
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9,726 |
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4,406 |
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2,594 |
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Total |
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41,202 |
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61,656 |
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82,165 |
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Number of digital
displays in our
supplemental subway
advertising platform |
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208 |
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4,608 |
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7,134 |
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For the Year Ended December 31, |
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2007 |
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2008 |
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2009 |
Total hours of broadcasting(1) |
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77,925 |
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119,170 |
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138,164 |
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Average
revenue per hour(1)(2) (US$) |
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341 |
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843 |
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825 |
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Average advertising minutes sold per hour |
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7.04 |
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7.72 |
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6.47 |
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(1) |
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Includes all of the cities in our network and supplemental subway advertising platform. |
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(2) |
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We calculate average revenues per hour by dividing our advertising service revenues derived
from our network and supplemental subway advertising platform by the total hours of
broadcasting in the cities of our network and supplemental subway advertising platform. |
Exchange Rate Information
A number of RMB-denominated figures used in this annual report are accompanied with U.S.
dollar translations. These translations are based on the noon buying rate in The City of New York
for cable transfers of RMB as certified for customs purposes by the Federal Reserve Bank of New
York on December 31, 2009, which was RMB6.8259 to US$1.00. We make no representation that any RMB
or U.S. dollar amounts could have been, or could be, converted into U.S. dollars or RMB, as the
case may be, at any particular rate, the rates stated below, or at all. The PRC government imposes
control over its foreign currency reserves in part through direct regulation of the conversion of
RMB into foreign currencies and through restrictions on foreign trade.
The following table sets forth information concerning exchange rates between the RMB and the
U.S. dollar for the periods indicated. These rates are provided solely for your convenience and are
not necessarily the exchange rates that we used in this annual report or will use in the
preparation of our periodic reports or any other information to be provided to you. The exchange
rate of Renminbi per US dollar as set forth in the H.10 statistical release of the Federal Reserve
Board was RMB6.8267 to US$1.00 as of June 18, 2010.
5
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Exchange Rate (Renminbi per US Dollar)(1) |
Period |
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Period End |
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Average(2) |
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Low |
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High |
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(RMB per US$1.00) |
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2006 |
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7.8041 |
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7.9579 |
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8.0702 |
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7.8041 |
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2007 |
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7.2946 |
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7.6072 |
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7.8127 |
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7.2946 |
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2008 |
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6.8225 |
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6.9477 |
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7.2946 |
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6.7800 |
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2009 |
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6.8259 |
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6.8307 |
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6.8470 |
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6.8176 |
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2010 |
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6.6000 |
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6.7642 |
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6.8330 |
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6.6000 |
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July |
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6.7807 |
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6.7762 |
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6.7807 |
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6.7709 |
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August |
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6.8069 |
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6.7873 |
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6.8069 |
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6.7680 |
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September |
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6.6905 |
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6.7396 |
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6.8102 |
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6.6869 |
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October |
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6.6705 |
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6.6675 |
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6.6912 |
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6.6397 |
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November |
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6.6670 |
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6.6537 |
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6.6906 |
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6.6233 |
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December |
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6.6000 |
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6.6497 |
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6.6745 |
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6.6000 |
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2011 |
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January (up to January 14) |
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6.5876 |
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6.6085 |
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6.6364 |
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6.5850 |
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(1) |
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The source of the exchange rate is: (i) with respect to any period ending on or prior to
December 31, 2008, the Federal Reserve Bank of New York, and (ii) with respect to any period
ending on or after January 1, 2009, the H.10 statistical release of the Federal Reserve Board. |
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(2) |
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Annual averages are calculated from month-end rates. Monthly averages are calculated using
the average of the daily rates during the relevant period. |
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B. |
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Capitalization and Indebtedness |
Not Applicable.
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C. |
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Reasons for the Offer and Use of Proceeds |
Not Applicable.
You should consider carefully all of the information in this annual report, including the
risks and uncertainties described below and our consolidated financial statements and related
notes. Any of the following risks could have a material adverse effect on our business, financial
condition and results of operations. In any such case, the market price of our ADSs could decline.
Risks Related to Our Company and Our Industry
The recent global economic and financial market crisis has had and may continue to have a negative
effect on the market price of our ADSs, and could have a material adverse effect on our business,
financial condition, results of operations and cash flow.
The recent global economic and financial market crisis has caused, among other things, a
general tightening in the credit markets, lower levels of liquidity, increases in the rates of
default and bankruptcy, lower consumer and business spending, and lower consumer net worth, in the
United States, China and other parts of the world. This global economic and financial market
crisis has had, and may continue to have, a negative effect on the market price of our ADSs, the
volatility of which has increased as a result of the disruptions in the financial markets. It may
also impair our ability to borrow funds or enter into other financial arrangements if and when
additional funds become necessary for our operations. We believe many of our advertisers have
also been affected by the recent economic turmoil. Current or potential advertisers may no longer
be in business, may be unable to fund advertising purchases or determine to reduce purchases, all
of which would lead to reduced demand for our advertising services, reduced gross margins, and increased delays of payments of accounts receivable or defaults of payments. We
are also limited in our ability to reduce costs to offset the results of a prolonged or severe
economic downturn given our fixed media costs associated with our operations. Therefore, if the
current economic downturn continues, our business, financial condition, results of operations and
cash flow could be materially and adversely affected. In addition, the timing and nature of the
continued recovery in the credit and financial markets remains uncertain, and there can be no
assurance that market conditions will continue to improve in the near future or that our results
will not continue to be materially and adversely affected.
6
We have a limited operating history, which may make it difficult for you to evaluate our business
and prospects.
We began operations in April 2005. We entered into our first direct investment arrangement in
Chengdu in May 2005, and we secured our principal exclusive mobile digital television advertising
agency arrangements on buses in Beijing and Shenzhen in October and December 2006, respectively. We
secured our principal exclusive mobile digital television advertising agency arrangements on
subways in Shenzhen and Beijing in May and August 2007, respectively. Accordingly, we have a very
limited operating history upon which you can evaluate the viability and sustainability of our
business and its acceptance by advertisers and consumers. It is also difficult to evaluate the
viability of our mobile digital television advertising network on mass transportation systems
because we do not have sufficient experience to address the risks frequently encountered by early
stage companies using new forms of advertising media and entering new and rapidly evolving markets.
These circumstances may make it difficult for you to evaluate our business and prospects. In
addition, due to our short operating history and recent additions to our management team, some of
our senior management and employees have only worked together at our company for a relatively short
period of time. As a result, it may be difficult for you to evaluate the effectiveness of our
senior management and other key employees and their ability to address future challenges to our
business.
We have incurred net losses in the past and may incur losses in the future.
For the period from April 8, 2005, the date we commenced operations, to December 31, 2005, and
in 2006, we incurred a net loss of US$0.4 million and US$5.7 million, respectively. We pay media
costs to our local operating partners for operating our advertising business on buses and subways.
These fees constitute a significant portion of our cost of revenues and accounted for approximately
37.2%, 29.7% and 41.4% of our net revenues in the years ended December 31, 2007, 2008 and 2009,
respectively. Most of the media costs are fixed each year with annual increases pursuant to the terms of the contracts. However, our
revenues may fluctuate significantly from period to period for various reasons. If our revenues
decrease in a given period, we may be unable to reduce our cost of revenues as a significant
portion of our cost of revenues is fixed, which could materially and adversely affect our results
of operations and result in a net loss in the period.
If we are required to impair our goodwill or other amortizable intangible assets, our financial
condition and results of operations would be adversely affected.
As of December 31, 2009, we had goodwill and amortizable intangible assets of US$120.5
million, arising from our acquisitions of six advertising agency businesses in 2008. In January
2010, we completed our acquisition of Digital Media Group Company Limited, or Digital Media Group,
for a total consideration of US$160 million, payable in cash and/or our common shares to eligible
former shareholders of the Digital Media Group in three installments over the next two years. We
expect to record additional goodwill and intangible assets in connection with our acquisitions of
those six advertising agency businesses and our acquisition of Digital Media Group. We are
required under U.S. GAAP to review our amortizable intangible assets and goodwill for impairment
when events or changes in circumstances indicate the carrying value may not be recoverable.
Goodwill is required to be tested for impairment annually or more frequently if facts and
circumstances warrant a review. Factors that may be considered a change in circumstances
indicating that the carrying value of goodwill and our amortizable intangible assets may not be
recoverable, such as a decline of growth in our industry, may have an adverse impact on the
operating result of the acquired businesses. We evaluate the amounts of the goodwill and
amortizable intangible assets for impairment based on the forecasts of financial performances of
the acquired businesses which in turn are based on various assumptions. See Item 5. Operating and
Financial Review and Prospects Operating Results Critical Accounting Policies Goodwill and
Intangible Assets. As we have a limited operating history upon which we can use to forecast the
financial performances of these acquired businesses, any adverse change in the assumptions
underlying the forecasts may result in impairment charges to be recorded in our statement of operations, which
will cause a decrease in the net income attributable to our shareholders, and cause the
carrying value of our goodwill and amortizable intangible assets to be reduced to the recoverable
amounts.
7
If PRC regulators order one or more of our local operating partners to stop their mobile digital
television operations due to violations of applicable regulations, our operations would be harmed
and our financial condition and results of operations would be materially and adversely affected.
On March 27, 2006, the PRC State Administration of Radio, Film and Television, or SARFT,
promulgated the Notice Concerning Experimental Mobile Digital Television, or the March 2006 Notice.
The March 2006 Notice regulates experimental mobile digital television operations and primarily
contains the following provisions:
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no experimental mobile digital television operations shall be conducted without
approval of SARFT; |
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no formal operation of mobile digital television shall be conducted before the
establishment and adoption of national standards for mobile digital television; |
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after the adoption of the national digital mobile television standards, all mobile
digital television operations must comply with such national standards; and |
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existing mobile television network operations must apply for SARFT approval before
April 30, 2006, and must stop operating as of June 15, 2006 if they fail to submit
their applications by April 30, 2006 or their applications are disapproved by SARFT. |
These regulations apply directly to our local mobile digital television operating partners
because they operate mobile digital television networks, and SARFT and its local branches have the
authority to order any mobile digital television operators who have violated the March 2006 Notice
or other applicable laws to stop operating their mobile digital television networks. In addition,
SARFT issued a notice regarding strengthening the administration of public audio/visual media on
public transportation vehicles and in public buildings on
December 6, 2007.
SARFT or its
local branches may order any of our local operating partners to stop their operations. If any
of our local operating partners are ordered to stop their mobile digital television operations, we
may not be able to continue our advertising business in the affected city through other media or channels at acceptable costs, or at all. In that
case, our business, financial condition and results of operations would be materially and adversely
affected.
Our local operating partners may be ordered to stop their operation of mobile digital
television operations for incomplete application for SARFT approval, which may materially and
adversely affect our advertising business in the affected cities.
According to the notices issued by SARFT in March 2006 and December 2007, companies that
broadcast programs on audio/visual media located on public transportation vehicles and in public
buildings using television, internet or other broadcasting technology must apply for SARFT approval
by the end of April 2006, and companies failing to complete the procedure may be ordered to cease
network operation.
To date, our local mobile digital television operating partners in Shenzhen, Beijing,
Zhengzhou, Guangzhou, Ningbo and Shenyang (i.e., Shenzhen Mobile Television Co., Ltd., Beijing Beiguang
Media Mobile Television Co., Ltd., Henan Cable China Mobile Television Company Limited, Guangzhou
Pearl River Mobile Multimedia Television Co., Ltd., Ningbo China Mobile Television Development Co.,
Ltd. and Liaoning Beidou Xingkong Digital Television Media Co., Ltd.) have obtained SARFT approvals
for operating mobile digital television networks in these cities. Our local mobile digital
television operating partners in Changzhou and Dalian (i.e., Changzhou Television Station and
Dalian Television Station) submitted their applications to SARFT after April 30, 2006. Our local
mobile digital television operating partners in cities other than those mentioned above submitted
applications to SARFT before April 30, 2006 as required under the March 2006 Notice, and none of the
applications has been rejected by SARFT as of the date hereof. In aggregate, approximately 30% of
our revenues in 2009 were attributable to the cities where our local operating partners have not
obtained the SARFT approvals.
Our PRC legal counsel has advised us that, since the mobile digital television industry is
relatively new in China, there are significant uncertainties regarding the implementation and
interpretation of the laws, rules and regulations applicable to mobile digital television
operations, including the March 2006 and December 2007 Notices. Moreover, the mobile digital
television industry is encouraged under the Eleventh Five-Year Plan (2006 2010) of the PRC
government. Furthermore, our local mobile digital television operating partners in such cities
(except in Changzhou and Dalian) submitted applications to SARFT before April 30, 2006 as required
under the March 2006 Notice and none of the applications has been rejected by SARFT. Therefore, our
PRC legal counsel has advised us that it believes that there is no substantial or material risk
that the operations of local mobile digital television networks in these cities will be ordered to
stop operations.
However, we cannot assure you that SARFT or its local branches will not order any of our local
operating partners to stop their operations. If any of our local operating partners are ordered to
stop their mobile digital television operations for incomplete application of the SARFT approval,
we may not be able to continue our advertising business in the affected city through other media or
channels at acceptable costs, or at all. In that case, our advertising business, financial
condition and results of operations would be materially and adversely affected.
We may be subject to, and may expend significant resources in defending against, government actions
and civil suits based on the content and services we provide through our mobile digital television
advertising network.
PRC advertising laws and regulations require advertisers, advertising operators and
advertising distributors, including businesses such as ours and our local operating partners, to
ensure that the content of the advertisements they prepare or distribute is fair, accurate and in
full compliance with applicable laws, rules and regulations. Violation of these laws, rules or
regulations may result in penalties, including fines, confiscation of advertising fees, orders to
cease dissemination of the advertisements and orders to publish an advertisement correcting the
misleading information. In circumstances involving serious violations, the PRC government may
revoke a violators license for its advertising business operations.
8
As an operator of an advertising medium, we are obligated under PRC laws, rules and
regulations to monitor the advertising content aired on our network or supplemental subway
advertising platform for compliance with applicable laws. Although the advertisements shown on our
network generally have previously been broadcast over public television networks and have been
subjected to internal review and verification by these broadcasters, we are required to separately
and independently review and verify these advertisements for content compliance before displaying
these advertisements. In addition, for advertising content related to special types of products and
services, such as alcohol, cosmetics, pharmaceuticals and medical procedures, we are required to
confirm that the advertisers have obtained requisite government approvals including the
advertisers operating qualifications, proof of quality inspection of the advertised products,
government pre-approval of the contents of the advertisement and filing with the local authorities.
We employ, and our local direct investment entities are required by the applicable PRC laws, rules
and regulations to employ, qualified advertising inspectors who are trained to review advertising
content for compliance with applicable PRC laws, rules and regulations. We endeavor to comply with
such requirements, including by requesting relevant documents from the advertisers. Our reputation
will be tarnished and our results of operations may be adversely affected if advertisements shown
on our mobile digital television advertising network or supplemental subway advertising platform
are provided to us by our advertising clients in violation of relevant PRC content laws and
regulations, or if the supporting documentation and government approvals provided to us by our
advertising clients in connection with such advertising content are not complete, or if the
advertisements that our local operating partners have broadcast on our network have not received
required approvals from the relevant local supervisory bodies, or if the advertisements are not
content compliant.
All forms of outdoor advertisements must be registered before dissemination with the local
branches of the State Administration of Industry and Commerce, or SAIC, which regulates advertising
companies, and advertising distributors are required to submit a registration application form as
well as the content of the advertisement to the local SAIC branch in order to receive an
advertising registration certificate. The applicable PRC laws and regulations are not clear as to
whether advertising on public transportation systems or other out-of-home locations would be
considered outdoor advertising. In practice, local SAIC branches have discretion in determining
whether such advertising constitutes outdoor advertising which would require registration with the
relevant local SAIC branch. Local SAIC branches in different regions of the PRC may reach different
conclusions with respect to this issue and such conclusions may also be subject to further
revisions or amendments. Our PRC legal counsel has advised us that local SAIC branches in eight of
the cities where we operate our advertising business, namely Dalian, Guangzhou, Harbin, Nanjing,
Shenzhen, Suzhou, Wuxi and Zhengzhou, require that advertising on public transportation systems or
other out-of-home locations be registered as outdoor advertising. We would need our local operating
partners cooperation to effect the required registrations. Our direct investment entities in
Harbin and Zhengzhou have completed the required registrations. Our direct investment entities in
Dalian and Suzhou and our local operating partner in Shenzhen are in the process of completing the
required registration. However, our local operating partners in Guangzhou, Nanjing and Wuxi have
advised us that they do not believe such registrations are necessary. If advertising on public
transportation systems or other out-of-home locations is determined by a local SAIC branch to be
outdoor advertising and a registration is not effected as required by the local SAIC branch, our local operating partner
or direct investment entity in the jurisdiction city of the local SAIC branch would be subject to a
fine and may be ordered to stop disseminating the advertisements and as a result, our business in
that city would be materially and adversely affected, which may have a material and adverse effect
in our overall business.
Moreover, civil claims may be filed against us for fraud, defamation, subversion, negligence,
copyright or trademark infringement or other violations due to the nature and content of the
information displayed on our advertising network. If viewers find the content displayed on our
advertising network to be offensive, bus and subway companies that display our content on their
buses and subway platforms may seek to hold us responsible for any claims by their passengers or
they may terminate their relationships with us.
In addition, if the security of the broadcasting network we use to send our signals is
breached despite the efforts of our local operating partners to ensure the security of the content
management system, and unauthorized images, text or audio sounds are displayed on our advertising
network, viewers or the PRC government may find these images, text or audio sounds to be offensive,
which may subject us to civil liability or government censure. Any such event may also damage our
reputation. If our advertising viewers do not believe our content is reliable or secure, our
business model may become less appealing to viewers in China and our advertising clients may be
unwilling to place advertisements on our advertising network.
Our local digital mobile television operating partners incomplete application, refusal to
register and non-compliance with PRC registration may cause our operations,
financial condition and results of operations be materially and adversely affected.
All forms of outdoor advertisements must be registered before dissemination with the local
branches of the State Administration of Industry and Commerce, or SAIC, which regulates advertising
companies, and advertising distributors are required to submit a registration application form as
well as the content of the advertisement to the local SAIC branch in order to receive an
advertising registration certificate. The applicable PRC laws and regulations are not clear as to
whether advertising on public transportation systems or other out-of-home locations would be
considered as outdoor advertising. In practice, local SAIC branches have discretion in
determining whether such advertising constitutes outdoor advertising which would require
registration with the relevant local SAIC branch. Local SAIC branches in different regions of the
PRC may reach different conclusions with respect to this issue and such conclusions may also be
subject to further revisions or amendments. Currently, none of our local operating partners or
direct investment entities has renewed or completed the outdoor advertising registrations, and until now, none of our local
operating partners or direct investment entities is required by local SAIC to
apply for the registration or be fined or penalized by failing with completion of outdoor advertisement
registration. If advertising on public transportation systems or other out-of-home locations is
determined by a
local SAIC branch to be outdoor advertising and a registration is not effected as required by
the local SAIC branch, our local operating partner or direct investment entity in the jurisdiction
city of the local SAIC branch would be subject to a fine and may be ordered to stop disseminating
the advertisements and as a result, our business in that city would be materially and adversely
affected, which may have a material and adverse effect in our overall business.
9
If SARFT determines that the regulations on radio and television advertising operation are
applicable to advertising on mobile digital television or establishes similar regulations for
mobile digital television, our business and prospects could be harmed.
SARFT promulgated Interim Measures of Administration of Advertisement Broadcasting of Radio
and Television in 2003 that became effective on January 1, 2004. This regulation is applicable to
advertisement broadcasting on all radio and television stations and channels. This regulation
contains a number of restrictions, including that the total advertising time of a radio or
television station or channel shall not be greater than 20% of its total broadcasting time each
day. On average we sold 6.47 advertising minutes per broadcasting hour in the year ended December
31, 2009.
However, there is some uncertainty because to date, there have been no SARFT actions or statements to the effect of determining that the
regulation referenced above is applicable to the mobile digital televisions industry or
promulgation of new rules that are similar to this regulation to regulate or restrict the
advertising time digital television networks.
Our PRC counsel has advised us that the provisions of this regulation restricting
advertising time are only applicable to traditional radio and television broadcasting and that as
of the date hereof, SARFT has not indicated that this regulation shall apply to mobile digital
television. As a result, we believe that this regulation is not applicable to the mobile digital
television industry. However, SARFT may determine that this regulation is applicable to the mobile
digital television industry or promulgate new rules that are similar to this regulation to regulate
or restrict the advertising time of mobile digital television networks. If any of these events
occur, the total advertising time on our network will be limited and, as a result, our business and
prospects could be materially and adversely affected.
Our failure to maintain relationships with local television stations or local mobile digital
television companies would harm our business and prospects.
Our ability to generate revenues from advertising sales depends largely upon our ability to
air advertisements on large mobile digital television networks on mass transportation systems in
cities. This, in turn, requires that we develop and maintain business relationships with local
television stations, local mobile digital television companies, local governments, and mass
transportation services through which we obtain programming, broadcasting and space for our mobile
digital television advertising networks. As of December 31, 2009, we provided advertising services
through our network and supplemental subway advertising platform with approximately 89,299 digital
displays in 19 cities in China. We have entered into exclusive advertising agency arrangements in
16 cities and direct investment arrangements in 11 cities in China. We cannot assure you that we
can maintain these relationships on satisfactory terms, or at all. Our local operating partners may
unilaterally terminate our agreements with them before the expiration of these agreements if there
are events of force majeure or if we have breached the agreements. For example, our agreement with
our local operating partner in Beijing requires us to install digital television displays in new
buses pursuant to the terms of the agreement between our local operating partner in Beijing and the
local bus company in Beijing. If we fail to perform our contractual obligations, we will be in
breach of our agreement and our local operating partner may unilaterally terminate our agreement. If we fail
to maintain relationships with our local operating partners, advertisers may find advertising on
our network unattractive and may not purchase advertising time from us, which would cause our
revenues to decline and our business and prospects to deteriorate.
We do not completely control the operations of our direct investment entities; any dispute with the
local television stations could harm our business.
We operate in 11 cities through direct investment entities formed with the local television
stations. PRC law provides that the television stations or entities controlled by them must own no
less than 51% of the equity interests in any mobile digital television operating company. We own a
49% equity interest in those direct investment entities, except the direct investment entity in
Shenzhen in which we own a 25% equity interest and the direct investment entity in Wuxi in which we
own a 14% equity interest. Most of our direct investment agreements provide that we have the right
to nominate the general manager of the direct investment entity, who will be in charge of the
day-to-day operations of the direct investment entity. Our local operating partners, the local
television stations including Chengdu Television Station, Shenzhen Media Group, Jilin Television Station, Haerbin
Television Station, Dalian Television Station, Henan Cable Television Network Group Co., Ltd.,
Hubei Broadcast and Television General Station, Wuxi Broadcast and Television Group, Suzhou
Broadcast and Television General Station, Changzhou Television Station, and Ningbo Broadcast and
Television Group, control the broadcasting and are responsible for compliance matters. We cannot
assure you that disputes will not arise between us and our local operating partners, and that any
such disputes will be resolved in our favor. Further, our interests and the interests of our local
operating partners may be different. In some cases, we may have to rely on court proceedings to
resolve the disputes between us and our local operating partners. Any litigation will divert our
resources and may result in a judgment against us. If any dispute between us and our local
operating partners arises, our business operations could be harmed, and our financial condition and
results of operations could be materially and adversely affected.
10
Our failure or our local operating partners failure to maintain existing relationships or develop
new relationships with local bus companies or subway companies would harm our business and
prospects.
In most of the cities where we operate, our business relationships with local bus companies or
other selected operations are secured and provided by our local operating partners or our direct
investment entities. Our operations on the supplemental subway advertising platform in Guangzhou
and Shenzhen are secured by our agreements with the subway companies in these two cities,
respectively. However, we cannot assure you that we and our local operating partners can maintain
these relationships with the local bus companies or subway companies on satisfactory terms, or at
all, or that the local bus companies or subway companies will not terminate these relationships
before their expiration. If we or our local operating partners fail to maintain these
relationships, advertisers may find advertising on our network unattractive and may not purchase
advertising time from us, which would cause our revenues to decline and our business and prospects
to deteriorate.
A significant portion of the mobile digital television networks of our direct investment entities
and the digital television broadcasting infrastructure of our local operating partners currently do
not meet the newly adopted PRC national standards for mobile digital television operations. We will
be required to spend significant capital and other resources to convert the digital television
broadcasting infrastructure of our local operating partners to these national standards, which
could materially and adversely affect our business, financial condition and results of operations.
Our local operating partners have adopted three different digital television technology
standards in operating their networks. In addition, our direct investment entities have installed
digital television receivers based on the technology standards our local operating partners have
adopted. The National Standard of Frame Structure and Channel Code and Modulation of Digital
Television Ground Broadcasting Transmission System, or the National Standard, was approved by the
Standardization Administration of the PRC on August 18, 2006, and became effective on August 1,
2007. On March 27, 2006, SARFT promulgated the Notice Concerning Experimental Mobile Digital
Television, or the March 2006 Notice, which required all of our local operating partners must adopt
the National Standard for their mobile digital television operations. In addition, the SARFT has
issued a notice to require some of our local operating partners and direct investment entities to
complete the adoption of the National Standard by June 30, 2010. As of April 1, 2010, the mobile
digital television network of our direct investment entities and the digital television broadcasting infrastructure of our local operating partners in 11 cities
(Chengdu China Digital Mobile Television Co., Ltd., Wuxi Guangtong Digital Mobile Television
Co., Ltd., Ningbo China Mobile Television Development Co., Ltd., Dalian Mobile Digital Television
Co., Ltd., Hubei China Mobile Television Co., Ltd., Liaoning Beidou Xingkong Digital Television
Media Co., Ltd., Tianjin North Mobile Multimedia Television Co., Ltd., Xiamen Radio and Television
Digital Media Co., Ltd., Suzhou China Mobile Television Co., Ltd., Changzhou China Mobile
Television Company Limited, and Haerbin China Mobile Television Company Limited)
have been
converted to the National Standard, but those in another 10 cities
(Beijing Beiguang Media Mobile Television Co., Ltd., Beijing Beiguang Metro Media Co., Ltd.,
Shenzhen Mobile Television Co., Ltd., Guangzhou Pearl River Mobile Multimedia Television Co., Ltd.,
Nanjing Guangdian Mobile Television Development Co., Ltd., Shanghai Metro Television Company
Limited, Changsha Guangdian Digital Mobile Television Co., Ltd., Shanxi Dazhong Mobile Television
Co., Ltd., Hangzhou Guangdian Buses Mobile Multimedia Co., Ltd., Henan Cable China Mobile
Television Company Limited and Jilin Mobile Television Co., Ltd.)
have not yet completed the
conversion and do not meet the requirements of the National Standard. Our direct investment
entities (Henan Cable China Mobile Television Company Limited and Jilin Mobile Television Co., Ltd.) and our local operating partners (Beijing Beiguang Media Mobile Television Co., Ltd, Beijing Beiguang Metro Media Co., Ltd.,
Shenzhen Mobile Television Co., Ltd., Guangzhou Pearl River Mobile Multimedia Television Co., Ltd.,
Shanghai Metro Television Company Limited, Nanjing Guangdian Mobile Television Development Co.,
Ltd., Changsha Guangdian Digital Mobile Television Co., Ltd., Shanxi Dazhong Mobile Television Co.,
Ltd, and Hangzhou Guangdian Buses Mobile Multimedia Co., Ltd.) will
be required to spend significant capital and other
resources, including on new equipment, to covert their digital television broadcasting
infrastructure to the National Standard. Under some of our exclusive advertising agency agreements,
we are responsible for a portion of such expenditures. We are unable to accurately estimate the
amount and timing of capital expenditures required for our local operating partners and us to meet
the requirements of the National Standard. Furthermore, the installation of new technology and
equipment could cause disruptions to our programming, which in turn may adversely affect our
reputation and business. If our local operating partners and direct investment entities do not
complete the adoption of the National Standard in a timely manner or at all, or if such adoption
requires substantial capital expenditures or other resources, our business, financial condition and
results of operations would be materially and adversely affected.
In certain cities, we may be required to obtain approvals in order to continue including
non-advertising content in our programs that are transmitted through closed circuit networks. If
we are unable to continue to include non-advertising content in our programs, our business and
prospects could be adversely affected.
On December 6, 2007, the SARFT, issued the Circular regarding Strengthening the Management of
Public Audio-Video in Automobiles, Buildings and Other Public Areas, or the SARFT Circular. Under
the SARFT Circular, the display of audio-video programs, such as television news, films and
television shows, sports, technology and entertainment, through public audio-video systems located
in outdoor public systems, including automobiles, airports and bus and train stations, must be
approved by the SARFT. While the SARFT Circular is not applicable to audio-video transmitted
through digital broadcast technology, it is applicable to audio-video transmitted through closed
circuit networks. As a result, we may be required to obtain approvals for certain of our
supplemental subway advertising operations acquired in connection with our acquisition of Digital
Media Group. These supplemental subway advertising operations transmit programming through closed
video networks rather than digital broadcast technology and include Beijing (Lines 1, 2 and 4),
Tianjin and Chongqing.
11
We intend to obtain the required approvals for our non-advertising content for the programming
in these operations. However, the relevant government authority in China has not promulgated any
implementation rules on the procedure for applying for the requisite approvals. We cannot assure
you that we will obtain such approvals as required by the SARFT Circular in a timely manner or at
all. If we do not obtain the requisite approvals, we may be required to eliminate non-advertising
content from programming transmitted through closed circuit networks, and as a result, advertisers
may find our network less attractive, which could have an adverse affect on our business and
prospects.
We operate in the advertising industry, which is particularly sensitive to changes in economic
conditions and advertising trends.
Demand for advertising time on our network and supplemental subway advertising platform, and
the resulting advertising spending by our clients, are particularly sensitive to changes in general
economic conditions. For example, advertising expenditures typically decrease during periods of
economic downturn. Advertisers may reduce the money they spend to advertise on our network and
supplemental subway advertising platform for a number of reasons, including:
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a general decline in economic conditions; |
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a decline in economic conditions in the particular cities where we conduct
business; |
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a decision to shift advertising expenditures to other available advertising media;
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a decline in advertising spending in general. |
A decrease in demand for advertising media in general, and for our advertising services in
particular, would materially and adversely affect our ability to generate revenues, and have a
material and adverse effect on our financial condition and results of operations.
If advertisers or the viewing public do not accept, or lose interest in, our mobile digital
television advertising network, our revenues may be negatively affected and our business may not
expand or be successful.
The mobile digital television advertising market in China is relatively new and its potential
is uncertain. We compete for advertising revenues with many forms of more established advertising
media. Our success depends on the acceptance of our mobile digital television advertising network
by advertisers and their continuing interest in this medium as part of their advertising
strategies. Our success also depends on the viewing publics continued receptiveness towards our
mobile digital television advertising model. Advertisers may elect not to use our services if they
believe that viewers are not receptive to our network or that our network does not provide
sufficient value as an effective advertising medium. Likewise, if viewers find some element of our
network, such as the audio feature of monitors, to be disruptive or intrusive, mass transportation
companies may decide not to install our digital displays, and advertisers may view our network as a
less attractive advertising medium compared to other alternatives. In these events, advertisers may
reduce their spending on our network. If a substantial number of advertisers lose interest in
advertising on our network for these or other reasons, we will be unable to generate sufficient
revenues and cash flows to operate our business, and our financial condition and results of
operations would be materially and adversely affected.
The process of developing a relationship with a local television station or its mobile digital
television operating company, and then installing digital displays on the mass transportation
systems can be time- consuming and requires us to commit a substantial amount of resources, from
which we may be unable to recognize the anticipated benefits.
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Our success depends largely on our ability to establish relationships with local television
stations and mass transportation companies.
Before expanding into a new city, we identify cities that have been or are planning to launch
digital mobile television operations, collect data and analyze the development status, and evaluate
the commercial potential and our estimated revenue. In some cases, we actively approach the
television stations or mobile television operators based on the market research to pursue
cooperation opportunities, while in other cases we are contacted by those operators who have
interest in cooperating with us.
The process of establishing these relationships can be
lengthy because mobile digital television is a relatively new form of media, and we often need to
convince counterparties about the benefits of establishing a mobile digital television network on
mass transportation systems. We may be required to commit substantial resources during this
process, and counterparties may decide not to proceed with deployment. If these counterparties do
not accept mobile digital television network as an effective medium on mass transportation
vehicles, we may not be able to grow our business or our revenues.
Once a mass transportation company agrees to install our mobile digital television displays on
their buses or other vehicles, we must invest substantial time and resources to install digital
television displays before we receive any revenues from such efforts. Such investments typically
include the purchase and the installation of digital television displays, or expenses relating to
the acquisition of interests in the local direct investment entities. We may experience increased
distribution and operations costs during and/or after deployment. We may also experience delays in
revenue generation, if any, due to deployment delays or difficulties in selling advertising time to
new or current advertisers to be aired on these buses and other mass transportation vehicles. We
may be unable to generate sufficient revenues from advertising packages on these buses and other
mass transportation vehicles to offset the related costs.
Defects in the local mobile digital television networks, which we rely on to conduct our
advertising operations, could result in a loss of advertisers and audience and unexpected expenses.
Our advertising operations rely on the combination of the broadcasting network infrastructure
of the local television stations and digital television displays. This combined infrastructure is
complex and must meet stringent quality and reliability requirements. Due to the complexity of this
infrastructure and the impracticability of testing all possible operating scenarios prior to
implementation, certain errors or defects may not be detectable. The existence of errors or defects
in this combined infrastructure may result in loss of, or delay in, acceptance of our advertising
services by advertisers and public viewers. In addition, mass transportation companies could cancel their arrangements with our direct investment
entities or our local operating partners if their respective networks experience sustained
downtime. Any errors or defects in the local mobile digital television networks which we use to
conduct our advertising operations could damage our reputation, result in revenue loss, divert
development resources and increase service and support costs and warranty claims.
When our local mobile digital television advertising networks reach saturation in the cities where
we operate, we may be unable to grow our revenue base or satisfy all of our advertisers needs,
which could hamper our ability to generate higher levels of revenues over time.
Air time allocated to programming and advertising on our mobile digital television network is
generally provided in the agreements with our local operating partners. In cities where demand for
time by advertisers is high, such as Beijing, Shenzhen and Nanjing, our local mobile digital
television networks may reach saturation, meaning we cannot sell additional advertising time
without further increasing the proportion of advertisements to programs. If our local networks
reach saturation in any particular city, we will be forced to request additional advertising time
from our local operating partners or increase our advertising rates to increase our revenues.
However, we cannot assure you that our local operating partners will grant our requests, and
advertisers may be unwilling to accept rate increases or a decrease in the amount of programming,
which in turn may decrease the attentiveness of the audience to their advertisements. If we are
unable to increase the length of advertising time on our network or the rates for advertising time
in saturated cities, we may be unable to generate higher levels of revenues over time.
If we fail to attract advertisers to our network, we would be unable to maintain or increase our
advertising prices, which would negatively affect our ability to grow revenues.
The actual prices we can charge advertisers for time on our mobile digital television network
and supplemental subway advertising platform depend on the size and quality of our networks and the
demand by advertisers for advertising time. Advertisers choose to advertise on our advertising
network in part based on the size of the network and the desirability of the cities where we
operate. If we fail to maintain or increase the number of cities, diversify advertising channels in
our network, or solidify our brand name and reputation as a quality provider of advertising
services, advertisers may be unwilling to purchase time on our network or to pay the advertising
fees we require to remain profitable. Any significant decrease in demand could cause us to lower
the prices we charge for advertising time on our network and could negatively affect our ability to
increase revenues in the future.
13
We generally do not have exclusive or long-term agreements with our advertising clients and we may
lose their engagement if they are not satisfied with our services or for other reasons.
As is customary in the advertising industry in China, we generally do not have exclusive or
long-term agreements with our advertising clients. A majority of our agreements with our
advertising clients have a term of less than a year. As a result, we must rely on high-quality
services, industry reputation, our network size and coverage and favorable pricing to attract and
retain advertising clients. There is no assurance, however, that we will be able to maintain our
relationships with current and/or future clients. In particular, we derive a substantial percentage
of our revenues from a small number of advertising clients. For example, our top ten advertising
clients in the aggregate accounted for 39.7% of our total revenues for the year ended December 31,
2009. These and our other advertising clients may elect to terminate their relationships with us if
they are not satisfied with our services. We have lost client accounts in the past and may lose
client accounts in the future. If a substantial number of our advertising clients choose not to
continue to purchase advertising time from us, we would be unable to generate sufficient revenues
and cash flows to operate our business, and our results of operations and financial condition would
be materially and adversely affected.
We face significant competition, and if we do not compete successfully against new and existing
competitors, we may lose our market share, and our profitability may be adversely affected.
We compete with other mobile digital television advertising companies and other new media
advertising companies in China. We compete for advertising clients primarily on the basis of
network size and coverage, location, price, range of services and brand name. We also face
competition from other mobile digital television advertising network operators for access to the
most desirable cities and mass transportation systems in China. Our major competitors include other
companies that operate out-of-home advertising media networks such as Focus Media Holding Limited,
AirMedia Group Inc., Towona Mobile Digital Co., Ltd. and Bus Online Media Co., Ltd. We also compete
for overall advertising spending with other advertising media, such as television, mass
transportation posters, billboards, newspapers, radio, magazines and the Internet. Some of our
competitors operate digital television advertising networks installed on mass transportation
systems primarily playing prerecorded content saved on compact flash cards or DVDs.
Many smaller mobile digital television companies operate in cities outside of our network
pursuant to exclusive agreements, and we expect to encounter barriers-to-entry as we attempt to
expand our network into these cities. For example, in Shanghai, Shanghai Oriental Pearl Mobile
Television Inc. operates the largest mobile digital television advertising network using
broadcasting technology. As a result, we face barriers-to-entry to expand our network on the bus
platform in Shanghai. In addition, we will face barriers-to-entry as we attempt to expand our
out-of-home advertising network to different media platforms, such as in-building displays or large
outdoor LED displays, because other companies have already signed exclusive placement agreements to
secure the most desirable locations.
Further, we may also face competition from new entrants into the mobile digital television
advertising sector. As is customary in the advertising industry, we generally do not have exclusive
arrangements with our advertising clients and we do not have exclusive arrangements with the local
operating partners in a number of cities in which we operate. Therefore, we cannot assure you that
we will succeed in gaining a greater market share or maintain our market share. In addition, since
December 10, 2005, wholly foreign-owned advertising companies have been allowed to operate in
China, which may expose us to increased competition from international advertising media companies
attracted to opportunities in China.
Increased competition could reduce our operating margins and profitability and result in a
loss of market share. Some of our existing and potential competitors may have competitive
advantages, such as significantly greater financial, marketing or other resources, and others may
successfully mimic and adopt our business model. Moreover, increased competition will provide
advertisers with a wider range of media and advertising service alternatives, which could lead to
lower prices and decreased revenues, gross margins and profits. We cannot assure you that we will
be able to successfully compete against new or existing competitors.
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Several major cities in China have accounted, and will continue to account, for a substantial
majority of our revenues. Our business and financial conditions are particularly subject to general
economic conditions and the relationships with our local operating partners in these cities.
A substantial majority of our revenues are currently generated from our operations in three
major cities in China: Beijing, Guangzhou and Shenzhen. These three cities in the aggregate
accounted for 63.1% and 62.9% of our total advertising service revenues in 2008 and 2009,
respectively. In addition, following the completion of our acquisition of Digital Media Group, we
expect Shanghai to also account for a significant portion of our total advertising service
revenues. We expect to generate a substantial portion of our revenues from these four cities in
the future. If any of these cities experiences an event negatively affecting its mobile digital
television advertising industry, such as a serious economic downturn, a decline in the use of mass
transportation systems, changes in government policy, a natural disaster or changes in advertising
preferences, our mobile digital television network, our supplemental subway advertising platform
and our ability to generate adequate cash flow would be materially and adversely affected. In addition, if we fail to maintain our relationships with the local operating partners in
these cities (i.e., Beijing Beiguang Media Mobile Television Co., Ltd, Beijing Beiguang Metro Media Co.,
Ltd., Shenzhen Mobile Television Co., Ltd., Guangzhou Pearl River Mobile Multimedia Television Co.,
Ltd., Guangzhou Metro Television Co., Ltd., and Shanghai Metro Television Company Limited), our business, financial condition and results of operations would be materially and
adversely affected.
Our quarterly operating results are difficult to predict and may fluctuate significantly from
period to period in the future.
Our quarterly operating results are difficult to predict and may fluctuate significantly from
period to period based on the seasonality of consumer spending and advertising trends in China or
other factors. Factors that are likely to cause our operating results to fluctuate include:
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our ability to maintain and increase sales to existing advertising clients, attract
new advertising clients and satisfy our clients demands; |
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the frequency of our clients advertisements on our network; |
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the price we charge for our advertising time or changes in our pricing strategies
or the pricing strategies of our competitors; |
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effects of strategic alliances, potential acquisitions and other business
combinations, and our ability to successfully and timely integrate them into our
business; |
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technical difficulties, system downtime or interruptions; |
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changes in government regulations in relation to the advertising industry; and |
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economic and geopolitical conditions in China and elsewhere. |
Many of the factors discussed above are beyond our control, making our quarterly results
difficult to predict, which could cause the trading price of our ADSs to decline below investor
expectations. You should not rely on our operating results for prior periods as an indication of
our future results. If our revenues for a particular quarter are lower than expected, we may be
unable to reduce our operating expenses for that quarter by a corresponding amount, which would
harm our operating results for that quarter relative to our operating results from other quarters.
15
Failure to manage our growth could strain our management, operational and other resources, which
could materially and adversely affect our business and prospects.
We have been expanding our operations and plan to continue to expand rapidly in China. To meet
the demand of advertisers for broader network coverage, we must continue to expand our network by
installing more digital television displays on buses and other mass transportation systems and
include additional media platforms, such as personal mobile devices and in-building displays. The
continued growth of our business has resulted in, and will continue to result in, substantial
demand on our management, operational and other resources. In particular, the management of our
growth will require, among other things:
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our ability to attract more clients, increase advertising sales and improve our
sales support activities; |
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increased sales and sales support activities; |
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our ability to develop and improve our existing administrative and operational
systems; |
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information technology system enhancement; |
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stringent cost controls and sufficient working capital; |
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strengthening of financial and management controls; |
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our ability to maintain our existing relationships with our local operating partners
and to develop new relationships with local television stations or local mobile digital
television companies; |
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our ability to secure a reliable supply of digital television displays for our
network, which are manufactured by third-party suppliers according to our
specifications; and |
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hiring and training of new personnel. |
As we continue this effort, we may incur substantial costs and expend substantial resources.
We may not be able to manage our current or future operations effectively and efficiently or
compete effectively in new markets we enter. If we are not able to manage our growth successfully,
our business and prospects would be materially and adversely affected.
We depend substantially on the continuing efforts of our executive officers, and our business and
prospects may be severely disrupted if we lose their services.
Our future success is dependent on the continued services of key members of our management
team. In particular, our future success is dependent upon the continued service of Limin Li, our
co-founder, chairman and chief executive officer and our largest shareholder. We rely on his
experience in our business operations, and in particular, his business vision, management skills
and working relationships with our employees, our other major shareholders, many of our clients and
our local operating partners. We have granted share options and/or restricted shares to executive officers to align the
interest of such officers with ours. However, we
face competition for personnel from other mobile digital
television advertising companies or general advertising companies and other organizations. Such
competition for these individuals could cause us to offer higher compensation and other benefits in
order to attract and retain them, which could materially and adversely affect our financial
condition and results of operations. Furthermore, as we continue to expand our operations and
develop new products, we will need to continue to attract and retain experienced management. We may
be unable to attract or retain the personnel required to achieve our business objectives and
failure to do so could severely disrupt our business and prospects. The process of hiring qualified
personnel is also often lengthy. If our recruitment and retention efforts are unsuccessful in the
future, it may be more difficult for us to execute our business strategy.
We do not maintain key-person insurance for members of our management team. If we lose the
services of any senior management, we may not be able to locate suitable or qualified replacements,
and may incur additional expenses to recruit and train new personnel, which could severely disrupt
our business and prospects. In addition, if any of our executive officers joins a competitor or forms a competing company, our marketing
and sales efforts could be adversely affected and we may lose some of our customers. Although each
of our executive officers has entered into an employment agreement with us that contains
confidentiality and non-competition provisions, disputes may arise between our executive officers
and us and we cannot assure you, in light of uncertainties associated with the PRC legal system,
that any of these provisions could be enforced in accordance with their terms.
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We may not be able to recruit and retain necessary personnel, particularly sales and marketing
personnel, which could have material and adverse effects on our business, financial condition and
results of operations.
Our success depends on our ability to attract and retain senior management, as well as sales,
marketing, engineering and other key personnel. Because of intense competition for these employees,
we may be unable to attract and retain personnel. If we are unable to retain our existing
personnel, or attract, train, integrate or motivate additional qualified personnel, our growth may
be restricted. The loss of any of these key employees could slow our programming, distribution and
sales efforts or harm the perception of advertisers, venue providers and investors. Our senior
executives may have to divert their attention to recruiting replacements for key personnel.
In particular, we depend on our sales and marketing team to sell advertising time. We market
our advertising services directly to advertisers, as well as to advertising agencies. As of
December 31, 2009, we had 368 dedicated sales and marketing personnel and 7 consultants to support
our sales and marketing efforts. We depend on our sales staff to market our services to existing
and potential clients and to cover a large number of clients in a wide variety of industries. We
need to further increase the size of our sales and marketing staff as our business continues to
grow. If we are unable to hire, retain, integrate or motivate our current or new marketing
personnel, our sales and marketing efforts may be materially impaired and our business, financial
condition and results of operations could be materially and adversely affected.
We may be subject to intellectual property infringement claims, which may force us to incur
substantial legal expenses and could potentially result in judgments against us, which may
materially disrupt our business.
We cannot be certain that our advertising content, entertainment content or other aspects of
our business do not or will not infringe upon patents, copyrights or other intellectual property
rights held by third parties. Although we are not aware of any such claims, we may become subject
to legal proceedings and claims from time to time relating to the intellectual property of others
in the ordinary course of our business. If we are found to have violated the intellectual property
rights of others, we may be enjoined from using such intellectual property, and we may incur
licensing fees or be forced to develop alternatives. In addition, we may incur substantial expenses
in defending against these third party infringement claims, regardless of their merit. Successful
infringement or licensing claims against us may result in substantial monetary liabilities, which
may materially and adversely disrupt our business.
If we are unable to adapt to evolving advertising trends and preferences of advertisers and
viewers, we will not be able to compete effectively.
The market for mobile digital television advertising requires us to continuously identify new
advertising trends and the technology needs of advertisers and public viewers, which may require us
to develop new features and enhancements for our network. The majority of our displays use LCD
screens. We currently air programs and advertisements on our network through the television
broadcasting network of our local operating partners or their affiliated television stations. In
the future, subject to relevant PRC laws and regulations, we may use other technologies available
in the market. We may be required to incur development and acquisition costs in order to keep pace
with new technology needs but we may not have the financial resources necessary to fund and
implement future technological innovations or to replace obsolete technology. Furthermore, we may
fail to respond to these changing technology needs in a timely fashion. If we cannot succeed in
developing and introducing new features on a timely and cost-effective basis, advertisers demand
for our advertising time may decrease and we may not be able to compete effectively or attract
advertising clients, which would have a material and adverse effect on our business and prospects.
We may need additional capital and we may not be able to obtain it at acceptable terms, or at all,
which could adversely affect our liquidity and financial position.
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We may need additional cash resources due to changed business conditions, acquisitions or
other future developments. If these sources are insufficient to satisfy our cash requirements, we
may seek to sell additional equity or debt securities or obtain a credit facility. The sale of
convertible debt securities or additional equity securities could result in dilution to our
shareholders. The incurrence of indebtedness would result in increased debt service obligations and
could result in operating and financing covenants that would restrict our operations and liquidity.
Our ability to obtain additional capital on acceptable terms is subject to a variety of
uncertainties, including:
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investors perception of, and demand for, securities of alternative advertising
media companies; |
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conditions of the U.S. and other capital markets in which we may seek to raise
funds; |
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our future results of operations, financial condition and cash flow; |
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PRC governmental regulation of foreign investment in advertising service companies
in China; |
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PRC governmental regulation of the mobile digital television industry; |
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economic, political and other conditions in China; and |
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PRC governmental policies relating to foreign currency borrowings. |
We cannot assure you that financing will be available in amounts or on terms acceptable to us,
if at all. Any failure by us to raise additional funds on terms favorable to us could have a
material adverse effect on our liquidity and financial condition. Without additional capital, we
may not be able to:
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upgrade our mobile digital television advertising network; |
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further develop or enhance our services; |
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acquire necessary technologies or businesses; |
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expand our operations, including the reach of our network; |
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hire, train and retain employees; |
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market our programs, services and products; or |
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respond to competitive pressures or unanticipated capital requirements. |
Acquisition of other companies or assets of other companies is a part of our growth strategy, and
these acquisitions may expose us to significant business and financial risks.
One of our strategies is to pursue acquisition opportunities which are complementary to our
business. However, we cannot assure you that we will be able to identify and secure suitable
acquisition opportunities. Our ability to effectively consummate and integrate effectively any
future acquisitions on terms that are favorable to us may be limited by a number of factors such as
the number of attractive acquisition targets, internal demand on our resources and, to the extent
necessary, our ability to obtain financing on satisfactory terms, if at all, for larger
acquisitions.
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Moreover, if an acquisition candidate is identified, we may fail to enter into an acquisition
or purchase agreement for such acquisition candidate on commercially reasonable terms, or at all.
The negotiation and completion of potential acquisitions, whether or not ultimately consummated, could also
require significant diversion of our time and resources and may potentially disrupt our existing
business. Furthermore, we cannot assure you that we will be able to successfully integrate our
acquisitions into our operations or that the expected synergies from future acquisitions will
actually materialize. For example, in connection with the integration of our acquisition of Digital
Media Group, we may desire to replace the current shareholders of Beijing Eastlong Advertising Co.,
Ltd., or Beijing Eastlong Advertising, the consolidated affiliated entity of Digital Media Group,
with employees of ours. However, the replacement of the current shareholders of Beijing Eastlong
Advertising will require us to obtain the consent of the counterparty to exclusive agency
arrangement for the Shanghai subway, and there can be no assurance that we would be able to obtain
such consent in a timely manner or at all. In addition, acquisitions could result in the incurrence
of additional indebtedness, costs and contingent liabilities. For example, in connection with
several acquisitions of advertising agency businesses completed by us in China in 2008, we are
required to pay additional consideration if the acquired businesses meet specified performance
targets in future years. See Item 5. Operating and Financial Review and Prospects B. Liquidity and Capital Resources
Investing Activities on page 70 for more details regarding the calculation of such additional
consideration based on performance targets. These acquisitions may result in significant future payments by us,
although the long-term future performance of these acquired businesses is not certain. In
addition, among the total consideration of US$160 million for our acquisition of Digital Media Group,
US$60 million will be
paid in cash or shares on the first and second anniversaries of the acquisition.
See Item 5. Operating and Financial Review and Prospects B. Liquidity and Capital Resources Investing Activities on page 70 for more details. Future acquisitions may also expose us to
potential risks, including risks associated with:
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the integration of new operations, services and personnel; |
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unforeseen or hidden liabilities; |
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the diversion of financial or other resources from our existing businesses and
technologies; |
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our inability to generate sufficient revenues to recover costs and expenses of the
acquisitions; and |
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the potential loss of, or harm to, relationships with our employees or customers. |
Any of the above risks could significantly disrupt our ability to manage our business and
materially and adversely affect our business, financial condition and results of operations.
Our failure to protect our intellectual property rights could have a negative impact on our
business.
We believe our brand, trade name and other intellectual property are critical to our success.
The success of our business depends in part upon our continued ability to use our brand, trade
names and trademarks to increase brand awareness and to further develop our brand. The unauthorized
reproduction of our trademarks could diminish the value of our brand and its market acceptance,
competitive advantages or goodwill. In addition, our information and operational systems, which
have not been patented or otherwise registered as our property, are a key component of our
competitive advantage and our growth strategy.
Monitoring and preventing the unauthorized use of our intellectual property is difficult. The
measures we take to protect our brand, trade names, trademarks and other intellectual property
rights may not be adequate to prevent their unauthorized use by third parties. Furthermore,
application of laws governing intellectual property rights in China and abroad is uncertain and
evolving, and could involve substantial risks to us. If we are unable to adequately protect our
brand, trade names, trademarks and other intellectual property rights, we may lose these rights and
our business may suffer materially. Further, unauthorized use of our brand, trade names or
trademarks could cause brand confusion among advertisers and harm our reputation. If our brand
recognition decreases, we may lose advertisers and fail in our expansion strategies, and our
business, results of operations, financial condition and prospects could be materially and
adversely affected.
We rely on computer software and hardware systems in managing our operations, the failure of which
could adversely affect our business, financial condition and results of operations.
We are dependent upon our computer software and hardware systems in supporting our network and
managing and monitoring programs on the network. In addition, we rely on our computer hardware for
the storage, delivery and transmission of the data on our network. Any system failure which
interrupts the input, retrieval and transmission of data or increases the service time could disrupt our normal operation. Any
failure in our computer software or hardware systems could decrease our revenues and harm our
relationships with advertisers and consumers, which in turn could have a material adverse effect on
our business, financial condition and results of operations.
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We have limited insurance coverage for our operations in China.
The insurance industry in China is still at an early stage of development. Insurance companies
in China offer limited insurance products. We have determined that the risks of disruption or
liability from our business, the loss or damage to our property, including our facilities,
equipment and office furniture, the cost of insuring for these risks, and the difficulties
associated with acquiring such insurance on commercially reasonable terms make it impractical for
us to have such insurance. As a result, we do not have any business liability, disruption,
litigation or property insurance coverage for our operations in China except for insurance on some
company owned vehicles. Any uninsured occurrence of loss or damage to property, or litigation or
business disruption may result in the incurrence of substantial costs and the diversion of
resources, which could have an adverse effect on our operating results.
We may become a passive foreign investment company, or PFIC, which could result in adverse U.S. tax
consequences to U.S. investors.
Based on our financial statements, relevant market data and the projected composition of our
income and valuation of our assets, including goodwill, we do not believe that we were a passive
foreign investment company for 2009, and we do not expect to be a PFIC in 2010 or to become one in
the foreseeable future, although there can be no assurance in this regard. If, however, we become
a passive foreign investment company, such characterization could result in adverse U.S. tax
consequences to you if you are a U.S. investor. For example, if we become a PFIC, our U.S.
investors will become subject to increased tax liabilities under U.S. tax laws and regulations and
will become subject to burdensome reporting requirements.
If we are a PFIC for any taxable year during which a U.S. investor holds our ADSs or common
shares, unless the U.S. investor made a mark-to-market election the U.S. investor would be subject
to special tax rules with respect to any excess distribution received and any gain realized from
a sale or other disposition, including a pledge, of ADSs or common shares. Distributions received
in a taxable year that are greater than 125% of the average annual distributions received during
the shorter of the three preceding taxable years or a U.S. investors holding period for the ADSs
or common shares will be treated as excess distributions. Under these special tax rules:
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the excess distribution or gain will be allocated ratably over the U.S.
investors holding period for the ADSs or common shares, |
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the amount allocated to the current taxable year, and any taxable year prior
to the first taxable year in which we were a PFIC, will be treated as ordinary income,
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the amount allocated to each other year will be subject to tax at the highest
tax rate in effect for that year and the interest charge generally applicable to
underpayments of tax will be imposed on the resulting tax attributable to each such
year. |
In addition, non-corporate U.S. investors will not be eligible for reduced rates of taxation
on any dividends received from us in taxable years beginning prior to January 1, 2013, if we are a
PFIC in the taxable year in which such dividends are paid or in the preceding taxable year.
The determination of whether or not we
are a PFIC is made on an annual basis and depends on the composition of our income and assets from
time to time. Specifically, we will be classified as a PFIC for U.S. tax purposes if either: (i)
75% or more of our gross income in a taxable year is passive income, or (ii) the average percentage
of our assets (which include cash) by (determined on a quarterly average) value in a taxable year
which produce or are held for the production of passive income (which includes cash) is at least
50%. The calculation of the value of our assets will be based, in part, on the then prevailing
market value of our ADSs, which is subject to change. We cannot assure you that we will not be a
PFIC for 2010 or any future taxable year. See Item 10. Additional Information E. Taxation Material United States Federal Income Tax
Consequences.
We may be, or may be joined as, a defendant in litigation brought against our clients or our local
operating partners by third parties, governmental or regulatory authorities, consumers or
competitors, which could result in judgments against us and materially disrupt our business.
From time to time, we may be, or may be joined as, a defendant in litigation brought against
our clients or our local operating partners by third parties, governmental or regulatory
authorities, consumers or competitors. These actions could involve claims alleging, among other
things, that:
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advertising claims made with respect to our clients products or services are false,
deceptive or misleading; |
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our clients products are defective or injurious and may be harmful to others;
marketing, communications or advertising materials created for our clients infringe on
the proprietary rights of third parties; or |
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our relationships with our local operating partners violate or interfere with the
contractual relationships or rights of third parties. |
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For example, in February 2008, Xiamen Towona Culture Media Co., Ltd., or Xiamen Towona, filed
a claim against Shanxi Mobile TV Co., Ltd., or Shanxi Mobile TV, in the Taiyuan Intermediate
Peoples Court and VisionChina Media Group Limited , or VisionChina Media Group, was joined as a third party
defendant. In the complaint, Xiamen Towona alleged that Shanxi Mobile TV terminated the exclusive
agency agreement in Taiyuan with Xiamen Towona without justification. Xiamen Towona requested
specific performance of the agreement and monetary damages in the amount of RMB8.0 million. The
trial court issued its judgment in October 26, 2008 rejecting all of the plaintiffs claims. The
plaintiffs did not appeal the case. In addition, in July 2008, Xiamen Towona and Guangzhou Towona
Mobile Digital Advertisement Media Co., Ltd., or Guangzhou Towona, jointly filed a claim against
Guangzhou Third Bus Company and VisionChina Media Group in the Yuexiu District Peoples Court in
Guangzhou. In the complaint, Xiamen Towona and Guangzhou Towona alleged that Guangzhou Third Bus
Company and VisionChina Media Group removed digital television displays installed by Xiamen Towona
and Guangzhou Towona and replaced them with displays bearing our logo. Guangzhou Towona and Xiamen
Towona requested equitable remedies from the court. The trial court issued its judgment on December
19, 2008 rejecting all of the plaintiffs claims. The plaintiffs appealed the case to Guangzhou
Intermediary Peoples Court, which issued a judgment on December 17, 2009, upholding the trial
courts judgment and rejecting all of the plaintiffs claims.
There can be no assurance that we will be successful in defending against any claims in the
future. The damages, costs, expenses and attorneys fees arising from any future claims against us
could have an adverse effect on our business, results of operations, financial condition and
prospects. In addition, our reputation may be negatively affected by these or any future
allegations.
Risks Related to Our Corporate Structure
If the PRC government determines that the agreements establishing the structure for operating our
China business do not comply with applicable PRC laws, rules and regulations, we could be subject
to severe penalties including being prohibited from continuing our operations in the PRC.
The PRC government requires any foreign entities that invest in the advertising services
industry to have at least two years of direct operations in the advertising industry outside of
China. We have not directly operated any advertising business outside of China and therefore, we
currently do not qualify under PRC regulations to directly provide advertising services. In
addition, the March 2006 Notice prohibits foreign investment in any mobile digital television
operating company in China. We are a Cayman Islands corporation and a foreign legal person under
Chinese laws. Accordingly, our subsidiary, China Digital Technology (Shenzhen) Co., Ltd., or CDTC,
which is a wholly-owned foreign enterprise established by us on March 9, 2006 to facilitate
the legal structure of our group companies to comply with the PRC rules and regulations,
is currently ineligible to apply for the required licenses to provide advertising services in
China. Our advertising business is currently provided through our contractual arrangements with our
consolidated affiliated entities in China, which hold the requisite licenses to provide advertising
services in China. One of our consolidated affiliated entities, VisionChina Media Group, is
currently owned by Limin Li and Yanqing Liang. We do not have any equity interest in VisionChina
Media Group but we receive the economic benefits of it through various contractual arrangements.
See Item 7. Major Shareholders and Related Party Transactions B. Related Party Transactions. In
January 2010, we completed our acquisition of Digital Media Group, which operated and continues to
operate, its advertising business through its consolidated affiliated entity in China, Beijing
Eastlong Advertising. Beijing Eastlong Advertising is currently owned by Men Qijun and Wang
Haifeng. Digital Media Group does not have any equity interest in Beijing Eastlong Advertising,
but receives the economic benefits and bear economic risks of it through various contractual
arrangements. Our consolidated affiliated entities and their subsidiaries directly operate our
advertising network, enter into direct investment and exclusive and non-exclusive advertising
agency agreements, and sell advertising time to our clients. We have been and expect to continue to
be dependent on our consolidated affiliated entities and their subsidiaries to operate our
advertising business.
There are substantial uncertainties regarding the interpretation and application of current
and future PRC laws, rules and regulations, including but not limited to the laws, rules and
regulations governing the validity and enforcement of our contractual arrangements with our
consolidated affiliated entities. Although we have been advised by our PRC counsel that the
structure for operating our business in China (including our corporate structure and contractual
arrangements with our consolidated affiliated entities and their shareholders) complies with all
applicable PRC laws, rules and regulations, and does not violate, breach, contravene or otherwise
conflict with any applicable PRC laws, rules or regulations, we cannot assure you that the PRC
regulatory authorities will not take a view that is contrary to the above opinion of our PRC
counsel, and determine that our corporate structure and contractual arrangements violate PRC laws,
rules or regulations. We have been further advised by our PRC counsel that if the PRC government
determines that the agreements that establish the structure for operating our PRC advertising businesses do not comply with applicable restrictions on foreign investment in the
advertising industry or the mobile digital televisions industry, we may be subject to severe
penalties including, among other things, being prohibited from continuing our operations in the
PRC.
21
If we, our consolidated affiliated entities or any of their current or future subsidiaries,
our direct investment entities, or our local operating partners are found to be in violation of any
existing or future PRC laws or regulations, or fail to obtain or maintain any of the required
permits or approvals, the relevant PRC regulatory authorities, including the SAIC and SARFT, would
have broad discretion in dealing with such violations, including:
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revoking the business and operating licenses of such entities; |
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discontinuing or restricting the conduct of any transactions among our consolidated
affiliated entities, our PRC subsidiaries and affiliated entities; |
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imposing fines, confiscating the income of our consolidated affiliated entities or
our income, or imposing other requirements with which we, our consolidated affiliated
entities, our PRC subsidiaries or affiliated entities may not be able to comply; |
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shutting down the network of our consolidated affiliated entities; |
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requiring us or our PRC subsidiary and affiliated entities to restructure our
ownership structure or operations; or |
The imposition of any of these penalties could result in a material and adverse effect on our
ability to conduct our business and our financial condition and results of operations.
We rely on contractual arrangements with our consolidated affiliated entities in China, and their
shareholders, which may not be as effective in providing us with operational control or enabling us
to derive economic benefits as through ownership of controlling equity interest.
We have in the past relied, and will continue in the future to rely, on contractual
arrangements with VisionChina Media Group, one of our consolidated affiliated entities in China,
and its shareholders to operate our advertising business. In January 2010, we completed our acquisition of Digital Media Group, which
operated, and will continue to operate, its advertising business through contractual arrangements
with Beijing Eastlong Advertising and its shareholders.
These contractual arrangements may not be as effective as ownership of controlling equity
interest would be in providing us with control over, or enabling us to derive economic benefits
from the operations of, our consolidated affiliated entities and their subsidiaries. If we had
direct ownership of our consolidated affiliated entities and their subsidiaries, we would be able
to exercise our rights as a shareholder to (i) effect changes in the board of directors of those
entities, which in turn could effect changes, subject to any applicable fiduciary obligations, at
the management level, and (ii) derive economic benefits from the operations of our consolidated
affiliated entities and their subsidiaries by causing our consolidated affiliated entities and
their subsidiaries to declare and pay dividends. However, under the current contractual
arrangements, as a legal matter, if our consolidated affiliated entities and their subsidiaries or
any of their respective shareholders fails to perform their, his or her respective obligations
under these contractual arrangements, we may have to incur substantial costs and resources to
enforce such arrangements, and rely on legal remedies under PRC law, including seeking specific
performance or injunctive relief, and claiming damages, which we cannot assure you will be
effective. For example, if shareholders of VisionChina Media Group were to refuse to transfer their
equity interests in VisionChina Media Group to us or our designated persons when we exercise the
purchase option pursuant to these contractual arrangements, we may have to take legal action to
compel them to fulfill their contractual obligations.
We expect to continue to depend upon our contractual arrangements with our consolidated
affiliated entities and their subsidiaries and their shareholders to operate our advertising
business in China due to the PRC regulatory restrictions on foreign investments in our industry. If
(i) the applicable PRC authorities invalidate these contractual arrangements for violation of PRC
laws, rules and regulations, (ii) our consolidated affiliated entities or their subsidiaries
terminate these contractual arrangements or (iii) our consolidated affiliated entities or their
subsidiaries fail to perform their obligations under these contractual arrangements, we would not
be able to continue our business operations in China or to derive economic benefits from operations
of our consolidated affiliated entities or their subsidiaries, and the value of your ADSs would
substantially decrease. Further, if we fail to renew these contractual arrangements upon their
expiration, we would not be able to continue our business operations unless the then current PRC
law allows us to directly operate advertising businesses in China.
In addition, through an Equity Pledge Agreement, our consolidated entities encumber all or part of their assets with
liens. See Item 7. Major Shareholders and Related Party Transactions B. Related Party Transactions
Agreements that Provide Us Effective Control over VisionChina Media Group and its Subsidiaries. If our consolidated affiliated entities or all or part of their assets become
subject to liens or rights of third-party creditors, we may be unable to continue some or all of
our business activities, which could severely disrupt our business and cause grave damaging effects
on our financial condition and results of operations. If one of our consolidated affiliated
entities undergoes a voluntary or involuntary liquidation proceeding, its shareholders or unrelated
third-party creditors may claim rights to some or all of the assets of that consolidated affiliated
entity, thereby hindering our ability to operate our business or derive economic benefits from that
consolidated affiliated entity and its subsidiaries, which could materially and adversely affect
our business, our ability to generate revenues and the market price of your ADSs.
The contractual arrangements with our consolidated affiliated entities are governed by PRC law
and provide for the resolution of disputes through either arbitration or litigation in the PRC.
Accordingly, these contracts would be interpreted in accordance with PRC law and any disputes would
be resolved in accordance with PRC legal procedures. The legal environment in the PRC is not as
developed as in some other jurisdictions, such as the United States. As a result, uncertainties in
the PRC legal system could limit our ability to enforce these contractual arrangements. In the
event we are unable to enforce these contractual arrangements, we may not be able to exercise
effective control over our operating entities, and we may be precluded from operating our business,
which would have a material adverse effect on our financial condition and results of operations.
If VisionChina Media Group fails to honor its obligations under the
contractual arrangements with us, our advertising business may be severely and adversely
affected.
Chinese laws and regulations prohibit or restrict foreign ownership of media content and
advertising business. To comply with these foreign ownership restrictions, we invest in ventures
with local television stations and provide advertising services on our out-of-home digital
television networks in the PRC through VisionChina Media Group, a PRC legal entity, which was
established by our co-founders. The paid-in capital of VisionChina Media Group was funded by us or
CDTC through a loan extended to the co-founders. CDTC has entered into certain exclusive agreements
with VisionChina Media Group, which obligate us to absorb a majority of the risk of loss from
VisionChina Media Groups activities and entitle us to receive a majority of its residual returns.
In addition, we, through CDTC, has entered into certain agreements with the two individuals,
including a loan agreement for the paid-in capital of VisionChina Media Group described above, an
option agreement to acquire the shareholding in VisionChina Media Group when permitted by the PRC
laws, and a share pledge agreement for the shares in VisionChina Media Group held by the
co-founders. As provided by these agreements, all raised disputes are subject to PRC court
proceedings. The major difference between binding arbitration and court proceedings in the PRC is that PRC
arbitration judgments are binding, enforceable and may not be appealed, whereas the PRC court
judgments are subject to appeal to the Peoples Court of Appeal. See Item 7. Major Shareholders
and Related Party Transactions B. Related Party Transactions for a detailed description of these
contractual arrangements.
Based on these contractual arrangements, we believe that VisionChina Media Group should be
considered as a variable interest entity, or VIE, under Financial Accounting Standards Board,
Accounting Standards Codification 810, Consolidation, because the equity investors in VisionChina
Media Group do not have the characteristics of a controlling financial interest and we, through
CDTC, are the primary beneficiary of VisionChina Media Group. We and CDTC hold all the variable
interests of VisionChina Media Group, and we and CDTC have been determined to be the most closely
associated with VisionChina Media Group. Therefore, we are the primary beneficiary of VisionChina
Media Group. Accordingly, we consolidate VisionChina Media Group.
These contractual arrangements enable us to exercise effective control over VisionChina Media
Group and its subsidiaries and receive substantially all of the economic benefits of VisionChina
Media Group and its subsidiaries for a remaining period of 23 years. If VisionChina Media Group
fails to comply with its obligation under the foregoing contractual arrangement, such
non-performance may have adverse effect on our financial condition and results of operations.
22
The shareholders of our consolidated affiliated entities may have potential conflicts of interest
with us.
The beneficial owners of VisionChina Media Group are also the founders of our company and own
a substantial portion of our common shares. Conflicts of interests between their dual roles as
beneficial owners of both VisionChina Media Group and our company may arise. The shareholders of
Beijing Eastlong Advertising were the founders of Digital Media Group. Their interests may diverge
from those of our company, particularly after the completion of our acquisition of Digital Media
Group in January 2010.
We cannot assure you that when conflicts of interest arise, any or all of these individuals
will act in the best interests of our company or that any conflict of interest will be resolved in
our favor. In addition, these individuals may breach or cause the applicable consolidated
affiliated entity to breach or refuse to renew the existing contractual arrangements, which will
have a material adverse effect on our ability to effectively control that consolidated entity and
receive economic benefits from it. If we cannot resolve any conflicts of interest or disputes
between us and the shareholders of our consolidated affiliated entities, we would have to rely on
legal proceedings, the outcome of which is uncertain and which could be disruptive to our business.
Our contractual arrangements with our consolidated affiliated entities may be subject to scrutiny
by the PRC tax authorities and may result in a finding that we owe additional taxes or are
ineligible for tax exemption, or both, which could substantially increase our taxes owed and
thereby reduce our net income.
Under applicable PRC laws, rules and regulations, arrangements and transactions among related
parties may be subject to audits or challenges by the PRC tax authorities. Neither we nor our PRC
counsel are able to determine whether any of these transactions will be regarded by the PRC tax
authorities as arms length transactions because, based on our knowledge, the PRC tax authorities
have not issued a ruling or interpretation in respect of the type of transaction structure similar
to ours. The relevant tax authorities may determine that our contractual relationships with our
consolidated affiliate entities and their shareholders were not entered into on an arms length
basis. If any of the transactions between one of our wholly owned subsidiaries in China and a
consolidated affiliated entity, and its shareholders, including our contractual relationships with that consolidated
affiliated entity, are determined not to have been entered into on an arms length basis, or are
found to result in an impermissible reduction in taxes under PRC law, the PRC tax authorities may
adjust the profits and losses of that consolidated affiliated entity and assess more taxes on it.
In addition, the PRC tax authorities may impose late payment surcharges and other penalties to that
consolidated affiliated entity for underpaid taxes. Our net income may be materially and adversely
affected if the tax liabilities of a consolidated affiliated entity increase or if it is found to
be subject to late payment surcharges or other penalties.
23
We rely principally on dividends and other distributions on equity paid by our wholly-owned
operating subsidiaries to fund any cash and financing requirements we may have, and any limitation
on the ability of our operating subsidiary to pay dividends to us could have a material adverse
effect on our ability to conduct our business.
We are a holding company, and we rely principally on dividends and other distributions on
equity paid by our PRC operating subsidiaries for our cash requirements, including the funds
necessary to service any debt we may incur. If one of our PRC operating subsidiaries incurs debt on
its own behalf in the future, the instruments governing the debt may restrict its ability to pay
dividends or make other distributions to us. In addition, the PRC tax authorities may require us to
adjust our taxable income under the contractual arrangements our PRC operating subsidiaries
currently have in place with our consolidated affiliated entities in a manner that would materially
and adversely affect our PRC operating subsidiaries ability to pay dividends and other
distributions to us. Furthermore, relevant PRC laws, rules and regulations permit payments of
dividends by our PRC operating subsidiaries only out of their retained earnings, if any, determined
in accordance with PRC accounting standards and regulations. Under PRC laws, rules and regulations,
our PRC operating subsidiaries are also required to set aside a portion of their net income each
year to fund specific reserve funds. These reserves are not distributable as cash dividends.
In addition, the statutory general reserve fund requires annual appropriations of 10% of
after-tax income to be set aside prior to payment of dividends until the cumulative fund reaches
50% of the registered capital.
The statutory general reserve fund is used to make up for losses and not allowed to be
distributed as cash dividends. To the extent it has not complied with these requirements, a company
shall be ordered to the statutory reserve fund and may be fined a maximum to RMB 200,000
penalty and shareholders must return the distributed profits to company.
As a result of these PRC laws, rules and regulations, our PRC
operating subsidiaries are restricted in their ability to transfer a portion of their net assets to
us whether in the form of dividends, loans or advances. Any limitation on the ability of our PRC
operating subsidiaries to pay dividends to us could materially and adversely limit our ability to
grow, make investments or acquisitions that could be beneficial to our businesses, pay dividends or
otherwise fund and conduct our business.
Historically, our PRC operating subsidiary, CDTC, did not pay dividends to us from its
accumulated profits. Our management believes that it will be able to pay dividends to us from CDTC,
but our management does not have any present plan for receiving dividends from our PRC operating
subsidiaries including CDTC. Currently we plan to use all our retained profits in our PRC
subsidiaries and consolidated affiliates, including CDTC, to reinvest for our future business
expansion.
Risks Related to Doing Business in China
Adverse changes in political and economic policies of the PRC government could have a material
adverse effect on the overall economic growth of China, which could reduce the demand for our
products and materially and adversely affect our competitive position.
All of our business operations are conducted in China and all of our sales are made in China.
Accordingly, our business, financial condition, results of operations and prospects are affected
significantly by economic, political and legal developments in China. The Chinese economy differs
from the economies of most developed countries in many respects, including:
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the degree of government involvement; |
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the level of development; |
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the growth rate; |
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the control of foreign exchange; |
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access to financing; and |
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the allocation of resources. |
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While the Chinese economy has grown significantly in the past 30 years, the growth has been
uneven, both geographically and among various sectors of the economy. The PRC government has
implemented various measures to encourage economic growth and guide the allocation of resources.
Some of these measures benefit the overall Chinese economy, but may also have a negative effect on
us. For example, our financial condition and results of operations may be materially and adversely
affected by government control over capital investments or changes in tax regulations that are
applicable to us.
The Chinese economy has been transitioning from a planned economy to a more market-oriented
economy. Although the PRC government has in recent years implemented measures emphasizing the
utilization of market forces for economic reform, the reduction of state ownership of productive
assets and the establishment of sound corporate governance in business enterprises, a substantial
portion of the productive assets in China is still owned by the PRC government. The continued
control of these assets and other aspects of the national economy by the PRC government could
materially and adversely affect our business. The PRC government also exercises significant control
over Chinas economic growth by allocating resources, controlling payment of foreign
currency-denominated obligations, setting monetary policy and providing preferential treatment to
particular industries or companies. These actions, as well as future actions and policies of the
PRC government, could materially affect our liquidity and access to capital and our ability to
operate our business. Substantially all of our assets are located in China and substantially all of
our revenues are derived from our operations in China. Accordingly, our business, financial
condition, results of operations and prospects are subject, to a significant extent, to economic,
political and legal developments in China.
Uncertainties with respect to the PRC legal system could limit the protections available to you and
us.
The PRC legal system is a civil law system based on written statutes. Unlike in common law
systems, prior court decisions may be cited for reference but have limited precedential value.
Since 1979, PRC legislation and regulations have significantly enhanced the protections afforded to
various forms of foreign investments in China. We conduct all of our business through our
subsidiary and consolidated affiliated entities established in China. However, since the PRC legal
system continues to rapidly evolve, the interpretations of many laws, regulations and rules are not
always uniform and enforcement of these laws, regulations and rules involves uncertainties, which
may limit legal protections available to us. For example, we may have to resort to administrative
and court proceedings to enforce the legal protection that we enjoy either by law or contract.
However, since PRC administrative and court authorities have significant discretion in interpreting
and implementing statutory and contractual terms, it may be more difficult than in more developed
legal systems to evaluate the outcome of administrative and court proceedings and the level of
legal protection we enjoy. These uncertainties may impede our ability to enforce the contracts we
have entered into with our business partners, customers and suppliers. In addition, such
uncertainties, including the inability to enforce our contracts, could materially and adversely
affect our business and operations. Furthermore, intellectual property rights and confidentiality
protections in China may not be as effective as in the United States or other countries.
Accordingly, we cannot predict the effect of future developments in the PRC legal system, including
the promulgation of new laws, changes to existing laws or the interpretation or enforcement
thereof, or the preemption of local regulations by national laws. These uncertainties could limit
the legal protections available to us and other foreign investors, including you. In addition, any
litigation in China may be protracted and result in substantial costs and diversion of our
resources and management attention.
You may experience difficulties effecting service of legal process, enforcing foreign judgments or
bringing original actions in China based on United States or other foreign laws, against us, our
management or the experts named in this annual report.
We conduct substantially all of our operations in China and substantially all of our assets
are located in China. In addition, all of our senior executive officers,
such as our Chief Executive Officer, Limin Li, our Chief Development Officer, Haijun Liu, and our Senior Financial Controller, Yan Wang, reside within China. As a
result, it may not be possible to effect service of process within the United States or elsewhere
outside China upon us or our senior executive officers, including with respect to matters arising
under U.S. federal securities laws or applicable state securities laws. Moreover, our PRC counsel
has advised us that the PRC does not have treaties with the United States or many other countries
providing for the reciprocal recognition and enforcement of legal judgments.
25
PRC regulation of loans and direct investment by offshore holding companies to PRC entities may
delay or prevent us from making loans or additional capital contributions to our PRC operating
subsidiary and affiliates.
As an offshore holding company of our PRC operating subsidiary and consolidated affiliated
entities, we may make loans to our PRC subsidiary and consolidated affiliated entities, or we may
make additional capital contributions to our PRC subsidiary. Any loans to our PRC subsidiary or
consolidated affiliated entities in China are subject to PRC regulations and approvals. For
example:
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loans by us to foreign invested enterprises, such as our PRC subsidiaries cannot
exceed statutory limits and must be registered with the PRC State Administration of
Foreign Exchange, or SAFE, or its local counterparts; and |
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loans by us to domestic PRC enterprises, such as our consolidated affiliated
entities, must be approved by the relevant government authorities and must also be
registered with SAFE or its local counterparts. |
We may also decide to finance our PRC operating subsidiaries by means of capital
contributions. These capital contributions must be approved by the PRC Ministry of Commerce, or the
MOC, or its local counterpart. Because our PRC operating subsidiaries and their subsidiaries are
domestic PRC enterprises, we are not likely to finance their activities by means of capital
contributions due to regulatory issues relating to foreign investment in domestic PRC enterprises,
as well as licensing and other regulatory issues. We cannot assure you that we can obtain these
government registrations or approvals on a timely basis, if at all, with respect to future loans or
capital contributions by us to our consolidated affiliated entities or any of their subsidiaries.
If we fail to receive such registrations or approvals, our ability to capitalize our PRC operations
would be negatively affected, which would adversely and materially affect our liquidity and our
ability to expand our business.
PRC regulations relating to offshore investment activities by PRC residents may increase our
administrative burden and restrict our overseas and cross-border investment activity. If our
shareholders who are PRC residents fail to make any required applications and filings under such
regulations, we may be unable to distribute profits and may become subject to liability under PRC
laws.
The SAFE issued a public notice in October 2005, or the SAFE notice, requiring PRC residents
to register with the local SAFE branch before establishing or controlling any company outside of
China for the purpose of capital financing with assets or equities of PRC companies, referred to in
the notice as an offshore special purpose company. PRC residents who are shareholders of offshore
special purpose companies established before November 1, 2005 were required to register with the
local SAFE branch before March 31, 2006. The SAFE notice further requires amendment to the
registration in the event of any significant changes with respect to the offshore special purpose
company, including an initial public offering by such company. Limin Li and Yanqing Liang, our
shareholders who are PRC citizens, have registered with the local SAFE branch as required by the
SAFE notice and are required to amend their registration to reflect recent developments of our
company and our PRC subsidiary. The failure of our beneficial owners who are PRC citizens to amend
their SAFE registrations in a timely fashion pursuant to the SAFE notice or the failure of future
beneficial owners of our company who are PRC residents to comply with the registration procedures
set forth in the SAFE notice may subject such beneficial owners to fines and legal sanctions and
may also limit our ability to contribute additional capital to our PRC subsidiary, limit the
ability of our PRC subsidiary to distribute dividends to our company or otherwise materially and
adversely affect our business.
On December 25, 2006, the Peoples Bank of China promulgated the Measure for the
Administration of Individual Foreign Exchange, and on January 5, 2007, the SAFE promulgated the
implementation rules on those measures. Pursuant to these regulations, PRC citizens who have been
granted shares or share options by an overseas listed company according to its employee share
option or share incentive plan are required, through a qualified PRC agent which may be the PRC
subsidiary of such overseas listed company, to register with the SAFE and complete certain other
procedures related to the share option or share incentive plan. Foreign exchange income received
from the sale of shares or dividends distributed by the overseas listed company must be remitted
into a foreign currency account of such PRC citizen or be exchanged into Renminbi. Our PRC citizen
employees who have been granted share options, or PRC optionees, are subject to these regulations. If we or our PRC optionees
fail to comply with these regulations, we or our PRC optionees may be subject to fines and legal or
administrative sanctions.
26
If any of our PRC affiliates becomes the subject of a bankruptcy or liquidation proceeding, we may
lose the ability to use and enjoy those assets, which could reduce the size of our advertising
network and materially and adversely affect our business, ability to generate revenues and the
market price of our ADSs.
To comply with PRC laws, rules and regulations relating to foreign ownership restrictions in
the advertising business, we currently conduct our operations in China through contractual
arrangements with our consolidated affiliated entities and their shareholders. As part of these
arrangements, VisionChina Media Group and its subsidiaries hold some of the assets that are
important to the operation of our business. If any of these entities becomes bankrupt and all or
part of their assets become subject to liens or rights of third-party creditors, we may be unable
to continue some or all of our business activities, which could materially and adversely affect our
business, financial condition and results of operations. If any of our consolidated affiliated
entities or any of their subsidiaries undergoes a voluntary or involuntary liquidation proceeding,
their shareholders or unrelated third-party creditors may claim rights to some or all of their
assets, thereby hindering our ability to operate our business, which could materially and adversely
affect our business, our ability to generate revenues and the market price of our ADSs.
Governmental control of currency conversion may affect the value of your investment.
The PRC government imposes controls on the convertibility of the Renminbi into foreign
currencies and, in certain cases, the remittance of currency out of China. We receive all our
revenues in Renminbi. Under our current corporate structure, our income is primarily derived from
dividend payments from our PRC subsidiary. Shortages in the availability of foreign currency may
restrict the ability of our PRC subsidiary to remit sufficient foreign currency to pay dividends or
other payments to us, or otherwise satisfy their foreign currency-denominated obligations. Under
existing PRC foreign exchange regulations, payments of current account items, including profit
distributions and expenditures from trade related transactions, can be made in foreign currencies
without prior approval from SAFE by complying with certain procedural requirements. In addition,
foreign currencies received under current account items can be retained or sold to financial
institutions engaged in the foreign exchange settlement or sales business by complying with
relevant regulations. However, approval from SAFE or its local branch is required where Renminbi is
to be converted into foreign currency and remitted out of China to pay capital expenses such as the
repayment of loans denominated in foreign currencies. Similarly, approval from SAFE or its local
branch is required if foreign currencies received in respect of capital account items is to be
retained or sold to financial institutions engaged in the foreign exchange settlement or sales
business. The PRC government may also, at its discretion, restrict access in the future to foreign
currencies for current account transactions. If the foreign exchange control system prevents us
from obtaining sufficient foreign currency to satisfy our currency demands, we may not be able to
pay dividends in foreign currencies to our shareholders, including holders of our ADSs.
Fluctuations in exchange rates of the Renminbi could materially affect our reported results of
operations.
The exchange rates between the Renminbi and the U.S. dollar, Euro and other foreign currencies
are affected by, among other things, changes in Chinas political and economic conditions. On July
21, 2005, the PRC government changed its decade-old policy of pegging the value of the Renminbi to
the U.S. dollar. Under the new policy, the Renminbi is permitted to fluctuate within a narrow and
managed band against a basket of foreign currencies. This change in policy has resulted in
significant appreciation of the Renminbi against the U.S. dollar. There remains significant
international pressure on the PRC government to adopt a more flexible currency policy, which could
result in a further and more significant appreciation of the Renminbi against the U.S. dollar.
As we rely on dividends paid to us by our operating subsidiary, any significant revaluation of
the Renminbi may have a material adverse effect on our cash flows, revenues, earnings and financial
position, and the value of, and dividends payable on, our ADSs in foreign currency terms. To the
extent that we need to convert U.S. dollars into Renminbi for our operations, appreciation of the
Renminbi against the U.S. dollar would have an adverse effect on the Renminbi amount we would
receive from the conversion. Conversely, if we decide to convert our Renminbi into U.S. dollars for
the purpose of making payments for dividends on our common shares or ADSs or for other business
purposes, appreciation of the U.S. dollar against the Renminbi would have a negative effect on the
U.S. dollar amount available to us. In addition, appreciation or depreciation in the value of the
Renminbi relative to the U.S. dollar would have a positive or negative effect on our financial results reported in U.S.
dollar terms without giving effect to any underlying change in our business, financial condition
and results of operations.
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Very limited hedging options are available in China to reduce exposure to exchange rate
fluctuations. To date, we have not entered into any hedging transactions to reduce our exposure to
foreign currency exchange risk. While we may decide to enter into hedging transactions in the
future, the availability and effectiveness of these hedges may be limited and we may not be able to
successfully hedge our exposure at all. In addition, our currency exchange losses may be aggravated
by PRC exchange control regulations that restrict our ability to convert Renminbi into foreign
currency.
The discontinuation of any preferential tax treatment currently available to us and the increase in
the PRC enterprise income tax could decrease our net income and materially and adversely affect our
financial condition and results of operations.
Our operating subsidiary and consolidated affiliates are incorporated in the PRC and are
governed by applicable PRC income tax laws and regulations. The PRC Enterprise Income Tax Law, or
the EIT Law, became effective on January 1, 2008. The implementation regulations under the EIT Law
issued by the PRC State Council became effective January 1, 2008. Under the EIT Law and the
implementation regulations, the PRC has adopted a uniform tax rate of 25% for all enterprises
(including foreign-invested enterprises) and revoked the previous tax exemption, reduction and
preferential treatments applicable to foreign-invested enterprises. However, there is a transition
period for enterprises, whether foreign-invested or domestic, that received preferential tax
treatments granted by relevant tax authorities prior to January 1, 2008. Enterprises that were
subject to an enterprise income tax rate lower than 25% prior to January 1, 2008 may continue to
enjoy the lower rate and gradually transition to the new tax rate within five years after the
effective date of the EIT Law.
Before the EIT Law and its implementation regulations became effective on January 1, 2008, as
an enterprise located in the Shenzhen Special Economic Zones in the PRC, CDTC and VisionChina Media
Group were allowed to enjoy a preferential tax rate of 15%. In addition, VisionChina Media Group
has been recognized as a culture enterprise and thus its headquarters are entitled to full
exemption from enterprise income tax from 2005 to 2008. The PRC Ministry of Finance and State
Administration of Taxation issued a circular Notice on preferential tax treatment of enterprise
income tax in February 2008. The circular stipulates that a newly established culture enterprise
could enjoy the corporate income tax exemption treatment which has been approved by the authorities
until the end of its tax holiday. VisionChina Media Group obtained the tax exemption approval
certificate for year 2008. VisionChina Media Groups sales branches located in various cities in
the PRC are subject to enterprise income tax at standard rate. While this preferential tax
exemption for VisionChina Media Group ended after 2008, in November 2008, VisionChina Media Group
was recognized as new and high technology enterprises strongly supported by the state and is
entitled to a preferential tax rate of 15% for 2009 and 2010. One of our operating subsidiaries in
Luzhou in Sichuan province was recognized as a local government encouraged company and is
entitled to exemption from the enterprise income tax for 2008 and 2009. However, we cannot assure
you that our PRC operating subsidiary and consolidated affiliated entities will continue to receive
preferential tax treatments in the future. Any further legislative changes to the tax laws and or
regulations could in future years by applicable authorities and become subject our PRC operating
subsidiary and consolidated affiliated entities to increased income tax rates. Any increase in the
enterprise income tax rate applicable to our operating subsidiary and consolidated affiliated
entities in the PRC would decrease our net income and materially and adversely affect our financial
condition and results of operations.
Dividends we receive from our subsidiary located in the PRC may be subject to PRC withholding tax.
The EIT Law provides that a maximum income tax rate of 20% may be applicable to dividends
payable to non-PRC investors that are non-resident enterprises, to the extent such dividends are
derived from sources within the PRC, and the State Council of the PRC has reduced such rate to 10%
through the implementation regulations. We are a Cayman Islands holding company and substantially
all of our income may be derived from dividends we receive from our subsidiary located in the PRC.
Thus, dividends paid to us by our subsidiary in China may be subject to the 10% income tax if we
are considered as a non-resident enterprise under the EIT Law. If we are required under the EIT
Law to pay income tax for any dividends we receive from our subsidiary in China, it will materially
and adversely affect the amount of dividends, if any, we may pay to our shareholders and ADS
holders.
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In addition, we conduct advertising business through our contractual arrangements with our
consolidated affiliated entities, which are currently owned by individuals. We must pay taxes at
the individual income tax of 20% on behalf of our employees who hold interests in a consolidated
affiliated entity when that consolidated affiliated entity distributes dividends in the future.
Furthermore, there may be potential business taxes arising from the contractual arrangements with
our consolidated affiliated entities. If we cannot retrieve the undistributed earnings in our
consolidated affiliated entities in a tax free manner, we may need to pay additional taxes upon
distribution of such undistributed earnings.
We may be deemed a PRC resident enterprise under the EIT Law and be subject to PRC taxation on our
worldwide income.
The EIT Law also provides that enterprises established outside of China whose de facto
management bodies are located in China are considered resident enterprises and are generally
subject to the uniform 25% enterprise income tax rate as to their worldwide income. Under the
implementation regulations for the EIT Law issued by the PRC State Council, de facto management
body is defined as a body that has material and overall management and control over the
manufacturing and business operations, personnel and human resources, finances and treasury, and
acquisition and disposition of properties and other assets of an enterprise. We believe that the de facto management body of the Company is located outside of the PRC, and,
accordingly, we believe the risk of being recognized as a PRC resident enterprise under the EIT Law
is low. If we are treated as a resident enterprise for PRC tax purposes, we will be subject to PRC
tax on our worldwide income at the 25% uniform tax rate, which could have an impact on our
effective tax rate and an adverse effect on our net income and results of operations.
Dividends payable by us to our foreign investors and gain on the sale of our ADSs or common shares
may become subject to taxes under PRC tax laws.
Under the EIT Law and implementation regulations issued by the State Council, PRC income tax
at the rate of 10% is applicable to dividends payable to investors that are non-resident
enterprises which do not have an establishment or place of business in the PRC, or which have such
establishment or place of business but the relevant income is not effectively connected with the
establishment or place of business, to the extent that such dividends have their sources within the
PRC. Similarly, any gain realized on the transfer of ADSs or shares by such investors is also
subject to 10% PRC income tax if such gain is regarded as income derived from sources within the
PRC. If we are considered a PRC resident enterprise, it is unclear whether dividends we pay with
respect to our common shares or ADSs, or the gain you may realize from the transfer of our common
shares or ADSs, would be treated as income derived from sources within the PRC and be subject to
PRC tax. If we are required under the EIT Law to withhold PRC income tax on dividends payable to
our non-PRC investors that are non-resident enterprises, or if you are required to pay PRC income
tax on the transfer of our common shares or ADSs, the value of your investment in common shares or
ADSs may be materially and adversely affected.
We face risks related to natural disasters, health epidemics, terrorist attacks or other events in
China that may affect usage of public transportation, which could have a material adverse effect on
our business and results of operations.
Our business could be materially and adversely affected by natural disasters, the outbreak of
health epidemics, terrorist attacks or other events in China. For example, in early 2008, parts of
China suffered a wave of strong snow storms that severely impacted public transportation systems.
In May 2008, Sichuan Province in China suffered a strong earthquake measuring approximately 8.0 on
the Richter scale that caused widespread damage and casualties. The May 2008 Sichuan earthquake may
have a material adverse effect on the general economic conditions in the areas affected by the
earthquake. We cannot assure you that the May 2008 Sichuan earthquake will not have a significant
impact on the overall economic conditions in the PRC. In addition, in the last decade, the PRC has
suffered health epidemics related to the outbreak of avian influenza and severe acute respiratory
syndrome. In July 2008, explosive devices were detonated on several buses in Kunming, Yunnan
Province of China, which resulted in disruptions to public transportation systems in Kunming and
casualties. Any future natural disasters, health epidemics, terrorist attacks or other events in
the PRC could cause a reduction in usage of, or other severe disruptions to, public transportation systems and could have a material adverse effect on our
business and results of operations.
29
The implementation of the PRC Labor Contract Law may significantly increase our operating expenses
and adversely affect our business and results of operations.
On June 29, 2007, the PRC National Peoples Congress enacted the Labor Contract Law, which
became effective on January 1, 2008. The Labor Contract Law formalizes workers rights concerning
overtime hours, pensions, layoffs, employment contracts and the role of trade unions and provides
for specific standards and procedure for the termination of an employment contract. In addition,
the Labor Contract Law requires the payment of a statutory severance pay upon the termination of an
employment contract in most cases, including in cases of the expiration of a fixed-term employment
contract. As there has been little guidance as to how the Labor Contract Law will be interpreted
and enforced by the relevant PRC authorities, there remains substantial uncertainty as to its
potential impact on our business and results of operations. The implementation of the Labor
Contract Law may significantly increase our operating expenses, in particular our personnel
expenses, as the continued success of our business depends significantly on our ability to attract
and retain qualified personnel. In the event that we decide to terminate some of our employees or
otherwise change our employment or labor practices, the Labor Contract Law may also limit our
ability to effect these changes in a manner that we believe to be cost-effective or desirable,
which could adversely affect our business and results of operations.
Risks Related to Our Common Shares and ADSs
The market price for our ADSs may be volatile which could result in a loss to you.
The market price for our ADSs is likely to be highly volatile and subject to wide fluctuations
in response to a number of factors, including:
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actual or anticipated fluctuations in our quarterly operating results; |
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regulatory developments in China affecting us, our industry, our corporate structure
or our advertisers; |
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announcements of competitive developments; |
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announcements regarding litigation or administrative proceedings involving us; |
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changes in financial estimates by securities research analysts; |
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changes in the economic performance or market valuations of companies with
comparable businesses; |
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addition or departure of our executive officers; |
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release or expiry of lock-up or other transfer restrictions on our outstanding
common shares or ADSs; and |
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sales or perceived sales of additional common shares or ADSs. |
In addition, the securities market has from time to time experienced significant price and
volume fluctuations that are not related to the operating performance of particular companies.
These market fluctuations may also have a material adverse effect on the market price of our ADSs.
Substantial future sales or perceived sales of our ADSs in the public market could cause the price
of our ADSs to decline.
Sales of our ADSs or common shares in the public market, or the perception that these sales
could occur, could cause the market price of our ADSs to decline. As of December 31, 2009, we had
72,140,684 common shares outstanding, including 64,005,166 common shares represented by 64,005,166 ADSs. Sales of our
common shares or ADSs held by our significant shareholders or any other shareholder, or the
availability of these securities for future sale, may have a negative effect on the market price of
our ADSs.
30
In addition, certain of our shareholders or their transferees and assignees have the right to
cause us to register the sale of their shares under the Securities Act upon the occurrence of
certain circumstances. Registration of these shares under the Securities Act would result in these
shares becoming freely tradable without restriction under the Securities Act immediately upon the
effectiveness of the registration. Sales of these registered shares in the public market could
cause the price of our ADSs to decline.
Anti-takeover provisions in our charter documents may discourage acquisition of our company by a
third party, which could limit our shareholders opportunity to sell their shares at a premium.
Our amended and restated memorandum and articles of association include provisions that could
limit the ability of others to acquire control of our company, modify our structure or cause us to
engage in change-of-control transactions. These provisions could have the effect of depriving our
shareholders of an opportunity to sell their shares at a premium over prevailing market prices by
discouraging third parties from seeking to obtain control of our company in a tender offer or
similar transaction.
For example, our board of directors has the authority, without further action by our
shareholders, to issue preferred shares in one or more series and to fix the powers and rights of
these shares, including dividend rights, conversion rights, voting rights, terms of redemption and
liquidation preferences, any or all of which may be greater than the rights associated with our
common shares. Preferred shares could thus be issued quickly with terms calculated to delay or
prevent a change in control or make removal of management more difficult. In addition, if our board
of directors issues preferred shares, the market price of our common shares may fall and the voting
and other rights of the holders of our common shares may be adversely affected.
We are a Cayman Islands company and, because judicial precedent regarding the rights of
shareholders is more limited under Cayman Islands law than under U.S. law, you may have less
protection of your shareholder rights than you would under U.S. law.
Our corporate affairs are governed by our amended and restated memorandum and articles of
association, the Cayman Islands Companies Law (as amended) and the common law of the Cayman
Islands. The rights of shareholders to take action against the directors, actions by minority
shareholders and the fiduciary responsibilities of our directors to us under Cayman Islands law are
to a large extent governed by the common law of the Cayman Islands. The common law of the Cayman
Islands is derived in part from comparatively limited judicial precedent in the Cayman Islands as
well as from English common law, which has persuasive, but not binding, authority on a court in the
Cayman Islands. The rights of our shareholders and the fiduciary responsibilities of our directors
under Cayman Islands law are not as clearly established as they would be under statutes or judicial
precedent in some jurisdictions in the United States. In particular, the Cayman Islands has a less
developed body of securities laws than the United States. In addition, some U.S. states, such as
Delaware, have more fully developed and judicially interpreted bodies of corporate law than the
Cayman Islands. Furthermore, Cayman Islands companies may not have standing to initiate a
shareholder derivative action in a federal court of the United States. As a result, public
shareholders may have more difficulties in protecting their interests in the face of actions taken
by management, members of the board of directors or controlling shareholders than they would as
shareholders of a Delaware company.
Judgments obtained against us by our shareholders may not be enforceable.
We are a Cayman Islands company and substantially all of our assets are located outside of the
United States. All of our current operations are conducted in the PRC. In addition, most of our
directors and officers are nationals and residents of countries other than the United States. A
substantial portion of the assets of these persons are located outside the United States. As a
result, it may be difficult for you to effect service of process within the United States upon
these persons. It may also be difficult for you to enforce in U.S. courts judgments obtained in
U.S. courts based on the civil liability provisions of the U.S. federal securities laws against us
or our officers and directors, most of whom are not residents of the United States and a
substantial portion of whose assets are located outside of the United States. Moreover, there is uncertainty as to whether the courts of the
Cayman Islands or the PRC would recognize or enforce judgments of United States courts against us
or our directors and officers predicated upon the civil liability provisions of the securities laws
of the United States or any state in the United States. In addition, there is uncertainty as to
whether Cayman Islands or PRC courts would be competent to hear original actions brought in the
Cayman Islands or the PRC against us or such persons predicated upon the securities laws of the
United States or any state in the United States.
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Holders of ADSs have fewer rights than shareholders and must act through the depositary to exercise
their rights.
Holders of our ADSs do not have the same rights as our shareholders and may only exercise
voting rights with respect to the underlying common shares in accordance with the provisions of the
deposit agreement. Under our third amended and restated memorandum and articles of association, the
minimum notice period required to convene a general meeting is seven days. When a general meeting
is convened, you may not receive sufficient notice of a shareholders meeting to permit you to
withdraw your common shares and allow you to cast your vote with respect to any specific matter. In
addition, the depositary and its agents may not be able to send voting instructions to you or carry
out your voting instructions in a timely manner. We will make all reasonable efforts to cause the
depositary to extend voting rights to you in a timely manner, but we cannot assure you that you
will receive the voting materials in time to ensure that you can instruct the depositary to vote
your ADSs. Furthermore, the depositary and its agents will not be responsible for any failure to
carry out any instructions to vote, for the manner in which any vote is cast or for the effect of
any such vote. As a result, you may not be able to exercise your right to vote and you may lack
recourse if your ADSs are not voted as you requested. In addition, in your capacity as an ADS
holder, you will not be able to call a shareholders meeting.
The depositary for our ADSs will give us a discretionary proxy to vote our common shares underlying
your ADSs if you do not vote at shareholders meetings, except in limited circumstances, which
could adversely affect your interests.
Under the deposit agreement for the ADSs, the depositary will give us a discretionary proxy to
vote our common shares underlying your ADSs at shareholders meetings if you do not vote, unless:
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we have failed to provide the depositary with our notice of meeting and related
voting materials in a timely fashion; |
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we have instructed the depositary that we do not wish a discretionary proxy to be
given; |
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we have informed the depositary that there is substantial opposition to a matter to
be voted on at the meeting; or |
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a matter to be voted on at the meeting would have a material adverse impact on
shareholders. |
The effect of this discretionary proxy is that you cannot prevent our common shares underlying
your ADSs from being voted, absent the situations described above, and it may make it more
difficult for shareholders to influence the management of our company. Holders of our common shares
are not subject to this discretionary proxy.
You may be subject to limitations on transfers of your ADSs.
Your ADSs are transferable on the books of the depositary. However, the depositary may close
its transfer books at any time, or from time to time, when it deems appropriate in connection with
the performance of its duties. In addition, the depositary may refuse to deliver, transfer or
register transfers of ADSs generally when our books or the books of the depositary are closed, or
at any time if we or the depositary deems it advisable to do so because of any requirement of law
or of any government or governmental body, or under any provision of the deposit agreement or for
any other reason.
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Your right to participate in any future rights offerings may be limited, which may cause dilution
to your holdings and you may not receive cash dividends if it is impractical to make them available
to you.
We may from time to time distribute rights to our shareholders, including rights to acquire
our securities. However, we cannot make rights available to you in the United States unless we
register the rights and the securities to which they relate under the Securities Act or an
exemption from the registration requirements is available. Also, under the deposit agreement, the
depositary will not make rights available to you unless either the rights and any related
securities are both registered under the Securities Act, or the distribution of them to ADS holders
is exempted from registration under the Securities Act. We are under no obligation to file a
registration statement with respect to any such rights or securities or to endeavor to cause such a
registration statement to be declared effective. Moreover, we may not be able to establish an
exemption from registration under the Securities Act. Accordingly, you may be unable to participate
in our rights offerings and may experience dilution in your holdings.
In addition, the depositary of our ADSs has agreed to pay to you the cash dividends or other
distributions it or the custodian receives on our common shares or other deposited securities after
deducting its fees and expenses. You will receive these distributions in proportion to the number
of common shares your ADSs represent. However, the depositary may, at its discretion, decide that
it is impractical to make a distribution available to any holders of ADSs. For example, the
depositary may determine that it is not practicable to distribute certain property through the
mail, or that the value of certain distributions may be less than the cost of mailing them. In
these cases, the depositary may decide not to distribute such property and you will not receive
such distribution.
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Item 4. |
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Information on the Company |
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A. |
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History and Development of the Company |
We commenced operations through China Digital Mobile Television Co., Ltd., a limited liability
company established in China on April 8, 2005. In September 2008, we changed the name of China
Digital Mobile Television Co., Ltd. to VisionChina Media Group. VisionChina Media Group is
currently 70% owned by Limin Li, our co-founder, chairman of our board of directors and our chief
executive officer, and 30% owned by Yanqing Liang, our co-founder. Both Limin Li and Yanqing Liang
are PRC citizens. VisionChina Media Group and its subsidiaries hold the licenses and permits
necessary to operate our businesses and provide our advertising services in China.
Our
company was incorporated as CDMTV Holding Company in the Cayman Islands
on January 27, 2006 on behalf of our co-founders, Limin Li and Yanqing Liang. On August 13, 2007, we changed
our companys name to VisionChina Media Inc. On March 9, 2006, we established our wholly owned
subsidiary, CDTC, in Shenzhen.
Due to PRC regulatory restrictions on foreign investments in the advertising and mobile
digital television industries, we operate our advertising business in China through VisionChina
Media Group. While we do not have any equity interests in the operating entities in China, our
relationships with VisionChina Media Group and its shareholders are governed by a
series of contractual arrangements that allow us to effectively control and derive economic
benefits from VisionChina Media Group
(for the contractual arrangements See Item 7. Major Shareholders and Related Party
TransactionsB. Related Party TransactionsAgreements that Provide Us Effective Control over
VisionChina Media Group and its Subsidiaries on pages [84] and [85]). Accordingly, we treat VisionChina Media Group as a variable
interest entity and have consolidated its historical financial results in our financial statements
in accordance with U.S. GAAP.
All our revenues are derived from VisionChina Media Group for the year ended December 31,
2009.
On December 6, 2007, our ADSs were listed on the Nasdaq Global Market.
We purchased all of the outstanding equity interests of six British Virgin Islands companies
from sellers of them pursuant to share subscription agreements entered into in April, May and
August 2008 in connection with our acquisition of certain advertising agency businesses in China.
In October 2009, we entered into an agreement and plan of merger (which was amended and restated in
November 2009) to acquire Digital Media Group through a merger of a subsidiary with and into
Digital Media Group, which was completed in January 2010.
On December 30, 2010, we entered into a Securities Purchase Agreement with Focus Media Holding
Limited, or Focus Media, Front Lead Investments Limited, or Front Lead, and JJ Media Investment
Holding Limited, or JJ Media. Pursuant to this agreement, Focus Media, Front Lead and JJ Media
purchased 15,331,305, 1,022,087 and 1,022,087, respectively, of newly issued common shares of the
Company at a price of US$3.979 per share, equivalent to US$3.979 per ADS. After the consummation of
the transaction, Front Lead and Focus Media owns approximately 17.2% and 15%, respectively, of our
outstanding common shares. In connection with this transaction, we also entered into a Shareholders
Agreement and a Registration Rights Agreement with Front Lead and Focus Media dated Media dated
January 13, 2011.
Our principal executive offices are located at 1/F Block No. 7, Champs Elysees, Nongyuan Road,
Futian District, Shenzhen 518040, Peoples Republic of China. Our telephone number at this address
is (86 755) 8293-2222 and our fax number is (86 755) 8298-1111. Our registered office in the Cayman
Islands is located at the offices of Maples Corporate Services Limited, P.O Box 309, Ugland House,
South Church Street, George Town, Grand Cayman KY1-1104, Cayman Islands, British West Indies. Our
principal website is www.visionchina.cn. The information contained on our website is not a part of
this annual report.
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We had capital expenditures of US$1.6 million for the year ended December 31, 2009, US$5.0
million for the year ended December 31, 2008 and US$4.3 million for the year ended December 31,
2007. Our capital expenditures were made primarily to acquire digital television displays and
related equipment for our network and to upgrade our accounting software and systems.
The digital television displays we acquired have an estimated useful life of 5
years. As of December 31, 2009, the estimated average remaining useful life of our digital
television displays is approximately 3 years. We believe our existing digital television displays,
with a carrying value of US$10.6 million as of December 31, 2009, will not become technologically
obsolete before the end of their respective useful lives. Therefore we do not expect significant
capital expenditure for replacement of digital television displays in 2010 and 2011.
Our capital
expenditures are primarily funded by the proceeds from issuance of our common shares and Series B convertible redeemable preferred
shares for the year ended December 31, 2007, and net cash provided by our operating activities for
the years ended December 31, 2008 and 2009. We expect our capital expenditures in 2010 to
primarily consist of purchases of digital television displays and related equipment as we continue
to expand our mobile digital television advertising network. We believe that we will be able to
fund these upgrades and equipment purchases through our internal cash, and do not anticipate that
these obligations will have a material impact on our liquidity needs.
In connection with the required compliance with the National Standard, we may need to incur
additional capital expenditures in order to upgrade the mobile digital television receivers, and we
believe that these capital expenditures would not materially affect our liquidity.
Overview
We believe that we operate the largest out-of-home advertising network using real-time mobile
digital television broadcasts to deliver content and advertising on mass transportation systems in
China based on the number of displays. Due to PRC regulatory restrictions on foreign investments
in the advertising and mobile digital television industries, we operate our advertising business in
China through our consolidated affiliated entities. Our relationships with our consolidated
affiliated entities and their shareholders are governed by a series of contractual arrangements
that allow us to effectively control, and derive substantially all of the economic benefits from,
our consolidated affiliated entities. Our mobile digital television advertising network, or our
network, which delivers real-time content provided by the local television stations in addition to
advertising, differentiates us from other out-of-home advertising networks in China, and we believe
this facilitates our future expansion into different advertising media platforms. Our advertising
network consists of digital television displays located on buses and in subway trains that receive
mobile digital television broadcasts of real-time content and advertising. We also operate various
closed-circuit advertising digital displays in certain subway platforms and subway trains in
Guangzhou and subway platforms in Shenzhen. In addition, as a result of our acquisition of Digital
Media Group, we operate closed-circuit digital television displays in subway platforms and subway
trains in Beijing (Lines 1, 2 and 4), Chongqing, and Tianjin and airport trains in Hong Kong.
We consider these closed-circuit digital display networks to be part of our supplemental subway advertising platform, as these displays do not
currently receive mobile digital television broadcasts. As of December 31, 2009, our network and
supplemental subway advertising platform covered 19 cities in China and consisted of approximately
89,299 digital displays. In addition, we have expanded the geographic reach of our advertising
operations by purchasing advertising time on existing mobile digital television networks in cities
outside of our network to place advertisements pursuant to the demands of our clients
We believe that our network delivers substantial value to our advertising clients by reaching
the targeted mobile audience in an enclosed environment conducive to capturing their attention. We
also believe that the combination of our advertising content along with real-time news and stock
quotes, weather and traffic updates, sports highlights and other programs displayed on our network
makes the audience more receptive to the advertisements on our network and ultimately helps make
the advertisements more effective for our advertising clients. In addition, the real-time
broadcasting capability of our network allows us to utilize our network to disseminate
public-interest messages and programs that promote the general welfare of society and other urgent
messages during emergency situations such as typhoons, earthquakes or other events that concern
public safety.
We currently place our digital displays primarily on buses and subways. As many urban areas in
China face increasing traffic congestion, many people endure a long average daily commute time.
Therefore, we believe that our network offers our clients the advantages of both traditional
television and out-of-home advertising media by capturing the attention of the audience in
out-of-home locations with real-time broadcasts of programs.
34
We principally derive revenues by selling advertising time during breaks in between the
programs on our network and supplemental subway advertising platform. In addition, we have the
ability to sell soft advertising time embedded in the programs. We charge our advertising clients
by the broadcasting time of the advertisement in each city where they want to place their
advertisement. We divide our cities into different price categories based on a variety of factors,
including the number of installed displays, population, demand and consumer purchasing power. We
also vary pricing based on the time of day when an advertisement is broadcasted, with higher prices
typically during the morning and evening commute periods.
As of December 31, 2009, we use the following business models for our advertising operations
in China:
|
|
|
Exclusive agency model refers to our arrangements, with terms typically ranging
up to 12 years, in 16 cities: Beijing, Changchun, Chengdu, Dalian,
Guangzhou, Hangzhou, Nanjing, Ningbo, Shenyang, Shenzhen, Suzhou, Taiyuan, Tianjin,
Wuhan, Wuxi and Xiamen. We have entered into an exclusive advertising agency agreement
with the partner local mobile digital television company or local subway authority in each city that typically
gives us the exclusive right to sell all of the advertising time on our local
partners mobile digital television network located on buses or subways. Our exclusive agency arrangements in Suzhou, Wuxi and Xiamen that gives us
the exclusive right to sell a portion of the advertising time that does not include sales of advertising time to local advertisers
within each respective city. For our supplemental subway advertising operations, we have also entered into an
exclusive advertising agency agreement with the partner subway authority or partner
local mobile digital television company in subway trains and platforms in Guangzhou
and subway platforms in Shenzhen. |
|
|
|
|
Direct investment model refers to our arrangements in 11 cities where we and a
partner local television station, or its affiliate, have formed a jointly-owned mobile
digital television operating company in which we hold a minority equity interest. We
refer to these jointly-owned mobile digital television operating companies as direct
investment entities in this annual report. This model gives us the opportunity to work
in conjunction with the local television station to provide programs to meet the
demands of our audience and advertising clients. In some of our direct investment
cities, such as Changchun, Chengdu, Dalian, Ningbo, Shenzhen, Suzhou, Wuhan and Wuxi,
we have also entered into an exclusive agency agreement with our direct investment
entity to secure the exclusive right to sell advertising time on that network. For the
cities where we have not entered into an exclusive agency agreement, we purchase
advertising time at commercial prices from our direct investment entities and resell
them to our advertising clients. |
|
|
|
|
Outreach agency model refers to our operations in other cities where we purchase
advertising time from an existing mobile digital television company or other
advertising service providers outside of our network, either directly or through an
agent at the request of our clients. This model works in conjunction with our network
arrangements to extend the reach of our advertising operations to cover substantially
all of the major advertising markets in China. |
Through December 31, 2009, 1,130 advertisers had purchased advertising time on our mobile
digital television advertising network or our supplemental subway advertising platform either
directly or through an advertising agent. As a result, our network has attracted a large number of
blue-chip companies to purchase advertising time either directly or through an agent. Our top three
brand name advertisers, Unilever, Yum! Brands and Luciano Soprani in aggregate accounted for
approximately 17.7% of our advertising service revenues for the year ended December 31, 2009. We
believe the appeal and effectiveness of our advertising network is largely evidenced by the number
of advertisers who place repeated and multiple advertising campaigns on our network. We generated total revenues of
US$120.7 million in 2009, US$104.1 million in 2008 and US$29.4 million in 2007. We achieved a net
income attributable to our common shareholders of US$26.6 million in 2009, US$46.8 million in 2008
and US$9.4 million in 2007.
35
Our Advertising Network
The following map and tables illustrate the geographic scope of our mobile digital television
advertising network and supplemental subway advertising platform as of March 31, 2010:
|
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|
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|
|
|
Our Mobile Digital Television Advertising Network Cities |
|
Exclusive Agency |
|
Direct Investment |
Beijing (bus)
|
|
|
ü |
|
|
|
Beijing (five subway lines)(1)
|
|
|
ü |
|
|
|
Changchun
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|
|
ü |
|
|
ü |
Changsha(2)
|
|
|
ü |
(2010) |
|
|
Changzhou(3)
|
|
|
ü |
(2010) |
|
ü |
Chengdu
|
|
|
ü |
|
|
ü |
Dalian
|
|
|
ü |
|
|
ü |
36
|
|
|
|
|
|
|
|
|
Our Mobile Digital Television Advertising Network Cities |
|
Exclusive Agency |
|
Direct Investment |
Guangzhou
|
|
|
ü |
|
|
|
Hangzhou(4)
|
|
|
ü |
|
|
|
Harbin |
|
|
|
ü |
Nanjing
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|
|
ü |
|
|
|
Nanjing (subway)(5)
|
|
|
ü |
(2010) |
|
|
Ningbo
|
|
|
ü |
|
|
ü |
Shanghai (subway)(6)
|
|
|
ü |
(2010) |
|
|
Shanghai (bus stop shelters)(7)
|
|
|
ü |
(2010) |
|
|
Shenyang
|
|
|
ü |
|
|
|
Shenzhen
|
|
|
ü |
|
|
ü |
Shenzhen (subway trains)(8)
|
|
|
ü |
(2010) |
|
|
Suzhou(9)
|
|
|
ü |
|
|
ü |
Taiyuan
|
|
|
ü |
|
|
|
Tianjin(10)
|
|
|
ü |
|
|
|
Wuhan
|
|
|
ü |
|
|
ü |
Wuxi(11)
|
|
|
ü |
|
|
ü |
Xiamen(12)
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|
|
ü |
|
|
|
Zhengzhou
|
|
|
|
ü |
|
|
|
(1) |
|
Our exclusive agency arrangement in the Beijing subway gives us the exclusive right to sell
all the advertising time on the mobile digital television network in five lines of the Beijing
subway (Line 5, Line 10, Line 13, the Batong Line and the Olympic Line). |
|
(2) |
|
Our exclusive agency agreement in Changsha gives us the exclusive rights to sell all the
advertising time on Changshas mobile digital television network from January 1, 2010 to
December 31, 2012. |
|
(3) |
|
Our exclusive agency arrangement in Changzhou gives us the exclusive right to sell a portion
of the advertising time on Changzhous mobile digital television network to advertisers
excluding those from Changzhou from January 1, 2010 to March 18, 2017. |
|
(4) |
|
Our exclusive agency arrangement in Hangzhou gives us the exclusive right to sell all of the
advertising time on public buses and ferries covered by the mobile digital television network
operated by Hangzhou New & Mobile Media from January 1, 2010 to December 31, 2012. |
|
(5) |
|
Our exclusive agency arrangement in the Nanjing subway, which was acquired through our
acquisition of Digital Media Group, gives us the exclusive right to sell all of the
advertising time on the mobile digital television network in Line 1 of the Nanjing subway from
January 2, 2010 to August 31, 2013. |
|
(6) |
|
Our exclusive agency arrangement in the Shanghai subway, which was acquired through our
acquisition of Digital Media Group, gives us the exclusive right to sell all of the
advertising time on the mobile digital television network in 13 lines of the Shanghai subway
from January 2, 2010 to December 31, 2013. |
|
(7) |
|
Our exclusive agency arrangement in Shanghai for bus stop shelters, which was acquired
through our acquisition of Digital Media Group, gives us the exclusive right to sell all of
the advertising time on the mobile digital television network in certain bus stop shelters in
Shanghai from January 2, 2010 to June 30, 2011. |
|
(8) |
|
Our exclusive agency arrangement in Shenzhen for subway trains, which was acquired through
our acquisition of Digital Media Group, gives us the exclusive right to sell all of the
advertising time on the mobile digital television network in Line 1 of the Shenzhen subway
from January 2, 2010 to December 30, 2012. |
|
(9) |
|
Our exclusive agency arrangement in Suzhou gives us the exclusive right to sell a portion of
the advertising time on Suzhous mobile digital television network, excluding sales of
advertising time to advertisers from Suzhou. |
|
(10) |
|
Our exclusive agency arrangement in Tianjin that gives us the exclusive right to sell all
the advertising time on Tianjins mobile digital television network from January 1, 2010 to
December 31, 2011. |
|
(11) |
|
Our exclusive agency arrangement in Wuxi gives us the exclusive right to sell a portion of
the advertising time on Wuxis mobile digital television network to advertisers, excluding
sales of advertising time to advertisers from Wuxi. |
|
(12) |
|
Our exclusive agency agreement in Xiamen gives us the exclusive rights to sell a portion of
the advertising time on the mobile television network operated by Xiamen TV Digital Co., Ltd.,
from October 1, 2009 to December 31, 2012, to non-Xiamen based national advertisers. |
37
|
|
|
|
|
|
|
|
|
Our Supplemental Subway Advertising Platform Cities |
|
Exclusive Agency |
|
Direct Investment |
Beijing (three subway lines)(1)
|
|
|
ü |
(2010) |
|
|
Chongqing(2)
|
|
|
|
|
ü |
(2010) |
Guangzhou(3)
|
|
|
ü |
|
|
|
Hong Kong(4)
|
|
|
ü |
(2010) |
|
|
Shenzhen (subway stations)(5)
|
|
|
ü |
|
|
|
Tianjin(6)
|
|
|
ü |
(2010) |
|
|
|
|
|
(1) |
|
Our exclusive agency arrangements in Beijing, which were acquired through our acquisition of
Digital Media Group, give us the exclusive right to sell all of the advertising time on the
television platform in subway Lines 1, 2 and 4 of the Beijing subway. |
|
(2) |
|
Our arrangement in Chongqing, which were acquired through our acquisition of Digital Media
Group, gives our direct investment entity the exclusive right to sell all of the advertising
time on the television platform in Chongqings Light Rail Line 2. |
|
(3) |
|
Our exclusive agency arrangements gives us the exclusive right with respect to the digital
displays on the subway platforms and in the subway trains in Guangzhou and seven large digital
displays located in the subway stations in Guangzhou. |
|
(4) |
|
Our exclusive agency arrangements in Hong Kong, which were acquired through our acquisition
of Digital Media Group, give us the exclusive right to sell all of the advertising time on the
television platform in the Kowloon Through Train and Airport Express Line in Hong Kong. |
|
(5) |
|
Our exclusive agency arrangement in Shenzhen gives us the exclusive right to sell all the
advertising time on the television platform in subway station in Line 1 of the Shenzhen
subway. |
|
(6) |
|
Our exclusive agency arrangements in Tianjin, which was acquired through our acquisition of
Digital Media Group, give us the exclusive right to sell all of the advertising time on the
television platform in Line 1 and in Light Rail Jinbin Line of the Tianjin subway. |
Our mobile digital television advertising network and supplemental subway advertising platform
include digital displays installed in the mass transportation systems in 19 cities around China as
of December 31, 2009. Those digital television displays in our mobile digital television
advertising network receive real-time programs broadcast by the local television stations on the
mobile digital television frequencies. The digital television screens in our supplemental subway
advertising platform receive programming transmitted through closed circuit digital networks. As of
December 31, 2009, our mobile digital television advertising network and supplemental subway
advertising platform consisted of approximately 89,299 digital displays.
We believe that our network bridges the gap between traditional television advertising and
other out-of-home advertising networks by combining the advantages of each medium. Our advertising
network captures the attention of the audience with real-time broadcasts of programs and also
reaches the audience in out-of-home locations such as the mass transportation system. Similar to
traditional television broadcasts, our network delivers real-time news and stock quotes, sports and
other entertainment programs for some of the total broadcast time and advertising content during
short breaks between the programs. On the other hand, our network has similarities to other
out-of-home advertising networks because it reaches the audience in public venues. We believe that
our network delivers substantial value to our advertising clients by reaching the targeted audience
while they remain in an enclosed environment.
Our Advertising Network
We conduct our mobile digital television advertising operations under the following three
contractual arrangements:
Our Exclusive Agency Cities
As of December 31, 2009, we operated our advertising network under the exclusive agency model
in 16 cities: Beijing, Changchun, Chengdu, Dalian, Guangzhou, Hangzhou, Nanjing, Ningbo, Shenyang,
Shenzhen, Suzhou, Taiyuan, Tianjin, Wuhan, Wuxi and Xiamen. Our advertising network operating under
the exclusive agency model in Beijing, Guangzhou and Shenzhen in aggregate accounted for
approximately 62.9% of our advertising service revenues for the year ended December 31, 2009. We
entered into exclusive agency agreements with Beijing Beiguang Media Mobile Television Co., Ltd. on
October 13, 2006 for a term of 10 years and Shenzhen Mobile Television Co., Ltd. on December 31,
2006 for a term of four years and seven months and with Guangzhou Zhujiang Mobile Multimedia
Information Co., Ltd. on July 26, 2007 for a term of eight years. Our advertising network under the
exclusive agency model expanded to Changsha and Changzhou in 2010.
38
Under our exclusive agency model, we enter into an exclusive agreement with the local mobile
digital television company to become the exclusive advertising agent for that network. Our
exclusive agency arrangements in Suzhou, Wuxi and Xiamen, which give us the exclusive right to sell
a portion of the advertising time on the mobile digital television network in that city, does not
include sales of advertising time to local advertisers from Suzhou, Wuxi and Xiamen, respectively.
In addition, our exclusive agency arrangement in Changzhou gives us the exclusive right to sell a
portion of the advertising time to advertisers excluding local advertisers from Changzhou,
effective from January 1, 2010.
For our supplemental subway advertising operations, we have also entered into exclusive agency
agreements with the operators of the digital display networks on Shenzhens subway platforms and Guangzhous subway trains and platforms to place our advertisements on these digital displays,
which do not receive mobile digital television broadcasts.
In October 2009, we entered into an agreement (which was amended and restated in November
2009) to acquire Digital Media Group, which was completed in January 2010. The total consideration
of US$160 million (or US$167 million based on the fair value of the total consideration on the
acquisition date in January 2010) is payable in three installments over two years in cash and shares.
In November 2009, we deposited the initial installment of US$40 million and 8,476,013 of our common
shares, registered under Vision Best Limited, our consolidated subsidiary, into an escrow account,
a portion of which was released at the completion of the acquisition and the remaining portion to
be released in accordance with the terms of the agreement and plan relating to our acquisition of
Digital Media Group. The second installment of US$30 million will be paid on the first
anniversaries of the acquisition, of which US$20 million will be in the form of cash and US$10
million in the form of cash or shares at the option of the eligible former shareholders of Digital Media Group.
The number of our ordinary shares representing the share consideration of the second installment shall be
equal to the quotient of US$10 million divided by the higher of (A) 125% of US$7.0788 (the Initial
Conversion Price) and (B) 80% of the average of the closing sales prices for one ADS as reported
on the Nasdaq Global Market for the twenty consecutive trading days ending (and including) two day
prior to the payment date. The third installment of US$30 million will be paid on the second
anniversaries of the acquisition, of which US$20 million will be in the form of cash and US$10
million in cash or shares at the option of the eligible former shareholders of Digital Media Group. The number of our ordinary shares representing the
share consideration of the third installment shall be equal to the quotient of US$10 million divided by the higher
of (A) 150% of the Initial Conversion Price and (B) 80% of the average of the closing sales prices
for one ADS as reported on the Nasdaq Global Market
for the twenty consecutive trading days ending (and including) one day prior to the payment
date.
Through this
acquisition, we obtained exclusive agency rights for the mobile digital television networks in the
subway trains and subway platforms in Nanjing and Shanghai and subway trains in Shenzhen. In
addition, as part of the acquisition, we have obtained the exclusive agency rights for the digital
display network in certain subway trains and platforms in Beijing (lines 1, 2, and 4), Tianjin,
Chongqing and Hong Kong.
According to the typical terms of the exclusive agency agreements:
|
|
|
We typically pay a pre-determined network rental fee each year to the mobile
digital television company to receive the exclusive right to place advertisements on
that network. |
|
|
|
|
We have the responsibility to invest in new digital television displays and install
the displays in new buses in Beijing, Guangzhou, Nanjing, Shenyang and Shenzhen. For
our supplemental subway advertising operations acquired in connection with our
acquisition of Digital Media Group, we have the responsibility to install displays in
the subway trains and platforms in Beijing (Line 4), Hong Kong, Chongqing, and
Tianjin, and we have the responsibility to upgrade displays in Nanjing. Most of these
displays were installed and upgraded prior to our acquisition of Digital Media Group. |
|
|
|
|
We either sign a contract directly with the local mass transportation companies or
our local partner or our direct investment entity signs the contract with the local
mass transportation companies and assigns the right to install displays to us. |
|
|
|
|
Our local partner or our direct investment entity makes the investment to construct
the broadcasting infrastructure and arranges the necessary approvals from the
regulatory agencies. |
|
|
|
|
Our local partner or our direct investment entity remains responsible for all of
the broadcast programs besides advertising content, but we may provide suggestions for
the purpose of maximizing the effectiveness of our advertising network. |
Our exclusive agency agreement for mobile digital television displays in buses in Beijing
provides that, upon the establishment of a joint venture company between the parties, the exclusive
agency agreement will terminate and we will transfer the operations to the joint venture company.
We have the obligation to install digital television displays in new buses pursuant to the terms of
the agreement between our local operating partner and the local bus company in Beijing. If we fail
to perform this obligation or if we fail to timely pay the network rental fee, our local operating
partner in Beijing may unilaterally terminate the exclusive agency agreement. Upon termination of
this agreement, our local operating partner will have title to all of the digital television
displays that we installed.
39
We have the obligation to install digital television displays in new buses pursuant to the
terms of the agreement between our local operating partner and the local bus company in Shenzhen.
In addition, we have the obligation to maintain all of the digital television displays installed in
our local operating partners mobile digital television network. The cost of installing and
maintaining the digital television displays is deductible from the network rental fee. The price we
charge for the advertising time on our local operating partners mobile digital television network
in Shenzhen must comply with our local operating partners pricing system. The local operating
partner may request the court in Shenzhen to terminate this contract as a remedy if the parties
fail to reach an agreement with respect to any disputes that arise regarding our pricing.
In cities where the local television station has already created a mobile digital television
company, we generally prefer to expand our cooperation by engaging in an exclusive agency
agreement. These exclusive arrangements allow our local partner to focus on the programming and
operation of the mobile digital television network without worrying about generating revenues from advertisement. Our
pre-determined payment of the network rental fee each year guarantees our local partner a steady
stream of income, and our ability to place advertisements from local, national and international
clients may enhance the prestige and public perception of the local mobile digital television
network. In addition, we generally work closely with our local partner in the operation of the
network and may provide suggestions regarding the programming on the network.
Our Direct Investment Cities
As of December 31, 2009, we operated our mobile digital television advertising network under
the direct investment model in 11 cities: Changchun, Changzhou, Chengdu, Dalian, Harbin, Ningbo,
Shenzhen, Suzhou, Wuhan, Wuxi and Zhengzhou. In addition to the primary installations of digital
television displays on buses, we also have displays installed in buildings that receive digital
television broadcasts from our mobile digital television advertising network in Harbin, Wuhan and
Wuxi. Under our direct investment model, we form an operating company together with the local
television station authorized to operate the digital television network in that city. Due to
regulatory considerations, we typically own 49% of the direct investment entity and our partner
owns the other 51%, but in Shenzhen and Wuxi we own 25% and 14%, respectively. Under these direct
investment agreements:
|
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|
We nominate the general managers, for appointment by the boards of directors, of
most of the direct investment entities. |
|
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|
We train the locally recruited sales force. |
|
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|
We purchase the advertising time from our direct investment entity and place
advertisements for broadcasting on the local network. |
|
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|
We sell the assembled digital television displays to the direct investment entity. |
|
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|
|
The local television station obtains the necessary approvals for operating the
mobile digital television station. |
|
|
|
|
The local television station provides the transmission equipment to broadcast the
advertising and program in that city. |
|
|
|
|
The direct investment entity enters into contracts with the local mass
transportation companies to install our digital television displays in the buses and
other suitable locations. |
|
|
|
|
The local television station provides the news, entertainment and other programs
for broadcasting on the direct investment entitys network, and the local television
station ensures that the programs conform to applicable PRC content laws and
regulations. |
40
In cities without mobile digital television operations, we typically attempt to form an
operating company together with the local television station authorized to operate the mobile
digital television network in that city. The direct investment model allows us to secure that
particular city for a long period of time because our contractual arrangements with the local
television stations to form the direct investment entities have durations ranging from ten to 50
years. The direct investment model also allows us to be involved in the process of determining the
mixture of entertainment programs and advertising content broadcast on that network. In addition,
the direct investment model allows us to expand into new media platforms in the future using mobile
digital television broadcasting technology.
We have entered into an exclusive agency agreements with our direct investment entity in
Changchun, Chengdu, Dalian, Ningbo, Shenzhen and Wuhan to control all of the advertising time on
the mobile digital television network operated by such entity in that city. Our exclusive agency
arrangements with our direct investment entities in Changzhou, Suzhou and Wuxi that give us the
exclusive right to sell a portion of the advertising time on Changzhous, Suzhous and Wuxis
mobile digital television network does not include sales of advertising time to advertisers from
Changzhou, Suzhou and Wuxi, respectively. These exclusive agency agreements grant us the exclusive
right to sell the advertising time on the direct investment network typically for a term ranging
from four years to 8 years. Under these arrangements, we realize all of the advertising revenues
and pay a pre-determined network rental fee to the direct investment entity. Under this type of
contract, the direct investment entity effectively transfers the operational risk to us and enjoys
a guaranteed stream of revenues.
In January 2010, we completed our acquisition of Digital Media Group and acquired a direct
investment entity in Chongqing in partnership with the local subway authority to operate digital
screen advertising on subway trains and subway platforms in that city.
Our Outreach Agency Cities
We extend our geographic reach outside of our network by purchasing advertising time on mobile
digital television networks or other media either directly or through an agent in cities outside of
our network at the request of our advertising clients.
Our outreach agency model allows our advertising operation to have a larger geographic
presence and provide the local network with advertising from national or international clients,
which may heighten the prestige and public perception of the local network. If our demand for
advertising time at the local network grows to a sufficient threshold, we may attempt to engage
them in an exclusive agency agreement to increase the scope of our cooperation.
Advertising Clients, Sales and Marketing
Our Advertising Clients
The quality and broad geographic coverage of our mobile digital television advertising network
has attracted a broad base of international and domestic advertisers. Since our inception, 1,130
advertisers have purchased advertising time on our mobile digital television advertising network or
our supplemental subway advertising platform either directly or through an agent as of December 31,
2009. We regularly work together with some of the largest global advertising agencies, or 4A
agencies, to place advertisements for their clients. We have the ability to place a clients
advertisements in one or more cities, both within and beyond our network, according to their
demands. As of December 31, 2009, we have placed advertisements in 29 cities across China. As a
result, our network has attracted a large number of blue-chip companies to purchase advertising
time either directly or through an agent pursuant to contracts. Our top three brand name
advertisers, Unilever, Yum! Brands and Luciano Soprani, in aggregate accounted for approximately
17.7% of our advertising service revenues for the year ended December 31, 2009. We believe the
appeal and effectiveness of our advertising network is largely evidenced by the number of
advertisers who place repeated and multiple advertising campaigns on our network.
The following table sets forth a breakdown of our advertisers by industry for the year ended
December 31, 2009:
41
|
|
|
|
|
|
|
% of total advertising |
Industry |
|
service revenues |
|
|
|
|
|
Food, Beverage, Restaurants, Wines and Spirits |
|
|
22.7 |
% |
Pharmaceutical and Nutritional Supplements |
|
|
19.7 |
% |
Household Products |
|
|
12.2 |
% |
Fashion and Accessories |
|
|
16.4 |
% |
Electronics and Digital Products |
|
|
8.0 |
% |
Financial Services |
|
|
4.7 |
% |
Tourism |
|
|
2.6 |
% |
IT and internet |
|
|
4.8 |
% |
Others |
|
|
8.9 |
% |
Sales and Marketing
As of December 31, 2009, we employed an experienced advertising sales force of 368 employees.
We also engaged consultants to assist our marketing efforts. In addition to our direct sales force,
we also sell our advertising time through third party advertising agencies such as the 4A agencies.
We provide in-house education and training to our sales force to ensure that they provide our
current and prospective clients with comprehensive information about our services, the advantages
of using our mobile digital television advertising network as a marketing channel and relevant
information regarding the advertising industry as a whole. We organize our sales force into teams
to provide specialized coverage for geographic regions. We believe that our regional coverage teams
provide quality service for our advertisers and allow our sales and marketing teams to focus on
building close relationships and staying abreast of regional market trends. We also market our
advertising services from time to time by placing advertisements on our own network.
We believe our advertisers derive substantial value from our ability to provide advertising
services targeted at specific segments of consumer markets. Since market research is an important
part of evaluating the effectiveness and value of our business to advertisers, we routinely provide
market research reports to our clients as part of our marketing efforts. We conduct market
research, consumer surveys, demographic analysis and other advertising industry research for
internal use to evaluate new and existing advertising channels. We also purchase or commission
studies containing relevant market study data from reputable third-party market research firms,
such as CTR Market Research. We typically consult such studies to assist us in evaluating the
effectiveness of our network to our advertisers. A number of these studies contain research on the
numbers and socio-economic and demographic profiles of the users of the mass transportation systems
in the cities where we operate.
In May 2008, we agreed with CTR Market Research, the largest media and market research company
in China, to jointly develop the first media evaluation standard for Chinas mobile digital
televisions on public transportation systems. China has experienced rapid growth in the mobile
digital television market in recent years, but the industry lacks a standardized and authoritative
audience measurement index which advertisers and media owners may use to judge the efficacy and
value of advertisements placed on mobile digital television networks on public transportation
systems. The creation of third-party evaluation standards will help provide criteria to compare
mobile digital television with traditional television, which is expected to help raise the status
of the emergent mobile digital television industry.
Advertising Contracts
The standard advertising package includes advertising time on our network in a particular city
on either the mobile digital television advertising network or our supplemental subway advertising
platform, and our clients often combine standard advertising packages to purchase advertising time
across multiple cities. Our sales are made pursuant to written contracts with commitments ranging
from one week to one year. Similar to traditional television advertising, we primarily sell
advertising time during breaks between programs and we also sell soft advertising embedded into
programs. The majority of our customers purchase the advertising time during breaks between
programs and we often provide flexible durations of time to meet the specific demands of our
advertising clients. Our clients may choose to air these advertisements during specific times of
the day or throughout the entire day. Our advertising rates vary depending on the time of day, the
broadcast city and the receiving platform. We divide our cities into different categories and charge rates consistent with the advertising market in
that city. We evaluate the listed price at the end of each quarter against the prevailing
advertising rates for our competitors in each city and determine any adjustments based on
prevailing market trends. The price we charge for the advertising time differs in each city as a
function of the size of our network, the quality and mixture of the programming, socioeconomic
conditions and other prevailing market considerations.
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We generally require our clients to submit advertising content at least five days prior to the
first broadcast date for compliance review. We also reserve the right to refuse to disseminate
advertisements that are not in compliance with content requirements under PRC laws and regulations.
Programming
The mobile digital television network in each city determines its mixture of programming
independently from the others. For our direct investment cities, the direct investment entity
exercises direct control over the mixture of programming and advertising, and for our exclusive
agency cities, we typically work closely with our partner network to enhance the effectiveness of
the broadcasted advertisements. The mobile digital television network broadcasts real-time news and
stock quotes, sports highlights and other entertainment programs for most of the time and we use
short breaks between these programs to broadcast advertising in order to maximize the effectiveness
of our advertising network.
We provide suggestions for some of the programs for broadcast in our direct investment cities,
and the local television station produces the remaining programs by editing the material used for
local television station broadcasts. Our ability to distribute programs produced by the local
television station in one city to other cities in our network gives us the opportunity to syndicate
entertaining programs across all of our local networks and to attract a greater audience to our
network. Our real-time broadcast platform also allows the local television station to provide
real-time news and stock quotes and entertainment programs.
Relationships with Location Providers
Establishing and maintaining long-term relationships with the local mass transportation
companies is critical to our business. We have entered into the following arrangements to secure
the right to install or use the displays on the mass transportation systems in many cities in
China.
Our Exclusive Agency Cities
In our exclusive agency cities, the local mobile digital television company typically
negotiates directly with the bus companies for a placement agreement to secure the right to install
digital television displays and then exclusively assigns that right to us. In our exclusive agency
cities that are also our direct investment cities, the direct investment entity usually negotiates
directly with the bus companies or other location providers for a placement agreement to secure the
right to install and operate the digital television displays. In Guangzhou, which is an exclusive
agency city, our local affiliate has entered into agreements directly with two bus companies to
install and operate the mobile digital television displays. In Changzhou, which is also an
exclusive agency city, we have entered into an agreement directly with the local bus company to
install and operate the mobile digital television displays. For our supplemental subway
advertising operations, we have entered into exclusive agency agreements with the local subway
authorities or their related entities. As a result of our acquisition of Digital Media Group, we
have acquired supplemental subway advertising operations in Nanjing and Shenzhen (Line 1) which
have exclusive agency agreements with the local mobile digital television company which, in turn,
have agreements in place with the local subway authority.
Our Direct Investment Cities
With the exception of Changzhou, in our direct investment cities, the direct investment entity
negotiates directly with the bus companies or other location providers for a placement agreement to
secure the right to install the digital television displays.
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Technology
Our digital television advertising network uses digital television technology. This technology
provides a communication method for broadcasting and receiving moving pictures and sound by using
digital signals, which provides better throughput compared to the analog signals used by analog
televisions. The digital television broadcasts use digital modulation data, which uses an algorithm
to digitally compress the data. The transmission equipment broadcasts the digital bit stream
wirelessly over an analog bandpass channel to television receivers that decode the digital signal.
Our digital television displays installed on buses contain a receiver and decoder component that
performs this task and displays the broadcasted content. This technology enables the uninterrupted
reception of audio visual signals while in motion, thereby allowing the display of real-time
programs on moving buses. Our supplemental subway advertising platform also uses digital displays,
and we transmit the advertisements and information from a broadcast center digitally, through a
local area closed circuit network, to the displays.
Suppliers
The primary hardware required for the operation of our business consists of digital television
displays, mobile digital television receivers, speakers and other related equipment that we use in
our mobile digital television advertising network. Maintaining a steady supply of our digital
television displays is important to our operations and the growth of our mobile digital television
advertising network. We purchase our digital television displays and receivers from third party
manufacturers who build these components according to our specifications. We select component
suppliers based on price and quality. As there are several other qualified alternative suppliers
for our equipment, our obligation to our current suppliers is not exclusive. We have never
experienced any material delay or interruption in the supply of our digital television displays.
Our primary supplier of LCD screens, Xiamen Overseas Chinese Electronic Co., Ltd., or Prima,
also purchases advertising time on our network and was our customer in 2007 and 2008. None of our
transactions with Prima was performed through barter transactions, and we believe that all of our
contracts with Prima have been negotiated at arms length for fair market value.
Competition
We compete with other advertising companies in China including companies that operate
out-of-home advertising media networks such as Focus Media Holding Limited, AirMedia Group Inc.,
Towona Mobile Digital Co., Ltd. and Bus Online Media Co., Ltd. We also compete with traditional
television stations for advertising spending. We compete for advertising clients primarily on the
basis of network size and coverage, location, price, the range of services that we offer and our
brand name. We also compete for overall advertising spending with other alternative advertising
media companies, such as the Internet, street furniture, billboard, frame and public transport
advertising companies, and with traditional advertising media, such as newspapers, magazines and
radio. Some of our competitors operate digital television advertising networks installed on mass
transportation systems primarily playing prerecorded content saved on compact flash cards or DVDs.
In the future, we may also face competition from new entrants into the out-of-home television
advertising network sector. In addition, starting on December 10, 2005, the establishment of wholly
foreign owned advertising companies has been permitted. Chinas ongoing deregulation of its
advertising market will likely expose us to greater competition with existing or new advertising
companies in China, including PRC subsidiaries of large well-established multi-national companies
that may have significantly more resources.
We face barriers-to-entry in the mobile digital television advertising industry as a result of
competition. Many smaller mobile digital television companies operate in cities outside of our
network pursuant to exclusive agreements, and we expect to encounter barriers-to-entry as we
attempt to expand our network into these cities. For example, in Shanghai, Shanghai Oriental Pearl
Mobile Television Inc. operates the largest mobile digital television advertising network using
broadcasting technology. As a result, we face barriers-to-entry to expand our network to the bus
platform in Shanghai. In addition, we will face barriers-to-entry to the extent we expand our
out-of-home advertising network to different media platforms, such as in-building displays or large
outdoor LED displays, as other companies may have already signed exclusive placement agreements to
secure the most desirable locations. These barriers-to-entry may limit our ability to rapidly expand our network in the cities
where we already operate and into new cities.
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Intellectual Property
Our intellectual property consists of our trademarks and design patents related to some of
the equipment. As of December 31, 2010, we held six patents issued in the PRC.
Insurance
We only maintain insurance coverage for our automobiles. We do not maintain any property
insurance policies covering equipment and facilities for losses due to fire, earthquake, flood or
any other disaster. Consistent with customary industry practice in China, we do not maintain
business interruption insurance or key employee insurance for our executive officers. Uninsured
damage to any of our equipment or buildings or a significant product liability claim could have a
material adverse effect on our results of operations.
Regulation
This section sets forth a summary of the most significant regulations or requirements that
affect our business activities in China or our shareholders right to receive dividends and other
distributions from us.
Regulations on the Television Industry
Television content
According to the Regulations on the Administration of Radio and Television, promulgated by the
State Counsel on August 11, 1997, and the Provisions on the Administration of Radio and Television
Program Production promulgated by SARFT on July 19, 2004, entities engaging in the production of
television programs, such as feature programs, general programs, drama series and animations, and
the trading activities and agency services on the copyrights of such programs must first obtain
preliminary approval from SARFT or its provincial branches. The entity must then register with
SAIC, to obtain or update its business license. The television programs aired on the mobile digital
television networks which we rely on in operating our advertising network are produced by our local
operating partners. Our local operating partners are subject to the regulations with respect to
television content. Since we rely on our business relationships with our local operating partners
for operating our advertising network, our business may be indirectly affected by any changes to
the regulations on television content.
Foreign investment in television operations
According to the Regulations on the Administration of Radio and Television, promulgated by the
State Council on August 11, 1997, the Detailed Procedures for the Financing of Radio, Film and
Television Conglomerates, promulgated by SARFT on December 20, 2001, and the Measures for the
Administration of Examination and Approval of Radio Stations and Television Stations, promulgated
by SARFT on August 18, 2004, television stations or television channels may only be established and
operated by the government. Pursuant to the Several Decisions on the Entry of Private Capital into
the Culture Industry, or the Decisions, issued by the State Council on April 13, 2005 and the
Several Opinions on Foreign Investment in the Culture Sector, or the Opinions, jointly issued by
SARFT, the Ministry of Culture, the General Administration for Press and Publication, the National
Development & Reform Commission and the Ministry of Commerce on July 6, 2005, foreign investors are
prohibited from establishing or operating television stations or transmission networks,
broadcasting television programs, or operating television channels. Under the Opinions and the
Circular on the Further Strengthening of the Supervision of Radio and Television Channels, or the
Supervision Circular, promulgated by SARFT on August 4, 2005, foreign investors are prohibited from
investing in or operating television channels.
We operate our business through our contractual arrangements with our consolidated affiliated
entities, which are PRC companies. Our consolidated affiliated entities in turn rely on their
contractual arrangements with our local operating partners for broadcasting advertisements and
programs. All of our local operating partners that engage in broadcasting have obtained the
required licenses and approvals for broadcasting television programs. Our PRC legal counsel has
advised us that our business operations do not violate any restrictions on foreign investment in
television operations.
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Foreign investments in television content production
According to the Catalogue of Foreign Investment Industries, amended on October 31, 2007 and
became effective on December 1, 2007, foreign investors are prohibited from owning equity interests
in companies that are engaged in producing radio and TV programs or drama series.
Under our contractual arrangements with our local operating partners, our local operating
partners are responsible for the production of television content. We or our direct investment
entities may provide suggestions with respect to the production or sourcing of the content and
advertisements. The content is subject to review and approval by the television stations which
broadcast such content. Our consolidated PRC affiliates engaging in advertising content production
have obtained the requisite licenses and approvals issued by the local SARFT.
Mobile digital television
On March 27, 2006, SARFT promulgated the Notice Concerning Experimental Mobile Digital
Television, or the March 2006 Notice. The March 2006 Notice regulates experimental mobile digital
television operations and primarily contains the following provisions:
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no experimental mobile digital television shall be operated without approval of
SARFT; |
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no formal operation of mobile digital television shall be conducted before the
establishment and adoption of the national standard of mobile digital television; |
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no foreign investment in mobile digital television operations is permitted; |
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after the adoption of the national mobile digital television standard, all mobile
digital television operations shall comply with such national standard; and |
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existing mobile digital television network operations must apply for SARFT approval
before April 30, 2006, and must stop operating by June 15, 2006 if they failed to
submit an application by April 30, 2006 or their application was disapproved by SARFT. |
The March 2006 Notice also provides that the local SARFT branches have the authority to order
any mobile digital television operators who have violated the March 2006 Notice to stop operating
their mobile digital television networks. The March 2006 Notice does not define the term
experimental mobile digital television. We believe this term was used because when the notice was
promulgated, mobile digital television was a nascent industry in China and technology standards for
such industry had not been adopted. We believe the March 2006 Notice applies to the mobile digital
television operations by our local operating partners.
The National Standard of Frame Structure and Channel Code and Modulation of Digital Television
Ground Broadcasting Transmission System was approved by the Standardization Administration of the
PRC on August 18, 2006, and became effective on August 1, 2007. Under the March 2006 Notice, all of
our local operating partners must adopt the National Standard for their mobile digital television
operations. In addition, the SARFT has officially issued a notice requiring some of our local
operating partners and direct investment entities to complete the adoption of the National Standard
by June 30, 2010. See Item 3. Key Information D. Risk Factors Risks Relating to Our Company and
Our Industry and Risks Related to Doing Business in China A significant portion of the mobile
digital television networks of our direct investment entities and the digital television
broadcasting infrastructure of our local operating partners currently do not meet the newly adopted
PRC national standards for mobile digital television operations. We may be required to spend
significant capital and other resources to convert the digital television broadcasting
infrastructure of our local operating partners to these national standards, which could materially
and adversely affect our business, financial condition and results of operations.
SARFT issued a notice to provincial level SARFT branches in China in July 2007 regarding
mobile digital television operations. The notice contains provisions regarding: (i) the authority
of local SARFT branches to control program production and broadcasting on the mobile digital
television networks; (ii) the development of the mobile digital television business; (iii)
permission for non-state-owned enterprises to form joint ventures with SARFT-affiliated entities to
engage in advertising, marketing, program production and equipment installation services in connection with mobile digital television operations as long as SARFT-affiliated entities
control at least 51% equity interest in such joint ventures; (iv) the transition into the National
Standard for mobile digital television operations; and (v) the requirement that each local SARFT
branch inspect the mobile digital television operations within its jurisdiction. We do not own over
49% equity interest in any of our direct investment entities that we have jointly established with
relevant local SARFT-affiliated entities.
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SARFT issued a notice regarding strengthening the administration of public audio/visual media
on public transportation vehicles and in public buildings on December 6, 2007. According to this
notice, broadcasting programs on audio/visual media located on public transportation vehicles and
in public buildings using television, internet or other broadcasting technology must first obtain
the approval of SARFT. In addition, programs are prohibited from being broadcasted on audio/video
media located in public transportation vehicles, public buildings and other indoor and outdoor
places using compact flash memory card or DVD technology, as only advertisements are allowed to be
shown on media using these technologies.
Regulations on the Advertising Industry
Foreign investments in advertising
Under the Catalog and the Administrative Provision on Foreign Investment in the Advertising
Industry, jointly promulgated by SAIC and the Ministry of Commerce on March 2, 2004, foreign
investors can invest in PRC advertising companies either through wholly owned enterprises or joint
ventures with Chinese parties. Since December 10, 2005, foreign investors have been allowed to own
up to 100% equity interest in PRC advertising companies. However, the foreign investors must have
at least three years of direct operations outside of the PRC in the advertising industry as their
core business. This requirement is reduced to two years if foreign investment in the advertising
company is in the form of a joint venture. Foreign-invested advertising companies can engage in
advertising design, production, publishing and agency, provided that certain conditions are met and
necessary approvals are obtained.
We are a Cayman Islands corporation and a foreign legal person under PRC laws and we have not
directly operated any advertising business outside of China. Therefore, we do not qualify under PRC
regulations to directly provide advertising services. Accordingly, our subsidiary, CDTC, is
ineligible to apply for the required licenses for providing advertising services in China. Our
advertising business is operated by our consolidated affiliated entities, which hold the requisite
licenses to provide advertising services in China. Our advertising business is currently provided
through our contractual arrangements with our consolidated affiliated entities in China, which hold
the requisite licenses to provide advertising services in China. One of our consolidated
affiliated entities, VisionChina Media Group, is currently owned by Limin Li and Yanqing Liang. We
do not have any equity interest in VisionChina Media Group but we receive the economic benefits of
it through various contractual arrangements. See Item 7. Major Shareholders and Related Party
Transactions B. Related Party Transactions. In January 2010, we completed our acquisition of
Digital Media Group, which operated and continues to operate, its advertising business through its
consolidated affiliated entity in China, Beijing Eastlong Advertising. Beijing Eastlong Advertising
is currently owned by Men Qijun and Wang Haifeng. Digital Media Group does not have any equity
interest in Beijing Eastlong Advertising but receives the economic benefits and bear economic risks
of it through various contractual arrangements. Our consolidated affiliated entities and their
subsidiaries directly operate our advertising network, enter into direct investment and exclusive
and non-exclusive advertising agency agreements, and sell advertising time to our clients. We have
been and expect to continue to be dependent on our consolidated affiliated entities and their
subsidiaries to operate our advertising business.
Advertising content
PRC advertising laws, rules and regulations set forth certain content requirements for
advertisements in China including, among other things, prohibitions on false or misleading content,
superlative wording, socially destabilizing content or content involving obscenities, superstition,
violence, discrimination or infringement of the public interest. Advertisements for anesthetic,
psychotropic, toxic or radioactive drugs are prohibited. There are also specific restrictions and
requirements regarding advertisements that relate to matters such as patented products or
processes, pharmaceuticals, medical instruments, agrochemicals, foodstuff, alcohol and cosmetics.
In addition, all advertisements relating to pharmaceuticals, medical instruments, agrochemicals and
veterinary pharmaceuticals, together with any other advertisements which are subject to censorship by administrative
authorities according to relevant laws or regulations, must be submitted to relevant authorities
for content approval prior to dissemination.
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Advertisers, advertising operators, and advertising distributors are required by PRC
advertising laws and regulations to ensure that the content of the advertisements they prepare or
distribute is true and in full compliance with applicable law. In providing advertising services,
advertising operators and advertising distributors must review the supporting documents provided by
advertisers for advertisements and verify that the content of the advertisements complies with
applicable PRC laws, rules and regulations. Prior to distributing advertisements that are subject
to government censorship and approval, advertising distributors are obligated to verify that such
censorship has been performed and approval has been obtained. Violation of these regulations may
result in penalties, including fines, confiscation of advertising income, orders to cease
dissemination of the advertisements and orders to publish an advertisement correcting the
misleading information. In circumstances involving serious violations, the SAIC or its local
branches may revoke violators licenses or permits for their advertising business operations.
Furthermore, advertisers, advertising agencies or advertising distributors may be subject to civil
liability if they infringe on the legal rights and interests of third parties in the course of
their advertising business.
Under the Administrative Measures on Radio and Television Advertisement Broadcasting issued by
the SARFT on September 8, 2009, which became effective on January 1, 2010, or the Measures,
advertisements relating to certain products and services, including tobacco, certain prescription
pharmaceuticals, medical instruments, medical treatments, name analysis and fortune telling, are
specifically prohibited to be disseminated. Advertisements relating to certain other products and
services, including pharmaceuticals, medical instruments, foodstuffs, cosmetics, agrochemicals,
veterinary pharmaceutical and financial management, are subject to censorship by administrative
authorities according to relevant laws or regulations, and approval for such advertisements must be
reviewed and examined prior to dissemination. In addition, the Measures restrict and administer
other types of advertising, including advertisements in political news programs, advertisements for
investment consultations or franchising businesses, advertisements for lottery or gambling, and
advertisements featuring medical experts in advertisements for pharmaceuticals, medical
instruments, medical treatment and health care information. The Measure also limits the length of
advertising time in each program and requires radio and television broadcasting institutions to
establish management systems to operate, review and disseminate advertisements. Violation of these
regulations may result in penalties, including warning, fines, orders to cease dissemination of the
advertisements and orders to publish an advertisement correcting the misleading information. In
circumstances involving serious violations, the SARFT or its local branches may revoke violators
licenses or permits for their radio and television business operations.
Tax
Our operating subsidiary and controlled entities are incorporated in the PRC and are governed
by the PRC income tax law, which subjects them to the PRC enterprise income tax rate of 25%.
The PRC EIT Law became effective on January 1, 2008. Under the EIT Law and the implementation
regulations under the EIT Law issued by the PRC State Council, China has adopted a uniform tax rate
of 25% for all enterprises (including foreign-invested enterprises) and revoked the previous tax
exemption, reduction and preferential treatments applicable to foreign-invested enterprises.
However, there is a transition period for enterprises, whether foreign-invested or domestic, that
received preferential tax treatments granted by relevant tax authorities prior to January 1, 2008.
Enterprises that were subject to an enterprise income tax rate lower than 25% prior to January 1,
2008 may continue to enjoy the lower rate and gradually transition to the new tax rate within five
years. Enterprises that were entitled to exemptions or reductions from the standard income tax rate
for a fixed term prior to January 1, 2008 may continue to enjoy such treatment until the fixed term
expires. However, if a foreign-invested enterprise had not become profitable before the end of
December 2007, a two-year exemption from the enterprise income tax will be granted for the period
between the time the enterprise becomes profitable and December 31, 2009. According to the
implementation regulations, during the transition period, the enterprise income tax rate of CDTC is
18%, 20%, 22%, 24% and 25% in the year of 2008, 2009, 2010, 2011 and 2012, respectively.
Preferential tax treatments may continue to be granted to industries and projects that are strongly
supported and encouraged by the state, and enterprises classified as new and high technology
enterprises strongly supported by the state are entitled to a 15% enterprise income tax rate.
VisionChina Media Group was designated as new and high technology enterprises strongly supported
by the state in November 2008 and, as a result, will be subject to an enterprise income tax rate of 15% for 2009 and 2010. Therefore, the enterprise
income tax rate of VisionChina Media Group is 0%, 15%, 15%, 24% and 25% in the year of 2008, 2009,
2010, 2011 and 2012, respectively. One of our operating subsidiaries established in Luzhou in
Sichuan province was recognized as a local government encouraged company and is entitled to
exemption from the enterprise income tax for 2008 and 2009.
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The EIT Law also provides that enterprises established outside of China whose de facto
management bodies are located in China are considered resident enterprises, and are generally
subject to the uniform 25% enterprise income tax rate as to their global income, including income
received from subsidiaries and consolidated affiliates. Under the implementation regulations to the
EIT Law issued by the PRC State Council, de facto management body is defined as a body that has
material and overall management and control over the manufacturing and business operations,
personnel and human resources, finances and treasury, and acquisition and disposition of properties
and other assets of an enterprise. If we are treated as a resident enterprise for PRC tax purposes,
we will be subject to PRC tax on our worldwide income at a rate of 25%.
Furthermore, unlike the PRC Income Tax Law for Enterprises with Foreign Investment and Foreign
Enterprise that was replaced by the EIT Law, which specifically exempts withholding tax on any
dividends payable to non-PRC investors of foreign-invested enterprises, the EIT Law and
implementation regulations issued by the State Council provide that an income tax rate of 10% is
normally applicable to dividends payable to non-PRC investors which are derived from sources within
China, although such income tax may be exempted or reduced by the State Council of the PRC or a tax
treaty between China and the jurisdiction where the non-PRC investors reside. We are a Cayman
Islands holding company and substantially all of our income may be derived from dividends we
receive from our operating subsidiary and consolidated affiliates located in China. If we declare
dividends from such income, it may be deemed to be derived from sources within China under the EIT
Law and be subject to income tax under the EIT Law. If we are required under the EIT Law to pay
income tax for any dividends we received from our subsidiary in China, your investment in us may be
materially and adversely affected. In addition, it is unclear whether dividends paid to our non-PRC
shareholders and ADS holders or any capital gains from the transfer of our common shares or ADSs,
would be treated as income derived from sources within the PRC and subject to PRC tax. If we are
required under the EIT Law to withhold PRC income tax on dividends payable to our non-PRC investors
that are non-resident enterprises or if you are required to pay PRC income tax on the transfer of
our common shares or ADSs, the value of your investment may be materially and adversely affected.
In addition, we conduct advertising business through our contractual arrangements with our
consolidated affiliated entities, which are currently owned by individuals. We must pay taxes at
the individual income tax of 20% on behalf of our employees who hold interests in a consolidated
affiliated entity when that consolidated affiliated entity distributes dividends in the future.
Furthermore, there may be potential business taxes arising from the contractual arrangements with
our consolidated affiliated entities. If we cannot retrieve the undistributed earnings in our
consolidated affiliated entities in a tax free manner, we may need to pay additional taxes upon
distribution of such undistributed earnings.
Regulations on Foreign Currency Exchange
Foreign currency exchange
Pursuant to the Foreign Currency Administration Rules promulgated and effective on August 5,
2008, and various regulations issued by SAFE and other relevant PRC government authorities, RMB is
freely convertible only to the extent of current account items, such as trade-related receipts and
payments, interest and dividends. Foreign currencies received under current account items can be
either retained or sold to financial institutions engaged in the foreign exchange settlement or
sales business without prior approval from SAFE by complying with relevant regulations. Capital
account items, such as direct equity investments, loans, repatriation of investments and
investments in stocks and bonds, require the prior approval from SAFE or its local branch for
conversion of RMB into a foreign currency, such as U.S. dollars, and remittance of the foreign
currency outside the PRC. Payments for transactions that take place within the PRC must be made in
RMB. Foreign currencies received in respect of capital account items can be retained or sold to
financial institutions engaged in the foreign exchange settlement or sales business only with prior
approval from SAFE. Foreign-invested enterprises may retain foreign exchange in accounts with
designated foreign exchange banks subject to a cap set by SAFE or its local branch.
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The business operations of our PRC subsidiary and affiliated entities, which are subject to
the foreign currency exchange regulations, have all been in accordance with these regulations. We
will take steps to ensure that the future operations of these PRC entities are in compliance with
these regulations.
Foreign exchange registration of offshore investment by PRC residents
Pursuant to SAFEs Notice on Relevant Issues Concerning Foreign Exchange Administration for
PRC Residents to Engage in Financing and Inbound Investment via Overseas Special Purpose Vehicles,
or Circular No. 75, issued on October 21, 2005, (i) a PRC resident, including a PRC resident
natural person or a PRC company, shall register with the local branch of SAFE before it establishes
or controls an overseas special purpose vehicle, or SPV, for the purpose of overseas equity
financing (including convertible debt financing); (ii) when a PRC resident contributes the assets
of or its equity interests in a domestic enterprise to an SPV, or engages in overseas financing
after contributing assets or equity interests to an SPV, such PRC resident shall register his or
her interest in the SPV and the change thereof with the local SAFE branch; and (iii) when the SPV
undergoes a material event outside of China, such as a change in share capital, or merger or
acquisition, the PRC resident shall, within 30 days of the occurrence of such event, register such
change with the local branch of SAFE. PRC residents who are shareholders of SPVs established before
November 1, 2005 were required to register with the local SAFE branch before March 31, 2006.
Under Circular No. 75, failure to comply with the registration procedures set forth above may
result in penalties, including restrictions on a PRC subsidiarys foreign exchange activities in
capital accounts and its ability to distribute dividends to the SPV.
On December 25, 2006, the Peoples Bank of China promulgated the Measures for the
Administration of Individual Foreign Exchange, and on January 5, 2007, SAFE promulgated the
implementation rules on those measures. These regulations became effective on February 1, 2007.
Pursuant to these regulations, PRC citizens who are granted shares or share options by an overseas
listed company according to its employee share option or share incentive plan are required, through
a qualified PRC agent which may be the PRC subsidiary of such overseas listed company, to register
with the SAFE and complete certain other procedures related to the share option or share incentive
plan. Foreign exchange income received from the sale of shares or dividends distributed by the
overseas listed company must be remitted into a foreign currency account of such PRC citizen or be
exchanged into Renminbi. Our PRC citizen employees who have been granted share options, or PRC
optionees, will be subject to these regulations upon the listing of our ADSs on the Nasdaq Global
Market. If we or our PRC optionees fail to comply with these regulations, we or our PRC optionees
may be subject to fines and legal sanctions.
Dividend Distribution
The principal laws, rules and regulations governing dividends paid by PRC operating
subsidiaries include the Company Law of the PRC (1993), as amended in 2006, the Wholly Foreign
Owned Enterprise Law (1986), as amended in 2000, and the Wholly Foreign Owned Enterprise Law
Implementation Rules (1990), as amended in 2001. Under these laws and regulations, PRC
subsidiaries, including wholly foreign owned enterprises, or WFOEs, and domestic companies in
China, may pay dividends only out of their accumulated profits, if any, determined in accordance
with PRC accounting standards and regulations. In addition, PRC subsidiaries and consolidated
affiliates, including WFOEs and domestic companies, are required to set aside at least 10% of their
after-tax profit based on PRC accounting standards each year to their statutory capital reserve
fund until the cumulative amount of such reserve reaches 50% of their respective registered
capital. These reserves are not distributable as cash dividends.
|
|
|
C. |
|
Organizational Structure |
The following diagram illustrates our companys organizational structure, and the place of
formation, ownership interest and affiliation of each of our principal subsidiaries and affiliated
entities as of March 31, 2010.
50
|
|
|
D. |
|
Property, Plant and Equipment |
Our principal executive offices are located at our headquarters comprising approximately 920
square meters in Shenzhen, China. We also maintain offices in other cities in China. We lease all
of our facilities and do not own any real property. We lease some of our facilities from related
parties. See Item 7. Major Shareholders and Related Party TransactionsB. Related Party TransactionsTransactions with Companies Under Common Control with
UsLease and Loan with Meidi Zhiye. We believe that our leased facilities are adequate to meet
our needs for the foreseeable future, and we believe that we will be able to obtain adequate
facilities, principally through leasing of additional properties, to accommodate our future
expansion plans.
The primary hardware required for the operation of our business consists of digital television
displays, mobile digital television receivers, speakers and other related equipment that we use in
our mobile digital television advertising network. We purchase our digital television displays and
receivers from third party manufacturers who build these components according to our
specifications. As there are several other qualified alternative suppliers for our equipment, our
obligation to our current suppliers is not exclusive. We have never experienced any material delay
or interruption in the supply of our digital television displays.
|
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|
Item 4A. |
|
Unresolved Staff Comments |
None.
|
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|
Item 5. |
|
Operating and Financial Review and Prospects |
You should read the following discussion and analysis of our financial condition and results
of operations in conjunction with our consolidated financial statements and the related notes
included elsewhere in this annual report. This discussion may contain forward-looking statements
based upon current expectations that involve risks and uncertainties. Our actual results may differ
materially from those anticipated in these forward-looking statements as a result of various
factors, including those set forth under Item 3. Key InformationD. Risk Factors or in other
parts of this annual report.
51
Overview
We believe that we operate the largest out-of-home advertising network using real-time mobile
digital television broadcasts to deliver content and advertising on mass transportation systems in
China based on the number of displays. As of December 31, 2009, our mobile digital television
advertising network consists primarily of our digital television displays installed on buses and
subways. As of December 31, 2009, our mobile digital television advertising network and
supplemental subway advertising platform covered 19 cities in China and consisted of approximately
89,299 digital displays. We derive revenues by selling advertising time on our network and our
supplemental subway advertising platform and from sales of advertising equipment to our direct
investment entities.
We have experienced significant revenue growth, and the size of our network has grown
significantly since the commercial launch of our advertising network in 2005. In 2008, we acquired
six advertising agency businesses and integrated their customer bases and strong sales teams into
our operation. In January 2010, we completed our acquisition of Digital Media Group and expanded
our advertising network to include various subway lines in China, the Shanghai bus shelter network
and the Hong Kong Airport Express Line. We have expanded our operations through three different
types of arrangements that consist of our exclusive agency model, our direct investment model and
our outreach agency model.
We expect our future growth to be driven by a number of factors and trends including:
|
|
|
the overall economic growth in China, which we expect to contribute to an increase
in advertising spending in major urban areas in China where consumer spending is
concentrated; |
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|
our ability to establish and maintain business relationships with our local
operating partners, and our and their ability to establish and maintain business
relationships with mass transportation companies; |
|
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|
|
our ability to expand our network and supplemental subway advertising platform into
new locations and additional cities; |
|
|
|
|
our ability to secure exclusive agency arrangements with mobile digital television
companies in additional cities to control the advertising time on that network; |
|
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|
|
our ability to respond to competitive pressures and to compete effectively when
expanding the reach of our network; |
|
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|
|
our ability to increase sales of advertising time and extend the total minutes
available for broadcasting of advertisements across all of our cities; |
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|
|
our ability to attract more revenues from our existing clients and expand our client
base through promotion of our services; |
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|
our ability to provide programs that appeal to the local viewers; |
|
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|
our ability to enhance the technology of our network to make our advertising
platform more effective; and |
52
|
|
|
our ability to acquire companies that operate advertising businesses complementary
to our existing operations. |
As an important source of revenues is our advertising service revenues, we focus on factors
that directly affect our advertising service revenues such as (i) the total advertising time that
we have available across all of our cities, (ii) the actual price we charge for our advertising
time and (iii) the programming to advertising ratio. The actual price we charge advertising
clients, which equals the official list price minus any discounts, for time on our network is
affected by, among other things, (i) the overall socioeconomic conditions in each city, (ii) the
level of demand for advertising time in each city, and (iii) the perceived effectiveness of our
network in achieving the goals of our advertising clients. The effectiveness of our network
directly relates to our ability to expand the coverage of our mobile digital television advertising
network and our ability to provide programs that draw the attention of viewers. We also measure our
performance using an average revenues per hour metric, which we calculate by dividing the
advertising service revenues by the total hours of broadcasting in the cities of our network and
supplemental subway advertising platform.
As we continue to expand our network, we expect to face a number of challenges. Entering into
a new market requires us to develop a contractual relationship with the local television station or
its mobile digital television affiliate, so expansion into new cities may require an extended
amount of time. To the extent we expand our network beyond mass transportation systems, we may
compete directly with other companies that have already occupied many of the most desirable
locations in Chinas major cities. In addition, we must react to continuing technological
innovations in our industry and changes in the regulatory environment. In connection with the
required compliance with the National Standard for mobile digital television, our direct investment
entities and our local operating partners will need to upgrade the digital television displays in
their networks to conform to the National Standard. Currently, we cannot accurately estimate the
amount and timing of capital expenditures required to migrate to the National Standard. We have
implemented a number of measures to address these anticipated challenges: (i) we had a special team
of ten employees and four outside advisors as of December 31, 2009 that focuses on business
development and expansion of our network; (ii) our management maintains an active dialogue with the
relevant regulatory authorities to stay abreast of new developments and ensure compliance with all
current laws and regulations; and (iii) we purchase digital television displays and other related
equipment with easily upgradable components to minimize the capital expenditures required to
upgrade our network in response to technological or regulatory changes in our industry.
Revenues
We had total revenues of US$29.4 million, US$104.1 million and US$120.7 million for the years
ended December 31, 2007, 2008 and 2009, respectively. We generate revenues from the sales of
advertising time on our mobile digital television advertising network and, starting in 2007, on our
supplemental subway advertising platform. We principally derive our advertising service revenues
from sales of advertising time between the programs, but starting in July 2007, we derive some
revenues from soft advertising embedded into the programs on our network. We also have generated
revenues from sales of our digital television displays to our direct investment entities, which we
refer to as our advertising equipment revenues. The following table sets forth a breakdown of our
total revenues for the periods indicated.
53
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the year ended December 31, |
|
|
2007 |
|
2008 |
|
2009 |
|
|
|
|
|
|
% of |
|
|
|
|
|
% of |
|
|
|
|
|
% of |
|
|
|
|
|
|
total |
|
|
|
|
|
total |
|
|
|
|
|
total |
|
|
US$ |
|
revenues |
|
US$ |
|
revenues |
|
US$ |
|
revenues |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Advertising service revenues |
|
|
27,489,391 |
|
|
|
93.5 |
|
|
|
103,515,250 |
|
|
|
99.5 |
|
|
|
120,686,086 |
|
|
|
100.0 |
|
Advertising equipment revenues |
|
|
1,896,200 |
|
|
|
6.5 |
|
|
|
565,392 |
|
|
|
0.5 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
29,385,591 |
|
|
|
100.0 |
|
|
|
104,080,642 |
|
|
|
100.0 |
|
|
|
120,686,086 |
|
|
|
100.0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Advertising Service Revenues
We derive the majority of our advertising service revenues from the sales of advertising time
between the programs on our mobile digital television advertising network. Starting in 2007, we
also generated some of our advertising service revenues from sales of advertising time on our mobile digital
television advertising network in Beijing and our
supplemental subway advertising platform in certain subway platforms and subway trains in Guangzhou and subway platforms
in Shenzhen. Revenue from subway-related advertising sales in total accounted for 15.2% and 21.5% of our advertising
service revenues in 2008 and 2009. Our advertising service revenues accounted for 93.5%, 99.5% and
100.0% of our total revenues for the years ended December 31, 2007, 2008 and 2009, respectively.
Our advertising service revenues are recorded net of any sales discounts from our official
list prices that we may provide to our advertising clients. These discounts include volume
discounts and other customary incentives offered to our advertising clients, including additional
broadcast time for their advertisements if we have unused time available in a particular city and
represent the difference between our official list price and the amount we charge our advertising
clients. Our advertising clients include advertisers that directly engage in advertisement
placements with us and advertising agencies retained by some advertisers to place advertisements on
the advertisers behalf. We expect that our advertising service revenues will become the primary
source of our revenues for the foreseeable future.
We typically sign advertising contracts with our advertising clients that require us to place
the advertisements on our network in specific cities for specified periods. We recognize revenues
as the advertisement airs over the contractual term based on the schedule agreed upon with the
customer.
Factors that Affect Our Advertising Service Revenues
|
|
|
Advertising Time. The total advertising time available across all of our cities
determines our total capacity and affects our advertising service revenues. Any future
expansion of our network or non-broadcast advertising platform into new cities will
increase the total advertising time available across all of our cities and affect our
advertising service revenues. Geographic expansion of our network or supplemental
subway advertising platform also allows us to attract more advertising clients by
providing greater geographic coverage and exposure. |
|
|
|
|
Our ability to expand into new cities will affect the total advertising time available
across our network and our supplemental subway advertising platform. Our management has
implemented certain measures to facilitate our entrance into new markets. We maintain a
special team of employees to focus on our network expansion efforts. In conjunction with
the members of our management, this team consults with prospective partners to develop
relationships, secure contractual agreements and assist in the deployment and
maintenance of our network. |
|
|
|
|
Actual Price of Advertising Time. The price that we actually charge our clients for
our advertising time directly affects our advertising service revenues. The listed
prices for advertising time on our network and supplemental subway advertising platform
vary significantly from city to city as income levels, standards of living and general
economic conditions vary significantly from region to region in China. In accordance
with standard industry practice, we offer discounts to our clients on an individual
basis, so the actual price we charge for our advertising time after taking into account
any discounts will affect our advertising service revenues. |
54
|
|
|
Demand for advertising time on our network and supplemental subway advertising
platform. The demand for our advertising time directly affects the actual price of
our advertising time and is affected by a variety of factors, including general and
economic conditions and certain special events that may cause significant changes
in the number of riders in the mass transportation systems of our network cities.
Special events, such as the 2010 Asian Games in Guangzhou, may affect our actual
price of advertising time. Such special events may draw more viewers to our real-time
broadcasts, making our advertising network more effective. Conversely, any adverse
events, such as an outbreak of an airborne disease or public safety concerns, may
impact usage of mass transportation systems and have an adverse effect on our actual
price of advertising time. Demand for our advertising services also varies according
to the time of day, with higher demand typically during morning and evening commute
times. Demand for advertising time on our network may also be impacted by
corresponding demand on other advertising outlets such as traditional television. |
|
|
|
|
Number of displays in each city. The number of displays in each of our cities
affects our actual price of advertising time in that city. An increase in the
number of displays will reach a larger audience and make advertisements more
effective. We expect that our actual price of advertising time will increase as the
number of displays increases. |
|
|
|
|
Quality of programs. The quality of the programs broadcast on our network and
supplemental subway advertising platform affects our actual price of advertising
time. Programs that attract the attention of our audience will make our advertising
platform more effective. Our ability to locate, edit and provide suitable programs
that appeal to our intended audience will affect our actual price of advertising
time. We have undertaken steps to increase the quality of programs broadcast on our
network by providing suggestions to the local television stations that provide the
programs. |
|
|
|
|
Programming to Advertising Ratio. The mixture of programming to advertising that
gets broadcasted on our network and supplemental subway advertising platform
affects our advertising service revenues. Broadcasting an optimal mix of
advertising and programs will maximize our total revenues. |
|
|
|
|
Maximizing sales of soft advertisements. We began sales of soft advertising in
July 2007, and our ability to maximize sales of soft advertisements such as
advertisements embedded within the programs and sponsorships of the programs on our
network will allow us to realize additional revenues from the time reserved for
broadcasts of programs. Increasing our sales of such advertisements is expected to
help increase our average revenue per hour. |
Advertising Equipment Revenues
We derive a portion of our total revenues from the sales of digital television displays and
related equipment to our direct investment entities. We record these revenues as advertising
equipment revenues. We source digital television displays and related equipment from third-party
suppliers and sell them to our direct investment entities in order to ensure consistent quality of
the equipment used in our network and achieve cost efficiency for our direct investment entities.
Our advertising equipment revenues represented 6.5%, 0.5% and nil of our total revenues for the
years ended December 31, 2007, 2008 and 2009, respectively. We generally set the price of our
advertising equipment at the unit procurement cost plus an additional markup. Since sales of
equipment in China require the payment of the value added tax, or VAT, equal to 17%, we record our
advertising equipment revenues excluding the VAT payments. We expect that advertising equipment
revenues in future periods will decrease as a percentage of our total revenues because we expect
our advertising service revenues to grow faster than our advertising equipment revenues.
55
We recognize advertising equipment revenues upon delivery of the digital television displays
and when the risk of ownership has passed to our direct investment entities.
Factors that Affect Our Advertising Equipment Revenues
|
|
|
Addition of New Direct Investment Entities. The addition of new direct investment
entities directly affects our advertising equipment revenues. We only sell our digital
television displays to our direct investment entities for installation into buses of
the citys mass transportation system and other locations. We anticipate higher sales
of our digital television displays in the earlier stages of the direct investment
entitys operations during the expansion of the mobile digital television network in
that city. Accordingly, as the operations of our direct investment entities reach a
greater scale, we expect the sales of our digital television displays to decrease. |
|
|
|
|
Network Expansion of Direct Investment Entities. The pace of network expansion at
each of our direct investment entities directly affects our advertising equipment
revenues. Since the vast majority of our direct investment entities purchase the
digital television displays exclusively from us, any expansion of the mobile digital
television network will generate advertising equipment revenues for us. In addition,
our direct investment entities will need to purchase new digital television displays
from us to replace their worn or obsolete equipment. |
|
|
|
|
Cost of Equipment. Since we sell our digital television displays at our procurement
cost plus a fixed percentage markup, any changes to the cost of our equipment will
directly affect our advertising equipment revenues. |
Cost of Revenues
Our cost of revenues consists of costs directly related to the offering of our advertising
services and costs related to our sales of advertising equipment. The following table sets forth
our cost of revenues, divided into its major components, by amount and percentage of our total
revenues for the periods indicated.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the year ended December 31, |
|
|
2007 |
|
2008 |
|
2009 |
|
|
|
|
|
|
% of total |
|
|
|
|
|
% of total |
|
|
|
|
|
% of total |
|
|
US$ |
|
revenues |
|
US$ |
|
revenues |
|
US$ |
|
revenues |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Revenues |
|
|
29,385,591 |
|
|
|
100.0 |
|
|
|
104,080,642 |
|
|
|
100.0 |
|
|
|
120,686,086 |
|
|
|
100.0 |
|
Cost of revenues: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Advertising service cost |
|
|
12,801,957 |
|
|
|
43.6 |
|
|
|
40,602,022 |
|
|
|
39.0 |
|
|
|
61,104,381 |
|
|
|
50.6 |
|
Advertising equipment cost |
|
|
1,583,325 |
|
|
|
5.4 |
|
|
|
475,432 |
|
|
|
0.5 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total cost of revenues |
|
|
14,385,282 |
|
|
|
49.0 |
|
|
|
41,077,454 |
|
|
|
39.5 |
|
|
|
61,104,381 |
|
|
|
50.6 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit |
|
|
15,000,309 |
|
|
|
51.0 |
|
|
|
63,003,188 |
|
|
|
60.5 |
|
|
|
59,581,705 |
|
|
|
49.4 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Advertising Service Cost
Our cost of revenues related to the offering of our advertising services consists of media
costs, depreciation, business taxes and surcharges and other operating costs.
Media Costs. Our media costs represented the largest component of our cost of revenues and
accounted for approximately 37.2%, 29.7% and 41.4% of our total revenues for the years ended
December 31, 2007, 2008 and 2009, respectively. Our media costs primarily consist of:
|
|
|
network rental fee payments to our exclusive agency partner companies under our
contractual arrangements to purchase the advertising time on that network; |
56
|
|
|
payments to our direct investment entities under our contractual arrangements to
purchase advertising time; and |
|
|
|
|
payments to mobile digital television companies and other advertising service
providers outside of our network, either directly or through third-party advertising
agencies, to purchase advertising time pursuant to the requests of our advertisers. |
The primary factors affecting our media costs include the number of exclusive agency cities
that we have and the amount of advertising time that we purchase from our direct investment
entities and other mobile digital television companies outside of our network.
|
|
|
The number of exclusive agency cities represents the largest factor affecting our
media costs. When we enter into an exclusive agency arrangement with a mobile digital
television company, we typically commit to a pre-determined annual network rental fee
in exchange for the exclusive right to place advertisements on all of the time
available for advertisements on that network. We expect the number of our exclusive
agency cities to increase in future periods as we enter into exclusive agency
arrangements with our direct investment entities and with additional mobile digital
television companies in new cities. As a result, we expect our network rental fees to
increase in future periods. |
|
|
|
|
The amount of advertising time that we purchase from our direct investment entities
and other mobile digital television companies outside of our network also affect our
media costs. For our direct investment entities without exclusive agency agreements,
we purchase advertising time according to our needs to place advertisements on behalf
of our clients. For the mobile digital television companies and other advertising
service providers outside of our network, we purchase time at the request of our
advertising clients to place advertisements in that city. |
Depreciation. Depreciation for our digital television displays accounted for 0.7%, 1.2% and
1.5% of our total revenues for the years ended December 31, 2007, 2008 and 2009, respectively. Our
depreciation cost only consists of depreciation for the displays directly owned by us and not the
displays owned by our direct investment entities. Generally, we capitalize the acquisition cost of
our digital television displays and recognize depreciation on a straight-line basis over the term
of their useful lives, which we estimate to be five years. The primary factors affecting our
depreciation include the number of digital television displays in our network, the unit cost of
each of our displays and the remaining useful life of our displays. We expect our depreciation to
increase in future periods as a result of expanding our network by adding more displays.
Business Taxes and Surcharges. Our business taxes and surcharges accounted for 4.0%, 6.0% and
5.6% of our total revenues for years ended December 31, 2007, 2008 and 2009, respectively. Business
taxes and surcharges include the 5% business tax and 3% surcharges that our PRC operating
subsidiary must pay for revenues earned from advertising services provided in China.
Other Operating Costs. Our other operating costs primarily consist of salaries and other
expenses in relation to the maintenance, development and expansion of our network and accounted for
1.7%, 2.1% and 2.2% of our total revenues for the years ended December 31, 2007, 2008 and 2009,
respectively. We expect our other operating costs to increase in future periods as we expand our
network in the cities where we already operate and into new cities. However, we expect our other
operating costs to increase in future periods but remain a relatively small percentage of total
revenues.
Advertising Equipment Cost
Our advertising equipment cost consists of the amounts we pay to our third-party suppliers for
the digital television displays and other related equipment that we sell to our direct investment
entities. Our advertising equipment cost accounted for 5.4%, 0.5% and nil of our total revenues for
the years ended December 31, 2007, 2008 and 2009, respectively. The major factors affecting our
advertising equipment cost include the number of digital television displays we sell and the unit cost that we pay
for the assembly of each display. We did not generate advertising equipment revenues in 2009 as
our existing direct investment entities completed the initial expansion of their local networks in
2008 and scaled back their purchases of digital television displays and related equipment from us.
57
Other Factors Affecting Our Results of Operations
In addition to the factors discussed above, our reported results are also affected by the
fluctuations in the value of the Renminbi against the U.S. dollar because our reporting currency is
the U.S. dollar while the functional currency of our subsidiary and affiliated consolidated
entities in China, which operate substantially all of our business, is the Renminbi. In 2007 and
2008, the Renminbi appreciated against the U.S. dollar by approximately 6.5% and 6.5%,
respectively, and in 2009, the Renminbi depreciated against the U.S. dollar by approximately 0.1%.
The appreciation of the Renminbi against the U.S. dollar contributed to the increase in our net
income reported in U.S. dollar terms in 2007, 2008 and 2009, respectively. For additional
information relating to the fluctuations in the value of the Renminbi against the U.S. dollar, see
Item 3. Key InformationA. Selected Financial DataExchange Rate Information, Item 3. Key
InformationD. Risk FactorsRisks Related to Doing Business in ChinaFluctuations in exchange
rates of the Renminbi could materially affect our reported results of operations and Item 11.
Quantitative and Qualitative Disclosures About Market RiskForeign Exchange Risk.
Operating Expenses
Our operating expenses consist of selling and marketing expenses and general and
administrative expenses. The following table sets forth our operating expenses, divided into their
major categories by amount and as a percentage of total revenues for the periods indicated.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the year ended December 31, |
|
|
2007 |
|
2008 |
|
2009 |
|
|
US$ |
|
% of total revenues |
|
US$ |
|
% of total revenues |
|
US$ |
|
% of total revenues |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Revenues |
|
|
29,385,591 |
|
|
|
100.0 |
|
|
|
104,080,642 |
|
|
|
100.0 |
|
|
|
120,686,086 |
|
|
|
100.0 |
|
Gross profit |
|
|
15,000,309 |
|
|
|
51.0 |
|
|
|
63,003,188 |
|
|
|
60.5 |
|
|
|
59,581,705 |
|
|
|
49.4 |
|
Operating expenses: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Selling and marketing |
|
|
2,149,067 |
|
|
|
7.4 |
|
|
|
14,711,536 |
|
|
|
14.1 |
|
|
|
24,620,897 |
|
|
|
20.4 |
|
General and administrative |
|
|
2,949,509 |
|
|
|
10.0 |
|
|
|
5,414,571 |
|
|
|
5.2 |
|
|
|
7,425,222 |
|
|
|
6.2 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating expenses |
|
|
5,098,576 |
|
|
|
17.4 |
|
|
|
20,126,107 |
|
|
|
19.3 |
|
|
|
32,046,119 |
|
|
|
26.6 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Selling and Marketing. Our selling and marketing expenses primarily consist of salaries and
benefits for our sales staff, marketing and promotional expenses and other costs related to
supporting our sales force. Selling and marketing expenses accounted for 7.4%, 14.1% and 20.4% of
our total revenues for the years ended December 31, 2007, 2008 and 2009, respectively. We increased
our sales force to 368 employees as of December 31, 2009 from 300 employees as of December 31, 2008
and 120 employees as of December 31, 2007. The increase in the scale and scope of our sales force
activities has resulted in a significant increase in selling and marketing expenses. We expect
selling and marketing expenses in future periods to increase as our operations continue to grow.
General and Administrative. Our general and administrative expenses primarily consist of
salaries and benefits for management, accounting and administrative personnel, office rentals,
depreciation of office equipment, professional service fees, maintenance, utilities and other
office expenses. General and administrative expenses accounted for 10.0%, 5.2% and 6.2% of our
total revenues for the years ended December 31, 2007, 2008 and 2009, respectively. We expect that
our general and administrative expenses will increase in future periods as we hire additional
personnel and incur additional costs in connection with the expansion of our business and with
being a publicly traded company.
Government
Grants and Subsidies
VisionChina Media Group, an operating entity of our company, was
granted US$0.7 million in 2008 as a reward because we consummated our initial public offering. It was a one-off incentive from the PRC local government in Shenzhen,
which allows any company in Shenzhen that has consummated an initial public offering in 2007 to apply for such
incentive. We took the initiative to apply for this incentive after completing our initial public offering in 2007. Our application
was approved, and we received this incentive from the PRC government in 2008.
In 2009, VisionChina Media Group, an operating entity
of our company, received a government grant of US$0.5 million because it qualified as a cultural enterprise in the PRC. Any
company that is recognized as a cultural enterprise by the local government authorities is qualified to apply for certain
incentives granted by the local
government. As VisionChina Media Group is recognized as a cultural enterprise by the local government authorities, it
is qualified to apply for this incentive. We took the initiative to apply for this incentive by submitting an application to the
local government authorities for
review. The local government authorities recognized VisionChina Media
Group as a cultural enterprise and concluded that it is qualified to receive this incentive in 2009.
In the future, we expect to receive government grants
and incentives from time to time. If we believe any of our group entities meet the criteria to receive government grants or incentives, we plan
to take the initiative to apply. However, the receipt of any incentive or grant is subject to review and approval by the relevant government
authorities.
Share-based Compensation
Our share-based compensation expenses represent the compensation expenses recognized in
relation to the share options and other stock awards granted to our employees and consultants. We
allocate our share-based compensation expenses to cost of revenues, general and administrative
expenses or selling and marketing expenses, depending on role of the person receiving the options
under our 2006 Share Incentive Plan, or the 2006 Plan. We have reserved 8,000,000 common shares for
issuance under the 2006 Plan. As of December 31, 2009, there were 2,399,658 share options and
90,723 restricted shares outstanding to employees and consultants. Our total share-based
compensation expenses accounted for 0.8%, 1.4% and 3.6% of our total revenues for the years ended
December 31, 2007, 2008 and 2009, respectively. We expect our share-based compensation expenses to
increase in future periods as a result of further issuances of options and restricted shares to
employees and consultants.
58
Loss from Equity Method Investees
Our equity investments primarily consist of our investments in our nine direct investment
entities that we account for using the equity method as of December 31, 2009. We expect our loss
from our existing equity method investees to decrease as they finish building their networks and
begin generating more revenues.
We generate advertising service revenues by sales of advertising time on our mobile digital
television advertising network, which are partly provided by our equity method investees. We also
closely monitor the operating activities of the equity method investees financially. As the
operations of our equity method investees form an integral part to our operating activities, our
share of undistributed earnings or losses of these entities are classified as part of our operating
income.
Taxation
We
are an exempted company incorporated in the Cayman Islands and conduct substantially all
of our business through our PRC subsidiaries and our PRC variable interest entities. Our PRC
entities must pay business taxes and surcharges on revenues generated from advertising services and
value added taxes on sales of our advertising equipment, and we account for the business taxes and
surcharges under cost of revenues. Our PRC entities must also pay the enterprise income tax, or
EIT, on their taxable income at the applicable tax rate, except for certain PRC entities that
qualify for preferential tax rates.
Before the new EIT Law and its implementation regulations became effective on January 1, 2008,
as an enterprise located in the Shenzhen Special Economic Zone, both VisionChina Media Group and
CDTC were allowed to enjoy a preferential enterprise income tax rate of 15%. In addition, since
VisionChina Media Group has been recognized as a culture enterprise, VisionChina Media Group
received a full exemption from the EIT from 2006 to 2008. Preferential tax treatments will continue
to be granted to industries and projects that are strongly supported and encouraged by the state,
and enterprises otherwise classified as new and high technology enterprises strongly supported by
the state will be entitled to a 15% enterprise income tax rate. VisionChina Media Group was
designated as new and high technology enterprises strongly supported by the state in November
2008 and, as a result, will be subject to an enterprise income tax rate of 15% for 2009 and 2010.
One of our operating subsidiaries in Luzhou in Sichuan province was recognized as a local
government encouraged company and is entitled to exemption from the enterprise income tax for the
years ended December 31, 2008 and 2009.
Under the new EIT Law, effective since January 1, 2008, China has adopted a uniform tax rate
of 25% for all enterprises (including foreign-invested enterprises) and revoked the current tax
exemption, reduction and preferential treatments applicable to foreign-invested enterprises.
However, there will be a transition period for enterprises, whether foreign-invested or domestic,
that are currently receiving preferential tax treatments granted by relevant tax authorities.
Enterprises that were subject to an enterprise income tax rate lower than 25% prior to January 1,
2008 may continue to enjoy the lower rate and gradually transition to the new tax rate within five
years after the effective date of the EIT Law. Enterprises that are currently entitled to
exemptions or reductions from the standard income tax rate for a fixed term may continue to enjoy such treatment until the fixed term expires. However, if a
foreign-invested enterprise had not become profitable by the end of December 2007, a two-year
exemption from enterprise income tax will be granted for the period between the time the enterprise
becomes profitable and December 31, 2009. According to the implementation regulations, during the
transition period, the enterprise income tax rate of CDTC is 18%, 20%, 22%, 24% and 25% in the
years of 2008, 2009, 2010, 2011 and 2012, respectively, and the enterprise income tax rate of
VisionChina Media Group is 0%, 15%, 15%, 24% and 25% in the years of 2008, 2009, 2010, 2011 and
2012, respectively. As a result, we expect our income tax expense to increase in future years
compared to our historical periods.
59
The EIT Law also provides that enterprises established outside of China whose de facto
management bodies are located in China are considered resident enterprises, and will generally
be subject to the uniform 25% enterprise income tax rate as to their worldwide income, including
income received from subsidiaries and consolidated affiliates. Under the Implementation Rules of
the PRC Enterprise Income Tax Law, a de facto management body is defined as a body that has
material and overall management and control over manufacturing and business operations, personnel
and human resources, finances and treasury, and acquisition and disposition of properties and other
assets of an enterprise. If we are treated as a resident enterprise for PRC tax purposes, we will
be subject to PRC tax on our worldwide income at the 25% tax rate, which would have an impact on
our effective tax rate.
Furthermore, unlike the Income Tax Law for Enterprises with Foreign Investment and Foreign
Enterprises that was replaced by the EIT Law, which specifically exempts withholding tax on any
dividends payable to non-PRC investors, the EIT Law and implementation regulations provides that an
income tax rate of 10% is normally applicable to dividends payable to non-PRC investors which are
derived from sources within China, although such income tax may be exempted or reduced by the State
Council of the PRC or pursuant to a tax treaty between China and the jurisdictions in which our
non-PRC shareholders reside. We are a Cayman Islands holding company and substantially all of our
income may be derived from dividends we receive from our operating subsidiary and consolidated
affiliates established in China. If we declare dividends from such income, it may be deemed to be
derived from sources within China under the EIT Law and be subject to income tax under the EIT Law.
If we are required under the EIT Law to pay income tax for any dividends we received from our
subsidiary in China, your investment in us may be materially and adversely affected. However, as we
plan to retain and reinvest our earnings to further expand our business in the PRC, our subsidiary
in China does not have plans to declare dividends in the foreseeable future. In addition, it is
unclear whether dividends paid to our non-PRC shareholders and ADS holders or any capital gains
from the transfer of our common shares or ADSs, would be treated as income derived from sources
within the PRC and subject to PRC tax. If we are required under the EIT Law to withhold PRC income
tax on dividends payable to our non-PRC investors that are non-resident enterprises or if you are
required to pay PRC income tax on the transfer of our common shares or ADSs, the value of your
investment may be materially and adversely affected.
Critical Accounting Policies
We prepare our consolidated financial statements in accordance with U.S. GAAP, which requires
us to make judgments, estimates and assumptions that affect: (i) the reported amounts of our assets
and liabilities; (ii) the disclosure of our contingent assets and liabilities at the end of each
reporting period; and (iii) the reported amounts of revenues and expenses during each reporting
period. We continually evaluate these estimates based on our own historical experience, knowledge
and assessment of current business and other conditions, our expectations regarding the future
based on available information and reasonable assumptions, which together form our basis for making
judgments about matters that are not readily apparent from other sources. Since the use of
estimates is an integral component of the financial reporting process, our actual results could
differ from those estimates.
We believe that any reasonable deviation from those judgments and estimates would not have a
material impact on our financial condition or results of operations. To the extent that the
estimates used differ from actual results, however, adjustments to the statement of operations and
corresponding balance sheet accounts would be necessary. These adjustments would be made in future
financial statements.
When reading our financial statements, you should consider: (i) our critical accounting
policies; (ii) the judgment and other uncertainties affecting the application of such policies; and
(iii) the sensitivity of reported results to changes in conditions and assumptions. We believe the
following accounting policies involve the most significant judgment and estimates used in the
preparation of our financial statements.
Depreciation
of fixed assets
Fixed assets are carried at cost less accumulated depreciation and amortization. Assembly in
progress is not depreciated until it is ready for its intended use.
60
Depreciation and amortization is computed on a straight-line basis over the following
estimated useful lives, after taking into account the residual values:
|
|
|
Media display equipment 5 years |
|
|
|
|
Computers and office equipment 5 years |
|
|
|
|
Motor vehicles 5 years |
|
|
|
|
Leasehold improvements lesser of lease terms or the estimated useful lives of the
assets |
Changes
in estimation of useful lives and residual values may have impact on
the amount of depreciation expense to be charged to the consolidated
statement of operations.
Investments under equity method
The investments for which we have the ability to exercise significant influence are accounted
for using the equity method. Under the equity method, original investments are recorded at cost and
adjusted by our share of undistributed earnings or losses of these entities, by the amortization of
intangible assets recognized upon purchase price allocation and by dividend distributions or
subsequent investments. All unrecognized inter-company profits and losses have been eliminated
under the equity method.
We
generate a portion of our revenues from sales of advertising time on mobile television
networks which are owned by our equity method investees. Because the operations of our investees
under equity method form an integral part to our operating activities, our share of undistributed
earnings or losses of these entities is classified as part of our operating income.
When
the estimated amount to be realized from the investments falls below
their carrying value,
an impairment charge is recognized in the consolidated statements of operations when the decline in
value is considered other than temporary.
Other investments
Our investments in non-marketable equity securities for which we do not have the ability to
exercise significant influence or control are accounted for using the cost method. Dividends and
other distributions of earnings from investees, if any, are included in income when declared. We
periodically evaluate the carrying value of investments accounted for under the cost method of
accounting and any impairment is included in the consolidated statements of operations.
Goodwill and Intangible Assets
We carry intangible assets, which consist of customer base, non-competition agreements and
patents, at cost less accumulated amortization. Amortization is calculated using the straight-line
method over the estimated economic life of the intangible assets. The
expected useful lives of the
customer base are five years, the expected useful lives of the non-competition agreements are ten
years and the expected useful life of patents are ten years. Changes
in the estimation of useful lives of the intangible assets may have impact on the amortization expenses to be charged to the consolidated statement of operations.
We estimated fair value of the identifiable intangible assets acquired on the date of
acquisition, which primarily consisted of a customer base and non-competition agreements. When the
additional considerations payable in connection with the acquisitions are determined, the excess of
amounts paid for acquisitions over the fair market value of the net identifiable assets acquired
are allocated to goodwill.
The determination of the fair value of any intangible assets involves certain judgments and
estimates, including, but are not limited to, the cash flows that an asset is expected to generate
in the future. For a customer base, the fair value was based on the excess earnings which take into
consideration the projected cash flows to be generated from the customer base. Future cash flows
are estimated based on the net income forecast of the customer base, which takes into consideration
historical customer attrition and revenue growth. The resulting cash flows are then discounted at
our estimated weighted average cost of capital. For a non-compete agreement, the fair value was
determined using a with or without approach, which calculates the difference between projected
cash flows with and without the non-competition agreement.
61
We are required to review our amortizable intangible assets for impairment when events or
changes in circumstances indicate that the carrying value of such assets may not be recoverable. We
assess recoverability of the amortizable intangible assets by comparing the carrying value of an
asset to estimated undiscounted cash flows expected to result from the use of the asset and their
eventual disposition. If we determine that the carrying value of acquired intangible assets have
been impaired, the carrying value will be written down to fair value at the measurement date and impairment charges will be will be recorded.
Goodwill represents the excess of the purchase price over the fair value of the identifiable
net assets acquired. Goodwill is not amortized but is tested for impairment annually or more
frequently if events or changes in circumstances indicate that it might be impaired.
We assess goodwill for impairment in accordance with FASB ASC 350, Intangibles Goodwill and Other (formerly
Statement of Financial Accounting Standard, or SFAS, No. 142, Goodwill and Other Intangible
Assets), which requires that goodwill be tested for impairment at the reporting unit level at
least annually and more frequently upon the occurrence of certain events, as defined by FASB ASC
350. Goodwill of each unit is tested for impairment in the annual impairment tests using the
two-step process. First, we review the carrying amount of the reporting unit compared to the fair
value of the reporting unit. If the fair value of the reporting unit exceeds its carrying amount,
goodwill is not considered to be impaired and the second step is not required. If the carrying
amount of a reporting unit exceeds its fair value, the second step compares the implied fair value
of goodwill to the carrying value of the reporting units goodwill. The implied fair value of
goodwill is determined in a manner similar to accounting for a business combination with allocation
of the assessed fair value determined in the first step to the assets and liabilities of the
reporting unit. The excess of the fair value of the reporting unit over the amounts assigned to the
assets and liabilities is the implied fair value of goodwill. This allocation process is only
performed for the purpose of evaluating goodwill impairment and does not result in an entry to
implied fair value of goodwill. We estimate the fair value of our reporting units using a
discounted cash flow methodology. This valuation technique is based on a number of estimates and
assumptions, including the projected operating results of the reporting units, discounted rate,
long-term growth rate and appropriate market comparables. We performed an annual goodwill
impairment test for our reporting unit as of December 31, 2009, and no impairment loss was
required. The estimates and assumptions used for determination of the fair value of the reporting
units include estimated future cash flows, discount rates and other assumptions. Changes in these
estimates and assumptions could materially affect the determination of fair value for each
reporting unit. Any impairment charges recorded could have a material impact on our financial
condition and results of operations.
Income taxes
We recognize deferred income taxes for temporary differences between the tax basis of assets
and liabilities and their reported amounts in the financial statements, net operating loss carry
forwards and credits by applying enacted statutory tax rates applicable to future years.
We record a valuation allowance to reduce deferred tax assets to the value we believe is more
likely than not to be realized. In the event we were to determine that we would be able to realize
our deferred tax assets in the future in excess of their recorded amount, an adjustment to our
valuation allowance would increase our income in the period such determination was made. Likewise,
if we determine that we would not be able to realize all or part of our net deferred tax assets in
the future, an adjustment to our valuation allowance would be charged to our income in the period
such determination is made. Current income taxes are provided for in accordance with the laws of
the relevant taxing authorities.
As none of our PRC subsidiaries and consolidated affiliated entities intend to declare
dividends, their undistributed earnings are considered indefinitely reinvested and therefore no
provisions have been made for PRC dividend withholding taxes.
Share-based compensation
On December 8, 2006, we adopted the 2006 share incentive plan that allows us to offer a
variety of incentive awards to our employees and consultants. For options granted to employees,
share-based payments are measured based on the fair values of share options on the grant date and
are generally recognized as compensation expense over the requisite service periods with a
corresponding addition to paid-in capital. Share awards issued to consultants are measured at fair
value at the commitment date and recognized over the period the service is provided.
62
For options granted on July 6, 2007, August 30, 2007 and October 31, 2007, the fair value of
our common shares used in determining the fair value of the options is the per share value of our
common shares determined by us, with the assistance of an independent third-party valuation
specialist, solely for the purpose of financial accounting for employee share-based compensation.
Determining the fair value of our common shares underlying these options required us to make
complex and subjective judgments regarding projected financial and operating results, our unique
business risks, the liquidity of our shares and our operating history and prospects at the time of
grant. We used the income approach in conjunction with the market value approach by assigning a
different weight to each of the approaches to estimate the enterprise value of our company when the
option was granted. The income approach involves applying appropriate discount rates to estimated
cash flows that are based on earnings forecasts. The assumptions used in deriving the fair value of
our company are consistent with our business plan. These assumptions include: no material changes
in the existing political, legal, fiscal and economic conditions in China; our ability to recruit
and retain competent management, key personnel and technical staff to support our ongoing
operation; and no material deviation in industry trends and market conditions from economic
forecasts. These assumptions are inherently uncertain. The risks associated with achieving our
forecasts were assessed in selecting the appropriate discount rates. If different discount rates
had been used, the valuations would have been different and the amount of share-based compensation
would also have been different because the fair value of the underlying common shares for the
options granted would be different.
For share options granted on July 6, 2007, August 30, 2007 and October 31, 2007, we used a
combination of the income approach, also known as the discounted cash flow, or DCF, approach, and
the market approach to assess the fair value of our common shares underlying the options granted on
a contemporaneous basis.
The major assumptions used by us in calculating the fair value of common shares were as
follows:
|
|
|
Weight of DCF and market multiples: We assigned 70% weight to the DCF approach and
30% weight to the market multiples approach because we had achieved visibility of
future earnings at the time, which made the DCF approach more meaningful. |
|
|
|
|
Weighted average costs of capital, or WACC: We used an estimated WACC of 25% for
the July 6, 2007 and August 30, 2007 grants and 20% for the October 31, 2007 grants,
which was the combined result of the risk-free rate and our company-specific risk when
we continued to grow and meet important milestones. |
|
|
|
|
Capital market valuation multiples: We obtained and assessed the then updated
capital market valuation data of comparable Chinese and international advertising
companies such as Focus Media Holding Limited, Clear Channel Outdoor Holdings Inc., JC
Decaux SA, Primedia Limited, Clear Media and Xinhua Finance Media Limited. |
|
|
|
|
Discount for lack of marketability: We used a 5% discount rate for the July 6, 2007
and August 30, 2007 grants and 3% for October 31, 2007 grants for lack of
marketability of our common shares. |
For options granted on July 6, 2007, August 30, 2007 and October 31, 2007, we used the
option-pricing method to allocate equity value to the preferred and the common shares, taking into
account the guidance prescribed by the AICPA Audit and Accounting Practice Aid Valuation of
Privately-Held-Company Equity Securities Issued as Compensation. The option-pricing method
involves making estimates of the anticipated timing of a potential liquidity event such as a sale
of our company or an initial public offering and estimates of the volatility of our equity
securities. The anticipated timing is based on the plans of our board and management. Estimating
the volatility of the share price of a privately held company is complex because there is no
readily available market for the shares. We estimated the volatility of our shares to range from
31.4% to 36.1%. Had we used different estimates of volatility, the allocations between preferred
and common shares would have been different.
For the options granted in April and May 2007, management performed valuation to assess the
fair value of our common shares underlying the options granted based on the price of the Series B
preferred shares that we issued and sold to third parties for cash in March 2007. Series B
preferred shares were issued to several institutional investors in March 2007 for cash at a price
determined based on the agreed enterprise value of our company. As the transaction was carried out
between unrelated parties at arms length basis, we believe that the negotiated equity value
represents the fair enterprise value of our company. We used an option-pricing model to allocate
the total enterprise value of our company to preferred and common shares.
63
For the options granted in 2008 and 2009, we determined the value of the shares underlying the
options by referring to the sale prices of our ADSs on the Nasdaq Global Market.
We account for stock-based compensation in accordance with FASB ASC 718, Compensation Stock
Compensation (formerly SFAS No. 123R, Share-Based Payment). Under the provisions of FASB ASC 718,
stock-based compensation cost is estimated at the grant date based on the awards fair value as
calculated by the Black-Scholes-Merton, or BSM, option-pricing model and is recognized as expense
over the requisite service period. The BSM model requires various highly judgmental assumptions
including volatility and expected option life. If any of the assumptions used in the BSM model
change significantly, stock-based compensation expense may differ materially in the future from
that recorded in the current period. In addition, we are required to estimate the expected
forfeiture rate and only recognize expense for those options expected to vest. These estimations
are based on past employee retention rates and our expectations of future retention rates. As our
operating history is limited, we will prospectively revise our forfeiture rates based on actual
history. Further, to the extent our actual forfeiture rate is different from our estimate,
stock-based compensation expense is adjusted accordingly.
Allowance for doubtful accounts
We evaluate the recoverability of our account receivables primarily based on the ages of
receivables and factors surrounding the credit risks of specific customers. We regularly analyze
our customer accounts, and when we become aware of a specific customers inability to meet its
financial obligations to us, such as in the case of bankruptcy filings or deterioration in the
customers operating results or financial positions, we record a reserve for bad debts to reduce
the related receivables to the amount we reasonably believe is collectible. If circumstances
related to specific customers change, our estimates of the recoverability of receivables will be
further adjusted. In the event that our accounts receivables become uncollectible, we record
additional adjustments to receivables to reflect the amounts at net realizable value. We had allowance for
doubtful debt of US$0.6 million and US$1.2 million as of December 31,
2008 and 2009 respectively. We had made
additional allowance for doubtful debt of US$0.6 million and US$0.6 million in 2008 and 2009
respectively, both representing less than 1% as a percentage to our total revenue. We assess
allowance for doubtful debts
based on our review of aging data and credit risks
of specific customers. We had charged off account receivables of nil and US$60,798 in 2008 and 2009
respectively as we had exhausted all means of collection. We believe
that the balance allowance for doubtful account receivables is sufficient to reflect the
recoverability of our accounts receivable.
We do not expect the allowance for doubtful accounts, which is charged to our
statement of operations, to increase significantly as a percentage of our total revenue in future years. We also do not expect our allowance for doubtful accounts to have a significant impact on our liquidity and
capital resources.
Results of Operations
The following table sets forth a summary, for the periods indicated, of our consolidated
results of operations. Our historical results presented below are not necessarily indicative of the
results that may be expected for any future period.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Year Ended December 31, |
|
|
2007 |
|
2008 |
|
2009 |
|
|
(US$, except number of shares) |
Condensed Consolidated Statement of Operations Data |
|
|
|
|
|
|
|
|
|
|
|
|
Revenues |
|
|
|
|
|
|
|
|
|
|
|
|
Advertising service revenues |
|
|
27,489,391 |
|
|
|
103,515,250 |
|
|
|
120,686,086 |
|
Advertising equipment revenues |
|
|
1,896,200 |
|
|
|
565,392 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenues |
|
|
29,385,591 |
|
|
|
104,080,642 |
|
|
|
120,686,086 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cost of revenues |
|
|
|
|
|
|
|
|
|
|
|
|
Advertising service cost |
|
|
12,801,957 |
|
|
|
40,602,022 |
|
|
|
61,104,381 |
|
Advertising equipment cost |
|
|
1,583,325 |
|
|
|
475,432 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total cost of revenues |
|
|
14,385,282 |
|
|
|
41,077,454 |
|
|
|
61,104,381 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit |
|
|
15,000,309 |
|
|
|
63,003,188 |
|
|
|
59,581,705 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating expenses |
|
|
5,098,576 |
|
|
|
20,126,107 |
|
|
|
32,046,119 |
|
64
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Year Ended December 31, |
|
|
2007 |
|
2008 |
|
2009 |
|
|
(US$, except number of shares) |
Government grant |
|
|
|
|
|
|
|
|
|
|
538,085 |
|
Loss from equity method investees |
|
|
(1,262,273 |
) |
|
|
(484,969 |
) |
|
|
(998,606 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating profit |
|
|
8,639,460 |
|
|
|
42,392,112 |
|
|
|
27,075,065 |
|
Interest income |
|
|
505,888 |
|
|
|
3,480,212 |
|
|
|
1,860,017 |
|
Interest expenses |
|
|
|
|
|
|
|
|
|
|
(109,590 |
) |
Government grant |
|
|
|
|
|
|
672,515 |
|
|
|
|
|
Other expenses |
|
|
(95,719 |
) |
|
|
(38,491 |
) |
|
|
(1,278 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income before income taxes |
|
|
9,049,629 |
|
|
|
46,506,348 |
|
|
|
28,824,214 |
|
Income tax benefits (expenses) |
|
|
332,386 |
|
|
|
212,325 |
|
|
|
(2,348,254 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income after income taxes |
|
|
9,382,015 |
|
|
|
46,718,673 |
|
|
|
26,475,960 |
|
Net loss attributable to non-controlling interest |
|
|
11,343 |
|
|
|
91,277 |
|
|
|
127,043 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income attributable to VisionChina Media Inc.
shareholders |
|
|
9,393,358 |
|
|
|
46,809,950 |
|
|
|
26,603,003 |
|
Deemed dividend on convertible redeemable
preferred shares |
|
|
6,625,262 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income attributable to holders of common shares |
|
|
2,768,096 |
|
|
|
46,809,950 |
|
|
|
26,603,003 |
|
Net income per common share: |
|
|
|
|
|
|
|
|
|
|
|
|
Basic |
|
|
0.11 |
|
|
|
0.67 |
|
|
|
0.37 |
|
Diluted |
|
|
0.11 |
|
|
|
0.65 |
|
|
|
0.37 |
|
Shares used in computation of net income per share: |
|
|
|
|
|
|
|
|
|
|
|
|
Basic |
|
|
24,709,522 |
|
|
|
70,064,663 |
|
|
|
71,686,900 |
|
Diluted |
|
|
25,771,702 |
|
|
|
72,404,916 |
|
|
|
72,676,438 |
|
Share-based compensation expenses during the
related periods included in: |
|
|
|
|
|
|
|
|
|
|
|
|
Cost of revenues |
|
|
34,431 |
|
|
|
39,847 |
|
|
|
63,477 |
|
Selling and marketing expenses |
|
|
135,722 |
|
|
|
1,163,623 |
|
|
|
3,698,329 |
|
General and administrative expenses |
|
|
51,209 |
|
|
|
263,585 |
|
|
|
570,305 |
|
Year Ended December 31, 2009 Compared to Year Ended December 31, 2008
Total Revenues. Our total revenues increased to US$120.7 million in 2009 from US$104.1 million
in 2008.
|
|
|
Our advertising service revenues increased to US$120.7 million in 2009 from
US$103.5 million in 2008. We experienced an increase in advertising service revenues
primarily as a result of increased sales of advertising time on our mobile digital
television advertising network achieved by the expansions of our strong sales and
advertising networks in 2009 and acquisitions of six advertising agency businesses in
2008. In 2009, we expanded our operations to include additional advertising time on
buses in Hangzhou, Tianjin, Suzhou and Xiamen and additional subway advertising time
in Beijing. The six advertising agency businesses we acquired in 2008 contributed to
56% and 53% of our total revenues in 2008 and 2009, respectively. |
|
|
|
|
We did not generate any advertising equipment revenues in 2009, compared with
US$0.6 million in 2008, as our existing direct investment entities completed the
initial expansion of their local networks and scaled back their purchases of digital
television displays and related equipment from us. |
65
Cost of Revenues. Our cost of revenues increased significantly to US$61.1 million in 2009 from
US$41.1 million in 2008.
|
|
|
Our advertising service cost increased significantly to US$61.1 million in 2009
from US$40.6 million in 2008. |
|
|
|
|
Our media cost increased to US$49.9 million in 2009 from US$30.9 million in
2008. We experienced an increase in media cost primarily due to a large increase
in the amount of network rental fees paid to our exclusive agency partner
companies to secure advertising time. Our network rental fees for our exclusive
agency cities increased to US$43.3 million in 2009 from US$28.0 million in 2008.
The number of cities operating under our exclusive agency model increased to 16
cities as of December 31, 2009 from 12 cities as of December 31, 2008. To a lesser
extent, we also attribute the increase in our media cost to increased demand for
advertising time in cities operating under our direct investment and outreach
agency models that require us to purchase the advertising time from the local
mobile digital television network operating in that city.
We also attribute a portion of the increase in our media cost to the annual increase in the
amount of network rental fees under the terms of our contracts with our exclusive agency partner
companies in our existing cities.
|
|
|
|
|
|
Our depreciation increased to US$1.8 million in 2009 from US$1.2 million in
2008 as a result of the increase in the number of digital television displays
located in our exclusive agency cities. |
|
|
|
|
Our business tax increased to US$6.8 million in 2009 from US$6.3 million in
2008 as a result of the increase in our revenues. |
|
|
|
|
Our other operating costs include salaries and expenses related to installation
and maintenance of the displays in our network and increased to US$2.7 million in
2009 from US$2.2 million in 2008, primarily due to the expansion of our network
into new cities and also in the cities where we already operated. |
Gross Profit. As a result of the foregoing, our gross profit was US$59.6 million in 2009
compared to US$63.0 million in 2008. Our gross margin decreased to 49.4% in 2009 from 60.5% in
2008. Our gross margin decreased primarily due to the general increase in media costs as we
expanded our media network.
Operating Expenses. Our operating expenses increased to US$32.0 million in 2009 from US$20.1
million in 2008.
|
|
|
Selling and Marketing. Selling and marketing expenses increased to US$24.6 million
in 2009 from US$14.7 million in 2008. Our selling and marketing expenses increased
mainly due to expansion of our sales force and strengthening its sales capabilities,
and the overall increase in sales activities in a challenging market environment in
2009. The number of our selling and marketing employees increased to 368 as of December 31, 2009 from 300 as of December
31, 2008. |
|
|
|
|
General and Administrative. General and administrative expenses increased to US$7.4
million in 2009 from US$5.4 million in 2008. Our general and administrative expenses
increased mainly due to the increase in the size of our administrative staff and
infrastructure to support our growing operations. |
Loss from Equity Method Investees. Our loss from equity method investees increased to US$1.0
million in 2009 from US$0.5 million in 2008. We experienced an increase in our loss from equity
method investees as a result of further media network development costs and challenging sales
environments for certain of our equity joint-venture entities in 2009.
Operating Profit. As a result of the foregoing, our operating profit amounted to US$27.1
million in 2009 as compared to US$42.4 million in 2008.
Interest Income. Our interest income decreased to US$1.9 million in 2009 from US$3.5 million
in 2008, primarily as a result of a decrease in our cash and cash equivalent balances, which were
primarily used by our investing activities in 2009.
66
Income Taxes. We recognized an income tax expense of US$2.3 million in 2009, compared to an
income tax benefit of US$0.2 million in 2008. The income tax expense was primarily due to the
expiration of the tax exemption of our principal operating entity in China.
Net loss attributable to non-controlling interest. Our net loss attributable to
non-controlling interest increased to US$0.13 million in 2009 from US$0.09 million in 2008,
primarily as the result of an increase in net loss of a subsidiary.
Net Income Attributable to VisionChina Media Inc. Shareholders. As a result of the foregoing,
our net income amounted to US$26.6 million in 2009 as compared to US$46.8 million in 2008.
Year Ended December 31, 2008 Compared to Year Ended December 31, 2007
Total Revenues. Our total revenues increased significantly to US$104.1 million in 2008 from
US$29.4 million in 2007.
|
|
|
Our advertising service revenues increased significantly to US$103.5 million in
2008 from US$27.5 million in 2007. We experienced a significant increase in
advertising service revenues primarily as a result of increased sales of advertising
time on our mobile digital television advertising network achieved by the expansion of
our strong sales network and acquisitions of six advertising agency businesses in
2008. The six acquired businesses contributed to 56% of our total revenues in 2008. To
a lesser extent, our advertising service revenues also increased due to sales of
advertising time on our supplemental subway advertising platform that commenced
operations in May 2007. Our supplemental subway advertising platform accounted for
approximately 15.2% of our advertising service revenues in 2008. We also attribute the
increase in our advertisement service revenues to the growth of our network to 17
cities as of December 31, 2008 from 14 cities as of December 31, 2007. We expect our
advertising service revenues to increase in future periods as our network further
penetrates the out-of-home advertising market. |
|
|
|
|
Our advertising equipment revenues were US$0.6 million and US$1.9 million in 2008
and 2007, respectively. Our advertising equipment revenues decreased as our existing
direct investment entities finished the initial expansion of their local networks and
scaled back their purchases of digital television displays and related equipment from
us. |
Cost of Revenues. Our cost of revenues increased significantly to US$41.1 million in 2008 from
US$14.4 million in 2007.
|
|
|
Our advertising service cost increased significantly to US$40.6 million in 2008
from US$12.8 million in 2007. |
|
|
|
Our media cost increased significantly to US$30.9 million in 2008 from US$10.9
million in 2007. We experienced a significant increase in media cost primarily due
to a large increase in the amount of network rental fees paid to our exclusive
agency partner companies to secure advertising time. Our network rental fees for
our exclusive agency cities increased significantly to US$28.0 million in 2008
from US$10.0 million in 2007. The number of cities operating under our exclusive
agency model increased to 12 cities as of December 31, 2008 from five cities as of
December 31, 2007. To a lesser extent, we also attribute the increase in our media
cost to (i) increased demand for advertising time in cities operating under our
direct investment and outreach agency models that require us to purchase the
advertising time from the local mobile digital television network operating in
that city, and (ii) payments to the subway companies for our supplemental subway advertising platform beginning in January 2007 to purchase advertising time
on the supplemental subway advertising platform. |
67
|
|
|
Our depreciation increased significantly to US$1.2 million in 2008 from US$0.2
million in 2007 as a result of the increase in the number of digital television
displays located in our exclusive agency cities. |
|
|
|
|
Our business tax increased significantly to US$6.3 million in 2008 from US$1.2
million in 2007 as a result of the increase in our revenues. |
|
|
|
|
Our other operating costs include salaries and expenses related to installation
and maintenance of the displays in our network and increased significantly to
US$2.2 million in 2008 from US$0.5 million in 2007, primarily due to the expansion
of our network into new cities and also in the cities where we already operated. |
|
|
|
Our advertising equipment cost was US$0.5 million in 2008 compared to US$1.6
million in 2007. |
Gross Profit. As a result of the foregoing, our gross profit was US$63.0 million in 2008
compared to US$15.0 million in 2007. Our gross margin increased to 60.5% in 2008 from 51.0% in
2007. Our gross margin increased primarily due to the fact that the increase in our total revenues
outpaced the increase in our cost of revenues. In addition, our advertising service revenues
accounted for a larger percentage of our total revenues in 2008 compared to the same period in
2007, and we recognized a higher gross margin for our advertising service revenues compared to our
advertising equipment revenues in 2008. We expect our advertising service revenues to account for
an increasing percentage of our total revenues in the foreseeable future.
Operating Expenses. Our operating expenses increased significantly to US$20.1 million in 2008
from US$5.1 million in 2007.
|
|
|
Selling and Marketing. Selling and marketing expenses increased significantly to
US$14.7 million in 2008 from US$2.1 million in 2007. Our selling and marketing
expenses increased mainly due to expansion of our sales force along with increases in
marketing and promotional expenses incurred by our sales force. The number of our
selling and marketing employees increased to 300 as of December 31, 2008 from 120 as
of December 31, 2007. |
|
|
|
|
General and Administrative. General and administrative expenses increased to US$5.4
million in 2008 from US$2.9 million in 2007. Our general and administrative expenses
increased mainly due to the increase in the size of our administrative staff to
support our growing operations. |
Loss from Equity Method Investees. Our loss from equity method investees decreased to US$0.5
million in 2008 from US$1.3 million in 2007. We experienced a decrease in our loss from equity
method investees as they finished the initial expansion of their local networks and began to
generate advertising service revenues.
Operating Profit. As a result of the foregoing, our operating profit amounted to US$42.4
million in 2008 as compared to US$8.6 million in 2007.
Interest Income. Our interest income increased to US$3.5 million in 2008 from US$0.5 million
in 2007, primarily as a result of higher cash and cash equivalent balances provided by our
financing activities. In March and July 2007, we received an aggregate of US$40 million gross
proceeds from the issuance of Series B convertible preferred shares. In December 2007, we received
an aggregate of US$100.4 million gross proceeds from our initial public offering and in August
2008, we received an aggregate of US$17.6 million gross proceeds from our public offering.
Income Taxes. We recognized an income tax benefit of US$0.2 million in 2008, primarily
attributable to realization of deferred tax liabilities assumed from acquisitions.
Net income attributable to non-controlling interest. Our net income attributable to
non-controlling interest increased to US$0.09 million in 2008 from US$0.01 million in 2007
primarily as the result of an increase in net loss of a subsidiary.
68
Net Income Attributable to VisionChina Media Inc. Shareholders. As a result of the foregoing,
our net income amounted to US$46.8 million in 2008 as compared to US$9.4 million in 2007.
|
|
|
B. |
|
Liquidity and Capital Resources |
Our liquidity needs include (i) net cash used in operating activities that consists of (a)
cash required to fund the initial build-out and continued expansion of our network and (b) our
working capital needs, which include payment of our operating expenses and financing of our
accounts receivable; and (ii) net cash used in investing activities that consists of the
investments in our direct investment entities. To date, we have financed our liquidity needs
primarily through proceeds from the issuance of our preferred shares, proceeds from our public
offerings, long-term borrowings from financial institutions and cash flows from operations. We
raised US$40.0 million from the issuance of Series B convertible preferred shares in March and July
2007. In December 2007, we received gross proceeds of US$100.4 million from our initial public
offering. In August 2008, we received gross proceeds of US$17.6 million from a follow-on public
offering of our ADSs.
Starting in 2008, we have relied on and plan to continue relying on cash generated from
operations to fund our capital expenditures.
On March 5 and March 28, 2007, we borrowed an aggregate amount of RMB17.1 million from Meidi
Zhiye, a related party, to fund our working capital requirements. On April 29, 2007, we repaid
Meidi Zhiye the total amount of such borrowing.
As of December 31, 2009, we had US$68.8 million in cash and cash equivalents. Our cash
primarily consists of cash on hand and cash deposited in banks and interest-bearing savings
accounts. We believe that our current cash on hand, expected cash flows from operations and
available credit facilities from financial institutions will be sufficient to meet our anticipated
cash needs for at least the next 12 months.
As of December 31, 2009, we had access to US$61.2 million in a short-term overseas credit
line, which is secured by a pledged deposit of the RMB equivalent of US$64.4 million in the PRC,
and US$58.5 million in long-term credit facilities. As of December 31, 2009, the principal
outstanding amounts under our credit facilities included short-term bank loans of US$40.8 million
from our short-term overseas credit line and long-term bank loans of US$0.7 million maturing after
more than one year.
In January 2010, we obtained short-term bank loans of US$20.4 from our overseas credit line
and long-term bank loans of US$57.8 million from our long-term credit facilities. In January 2010,
as a result of our acquisition of Digital Media Group, we assumed short-term bank loans of US$7.3
million and bank overdraft of US$35.6 million, which were borrowed from PRC financial institutions.
We did not generate net income for any quarter since our inception until the three months
ended June 30, 2007, in which we generated net income of US$0.3 million. We generated net income of
US$46.8 million and US$26.6 million in 2008 and 2009, respectively. We intend to maintain our
current policies for collections of accounts receivable, which typically provide a credit period no
longer than 180 days following the month in which the advertisement is displayed. We expect our
accounts receivable to increase as a result of the rapid growth in our advertising service
revenues. As we expect the out-of-home advertising market in China to continue growing, we plan to
continue expanding our network in the cities where we already operate and into new cities.
We currently rely on cash generated from operating activities to fund our liquidity needs.
However, we may need additional cash resources
in the future if we experience changed business conditions or other developments. We may also need
additional cash resources in the future if we find and wish to pursue opportunities for investment,
acquisition, strategic cooperation or other similar actions. If we determine that our cash
requirements exceed the amounts of cash on hand, we may seek to issue debt or equity securities or
obtain additional short-term or long-term bank financing. Any issuance of equity securities could
cause dilution for our shareholders. Any incurrence of indebtedness could increase our debt service
obligations and cause us to be subject to restrictive operating and financial covenants. It is
possible that, when we need additional cash resources, financing will only be available to us in
amounts or on terms that would not be acceptable to us or financing will not be available at all.
69
The following table sets forth a summary of our cash flows for the periods indicated:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the Year Ended December 31, |
|
|
2007 |
|
2008 |
|
2009 |
|
|
(US$) |
Net cash provided by (used in) operating activities |
|
|
(6,000,540 |
) |
|
|
24,329,809 |
|
|
|
39,397,267 |
|
Net cash used in investing activities |
|
|
(8,193,279 |
) |
|
|
(21,762,467 |
) |
|
|
(170,649,621 |
) |
Net cash provided by financing activities |
|
|
138,822,631 |
|
|
|
24,615,240 |
|
|
|
37,133,503 |
|
Effect of changes in exchange rate |
|
|
1,295,154 |
|
|
|
4,926,045 |
|
|
|
(295,348 |
) |
Net increase (decrease) in cash and cash equivalents |
|
|
125,923,966 |
|
|
|
32,108,627 |
|
|
|
(94,414,199 |
) |
Cash and cash equivalents, beginning of period/year |
|
|
5,215,693 |
|
|
|
131,139,659 |
|
|
|
163,248,286 |
|
Cash and cash equivalents, end of period/year |
|
|
131,139,659 |
|
|
|
163,248,286 |
|
|
|
68,834,087 |
|
Operating Activities
Our net cash provided by operating activities amounted to US$39.4 million in 2009, net cash
provided by operating activities amounted to US$24.3 million in 2008 and net cash used in operating
activities amounted to US$6.0 million in 2007. Our net cash provided by operating activities in
2009 primarily as a result of operating income of US$26.5 million in 2009.
Investing Activities
Our net cash used in investing activities amounted to US$170.6 million in 2009, US$21.8
million in 2008 and US$8.2 million in 2007. Our net cash used in investing activities increased in
2009 primarily due to payment for the purchase consideration of US$64.2 million in connection with
six acquisitions in 2008 and prepayments of US$40.0 million in connection with our acquisition of
Digital Media Group. The remaining amount of net cash used in investing activities in 2009 was
primarily due to an increase in restricted cash of US$64.4 million. This restricted cash balance
was for a pledge of a bank deposit used to obtain an offshore bank credit line in 2009. The
purpose of the offshore bank credit line is to finance foreign currency payments for our
acquisitions mentioned above.
We purchased all of the outstanding equity interests of six British Virgin Islands companies
from sellers of them pursuant to share subscription agreements entered into in April, May and
August 2008 in connection with our acquisition of certain advertising agency businesses in China.
These acquisitions broadened our advertising client base and expanded our sales team with
experienced industry professionals. With respect to each of the acquired businesses, we entered
into a share subscription agreement with the sellers of such business, under which we paid a
deposit up front. In addition, we and the sellers will determine the net profit generated by such
business in the period from the completion of the acquisition through remainder of 2008 and in 2009
and 2010 after the end of the relevant periods. If there is a net profit for any of these relevant
periods, we will make payments to the sellers, the amount of which will be determined in reference
to cash actually received in respect of the net revenues generated by these businesses.
The purchase price was comprised entirely of contingent consideration based on certain
multiples on the earnings and the percentage of revenues collected. In connection with these acquisitions, we paid an aggregate deposit of US$16.7 million in
2008. These initial deposits will be used to offset a portion of the additional consideration
payable at the end of the earn-out period (see below for details on the additional consideration
payable). The additional consideration, or Earn-out Consideration, was calculated based on the earnings of each of the
acquired businesses in 2008 (after the date of acquisitions), 2009 and 2010. The following table summarizes the maximum Earn-out Consideration for 2008 and 2009:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Peak |
|
Aim |
|
Golden |
|
Goldwhite |
|
Ahead |
|
Century |
|
Total |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Earn-out Consideration: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2008 |
|
|
22,495,063 |
|
|
|
12,682,567 |
|
|
|
8,976,319 |
|
|
|
9,365,189 |
|
|
|
12,191,410 |
|
|
|
3,727,453 |
|
|
|
69,438,001 |
|
2009 |
|
|
25,823,672 |
|
|
|
11,835,676 |
|
|
|
7,732,219 |
|
|
|
11,122,901 |
|
|
|
13,623,225 |
|
|
|
5,096,020 |
|
|
|
75,233,713 |
|
The following table summarizes the details of the Earn-out Consideration payables from
that date of acquisition to December 31, 2009:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Peak |
|
Aim |
|
Golden |
|
Goldwhite |
|
Ahead |
|
Century |
|
Total |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Earn-out Consideration payable at
December 31, 2008 |
|
$ |
14,077,134 |
|
|
$ |
3,486,233 |
|
|
$ |
4,037,393 |
|
|
$ |
4,808,952 |
|
|
$ |
4,933,377 |
|
|
$ |
2,167,694 |
|
|
$ |
33,510,783 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Additional Earn-out Consideration for 2008 |
|
|
8,417,929 |
|
|
|
9,196,334 |
|
|
|
4,938,926 |
|
|
|
4,556,237 |
|
|
|
7,258,033 |
|
|
|
1,559,759 |
|
|
|
35,927,218 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Earn-out Consideration for 2009 |
|
|
25,823,672 |
|
|
|
4,881,252 |
|
|
|
5,154,755 |
|
|
|
4,792,551 |
|
|
|
6,917,422 |
|
|
|
4,445,735 |
|
|
|
52,015,387 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Less: Settlements in 2009 |
|
|
(20,280,617 |
) |
|
|
(12,268,699 |
) |
|
|
(8,495,113 |
) |
|
|
(8,065,394 |
) |
|
|
(11,840,634 |
) |
|
|
(3,298,945 |
) |
|
|
(64,249,402 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
At December 31, 2009 |
|
$ |
28,038,118 |
|
|
$ |
5,295,120 |
|
|
$ |
5,635,961 |
|
|
$ |
6,092,346 |
|
|
$ |
7,268,198 |
|
|
$ |
4,874,243 |
|
|
$ |
57,203,986 |
|
We have paid US$64.2 million consideration in 2009 in relation to the 2008 earn-out as
determined based on the net revenues of the acquired advertising agency businesses and the cash
collected in respect to the net revenues generated by these businesses.
The Earn-out Consideration is calculated based certain multiples on the
earnings, as stipulated in the acquisition agreements, of each of the businesses acquired.
Payment of the Earn-out Consideration is based on the percentage of revenues collected. Therefore,
receivables recorded as of December 31, 2008 related to 2008 revenues that were subsequently collected
in 2009 result in a liability for an additional portion of the 2008 Earn-out Consideration. For the
2009 Earn-out Consideration, because not all of the 2009 revenues were collected as of December 31,
2009, additional Earn-out Consideration payable will be recorded in 2010 as the receivables
recorded as of December 31, 2009 related to the 2009 revenues are collected in 2010. The portion of
the total Earn-out Consideration that will be offset against the deposit for acquisitions has been
recorded as a long term liability because the right of offset will not exist until the Earn-out
Consideration period is completed.
As of December 31, 2009, we
recorded a current consideration payable of US$47.9 million and a non-current consideration payable
of US$9.3 million, as determined based on the net revenues of the acquired advertising agency
businesses and the cash collected in respect to the net revenues generated by these businesses as
of December 31, 2009. As we expect to collect additional cash in respect of the net revenues
generated by these advertising agency businesses in 2009, we may have to pay an additional
consideration of US$23.2 million in the maximum for these businesses in 2010 in relation to the 2009
earn-out, which is not reflected in the financial statements included in this annual report. We
expect to settle the consideration payable with our cash balance.
In October 2009, we entered into an agreement and plan of merger (which was amended and
restated in November 2009) to acquire Digital Media Group through a merger of a subsidiary with and
into Digital Media Group, which was completed in January 2010. Under the agreement and plan of merger, the total consideration of US$160 million which is a notional amount is payable in three installments over two years in cash and shares. In November 2009,
we
deposited cash in the amount of US$40
million and 8,476,013 of our common shares, registered under Vision Best Limited, our consolidated
subsidiary, as the initial installment, into an escrow account, a portion of which was released at
the completion of the acquisition and the remaining portion to be released in accordance with the
terms of the agreement and plan and merger. Two
subsequent installments of US$30 million each will be paid on the first and second anniversaries of
the acquisition, of which US$20 million will be in the form of cash and US$10 million in cash or
shares at the option of the eligible former shareholders of Digital Media Group. Our preliminary valuation of the acquisition date fair value of the consideration transferred was
approximately US$167 million, which was greater than the notional amount of US$160 million due to
the fair value adjustments of consideration payable in the form of shares. We expect to settle the cash
consideration payable with our cash balance.
70
Financing Activities
Our net cash provided by financing activities amounted to US$37.1 million in 2009, compared to
US$24.6 million in 2008 and US$138.8 million in 2007. Our net cash provided by financing activities
in 2007 primarily consisted of proceeds from our issuance of Series B convertible preferred shares
and from our initial public offering in December 2007, while our net cash provided by financing
activities in 2008 primarily consisted of proceeds from our public offering and sale of 1,150,000
ADSs in August 2008. Our net cash provided by financing activities in 2009 is mainly attributable
to (i) an increase of US$40.8 million in net proceeds under an offshore credit line and (ii) an
increase of US$0.7 million in net proceeds from a domestic loan. We also used US$5.0 million for
share repurchases in 2009.
On December 3, 2009, we entered into a credit facility agreement with the Bank of China to
provide a maximum loan amount of RMB 400 million (US$58.5 million). As of December 31, 2009, we
have drawn down a two-year term loan of $0.7 million under this credit facility. The loan carries a
floating interest rate equal to of 90% of the Peoples Bank of China benchmark rate and is
guaranteed by CDTC.
Capital Expenditures
We had capital expenditures of US$4.3 million, US$5.0 million and US$1.6 million for the years
ended December 31, 2007, 2008 and 2009. Our capital expenditures were made primarily to acquire
digital television displays and related equipment for our network and, beginning in 2007, we also
made capital expenditures to upgrade our accounting software and systems. Our capital expenditures
are primarily funded by net cash provided by financing activities and to a lesser extent by cash
generated from our operations. We expect our capital expenditures in 2010 to primarily consist of
purchases of digital television displays and related equipment as we continue to expand our mobile
digital television advertising network. We believe that we will be able to fund these upgrades and
equipment purchases through our internal cash, and do not anticipate that these obligations will
have a material impact on our liquidity needs.
In connection with the required compliance with the National Standard, we may need to incur
additional capital expenditures in order to upgrade the mobile digital television receivers, and we
believe that these capital expenditures would not materially affect our liquidity.
Recently Issued Accounting Pronouncements
In June 2009, the FASB issued SFAS 168, The FASB Accounting Standards Codification and the
Hierarchy of Generally Accepted Accounting Principles a replacement of FASB Statement No. 162, or
SFAS 162, collectively known as SFAS 168. SFAS 168 states that the FASB Accounting Standards
Codification will become the source of authoritative U.S. GAAP recognized by the FASB. Once
effective, the Codifications content will carry the same level of authority, effectively
superseding SFAS 162. The U.S. GAAP hierarchy will be modified to include only two levels of U.S.
GAAP: authoritative and nonauthoritative. The adoption did not have a material impact on our
financial position, results of operations and cash flows.
In December 2009, the FASB issued Accounting Standards Update, or ASU, 2009-17,
Consolidations (Topic 810) Improvements to Financial Reporting by Enterprises Involved with
Variable Interest Entities, or ASU 2009-17, which amends the FASB ASC for the issuance of FASB
Statement No. 167, Amendments to FASB Interpretation No. 46(R), issued by the FASB in June 2009.
The amendments in this ASU replace the quantitative-based risks and rewards calculation for
determining which reporting entity, if any, has a controlling financial interest in a variable
interest entity with an approach primarily focused on identifying which reporting entity has the
power to direct the activities of a variable interest entity that most significantly impact the
entitys economic performance and (1) the obligation to absorb the losses of the entity or (2) the
right to receive the benefits from the entity. ASU 2009-17 also requires additional disclosure
about a reporting entitys involvement in VIE, as well as any significant changes in risk exposure
due to that involvement. ASU 2009-17 is effective for annual and interim periods beginning after
November 15, 2009. Early application is not permitted. The adoption of ASU 2009- 17 is not expected
to have a material impact on our financial position, results of operations and cash flows.
71
Effective January 1, 2009, the Group adopted certain provision of FASB ASC 805 Business
Combination (formerly SFAS No. 141R), to improve reporting, creating greater consistency in the
accounting and financial reporting of business combinations. The standard requires the acquiring
entity in a business combination to recognize all, as of that date, the assets acquired and
liabilities assumed in the acquiree at the acquisition-date, measured at their fair values; and
requires the acquirer to disclose to investors and other users all of the information they need to
evaluate and understand the nature and financial effect of the business combination. The adoption
of SFAS 141R did not have a significant effect on our financial position, results of operations or
cash flows.
|
|
|
C. |
|
Research and Development |
We do not make, and do not expect to make, significant expenditures on research and
development activities.
Other than as disclosed elsewhere in this annual report, we are not aware of any trends,
uncertainties, demands, commitments or events for the period from January 1, 2009 to December 31,
2009 that are reasonably likely to have a material adverse effect on our net revenues, income,
profitability, liquidity or capital resources, or that caused the disclosed financial information
to be not necessarily indicative of future operating results or financial conditions.
|
|
|
E. |
|
Off-Balance Sheet Arrangements |
We have not entered into any financial guarantees or other commitments to guarantee the
payment obligations of any third parties. In addition, we have not entered into any derivative
contracts that are indexed to our own shares and classified as shareholders equity, or that are
not reflected in our consolidated financial statements. Furthermore, we do not have any retained or
contingent interest in assets transferred to an unconsolidated entity that serves as credit,
liquidity or market risk support to such entity. Moreover, we do not have any variable interest in
any unconsolidated entity that provides financing, liquidity, market risk or credit support to us or engages in leasing, hedging or research and
development services with us.
|
|
|
F. |
|
Tabular Disclosure of Contractual Obligations |
The following table sets forth our contractual obligations and commercial commitments as of
December 31, 2009:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Less than |
|
1-3 |
|
3-5 |
|
More than |
|
|
Total |
|
1 year |
|
years |
|
years |
|
5 years |
|
|
(US$) |
Long-term purchase agreement |
|
|
189,600,000 |
|
|
|
46,531,000 |
|
|
|
74,906,000 |
|
|
|
43,025,000 |
|
|
|
25,138,000 |
|
Operating lease obligations |
|
|
2,036,988 |
|
|
|
977,672 |
|
|
|
634,510 |
|
|
|
254,950 |
|
|
|
169,856 |
|
Consideration for an acquisition |
|
|
60,000,000 |
|
|
|
30,000,000 |
|
|
|
30,000,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total contractual obligations |
|
|
251,636,988 |
|
|
|
77,508,672 |
|
|
|
105,540,510 |
|
|
|
43,279,950 |
|
|
|
25,307,856 |
|
We have entered into several agreements under our exclusive agency model to purchase
advertising time from local mobile digital television companies for a period of five to ten years.
As of December 31, 2009, future minimum purchase commitments under these agreements totaled
approximately US$189.6 million.
Operating lease obligations represent leasing arrangements relating to the lease of our office
premises. Consideration for an acquisition relates to payment obligations for the remaining two
installments, each in the amount of US$30 million, of the total consideration of our acquisition of
Digital Media Group. Eligible former shareholders of Digital Media Group may elect to receive
US$10 million of each US$30 million installment in the form of cash or our common shares.
72
This annual report contains forward-looking statements that relate to future events, including
our future operating results and conditions, our prospects and our future financial performance and
condition, all of which are largely based on our current expectations and projections. The
forward-looking statements are contained principally in the sections entitled Item 3. Key
InformationD. Risk Factors, Item 4. Information on the Company and Item 5. Operating and
Financial Review and Prospects. These statements are made under the safe harbor provisions of
the U.S. Private Securities Litigation Reform Act of 1995. You can identify these forward-looking
statements by terminology such as may, will, expect, anticipate, future, intend,
plan, believe, estimate, is/are likely to or other and similar expressions. We have based
these forward-looking statements largely on our current expectations and projections about future
events and financial trends that we believe may affect our financial condition, results of
operations, business strategy and financial needs. These forward-looking statements include, among
other things, statements relating to:
|
|
|
our growth strategies, including our plan or intention to expand the coverage and
penetration of our national network, to maximize our average revenues per hour, to
continue to pursue exclusive arrangements with additional mobile digital television
companies, to continue to explore new digital media technologies and techniques, to
expand our network to other advertising media platforms and to pursue strategic
relationships and acquisitions; |
|
|
|
|
our future business development, results of operations and financial condition; |
|
|
|
|
expected changes in our revenues and certain cost or expense items; |
|
|
|
|
our ability to manage the expansion of our operations; |
|
|
|
|
changes in general economic and business conditions in China; and |
|
|
|
|
trends and competition in the mobile digital television advertising industry. |
The forward-looking statements made in this annual report relate only to events or information
as of the date on which the statements are made in this annual report. Except as required by law,
we undertake no obligation to update or revise publicly any forward-looking statements, whether as
a result of new information, future events or otherwise, after the date on which the statements are
made or to reflect the occurrence of unanticipated events. You should read this annual report
completely and with the understanding that our actual future results may be materially different
from what we expect.
|
|
|
Item 6. |
|
Directors, Senior Management and Employees |
|
|
|
A. |
|
Directors and Senior Management |
Directors and Executive Officers
The following table sets forth information regarding our directors and executive officers as
of January 21, 2011.
|
|
|
|
|
|
|
Name |
|
Age |
|
Position/ Title |
Limin Li
|
|
|
48 |
|
|
Chairman of the Board of Directors, Chief Executive Officer |
Haijun Liu
|
|
|
46 |
|
|
Chief Development Officer |
Yan Wang |
|
|
31 |
|
|
Senior Financial Controller |
73
|
|
|
|
|
|
|
Name |
|
Age |
|
Position/ Title |
Yanqing Liang
|
|
|
37 |
|
|
Director |
William Decker
|
|
|
63 |
|
|
Independent Director |
Xisong Tan
|
|
|
61 |
|
|
Independent Director |
Yunli Lou
|
|
|
41 |
|
|
Independent Director |
Limin Li is our co-founder and has been chairman of our board of directors since our inception
in 2005 and our chief executive officer since March 2007. Mr. Li has been a director and chairman
of Shenzhen Champs Elysees Venture Capital Management Co., Ltd., a PRC company engaging in project
financing and investment management, since 2003. He has also been a director and chairman of
Shenzhen Meidi Real Estate Development Co., Ltd., a PRC real estate development company, since
1997. He has also been a director and chairman of Shenzhen Meiye Enterprise Development Co., Ltd.,
a PRC manufacturer and distributor of electronic products, since 1992. Mr. Li received a bachelors
degree from Wuhan Institute of Physical Education.
Haijun
Liu has been our chief development officer since
July 2008. Mr. Liu was the general manager of Beijing
Beiguang Media Mobile Television Advertising Co., Ltd., a wholly-owned subsidiary of our company from October 2006 to January 2009.
From August 2005 to October 2006, Mr. Liu was general manager of Jilin Mobile
Television Co., Ltd., a direct investment entity of our company. From 1996 to 2005, he was general
manager of Shenzhen Huali Electronic Co., Ltd. Mr. Liu received a bachelors degree and a masters
degree in electronic materials from Xian Jiaotong University in 1985 and 1991, respectively.
Yan Wang is our senior financial
controller since December 2009. Mr. Wang joined us in April 2009 as a full-time employee.
Before joining VisionChina Media, Mr. Wang was an audit manager at KPMG, an independent public registered accounting firm.
From 2001 to 2009, he worked in the audit department in KPMG Guangzhou office for eight years, and has led the audit
engagements for SEC registrants, including both audits of US GAAP financial statement and audits of the internal
control over financial reporting. Mr. Wang received a bachelor degree of arts from Guangdong University of Foreign Studies in 2001.
Yanqing Liang is our co-founder and has been a director of our company since our inception in
2005. Since 2006, she has been a director of Beijing Zonghe Qingrun Investment Co., Ltd. From 1997
to 2005, Ms. Liang worked for the human resource department of the Guangdong branch of China Mobile
Limited. Ms. Liang received a bachelors degree from Harbin Normal University in 1997.
William Decker has been a director of our company since December 2007. Mr. Decker has served
as an independent director and the chair of the audit committee of Baidu.com, Inc. since October
2005. Mr. Decker is a retired partner of PricewaterhouseCoopers LLP. Prior to his retirement in
July 2005, Mr. Decker was the senior partner in charge of PricewaterhouseCoopers LLPs Global
Capital Markets Group. He led a team of more than 300 professionals in 25 countries to provide
technical support to non-US companies on SEC regulations and U.S. GAAP reporting and assistance
with the Sarbanes-Oxley Act compliance work. He was also one of PricewaterhouseCoopers LLPs lead
authorities on the Sarbanes-Oxley Act. Mr. Decker received a bachelors degree in accounting from
Fairleigh Dickinson University in New Jersey.
74
Xisong Tan has been a director of our company since December 2007. Ms. Tan has served as a
director and chairwoman of the board of directors of Hairun Ogilvy Entertainment Distribution and
Advertising Company since 2005. She also served as a consultant of our company from 2006 until
2007. From 1999 to 2005, Ms. Tan served as general manager of Hong Kong China Advertising Company
and president of Hairun Advertising Company. Prior to 1999, she was the director of the advertising
department of China Central Television, or CCTV, the director of CCTVs advertisement and economic
information center and assistant president of CCTV, which operates the largest television network
in China. Ms. Tan is a director of China Advertising Association and a director of China Four-A
Advertising Association. She received a bachelors degree from the Party School of the Central
Communist Party Commission.
Yunli Lou has been a director of our company since March 2007. Ms. Lou has been a
non-executive director of Yuhua TelTech (Shanghai) Co., Ltd., a China-based research and
development company in the wireless industry, since 2004. Ms. Lou has been a managing director of
Milestone Capital Partners Limited since 2007, responsible for the firms overall management,
investor relations as well as deal sourcing and execution. She has been a managing partner of
Milestone Capital Management Limited since 2002. Before founding Milestone Capital in 2002, Ms. Lou
was a vice president of Merrill Lynchs direct investment group, where she was responsible for the
firms investment activities in China. Prior to joining Merrill Lynch in 1995, she worked in the
corporate finance division of Goldman Sachs in New York and Hong Kong. Ms. Lou received a
bachelors degree in economics from Harvard University in 1992.
The business address for all of our executive officers and directors, except Yunli Lou, is 1/F
Block No. 7, Champs Elysees, Nongyuan Road, Futian District, Shenzhen 518040, the Peoples Republic
of China. Yunli Lou uses her business addresses disclosed in Item 6. Directors, Senior Management and EmployeesE. Share Ownership.
|
|
|
B. |
|
Compensation of Directors and Executive Officers |
Compensation of Directors and Executive Officers
In 2009, the aggregate cash compensation to our executive officers, including all the
directors, was US$0.8 million. For options granted to officers and directors, see 2006 Share
Incentive Plan.
2006 Share Incentive Plan
We have adopted our 2006 share incentive plan, or the 2006 share incentive plan, to attract
and retain the best available personnel, provide additional incentives to our employees, directors
and consultants, and promote the success of our business. The 2006 share incentive plan provides
for the grant of options, restricted shares, and restricted share units, collectively referred to
as awards. Our board of directors has authorized the issuance of up to 8,000,000 common shares
upon exercise of awards granted under our 2006 share incentive plan.
Plan Administration. Our board of directors, or a committee designated by our board or
directors, will administer the 2006 share incentive plan. The committee or the full board of
directors, as appropriate, will determine the participants to receive awards, the type and number
of awards to be granted, and the terms and conditions of each award grant.
Award Agreements. Awards granted under our 2006 share incentive plan are evidenced by an award
agreement that sets forth the terms, conditions and limitations for each grant, which may include
the term of the award, the provisions applicable in the event that the grantees employment or
service terminates, and our authority to unilaterally or bilaterally amend, modify, suspend, cancel
or rescind the award.
Transfer Restrictions. The right of a grantee in an award granted under our 2006 share
incentive plan may not be transferred in any manner by the grantee other than by will or the laws
of succession and, with limited exceptions, may be exercised during the lifetime of the grantee
only by the grantee.
75
Option Exercise. The term of options granted under the 2006 share incentive plan may not
exceed ten years from the date of grant. The consideration to be paid for our common shares upon
exercise of an option or purchase of shares underlying the option may include cash, check or other
cash-equivalent, common shares, consideration received by us in a cashless exercise, or any
combination of the foregoing methods of payment.
Acceleration upon a Change of Control. If a change of control of our company occurs and a
grantee is terminated without cause within one year after such change of control, our board of
directors may decide to grant one year acceleration to such terminated grantee. There is no other
accelerated vesting in any event.
Termination and Amendment. Unless terminated earlier, our 2006 share incentive plan will
expire after ten years. Our board of directors has the authority to amend or terminate our 2006
share incentive plan subject to shareholder approval to the extent necessary to comply with
applicable laws. Shareholders approval is required for any amendment to the 2006 share incentive
plan that (i) increases the number of common shares available under the 2006 share incentive plan,
(ii) permits our board of directors to extend the exercise period for an option beyond ten years
from the grant date, or (iii) results in a material increase in benefits or a change in eligibility
requirements.
Our board of directors has only granted options to participants in our 2006 share incentive
plan. As of March 31, 2010, there were 2,413,165 common shares issuable upon the exercise of
outstanding share options and restricted shares at a weighted average exercise price of US$4.91 per
share, and there were 1,294,859 common shares available for future issuance upon the exercise of
future grants under our 2006 share incentive plan. The following table summarizes, as of March 31, 2010, the outstanding options granted to our directors and executive officers and other
individuals as a group.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ordinary |
|
|
|
|
|
|
|
|
Shares |
|
Exercise |
|
|
|
|
|
|
Underlying |
|
Price |
|
|
|
|
|
|
Outstanding |
|
Underlying |
|
|
|
|
|
|
Options or |
|
Outstanding |
|
|
|
|
|
|
restricted |
|
Options |
|
|
|
|
Name |
|
Shares |
|
(US$/Share) |
|
Grant Date |
|
Expiration Date |
|
|
|
|
|
|
|
|
|
|
|
|
|
Limin Li
|
|
|
350,000 |
|
|
|
6.545 |
|
|
August 30, 2007
|
|
August 30, 2017 |
Haijun Liu(1) |
|
|
* |
|
|
|
1.00/ 8.53 |
|
|
December 8, 2006/ October 8, 2009 |
|
December 8, 2016/ October 8, 2019 |
Yan Wang(2) |
|
|
* |
|
|
|
5.48/ 8.53 |
|
|
June 17, 2009 October 8, 2009 |
|
June 17, 2019 October 8, 2019 |
William Decker(3) |
|
|
* |
|
|
|
6.545 4.68 |
|
|
October 31, 2007 April 2, 2010 |
|
October 31, 2017 April 2, 2020 |
Xisong Tan(4) |
|
|
* |
|
|
|
1.00 4.68 |
|
|
December 8, 2007 April 2, 2010 |
|
December 8, 2016 April 2, 2020 |
Yunli Lou(5) |
|
|
* |
|
|
|
5.82/ 8.53 |
|
|
December 11, 2008/ October 8, 2009 |
|
December 11, 2018/ October 8, 2019 |
Other individuals as group
|
|
|
1,863,006 |
|
|
|
5.23 |
|
|
(6) |
|
(7) |
|
|
|
* |
|
Upon exercise of all options granted, would beneficially own less than 1% of our outstanding
common shares, assuming the conversion of all of our outstanding preferred shares. |
|
(1) |
|
A portion of the options was granted on December 8, 2006 with an exercise price of US$1.00
and another portion was granted on October 8, 2009 with an exercise price of US$8.53. |
|
(2) |
|
A portion of the options was granted on June 17, 2009 with an exercise price of $5.48 and
another portion was granted on October 8, 2009 with an exercise price of US$8.53. |
|
(3) |
|
A portion of the options was granted on October 31, 2007 with an exercise price of $6.545
and another portion was granted on April 2, 2010 with an exercise price of US$4.68. |
|
(4) |
|
A portion of the options was granted on December 8, 2006 with an exercise price of
$6.545 and another portion was granted on April 2, 2010 with an exercise price of US$4.68. |
|
(5) |
|
A portion of the options was granted on December 11, 2008 with an exercise price of
US$5.82 and another portion was granted on
October 8, 2009 with an exercise price of US$8.53. |
|
(6) |
|
Options were granted to other individuals on various dates. |
|
(7) |
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Other individuals options expire on various dates. |
76
Committees of the Board of Directors
Audit Committee
Our audit committee consists of William Decker, Xisong Tan and Yunli Lou. Our board of
directors has determined that each of William Decker, Xisong Tan and Yunli Lou satisfies the
independence requirements of Rule 10A-3 under the Securities Exchange Act of 1934, as amended,
and Rule 5605(a)(2) of the Nasdaq Listing Rules. Mr. Decker is the chairman of our audit committee
and meets the criteria of an audit committee financial expert as set forth under the applicable
rules of the SEC. Our audit committee oversees our accounting and financial reporting processes and
the audits of the financial statements of our company. The audit committee is responsible for,
among other things:
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selecting our independent auditors and pre-approving all auditing and non-auditing
services permitted to be performed by our independent auditors; |
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reviewing with our independent auditors any audit problems or difficulties and
managements response; |
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reviewing and approving all proposed related-party transactions, as defined in Item
404 of Regulation S-K under the Securities Act; |
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discussing the annual audited financial statements with management and our
independent auditors; |
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reviewing major issues as to the adequacy of our internal controls and any special
audit steps adopted in light of material control deficiencies; |
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annually reviewing and reassessing the adequacy of our audit committee charter; |
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such other matters that are specifically delegated to our audit committee by our
board of directors from time to time; |
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meeting separately and periodically with management and our internal and independent
auditors; and |
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reporting regularly to the full board of directors. |
Compensation Committee
Our compensation committee consists of William Decker, Yunli Lou and Xisong Tan. Our board of
directors has determined that each of William Decker, Yunli Lou and Xisong Tan satisfies the
independence requirements of Rule 5605(a)(2) of the Nasdaq Listing Rules. Our compensation
committee assists the board in reviewing and approving the compensation structure, including all
forms of compensation, relating to our directors and executive officers. Our chief executive
officer may not be present at any committee meeting during which his compensation is deliberated.
The compensation committee is responsible for, among other things:
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reviewing and making recommendations to the board with respect to the total
compensation package for our three most senior executives; |
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approving and overseeing the total compensation package for our executives other
than the three most senior executives; |
77
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reviewing and making recommendations to the board with respect to the compensation
of our directors; and |
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reviewing periodically and approving any long-term incentive compensation or equity
plans, programs or similar arrangements, annual bonuses, employee pension and welfare
benefit plans. |
Corporate Governance and Nominating Committee
Our corporate governance and nominating committee consists of William Decker, Yunli Lou and
Xisong Tan. Our board of directors has determined that each of William Decker, Yunli Lou and Xisong
Tan satisfies the independence requirements of Rule 5605(a)(2) of the Nasdaq Listing Rules. Our
corporate governance and nominating committee assists the board of directors in selecting
individuals qualified to become our directors and in determining the composition of the board and
its committees. The corporate governance and nominating committee is responsible for, among other
things:
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selecting and recommending to the board nominees for election or re-election to the
board, or for appointment to fill any vacancy; |
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reviewing annually with the board the current composition of the board with regards
to characteristics such as independence, age, skills, experience and availability of
service to us; |
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selecting and recommending to the board the names of directors to serve as members
of the audit committee and the compensation committee, as well as the corporate
governance and nominating committee itself; |
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advising the board periodically with regards to significant developments in the law
and practice of corporate governance as well as our compliance with applicable laws and
regulations, and making recommendations to the board on all matters of corporate
governance and on any remedial action to be taken; and |
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monitoring compliance with our code of business conduct and ethics, including
reviewing the adequacy and effectiveness of our procedures to ensure proper compliance. |
Duties of Directors
Under Cayman Islands law, our directors have a fiduciary duty to act honestly, in good faith
and with a view to our best interests. Our directors also have a duty to exercise the skills they
actually possess and such care and diligence that a reasonably prudent person would exercise in
comparable circumstances. In fulfilling their duty of care to us, our directors must ensure
compliance with our memorandum and articles of association, as amended and restated from time to
time. Our company has the right to seek damages if a duty owed by our directors is breached.
The functions and powers of our board of directors include, among others:
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convening shareholders annual general meetings and reporting its work to
shareholders at such meetings; |
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issuing authorized but unissued shares and redeeming or purchasing outstanding shares of our company (subject to the Companies Law); |
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declaring dividends and other distributions; |
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appointing officers and determining the term of office of officers; |
78
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exercising the borrowing powers of our company and mortgaging the property of our
company; and |
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approving the transfer of shares of our company, including the registration of such shares in our share register. |
Terms of Directors and Executive Officers
Our officers are elected by and serve at the discretion of the board of directors. Our
directors are not subject to a term of office and hold office until such time as they are removed
from office by special resolution or the unanimous written resolution of all shareholders. A
director will be removed from office automatically if, among other things, the director (i) becomes
bankrupt or makes any arrangement or composition with his creditors; or (ii) dies or is found by
our company to be or becomes of unsound mind.
Employment Agreements
We have entered into employment agreements with each of our senior executive officers. We may
terminate a senior executive officers employment for cause, at any time, without notice or
remuneration, for certain acts of the officer, including, but not limited to, a conviction or plea
of guilty to a felony, willful misconduct to our detriment or a failure to perform agreed duties. A
senior executive officer may terminate his or her employment at any time without penalty if there
is a material reduction in his or her authority, duties and responsibilities or if there is a
material breach by us, provided that we are allowed to correct or cure within 30 days upon receipt
of his or her written notice of intent to terminate on such basis. Furthermore, either we or an
executive officer may terminate employment at any time without cause upon advance written notice to
the other party. Each senior executive officer is entitled to certain benefits upon termination,
including a severance payment equal to three months salary, if he or she resigns for certain
specified good reasons or if we terminate his or her employment due to his or her incapacitation.
We will indemnify an executive officer for his or her losses based on or related to his or her acts
and decisions made in the course of his or her performance of duties within the scope of his or her
employment.
Each senior executive officer has agreed to hold in strict confidence any trade secrets or
technical secrets of our company. Each officer also agrees to comply with all material applicable
laws and regulations related to his or her responsibilities at our company as well as all material
written corporate and business policies and procedures of our company.
As of December 31, 2007, 2008 and 2009, we had 216, 473 and 553 full-time employees,
respectively. As of December 31, 2009, we had 88 employees in management and administration, 368 in
sales and marketing and 97 in network maintenance and development.
We plan to hire additional employees in all functions as we grow our business. None of our
employees is represented by a labor union or other collective bargaining agreements. Since
establishment, we have never experienced a strike or other disruption of employment. We believe our
relationships with our employees are good.
The remuneration package of our employees includes salary, bonus, stock options, other cash
benefits and benefits in-kind. In accordance with applicable PRC regulations, we participate in a
pension contribution plan, a medical insurance plan, an unemployment insurance plan, a personal
injury insurance plan and a housing reserve fund. Our total contribution for such employee benefits
required by applicable PRC regulations amounted to US$53,387, US$483,065 and US$743,516 for the
years ended December 31, 2007, 2008 and 2009.
The following table sets forth information with respect to the beneficial ownership of our
common shares as of January 17, 2011 by:
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each of our directors and executive officers; and |
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each person known to us to own beneficially more than 5.0% of our common shares. |
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Shares Beneficially Owned(1)(2) |
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Number |
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% |
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Directors and Executive Officers: |
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Limin Li(3) |
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17,529,849 |
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17.1 |
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Yanqing Liang(4) |
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4,981,714 |
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4.9 |
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Yunli Lou(5) |
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8,418,513 |
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8.2 |
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Yan Wang |
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* |
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* |
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Haijun Liu |
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* |
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* |
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William Decker |
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* |
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* |
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Xisong Tan |
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* |
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* |
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All directors and executive officers as a group(6) |
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31,171,738 |
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30.5 |
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Principal Shareholders: |
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Front Lead Investments Limited(7) |
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17,529,849 |
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17.1 |
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Milestone I, II and III(8) |
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6,684,108 |
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6.5 |
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Massive Sheen Investments Limited(9) |
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4,981,714 |
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4.9 |
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Columbia Wanger Asset Management, L.P.(10) |
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9,072,800 |
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8.9 |
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FMR LLC(11) |
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5,346,842 |
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5.2 |
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Focus Media Holding Limited(12) |
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15,331,305 |
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15.1 |
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* |
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Upon exercise of all options granted, would beneficially own less than 1.0% of our
outstanding common shares. |
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(1) |
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Beneficial ownership is determined in accordance with Rule 13d-3 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended, and includes voting or
investment power with respect to the securities. |
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(2) |
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The number of common shares outstanding in calculating the percentages for each listed person
includes the common shares underlying options held by such person that are exercisable within
60 days of January 17, 2011. Percentage of beneficial ownership of each listed
person is based on 102,250,087 common shares outstanding as of January 17, 2011, as well as the
common shares underlying share options exercisable by such person
within 60 days of January 17, 2011. |
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(3) |
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Includes 17,187,142 common shares owned by Front Lead Investments Limited, a British Virgin
Islands company, and 342,707 common shares issuable upon the exercise of options granted to
Front Lead Investments Limited that are exercisable within 60 days of the date of December 31,
2009. Malte
International Holdings Limited is the sole shareholder and sole director of Front Lead
Investments Limited. The Li Liu Family Trust, an irrevocable trust, is the sole shareholder of
Malte International Holders Limited. HSBC International Trustee Limited is the trustee of the
Li Liu Family Trust with Limin Li as the settlor. Certain family members of Limin Li are
beneficiaries of the Li Liu Family Trust. The business address of HSBC International Trustee
Limited is Strathvale House, 2nd Floor, North Church Street, George Town, Grand Cayman, Cayman
Islands and the business address of Mr. Li is c/o VisionChina Media Inc., 1/F Block No. 7,
Champs Elysees, Nongyuan Road, Futian District, Shenzhen 518040, China. |
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(4) |
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Includes 4,671,155 common shares owned by Massive Sheen Investments Limited, a British Virgin
Islands company. Ms.
Liang is the sole director and sole owner of Massive Sheen Investments Limited. The business
address of Ms. Liang is c/o VisionChina Media Inc., 1/F Block No. 7, Champs Elysees, Nongyuan
Road, Futian District, Shenzhen 518040, China. |
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(5) |
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Includes (i) 8,102,176 common shares held by Milestone I, Milestone II, Milestone III and
Milestone IV, and (ii) 277,587 common shares (in ADS form) held by Linden Street Capital
Limited, a limited liability company organized under the laws of the British Virgin Islands.
Yunli Lou, a managing director of Milestone Capital Partners Limited, disclaims beneficial
ownership of shares held by Milestone I, Milestone II, Milestone III and Milestone IV except
to the extent of her pecuniary interest in these shares and (iii) 38,750 common shares
issuable upon the exercise of options granted to Yunli Lou. Yunli Lou is the sole shareholder
of Linden Street Capital Limited and her business address is Room 1708 Dominion Centre, 43-59
Queens Road East, Wanchai, Hong Kong. |
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(6) |
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Include common shares held by all of our directors and executive officers as a group and
common share issuable upon the exercise of all of the options that are exercisable within 60
days of January 17, 2011 held by all of our directors and executive officers. |
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(7) |
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Malte International Holdings Limited is the sole shareholder and sole director of Front Lead
Investments Limited. The Li Liu Family Trust, an irrevocable trust, is the sole shareholder of
Malte International Holders Limited. HSBC International Trustee Limited is the trustee of the
Li Liu Family Trust with Limin Li as the settlor. Certain family members of Limin Li are
beneficiaries of the Li Liu Family Trust. The business address of HSBC International Trustee
Limited is Strathvale House, 2nd Floor, North Church Street, George Town, Grand Cayman, Cayman
Islands and the business address of Mr. Li is c/o VisionChina Media Inc., 1/F Block No. 7,
Champs Elysees, Nongyuan Road, Futian District, Shenzhen 518040, China. |
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(8) |
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Includes 5,684,108 common shares held by Milestone Mobile TV Media Holdings I Limited,
Milestone Mobile TV Media Holdings II Limited, and Milestone Mobile TV Media Holdings III
Limited, each of which is a limited liability company organized under the laws of the British
Virgin Islands. Each of Milestone I, II and III has a mailing address of P.O. Box 957,
Offshore Incorporation Center, Road Town, Tortola, British Virgin Islands. Milestone I, II and
III are wholly owned by Milestone China Opportunities Fund II, L.P., an exempted limited
partnership formed under the laws of the Cayman Islands. The general partner of the Milestone
China Opportunities Fund II, L.P. is Milestone Capital Partners Limited, a limited liability
company incorporated under the laws of the Cayman Islands. The sole director of Milestone
Capital Partners Limited is Cherianne Limited, a company organized under the laws of the
British Virgin Islands. Yuen Ho Wan and James Ngai, as all of the directors of Cherianne
Limited, share the investment and voting power of Cherianne Limited. Ms. Wans and Mr. Ngais
business address is Room 1708 Dominion Centre, 43-59 Queens Road East, Wanchai, Hong Kong. |
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(9) |
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Yanqing Liang is the sole director and sole owner of Massive Sheen Investments Limited. The
business address of Ms. Liang is c/o VisionChina Media Inc., 1/F Block No. 7, Champs Elysees,
Nongyuan Road, Futian District, Shenzhen 518040, China. |
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(10) |
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Includes 9,072, 800 common shares represented by ADSs held by Columbia Wanger Asset
Management, L.P. and Columbia Acorn Trust according to its Schedule 13G filed with the SEC on
February 10, 2010. Columbia Acorn Trust is a Massachusetts business trust that is advised by
Columbia Wanger Asset Management, L.P. Columbia Wanger Asset Management, L.P. is a Delaware
limited partnership, with the principal business address at 227 West Monroe Street, Suite
3000, Chicago, IL 60606. |
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(11) |
|
Includes 5,346,842 common shares represented by ADSs owned by FMR LLC according to its
Schedule 13G filed with the SEC on February 16, 2010. FMR LLC is a Delaware company with the
business address at 82 Devonshire Street, Boston, Massachusetts 02109. |
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(12) |
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Includes 15,331,305 common shares held by Focus Media Holding Limited, a limited liability company incorporated in the Cayman Islands whose American
Depositary Receipts are traded on the Nasdaq Global Market under the symbol FMCN. The mailing address of Focus Media Holding Limited is Unit
No. 1, 20th Floor, The Centrium, 60 Wyndham Street, Central, Hong Kong. |
None of our existing shareholders has voting rights that differ from the voting rights of
other shareholders. We are not aware of any arrangement that may, at a subsequent date, result in a
change of control of our company. For information regarding our common shares and ADSs held or
beneficially owned by persons in the United States, see Item 9. The Offering and Listing Market
Price for Our American Depositary Shares in this annual report.
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Item 7. |
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Major Shareholders and Related Party Transactions |
Please refer to Item 6. Directors, Senior Management and Employees E. Share Ownership.
81
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B. |
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Related Party Transactions |
We adopted an audit committee charter, which requires that the audit committee review all
related party transactions on an ongoing basis and all such transactions be approved by the
committee. Set forth below is a description of all of our related party transactions for the years
ended December 31, 2007, 2008 and 2009.
Transactions with Our Direct Investment Entities
Agreements to Purchase Advertising Time from and Sell Advertising Equipment to Our Direct
Investment Entities
Under our arrangements with our local operating partners, we are responsible for the
procurement of equipment for our direct investment entities, such as digital displays and digital
television receivers. We sell the advertising equipment to our direct investment entities at
negotiated prices and record the sales of advertising equipment to our direct investment entities
as advertising equipment revenues on our financial statements. We had advertising equipment
revenues of US$1.9 million for the year ended December 31, 2007, representing 6.5% of our total
revenues for 2007, US$0.6 million for the year ended December 31, 2008, representing 0.5% of our
total revenues for 2008 and nil for the year ended December 31, 2009.
We also purchase advertising placement services from our direct investment entities at
negotiated prices. For the years ended December 31, 2007, 2008 and 2009, we paid an amount of
US$2.7 million, US$8.0 million and US$10.3 million, respectively, to our direct investment entities
for the advertising placement services.
Exclusive Agency Agreements with Our Direct Investment Entities
We entered into an exclusive agency agreement with Shenzhen Mobile Television Co., Ltd., or
Shenzhen Mobile, in December 2006. This exclusive agency agreement grants us the exclusive right to
sell the advertising time on the mobile digital television network in Shenzhen for a term from
January 1, 2007 to July 31, 2011. Under the agreement, we pay a pre-determined network rental fee
each year to Shenzhen Mobile. We are responsible for installing additional digital television
displays on the buses of the Shenzhen public transportation companies that have entered into
agreements with Shenzhen Mobile. The cost in connection with such installation is deductible from
the rental fees payable by us. The terms of this exclusive agency agreement have been negotiated on
an arms length basis.
We entered into an exclusive agency agreement with Chengdu China Digital Mobile Television
Co., Ltd., or Chengdu VisionChina Media Group, in July 2007. This exclusive agency agreement grants
us the exclusive right to sell the advertising time on the mobile digital television network in
Chengdu for a term from January 1, 2008 to December 31, 2015. Under the agreement, we pay a
pre-determined network rental fee each year to Chengdu VisionChina Media Group. Chengdu VisionChina
Media Group is responsible for installing additional digital television displays on the buses of
the Chengdu public transportation companies that have entered into agreements with Chengdu
VisionChina Media Group. The terms of this exclusive agency agreement have been negotiated on an
arms length basis.
We entered into exclusive agency agreements with Wuxi Guangtong Digital Mobile Television Co.,
Ltd., or Wuxi Guangtong, in September 2007. These agreements grant us the exclusive right to sell a
portion of the advertising time on the mobile digital television network in Wuxi to advertisers
that are not from Wuxi for a term from October 1, 2007 to December 31, 2013. Under these
agreements, we pay a pre-determined network rental fee each year to Wuxi Guangtong. Wuxi Guangtong
is responsible for installing additional digital television displays on the buses of the Wuxi
public transportation companies that have entered into agreements with Wuxi Guangtong. The terms of
this exclusive agency agreement have been negotiated on an arms length basis.
We entered into an exclusive agency agreement with Ningbo China Digital Mobile Television Co.,
Ltd., or Ningbo VisionChina Media Group, in November 2007. This exclusive agency agreement grants
us the exclusive right to sell the advertising time on the mobile digital television network in
Ningbo for a term from January 1, 2008 to December 31, 2012. Under the agreement, we pay a
pre-determined network rental fee each year to Ningbo VisionChina Media Group. Ningbo VisionChina Media Group is responsible for installing
additional digital television displays on the buses of the Ningbo public transportation companies
that have entered into agreements with Ningbo VisionChina Media Group. The terms of this exclusive
agency agreement have been negotiated on an arms length basis.
82
We entered into an exclusive agency agreement with Jilin Mobile Television Co., Ltd., or Jilin
Mobile, in March 2008. This exclusive agency agreement grants us the exclusive right to sell the
advertising time on the mobile digital television network in Changchun for a term from July 1, 2008
to June 30, 2014. Under the agreement, we pay a pre-determined network rental fee each year to
Jilin Mobile. Jilin Mobile is responsible for installing additional digital television displays on
the buses of the Changchun public transportation companies that have entered into agreements with
Jilin Mobile. The terms of this exclusive agency agreement have been negotiated on an arms length
basis.
We entered into an exclusive agency agreement with Hubei China Digital Mobile Television Co.,
Ltd., or Hubei VisionChina Media Group, in March 2008. This exclusive agency agreement grants us
the exclusive right to sell the advertising time on the mobile digital television network in Wuhan
for a term from April 1, 2008 to March 31, 2014. Under the agreement, we pay a pre-determined
network rental fee each year to Hubei VisionChina Media Group. Hubei VisionChina Media Group is
responsible for installing additional digital television displays on the buses of the Wuhan public
transportation companies that have entered into agreements with Hubei VisionChina Media Group. The
terms of this exclusive agency agreement have been negotiated on an arms length basis.
We entered into an exclusive agency agreement with Dalian China Digital Mobile Television Co.,
Ltd., or Dalian VisionChina Media Group, in March 2008. This exclusive agency agreement grants us
the exclusive right to sell the advertising time on the mobile digital television network in Dalian
for a term from April 1, 2008 to March 31, 2014. Under the agreement, we pay a pre-determined
network rental fee each year to Dalian VisionChina Media Group. Dalian VisionChina Media Group is
responsible for installing additional digital television displays on the buses of the Dalian public
transportation companies that have entered into agreements with Dalian VisionChina Media Group. The
terms of this exclusive agency agreement have been negotiated on an arms length basis.
We entered into an exclusive agency agreement with Suzhou China Digital Mobile Television Co.,
Ltd., or Suzhou VisionChina Media Group, in September 2009. This exclusive agency agreement grants
us the exclusive right to sell a portion of the advertising time on the mobile digital television
network in Suzhou to advertisers that are not from Suzhou for a term from October 1, 2009 to
December 31, 2013. Under the agreement, we pay a pre-determined network rental fee each year to
Suzhou VisionChina Media Group. Suzhou VisionChina Media Group is responsible for installing
additional digital television displays on the buses of the Suzhou public transportation companies
that have entered into agreements with Suzhou VisionChina Media Group. The terms of this exclusive
agency agreement have been negotiated on an arms length basis.
We entered into exclusive agency agreement with Changzhou China Digital Mobile Television Co.,
Ltd., or Changzhou VisionChina Media Group , in March 2010. This exclusive agency agreement grants
us the exclusive right to sell a portion of the advertising time on the mobile digital television
network in Changzhou to advertisers that are not from Changzhou for a term from January 1, 2010 to
March 18, 2017. Under the agreement, we pay a pre-determined network rental fee each year to
Changzhou VisionChina Media Group. Changzhou VisionChina Media Group is responsible for installing
additional digital television displays on the buses of the Changzhou public transportation
companies that have entered into agreements with Changzhou VisionChina Media Group. The terms of
this exclusive agency agreement have been negotiated on an arms length basis.
Transactions with Companies under Common Control with Us
Lease and loan with Meidi Zhiye
We rented office space from Shenzhen Meidi Zhiye Development Co., Ltd., a former shareholder
of VisionChina Media Group, or Meidi Zhiye, for the office space of our headquarters and
VisionChina Media Group. The rent was determined based on negotiation. Limin Li, our founder and
chairman of our board of directors, owns more than 10% of Meidi Ziyes equity interest and is the
chairman of Meidi Zhiye. The rental expenses totaled US$163,511 and US$191,758 in 2008 and 2009,
respectively.
83
On March 5 and March 28, 2007, VisionChina Media Group borrowed an aggregate amount of
approximately US$2.2 million from Meidi Zhiye to fund its working capital requirements. On April
29, 2007, VisionChina Media Group repaid Meidi Zhiye the total amount of borrowing.
Transactions with Champs Elysees
In 2007, 2008 and 2009, VisionChina Media Group paid renovation charges of US$347,029,
US$194,101 and US$236,124 respectively, to Champs Elysees Renovations Co., Ltd., or Champs Elysees
Renovations. Limin Lis wife is the chairwoman of Champs Elysees Renovations.
Transaction Related to Our Corporate Structure
Under applicable PRC laws, rules and regulations, to invest in the advertising industry,
foreign investors must have at least two years of direct operations in the advertising industry as
their core businesses outside of the PRC. We are a Cayman Islands corporation and a foreign legal
person under PRC laws and we have not directly operated any advertising business outside of China.
Therefore, we do not qualify under PRC regulations to directly own equity interest in advertising
services providers. Accordingly, our subsidiaries, CDTC and Beijing Eastlong Technology Development Co., Ltd. (Beijing Eastlong Technology)
are ineligible to apply for the required
licenses for providing advertising services in China. Our advertising
business inside the PRC is operated through
our contractual arrangements with VisionChina Media Group and Beijing
Eastlong Advertising. CDTC and VisionChina Media Group entered
into a series of agreements on March 30, 2006, including a technology and management service
agreement, a domain name license agreement, a loan agreement, a proxy letter, an option agreement
and an equity pledge agreement. CDTC and VisionChina Media Group entered into a series of new
agreements on February 15, 2007, which replaced the agreements entered into on March 30, 2006
described in the preceding sentence. Beijing Eastlong Technology and Beijing Eastlong Advertising entered into a series of agreements,
including a business cooperation agreement, loan agreements, option agreements and equity pledge
agreements. These contractual arrangements enable us to exercise effective
control over VisionChina Media Group Beijing Eastlong Advertising and
their respective subsidiaries and receive substantially all of the
economic benefits of these entities in consideration for the services
provided by our subsidiary in China. We intend to continue our business operations in China upon
the expiration of these contractual arrangements by renewing them or entering into new contractual
arrangements if the then current PRC law does not allow us to directly operate advertising
businesses in China. We believe that, under these contractual arrangements, we have sufficient
control over VisionChina Media Group, Beijing Eastlong Advertising
and their respective shareholders to renew or enter into new contractual
arrangements prior to the expiration of the current arrangements on terms that would enable us to
continue to operate our business in China after the expiration of the current arrangements.
Agreements that Transfer Economic Benefit to Us
Technology and Management Service Agreement. Pursuant to the technology and management service
agreement entered into on February 15, 2007 between CDTC and VisionChina Media Group, CDTC provides
technology consulting and management services related to the business operations of VisionChina
Media Group. As consideration for such services, VisionChina Media Group has agreed to pay service
fees as specified by CDTC in its fee notice to VisionChina Media Group from time to time. The fees
payable are calculated based on hourly rates set forth in the agreement or otherwise agreed upon
between the parties. The term of this agreement is 25 years from the date thereof. In the event of
a default under this agreement, the non-defaulting party can terminate this agreement.
Domain Name License Agreement. Pursuant to the domain name license agreement entered into on
February 15, 2007 between CDTC and VisionChina Media Group, CDTC grants VisionChina Media Group the
exclusive right to use its domain names www.cdmtv.tv and www.cdmg.cn, in exchange for a fee based
on the gross annual revenues of VisionChina Media Group. The fee is subject to periodic adjustments
by the parties. The agreement has a term of 25 years, which may be terminated at any time or
extended by CDTC at its discretion. In the event of a default under this agreement, the
non-defaulting party can terminate this agreement.
Business Cooperation Agreement.
Pursuant to the business cooperation agreement entered into on February 22, 2005 between
Beijing Eastlong Technology and Beijing Eastlong Advertising, Beijing Eastlong Advertising may
establish entities for the purposes of operating an out-of-home advertising platform and selling
advertisements or value-added-services on that platform. Beijing Eastlong Technology provides
Beijing Eastlong Advertising with technology consulting services related to the conduct of its
business. As consideration for such services, the profits generated by Beijing Eastlong Advertising
shall be distributed to Beijing Eastlong Technology in accordance with the business cooperation
agreement. Beijing Eastlong Technology is the exclusive and sole cooperating partner of Beijing
Eastlong Advertising. The term of this agreement commences on February 22, 2005 and remains in
effect unless Beijing Eastlong Technology ceases to exist. This agreement can be terminated if
Beijing Eastlong Technology is unable to provide any services to Beijing Eastlong Advertising for a continuous period of more than three years
due to force majeure.
Agreements
that Provide Us Effective Control over VisionChina Media Group,
Beijing Eastlong Advertising and Their Respective Subsidiaries
Loan Agreement. CDTC entered into a loan agreement with Limin Li and Yanqing Liang on February
15, 2007 that allows us to capitalize our PRC operating affiliates in
VisionChina Group and which facilitates the
establishment of our current corporate structure in VisionChina Group. CDTC made an interest-free loan of RMB50 million to the shareholders of
VisionChina Media Group. The loan can be repaid only with the proceeds from the transfer of the
shareholders equity interest in VisionChina Media Group to CDTC or another person designated by
CDTC pursuant to the Option Agreement as discussed below. In the event of a default under this
agreement, the non-defaulting party can terminate this agreement.
Beijing Eastlong Technology entered into a series of loan agreements and amendments thereto
with Qijun Men and Haifeng Wang in February 2005, March 2007 and May 2008, that allowed Beijing
Eastlong Advertising to capitalize its PRC operating affiliates and facilitates the establishment
of the current corporate structure. Beijing Eastlong Technology made an interest-free loan of RMB20
million to the shareholders of Beijing Eastlong Advertising. This loan can only be repaid by
transferring the shareholders equity interest in Beijing Eastlong Advertising to Beijing Eastlong
Technology or another person designated by Beijing Eastlong Technology. In the event of a default
under this agreement, the non-defaulting party can terminate this agreement.
84
Proxy Letter. Limin Li and Yanqing Liang signed certain proxy letters on February 15, 2007,
pursuant to which Limin Li and Yanqing Liang have granted an employee of CDTC, who is a PRC
citizen, the right to exercise all their voting rights as shareholders of VisionChina Media Group
as provided under its articles of association. Such grant must be approved by CDTC and the grantee
must be an employee of CDTC. If the grantee ceases to be an employee of CDTC, then the grantors
will revoke the proxy and grant a similar proxy to a then-current employee of CDTC designated by
CDTC. The proxy letters will remain effective until February 15, 2032.
Option Agreement. CDTC and Limin Li and Yanqing Liang entered into an option agreement on
February 15, 2007, pursuant to which CDTC has an exclusive option to purchase, or to designate
another qualified person to purchase, to the extent permitted by PRC law and foreign investment
policies, part or all of the equity interests in VisionChina Media Group owned by Limin Li and
Yanqing Liang. The purchase price for the entire equity interest shall be the greater of (i) RMB50
million and (ii) the minimum price permitted by applicable PRC law and agreed upon by the parties.
The option agreement remains in effect until the completion of the transfer of all the shares in
accordance with the option agreement. In the event of a default under this agreement, the
non-defaulting party can terminate this agreement.
Beijing Eastlong Technology and Qijun Men and Haifeng Wang entered into a series of option
agreements and amendments thereto in February 2005, March 2007 and May 2008, pursuant to which
Beijing Eastlong Technology has an exclusive option to purchase, or to designate another qualified
person to purchase, to the extent permitted by PRC law and foreign investment policies, all of the
equity interests in Beijing Eastlong Advertising owned by Qijun Men and Haifeng Wang. The purchase
price for the entire equity interest shall be RMB20 million. The option agreement remains in effect
until the completion of the transfer of all the shares in accordance with the option agreement.
Equity Pledge Agreement. Pursuant to an equity pledge agreement entered into on February 15,
2007, Limin Li and Yanqing Liang have pledged their equity interest in VisionChina Media Group to
CDTC to secure their obligations under the loan agreement and VisionChina Media Groups obligations
under the technology and management service agreement and domain name license agreement, each as
described above. In addition, shareholders of VisionChina Media Group agree not to transfer, sell,
pledge, dispose of or create any encumbrance on any equity interests in VisionChina Media Group
that would affect the pledgees interests. The equity pledge agreement will expire when the
shareholders fully perform their obligations under the agreements described above.
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C. |
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Interests of Experts and Counsel |
Not applicable.
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Item 8. |
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Financial Information |
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A. |
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Consolidated Statements and Other Financial Information |
We have appended consolidated financial statements filed as part of this annual report.
Legal and Administrative Proceedings
We are currently not a party to any other material legal or administrative proceedings, and we
are not aware of threatened material legal or administrative proceedings against us. We may from
time to time become a party to various legal or administrative proceedings arising in the ordinary
course of our business.
Dividend Policy
Since our incorporation, we have never declared or paid any dividends and we have no present
plan to declare and pay any dividends on our common shares or ADSs in the near future. We currently
intend to retain most, if not all, of our available funds and any future earnings to operate and
expand our business. Our board of directors has complete discretion as to whether to distribute
dividends. Even if our board of directors decides to pay dividends, the form, frequency and amount
will depend upon our future operations and earnings, capital requirements and surplus, general
financial condition, contractual restrictions and other factors that our board of directors may
deem relevant.
85
If we pay any dividends, we will pay our ADS holders to the same extent as holders of our
common shares, subject to the terms of the deposit agreement, including the fees and expenses
payable thereunder. Cash dividends on our common shares, if any, will be paid in U.S. dollars.
B. Significant Changes
In October 2009, we entered into an agreement and plan of merger (which was amended and
restated in November 2009) to acquire Digital Media Group through a merger of a subsidiary with and
into Digital Media Group, which was completed in January 2010. The total consideration of US$160
million is payable in three installments over two years in cash and shares. In November 2009, we
deposited the initial installment of US$40 million and 8,476,013 of our common shares, registered
under Vision Best Limited, our consolidated subsidiary, into an escrow account, a portion of which
was released at the completion of the acquisition and the remaining portion to be released in
accordance with the terms of the agreement and plan and merger relating to our acquisition of
Digital Media Group. Two subsequent installments of US$30 million each will be paid on the first and second anniversaries of the acquisition, of which US$20 million will be in the form of cash and US$10 million in cash or shares at
the option of the eligible former shareholders of Digital Media Group.
With our acquisition of Digital Media Group, we significantly increased the scale of our media
costs as we expanded our advertising presence in subways in China. As a result, we expect to incur
increased media costs in the future, which could negatively impact our gross margins, particularly
if our revenues do not increase sufficiently to offset these increased costs.
We have not experienced any other significant changes since the date of our audited
consolidated financial statements included in this annual report.
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Item 9. |
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The Offer and Listing |
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A. |
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Offering and Listing Details. |
Our ADSs, each representing one of our common shares, have been listed on the Nasdaq Global
Market since December 6, 2007 under the symbol VISN. The table below shows, for the periods
indicated, the high and low market prices for our ADSs. The closing price for our ADSs on the
Nasdaq Global Market on January 20, 2011 was US$4.44 per ADS.
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Market Price Per ADS |
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High |
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Low |
Yearly: |
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2007 (since December 6) |
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9.80 |
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7.63 |
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2008 |
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25.60 |
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4.25 |
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2009 |
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12.27 |
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4.80 |
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2010 |
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11.85 |
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2.51 |
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Quarterly: |
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2009 |
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First quarter |
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7.80 |
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5.06 |
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Second quarter |
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8.18 |
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4.80 |
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Third quarter |
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8.15 |
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5.21 |
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Fourth quarter |
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12.27 |
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7.04 |
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2010 |
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First quarter |
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11.85 |
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4.61 |
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Second quarter |
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5.04 |
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2.51 |
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Third quarter |
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4.70 |
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2.90 |
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Fourth quarter |
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5.10 |
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3.41 |
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Monthly: |
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2010 |
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July |
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4.03 |
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2.90 |
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August |
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4.20 |
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3.36 |
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September |
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4.70 |
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3.55 |
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October |
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5.10 |
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4.11 |
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November |
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4.24 |
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3.41 |
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December |
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4.72 |
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3.57 |
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2011 |
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January (through January 20) |
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4.82 |
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4.30 |
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86
As of March 31, 2010, a total of 64,155,749 ADSs were outstanding. As of March 31, 2010, a
total of 64,155,749 common shares were registered in the name of a nominee of The Bank of New York Mellon,
the depositary for the ADSs. We have no further information as to common shares or ADSs held, or
beneficially owned, by U.S. persons.
Not applicable.
Our ADSs, each representing one of our common shares, have been listed on the Nasdaq Global
Market since December 6, 2007 under the symbol VISN.
Not applicable.
Not applicable.
Not applicable.
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Item 10. |
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Additional Information |
Not applicable.
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B. |
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Memorandum and Articles of Association |
We incorporate by reference into this annual report the description of our amended and
restated memorandum of association contained in our F-1 registration statement (File No.
333-147275), as amended, initially filed with the Commission on November 29, 2007. Our shareholders
adopted our amended and restated memorandum and articles of association by Special Resolution passed on
November 8, 2007 and effective upon completion of our initial public offering of common shares represented by our ADSs.
We have not entered into any material contracts other than in the ordinary course of business
and other than those described in Item 4. Information on the Company or elsewhere in this annual
report.
Foreign Currency Exchange
Foreign currency exchange regulation in China is primarily governed by the following rules:
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Foreign Currency Administration Rules (1996), as amended, or the Exchange Rules; and |
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Administration Rules of the Settlement, Sale and Payment of Foreign Exchange (1996),
or the Administration Rules. |
Under the Exchange Rules, the Renminbi is convertible for current account items, including the
distribution of dividends, interest payments, trade and service-related foreign exchange
transactions. Conversion of Renminbi for capital account items, such as direct investment, loan,
security investment and repatriation of investment, however, is still subject to the approval of
the PRC State Administration of Foreign Exchange, or SAFE.
Under the Administration Rules, foreign-invested enterprises may only buy, sell and/or remit
foreign currencies at those banks authorized to conduct foreign exchange business after providing
valid commercial documents and, in the case of capital account item transactions, obtaining
approval from the SAFE. Capital investments by foreign-invested enterprises outside of China are
also subject to limitations, which include approvals by the Ministry of Commerce, the SAFE and the
State Reform and Development Commission.
Cayman Islands Taxation
The Cayman Islands currently levies no taxes on individuals or corporations based upon
profits, income, gains or appreciation and there is no taxation in the nature of inheritance tax or
estate duty. There are no other taxes likely to be material to us levied by the Government of the
Cayman Islands except for stamp duties which may be applicable on instruments executed in, or
brought within the jurisdiction of the Cayman Islands. The Cayman Islands is not party to any
double tax treaties. There are no exchange control regulations or currency restrictions in the
Cayman Islands.
Material United States Federal Income Tax Consequences
The following summary describes the material United States federal income tax consequences of
the ownership of our common shares and ADSs as of the date hereof. The discussion is applicable to
United States Holders (as defined below) who hold our common shares or ADSs as capital assets. As
used herein, the term United States Holder means a beneficial owner of a common share or ADS that
is for United States federal income tax purposes:
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an individual citizen or resident of the United States; |
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a corporation (or other entity treated as a corporation for United States federal
income tax purposes) created or organized in or under the laws of the United States,
any state thereof or the District of Columbia; |
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an estate the income of which is subject to United States federal income taxation
regardless of its source; or |
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a trust if it (1) is subject to the primary supervision of a court within the United
States and one or more United States persons have the authority to control all
substantial decisions of the trust or (2) has a valid election in effect under
applicable United States Treasury regulations to be treated as a United States person. |
This summary does not represent a detailed description of the United States federal income tax
consequences applicable to you if you are subject to special treatment under the United States
federal income tax laws, including if you are:
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a dealer in securities or currencies; |
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a financial institution; |
88
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a regulated investment company; |
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a real estate investment trust; |
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an insurance company; |
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a tax-exempt organization; |
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a person holding our common shares or ADSs as part of a hedging, integrated or
conversion transaction, a constructive sale or a straddle; |
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a trader in securities that has elected the mark-to-market method of accounting for
your securities; |
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a person liable for alternative minimum tax; |
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a person who owns or is deemed to own 10% or more of our voting stock; |
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a partnership or other pass-through entity for United States federal income tax
purposes; or |
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a person whose functional currency is not the United States dollar. |
The discussion below is based upon the provisions of the Internal Revenue Code of 1986, as
amended (the Code), and regulations, rulings and judicial decisions thereunder as of the date
hereof, and such authorities may be replaced, revoked or modified so as to result in United States
federal income tax consequences different from those discussed below. In addition, this summary is
based, in part, upon representations made by the depositary to us and assumes that the deposit
agreement, and all other related agreements, will be performed in accordance with their terms.
If a partnership holds our common shares or ADSs, the tax treatment of a partner will
generally depend upon the status of the partner and the activities of the partnership. If you are a
partner of a partnership holding our common shares or ADSs, you should consult your tax advisors.
This summary does not contain a detailed description of all the United States federal income
tax consequences to you in light of your particular circumstances and does not address the effects
of any state, local or non-United States tax laws. If you are considering the purchase, ownership
or disposition of our common shares or ADSs, you should consult your own tax advisors concerning
the United States federal income tax consequences to you in light of your particular situation as
well as any consequences arising under the laws of any other taxing jurisdiction.
The U.S. Treasury has expressed concerns that intermediaries in the chain of ownership between
the holder of an ADS and the issuer of the security underlying the ADS may be taking actions that
are inconsistent with the claiming of foreign tax credits for United States holders of ADSs. Such
actions would also be inconsistent with the claiming of the reduced rate of tax, described below,
applicable to dividends received by certain non-corporate holders. Accordingly, the analysis of the
creditability of PRC taxes and the availability of the reduced tax rate for dividends received by
certain non-corporate holders, each described below, could be affected by actions taken by
intermediaries in the chain of ownership between the holder of an ADS and our company.
ADSs
If you hold ADSs, for United States federal income tax purposes, you generally will be treated
as the owner of the underlying common shares that are represented by such ADSs. Accordingly,
deposits or withdrawals of common shares for ADSs will not be subject to United States federal
income tax.
89
Taxation of Dividends
Subject to the discussion under Passive Foreign Investment Company below, the gross amount
of distributions on the ADSs or common shares (including any amounts withheld to reflect PRC
withholding taxes) will be taxable as dividends, to the extent paid out of our current or
accumulated earnings and profits, as determined under United States federal income tax principles.
Such income (including withheld taxes) will be includable in your gross income as ordinary income
on the day actually or constructively received by you, in the case of the common shares, or by the
depositary, in the case of ADSs. Such dividends will not be eligible for the dividends received
deduction allowed to corporations under the Code.
With respect to non-corporate United States Holders, certain dividends received in taxable
years beginning before January 1, 2013 from a qualified foreign corporation may be subject to
reduced rates of taxation. A foreign corporation is treated as a qualified foreign corporation with
respect to dividends received from that corporation on shares (or ADSs backed by such shares) that
are readily tradable on an established securities market in the
United States. United States Treasury
Department guidance indicates that our ADSs (which are listed on the Nasdaq Global Market), but not
our common shares, are readily tradable on an established securities market in the United States.
Thus, we believe that dividends we pay on our common shares that are represented by ADSs, but not
on our common shares that are not so represented, currently meet the conditions required for the
reduced tax rates. There can be no assurance that our ADSs will be considered readily tradable on
an established securities market in later years. A qualified foreign corporation also includes a
foreign corporation that is eligible for the benefits of certain income tax treaties with the
United States. In the event that we are deemed to be a Chinese (or PRC) resident enterprise under
the PRC tax law, we may be eligible for the benefits of the income tax treaty between the United
States and the PRC, and if we are eligible for such benefits, dividends we pay on our common
shares, regardless of whether such shares are represented by ADSs, would be subject to the reduced
rates of taxation. Non-corporate United States Holders that do not meet a minimum holding period
requirement during which they are not protected from the risk of loss or that elect to treat the
dividend income as investment income pursuant to Section 163(d)(4) of the Code will not be
eligible for the reduced rates of taxation regardless of our status as a qualified foreign
corporation. In addition, the rate reduction will not apply to dividends if the recipient of a
dividend is obligated to make related payments with respect to positions in substantially similar
or related property. This disallowance applies even if the minimum holding period has been met. You
should consult your own tax advisors regarding the application of these rules to your particular
circumstances.
Non-corporate United States Holders will not be eligible for reduced rates of taxation on any
dividends received from us in taxable years beginning prior to January 1, 2013, if we are a PFIC in
the taxable year in which such dividends are paid or in the preceding taxable year.
The amount of any dividend paid in Renminbi will equal the United States dollar value of the
Renminbi received calculated by reference to the exchange rate in effect on the date the dividend
is received by you, regardless of whether the Renminbi are converted into United States dollars.
If the Renminbi received as a dividend are converted into United States dollars on the date they
are received, you generally will not be required to recognize foreign currency gain or loss in
respect of the dividend income. If the Renminbi received as a dividend are not converted into
United States dollars on the date of receipt, you will have a basis in the Renminbi equal to their
United States dollar value on the date of receipt. Any gain or loss realized on a subsequent
conversion or other disposition of the Renminbi will be treated as United States source ordinary
income or loss.
In the event that we are deemed to be a Chinese (or PRC) resident enterprise under the PRC
tax law, you may be subject to PRC withholding taxes on dividends paid to you with respect to the
ADSs or common shares. In that case, however, you may be able to obtain a reduced rate of PRC
withholding taxes under the treaty between the United States and the PRC if certain requirements
are met. In addition, subject to certain conditions and limitations, PRC withholding taxes on
dividends, if any, may be treated as foreign taxes eligible for credit against your United States
federal income tax liability. For purposes of calculating the foreign tax credit, dividends paid on
the ADSs or common shares will be treated as foreign-source income and will generally constitute
passive category income. Furthermore, in certain circumstances, if you have held the ADSs or common
shares for less than a specified minimum period during which you are not protected from risk of
loss, or are obligated to make payments related to the dividends, you will not be allowed a foreign
tax credit for any PRC withholding taxes imposed on dividends paid on the ADSs or common shares.
The rules governing the foreign tax credit are complex. You are urged to consult your tax advisors
regarding the availability of the foreign tax credit given your particular circumstances.
To the extent that the amount of any distribution exceeds our current and accumulated earnings
and profits for a taxable year, as determined under United States federal income tax principles,
the distribution will first be treated as a tax-free return of capital, causing a reduction in the
adjusted basis of the ADSs or common shares (thereby increasing the amount of gain, or decreasing
the amount of loss, to be recognized by you on a subsequent disposition of the ADSs or common
shares), and the balance in excess of adjusted basis will be taxed as capital gain recognized on a
sale or exchange. Consequently, such distributions in excess of our current and accumulated
earnings and profits would generally not give rise to foreign source income and you would generally
not be able to use the foreign tax credit arising from any PRC withholding tax imposed on such
distributions unless such credit can be applied (subject to applicable limitations) against United
States federal income tax due on other foreign source income in the appropriate category for foreign tax credit purposes. However, we do not expect
to keep earnings and profits in accordance with United States federal income tax principles.
Therefore, you should expect that a distribution will generally be treated as a dividend (as
discussed above).
90
Passive Foreign Investment Company
Based on our financial statements, relevant market data, and the projected composition of our
income and valuation of our assets, including goodwill, we do not
believe that we were a PFIC for 2009, and we do not expect to be a PFIC for 2010 or to become one in
the foreseeable future, although there can be no assurance in this regard. In general, we will be a PFIC for any
taxable year in which:
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at least 75% of our gross income is passive income, or |
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at least 50% of the value (determined based on a quarterly average) of our assets is
attributable to assets that produce or are held for the production of passive income. |
For this purpose, passive income generally includes dividends, interest, royalties and rents
(other than royalties and rents derived in the active conduct of a trade or business and not
derived from a related person). If we own at least 25% (by value) of the stock of another
corporation, we will be treated, for purposes of the PFIC tests, as owning our proportionate share
of the other corporations assets and receiving our proportionate share of the other corporations
income.
The determination of whether we are a PFIC is made annually. Accordingly, it is possible that
we may become a PFIC in the current or any future taxable year due to changes in our asset or
income composition. Because we have valued our goodwill based on the market value of our equity, a
decrease in the price of our ADSs may also result in our becoming a
PFIC. In addition, there exist substantial uncertainties regarding the application, interpretation
and enforcement of relevant current and future PRC laws and regulations and their potential effect
on our corporate structure and contractual arrangements with certain of our consolidated affiliated
PRC entities. Further, even if the uncertainties as to PRC laws and regulations did not exist,
there are also substantial uncertainties as to the treatment of our corporate structure and
ownership of these consolidated affiliated PRC entities for U.S. federal income tax purposes. If it
is determined that we do not own the stock of the consolidated affiliated PRC entities for U.S.
federal income tax purposes, we would likely be treated as a PFIC for 2009 and any taxable year
thereafter. If we are a PFIC for any
taxable year during which you hold our ADSs or common shares, you will be subject to special tax
rules discussed below.
If we are a PFIC for any taxable year during which you hold our ADSs or common shares, you
will be subject to special tax rules with respect to any excess distribution received and any
gain realized from a sale or other disposition, including a pledge, of ADSs or common shares.
Distributions received in a taxable year that are greater than 125% of the average annual
distributions received during the shorter of the three preceding taxable years or your holding
period for the ADSs or common shares will be treated as excess distributions. Under these special
tax rules:
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the excess distribution or gain will be allocated ratably over your holding period
for the ADSs or common shares, |
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the amount allocated to the current taxable year, and any taxable year prior to the
first taxable year in which we were a PFIC, will be treated as ordinary income, and |
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the amount allocated to each other year will be subject to tax at the highest tax
rate in effect for that year and the interest charge generally applicable to
underpayments of tax will be imposed on the resulting tax attributable to each such
year. |
In addition, non-corporate United States Holders will not be eligible for reduced rates of
taxation on any dividends received from us in taxable years beginning prior to January 1, 2013, if
we are a PFIC in the taxable year in which such dividends are paid or in the preceding taxable
year. You will be required to file Internal Revenue Service Form 8621 if you hold our ADSs or
common shares in any year in which we are classified as a PFIC.
91
If we are a PFIC for any taxable year during which you hold our ADSs or common shares and any
of our non-United States subsidiaries is also a PFIC, a United States Holder would be treated as
owning a proportionate amount (by value) of the shares of the lower-tier PFIC for purposes of the
application of these rules. You are urged to consult your tax advisors about the application of the
PFIC rules to any of our subsidiaries.
In certain circumstances, in lieu of being subject to the excess distribution rules discussed
above, you may make an election to include gain on the stock of a PFIC as ordinary income under a
mark-to-market method, provided that such stock is regularly traded on a qualified exchange. Under
current law, the mark-to-market election may be available to holders of ADSs because the ADSs are
listed on the Nasdaq Global Market, which constitutes a qualified exchange, although there can be
no assurance that the ADSs will be regularly traded for purposes of the mark-to-market election.
It should be noted that only the ADSs, and not the common shares, are listed on the Nasdaq Global
Market. Consequently, if you are a holder of common shares that are not represented by ADSs, you
generally will not be eligible to make a mark-to-market election if we are or were to become a
PFIC. If you make an effective mark-to-market election, you will include in each year as ordinary
income the excess of the fair market value of your ADSs at the end of the year over your adjusted
tax basis in the ADSs. You will be entitled to deduct as an ordinary loss in each such year the
excess of your adjusted tax basis in the ADSs over their fair market value at the end of the year,
but only to the extent of the net amount previously included in income as a result of the
mark-to-market election. If you make an effective market-to-market election, any gain you recognize
upon the sale or other disposition of your ADSs will be treated as ordinary income and any loss
will be treated as ordinary loss, but only to the extent of the net amount previously included in
income as a result of the mark-to-market election.
Your adjusted tax basis in the ADSs will be increased by the amount of any income inclusion
and decreased by the amount of any deductions under the mark-to-market rules. If you make a
mark-to-market election it will be effective for the taxable year for which the election is made
and all subsequent taxable years unless the ADSs are no longer regularly traded on a qualified
exchange or the Internal Revenue Service consents to the revocation of the election. You are urged
to consult your tax advisor about the availability of the mark-to-market election, and whether
making the election would be advisable in your particular circumstances.
A U.S. investor in a PFIC generally can mitigate the consequences of the rules described above
by electing to treat the PFIC as a qualified electing fund under Section 1295 of the Code.
However, this option is not available to you because we do not intend to comply with the
requirements necessary to permit you to make this election. You are urged to consult your tax
advisors concerning the United States federal income tax consequences of holding ADSs or common
shares if we are considered a PFIC in any taxable year.
Taxation of Capital Gains
For United States federal income tax purposes and subject to the discussion under Passive
Foreign Investment Company above, you will recognize taxable gain or loss on any sale or exchange
of ADSs or common shares in an amount equal to the difference between the amount realized for the
ADSs or common shares and your tax basis in the ADSs or common shares. Such gain or loss will
generally be capital gain or loss. Capital gains of individuals derived with respect to capital
assets held for more than one year are eligible for reduced rates of taxation. The deductibility of
capital losses is subject to limitations. Any gain or loss recognized by you will generally be
treated as United States source gain or loss. Consequently, you may not be able to use the foreign
tax credit arising from any PRC tax imposed on the disposition of our ADSs or common share unless
such credit can be applied (subject to applicable limitations) against tax due on other income
treated as derived from foreign sources. You are urged to consult your tax advisors regarding the
tax consequences if PRC tax is imposed on gain on a disposition of our ADSs or common shares,
including the availability of the foreign tax credit under your particular circumstances.
Information Reporting and Backup Withholding
In general, information reporting will apply to dividends in respect of our ADSs or common
shares and the proceeds from the sale, exchange or redemption of our ADSs or common shares that are
paid to you within the United States (and in certain cases, outside the United States), unless you
are an exempt recipient. A backup withholding tax may apply to such payments
if you fail to provide a taxpayer identification number or certification of other exempt status or
fail to report in full dividend and interest income.
92
Any amounts withheld under the backup withholding rules will be allowed as a refund or a
credit against your United States federal income tax liability provided the required information is
furnished to the Internal Revenue Service in a timely manner.
|
|
|
F. |
|
Dividends and Paying Agents |
Not applicable.
Not applicable.
We have filed this annual report, including exhibits, with the SEC. As allowed by the SEC, in
Item 19 of this annual report, we incorporate by reference certain information we filed with the
SEC. This means that we can disclose important information to you by referring you to another
document filed separately with the SEC. The information incorporated by reference is considered to
be part of this annual report.
You may read and copy this annual report, including the exhibits incorporated by reference in
this annual report, at the SECs Public Reference Room at 100 F Street, N.E., Washington, D.C.
20549 and at the SECs regional offices in New York, New York and Chicago, Illinois. You can also
request copies of this annual report, including the exhibits incorporated by reference in this
annual report, upon payment of a duplicating fee, by writing information on the operation of the
SECs Public Reference Room.
The SEC also maintains a website at www.sec.gov that contains reports, proxy statements and
other information regarding registrants that file electronically with the SEC. Our annual report
and some of the other information submitted by us to the SEC may be accessed through this web site.
As a foreign private issuer, we are exempt from the rules under the Exchange Act prescribing
the furnishing and content of quarterly reports and proxy statements, and officers, directors and
principal shareholders are exempt from the reporting and short-swing profit recovery provisions
contained in Section 16 of the Exchange Act.
Our financial statements have been prepared in accordance with U.S. GAAP.
We will furnish our shareholders with annual reports, which will include a review of
operations and annual audited consolidated financial statements prepared in conformity with U.S.
GAAP.
|
|
|
I. |
|
Subsidiary Information |
For a listing of our subsidiaries, see Item 4. Information on the
Company C. Organizational Structure
|
|
|
Item 11. |
|
Quantitative and Qualitative Disclosures About Market Risk |
Foreign Exchange Risk
Substantially all of our revenues, costs and expenses are denominated in Renminbi. Although
the conversion of the Renminbi is highly regulated in China, the value of the Renminbi against the
value of the U.S. dollar or any other currency nonetheless may fluctuate and be affected by, among
other things, changes in Chinas political and economic conditions. Under the currency policy in
effect in China today, the value of the Renminbi is permitted to fluctuate within a narrow band
against a basket of certain foreign currencies. China is currently under significant international
pressures to liberalize this government currency policy, and if such liberalization were to occur,
the value of the Renminbi could appreciate or depreciate against the U.S. dollar.
93
We use the U.S. dollar as the reporting currency for our financial statements. Our companys
functional currency is the U.S. dollar and the functional currency of our PRC subsidiaries is the
Renminbi. All of our subsidiarys transactions in currencies other than the Renminbi during the
year are recorded at the exchange rates prevailing on the relevant dates of such transactions.
Monetary assets and liabilities of our subsidiary existing at the balance sheet date denominated in
currencies other than the Renminbi are re-measured at the exchange rates prevailing on such date.
Exchange differences are recorded in our consolidated statements of operations. Fluctuations in
exchange rates may also affect our consolidated financial statements and operations. For example,
to the extent that we need to convert U.S. dollars received in our public offering in August 2008 into Renminbi for our operations,
appreciation of the Renminbi against the U.S. dollar would have an adverse effect on the amount of
Renminbi that we receive from the conversion. Conversely, if we decide to convert Renminbi into
U.S. dollars for the purpose of making payments for dividends on our common shares or ADSs or for
other business purposes, appreciation of the U.S. dollar against the Renminbi would have a negative
effect on the U.S. dollar amounts available to us. Except for certain
cash balances, majority of our transactions are denominated in
Renminbi. Considering the amount of our cash balance as of
December 31, 2009, a 1.0% change in the exchange rates between the Renminbi and the U.S. dollar
will result in an increase or decrease of RMB4.0 million (US$0.6 million) for our total amount of
cash balance, with a corresponding increase or decrease in operating
profit.
We do not believe that we currently have any significant direct foreign exchange risk and have
not used any derivative financial instruments to hedge exposure in foreign exchange risk.
Interest Rate Risk
Our risk exposure to changes in interest rates relates primarily to the interest income
generated by cash deposited in interest-bearing savings accounts and interest expenses arising from
bank borrowings.
On December 3, 2009, we entered into a credit facility agreement with the Bank of China to
provide a maximum loan amount of RMB 400 million (US$58.5 million). The long-term loan under this
credit facility may be drawn at any time within two years from the effective date of the agreement
and will mature two years after it is drawn. The loan, when drawn, will carry a floating interest
rate equal to of 90% of the Peoples Bank of China benchmark rate. As of December 31, 2009, we had
a two-year loan of US$0.7 million under this credit facility.
As of December 31, 2009, we had a short-term loan of $40.8 million with Macau Branch of Bank
of China, which was secured by RMB equivalent of US$64.4 million pledged with Shenzhen Branch of
the Bank of China, with the balance of US$20.4 million available as short-term funds for future
needs. The loan carried an annual interest ranging from 1.59% to 1.72% and the pledged deposits
carried an annual interest rate of 2.25%.
As of December 31, 2009, we have no significant exposure to change of interest rate as (i) our
short-term borrowing rate was similar with the interest rate of our pledged deposits, (ii)
immateriality of our long-tern loan balance. Our management monitors the banks prime rates in
conjunction with our cash requirements to determine the appropriate level of debt balances relative
to other sources of funds. We have not used, and do not expect to use in the future, any derivative
financial instruments to hedge our interest risk exposure.
|
|
|
Item 12. |
|
Description of Securities Other Than Equity Securities |
Not applicable
Not applicable
Not applicable
94
|
|
|
D. |
|
American Depositary Shares |
Depositary Fees
Under the terms of the deposit agreement for our ADSs, an ADS holder may have to pay the
following service fees to the depositary:
|
|
|
Service |
|
Fees |
Issuance of ADSs |
|
Up to US$0.05 per ADS issued |
Cancellation of ADSs |
|
Up to US$0.05 per ADS cancelled |
Distribution of cash dividends or other cash distributions |
|
Up to US$0.02 per ADS held |
Distribution of ADSs pursuant to stock dividends, free stock distributions or exercises of rights |
|
Up to US$0.05 per ADS held |
Distribution of securities other than ADSs or rights to purchase additional ADSs |
|
Up to US$0.05 per ADS held |
Depositary Charges
In addition, an ADS holder shall be responsible for the following charges:
|
|
|
taxes and other governmental charges; |
|
|
|
|
such registration fees as may from time to time be in effect for the registration of
common shares or other deposited securities on the share register and applicable to
transfers of common shares or other deposited securities to or from the name of the
custodian, the depositary or any nominees upon the making of deposits and withdrawals,
respectively; |
|
|
|
|
such cable, telex and facsimile transmission and delivery expenses as are expressly
provided in the deposit agreement to be at the expense of ADS holders and beneficial
owners of ADSs; |
|
|
|
|
the expenses and charges incurred by the depositary in the conversion of foreign
currency; and |
|
|
|
|
the fees and expenses incurred by the depositary, the custodian or any nominee in
connection with the servicing or delivery of deposited securities. |
Depositary fees payable upon the issuance and cancellation of ADSs are typically paid to the
depositary by the brokers (on behalf of their clients) receiving the newly-issued ADSs from the
depositary and by the brokers (on behalf of their clients) delivering the ADSs to the depositary
for cancellation. The brokers in turn charge these transaction fees to their clients.
Depositary fees payable in connection with distributions of cash or securities to ADS holders
and the depositary services fee are charged by the depositary to the holders of record of ADSs as
of the applicable ADS record date. The depositary fees payable for cash distributions are generally
deducted from the cash being distributed. In the case of distributions other than cash (i.e., stock
dividends, rights offerings), the depositary charges the applicable fee to the ADS record date
holders concurrent with the distribution. In the case of ADSs registered in the name of the
investor (whether certificated or un-certificated in direct registration), the depositary sends
invoices to the applicable record date ADS holders. In the case of ADSs held in brokerage and
custodian accounts via the central clearing and settlement system, The Depository Trust Company, or
DTC, the depositary generally collects its fees through the systems provided by DTC (whose nominee
is the registered holder of the ADSs held in DTC) from the brokers and custodians holding ADSs in
their DTC accounts. The brokers and custodians who hold their clients ADSs in DTC accounts in turn
charge their clients accounts the amount of the fees paid to the depositary.
In the event of refusal to pay the depositary fees, the depositary may, under the terms of the
deposit agreement, refuse the requested service until payment is received or may set off the amount
of the depositary fees from any distribution to be made to the ADS holder.
The fees and charges ADS holders may be required to pay may vary over time and may be changed
by us and by the depositary. ADS holders will receive prior notice of such changes.
95
Payments by Depositary
In 2009, we received the following payments from The Bank of New York Mellon, the depositary
bank for our ADR program:
|
|
|
|
|
|
|
US$ |
Item |
|
(in thousands) |
Reimbursement of investor relations efforts |
|
|
609 |
|
Reimbursement of legal fees |
|
|
61 |
|
Reimbursement of Nasdaq listing fees |
|
|
5 |
|
Reimbursement of proxy process expenses |
|
|
|
|
Reimbursement of SEC filing fees |
|
|
29 |
|
Reimbursement of Sarbanes-Oxley and accounting-related
expenses in connection with ongoing SEC compliance and
listing requirements |
|
|
|
|
Reimbursement of other ADR program-related expenses |
|
|
102 |
|
|
|
|
|
|
Total |
|
|
806 |
|
|
|
|
|
|
Part II
|
|
|
Item 13. |
|
Defaults, Dividend Arrearages and Delinquencies |
None.
|
|
|
Item 14. |
|
Material Modifications to the Rights of Security Holders and Use of Proceeds |
Material Modifications to the Rights of Securities Holders
See Item 10. Additional Information for a description of the rights of securities holders,
which remain unchanged.
Use of Proceeds
We completed our initial public offering of 13,500,000 common shares, in the form of ADSs, at
US$8.00 per ADS in December 2007, after our common shares and American Depositary Receipts were
registered under the Securities Act. The aggregate price of the offering amount registered and sold
was US$108.0 million, of which we received net proceeds of US$96.9 million. The effective date of
our registration statement on Form F-1 (File number: 333-147275) was December 5, 2007. Credit
Suisse and Merrill Lynch were the joint global coordinators and book runners for the global
offering of our ADSs.
We completed a subsequent public offering of 1,000,000 common shares, in the form of ADSs, at
US$16.00 per ADS in August 2008, after our common shares and American Depositary Receipts were
registered under the Securities Act. The aggregate price of the offering amount registered and sold
was US$18.4 million, of which we received net proceeds of US$17.6 million. The effective date of
our registration statement of Form F-1 (File number: 333-152726) was August 1, 2008. Credit Suisse,
Morgan Stanley and Merrill Lynch were the joint global coordinators and book runners for the global
offering of our ADSs.
As of March 31, 2010, approximately US$80.4 million of the net proceeds from our public
offerings has been used for acquisitions of six advertising agency companies and Digital Media
Group and capital expenditures, and approximately US$35.0 million has been used for general
corporate purposes. We are continuously examining opportunities to expand our business through
merger and acquisitions, organic growth and strategic alliances with our business partners, and
anticipate that the remaining amount of the net proceeds from our initial public offering may be
used for such purposes.
96
|
|
|
Item 15. |
|
Controls and Procedures |
Disclosure Controls and Procedures
As of the end of the period covered by this annual report, an evaluation has been carried out
under the supervision and with the participation of our management, including our chief executive
officer and our chief financial officer, of the effectiveness of the design and operation of our
disclosure controls and procedures, as such term is defined under Rule 13a-15(e) promulgated under
the Securities Exchange Act of 1934, as amended. Based on that evaluation, our chief executive
officer and chief financial officer have concluded that our disclosure controls and procedures are
effective in ensuring that material information required to be disclosed in this annual report is
recorded, processed, summarized and reported to them for assessment, and required disclosure is
made within the time period specified in the rules and forms of the Securities and Exchange
Commission.
We believe that a system of disclosure controls and procedures, no matter how well designed
and operated, cannot provide absolute assurance that the objectives of the controls and procedures
are met.
Managements Annual Report on Internal Control over Financial Reporting.
Our management is responsible for establishing and maintaining adequate internal control over
financial reporting, as such term is defined in Rule 13a-15(f) under the Securities Exchange Act of
1934, as amended, for our company.
Because of its inherent limitations, a system of internal control over financial reporting can
provide only reasonable assurance with respect to consolidated financial statement preparation and
presentation and may not prevent or detect misstatements. Also, projections of any evaluation of
effectiveness to future periods are subject to the risk that controls may become inadequate because
of changes in conditions, or that the degree of compliance with the policies or procedures may
deteriorate.
As required by Section 404 of the Sarbanes-Oxley Act of 2002 and related rules as promulgated
by the Securities and Exchange Commission, management assessed the effectiveness of the internal
control over financial reporting as of December 31, 2009 using criteria established in Internal
Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway
Commission.
Based on this assessment, management concluded that the our internal control over financial
reporting was effective as of December 31, 2009 based on the criteria established in Internal
Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway
Commission.
The effectiveness of internal control over financial reporting as of December 31, 2009 has
been audited by Deloitte Touche Tohmatsu, an independent registered public accounting firm, who has
also audited our consolidated financial statements for the year ended December 31, 2009.
97
Attestation Report of the Independent Registered Public Accounting Firm
To the Board of Directors and the Shareholders of VisionChina Media Inc.:
We have audited the internal control over financial reporting of VisionChina Media Inc. and
its subsidiaries and variable interest entity (the Company) as of December 31, 2009, based on
criteria established in Internal Control Integrated Framework issued by the Committee of
Sponsoring Organizations of the Treadway Commission. The Companys management is responsible for
maintaining effective internal control over financial reporting and for its assessment of the
effectiveness of internal control over financial reporting, included in the accompanying
Managements Annual Report on Internal Control over Financial Reporting. Our responsibility is to
express an opinion on the Companys internal control over financial reporting based on our audit.
We conducted our audit in accordance with the standards of the Public Company Accounting
Oversight Board (United States). Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether effective internal control over financial reporting was
maintained in all material respects. Our audit included obtaining an understanding of internal
control over financial reporting, assessing the risk that a material weakness exists, testing and
evaluating the design and operating effectiveness of internal control based on the assessed risk,
and performing such other procedures as we considered necessary in the circumstances. We believe
that our audit provides a reasonable basis for our opinion.
A companys internal control over financial reporting is a process designed by, or under the
supervision of, the companys principal executive and principal financial officers, or persons
performing similar functions, and effected by the companys board of directors, management, and
other personnel to provide reasonable assurance regarding the reliability of financial reporting
and the preparation of financial statements for external purposes in accordance with generally
accepted accounting principles. A companys internal control over financial reporting includes
those policies and procedures that (1) pertain to the maintenance of records that, in reasonable
detail, accurately and fairly reflect the transactions and dispositions of the assets of the
company; (2) provide reasonable assurance that transactions are recorded as necessary to permit
preparation of financial statements in accordance with generally accepted accounting principles,
and that receipts and expenditures of the company are being made only in accordance with
authorizations of management and directors of the company; and (3) provide reasonable assurance
regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the
companys assets that could have a material effect on the financial statements.
Because of the inherent limitations of internal control over financial reporting, including
the possibility of collusion or improper management override of controls, material misstatements
due to error or fraud may not be prevented or detected on a timely basis. Also, projections of any
evaluation of the effectiveness of the internal control over financial reporting to future periods
are subject to the risk that the controls may become inadequate because of changes in conditions,
or that the degree of compliance with the policies or procedures may deteriorate.
In our opinion, the Company maintained, in all material respects, effective internal control
over financial reporting as of December 31, 2009, based on the criteria established in Internal
Control Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway
Commission.
We have also audited, in accordance with the standards of the Public Company Accounting
Oversight Board (United States), the consolidated financial statements and financial statement
schedule as of and for the year ended December 31, 2009 of the
Company, and our report dated June 23, 2010 expressed an unqualified opinion on those consolidated financial statements and financial
statement schedule.
/s/ DELOITTE TOUCHE TOHMATSU
Certified Public Accountants
Hong Kong
June 23, 2010
Changes in Internal Control Over Financial Reporting
There were no changes in our internal control over
financial reporting that occurred during the year
ended December 31, 2009 that have materially affected, or are reasonably likely to materially affect, our internal
control over financial reporting.
|
|
|
Item 16A. |
|
Audit Committee Financial Expert |
Our Board of Directors has determined that William Decker qualify as audit committee
financial expert as defined in Item 16A of Form 20-F. Each of the members of the Audit Committee is
an independent director within the meaning of NYSE Manual
Section 303A(2) and meet the criteria for independent set forth in Section 10A(m)(3) of the Exchange Act.
98
Our board of directors has adopted a code of ethics that applies to our directors, officers,
employees and agents, including certain provisions that specifically apply to our Chief Executive
Officer, Chief Financial Officer, Chief Strategy Officer, Chief Administrative Officer, Vice
Presidents, Financial Controller and any other persons who perform similar functions for us. We
have filed our code of business conduct and ethics as an exhibit to our registration statement on
Form F-1. We hereby undertake to provide to any person without charge, a copy of our code of
business conduct and ethics within ten working days after we receive such persons written request.
|
|
|
Item 16C. |
|
Principal Accountant Fees and Services |
The following table sets forth the aggregate fees by categories specified below in connection
with certain professional services rendered by Deloitte Touche Tohmatsu, our principal external
auditors. We did not pay any other fees to our auditors during the periods indicated below.
|
|
|
|
|
|
|
|
|
|
|
For the Year Ended |
|
|
|
December 31, |
|
|
|
2008 |
|
|
2009 |
|
|
|
(US$) |
|
Audit Fees(1) |
|
|
650,000 |
|
|
|
850,000 |
|
Audit-Related Fees(2) |
|
|
|
|
|
|
|
|
Tax Fees(3) |
|
|
|
|
|
|
|
|
Other Fees(4) |
|
|
200,000 |
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
850,000 |
|
|
|
850,000 |
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
Audit fees include the aggregate fees billed in each of the fiscal period listed for
professional services rendered by our principal auditors for the audit of our annual financial
statements and internal control over financial reporting. |
|
(2) |
|
Audit-related fees include the aggregate fees billed in each of
fiscal period listed for assurance and related services by our principal
auditors that are reasonably related to the performance of audit or review
of our annual financial statements not reported under our audit fees. |
|
(3) |
|
Tax fees include fees billed for tax consultations. |
|
(4) |
|
Other fees include the aggregate fees billed for assurance and related services by our
principal auditors that are reasonably related to the performance of the audit or review of
our financial statements and are not reported under audit fees. Services comprising the fees
disclosed under the category of other fees involve principally the issue of comfort letters in
2008 and rendering of listing advice in connection with our follow-on offering in 2008. |
The policy of our audit committee or our board of directors is to pre-approve all audit and
non-audit services provided by Deloitte Touche Tohmatsu, including audit services, audit-related
services, tax services and other services as described above, other than those for de minimis
services which are approved by the Audit Committee or our board of directors prior to the
completion of the audit.
|
|
|
Item 16D. |
|
Exemptions From the Listing Standards For Audit Committees |
Not applicable.
|
|
|
Item 16E. |
|
Purchases of Equity Securities by the Issuer and Affiliated Purchasers. |
On November 14, 2008, our board of directors authorized a share repurchase program, under
which we may repurchase up to US$50 million worth of our issued and outstanding ADSs from the open
market from time to time and before December 31, 2009. As of December 31, 2009, we have repurchased
940,380 of our ADSs for a total purchase price of approximately US$5.0 million pursuant to this
program. All of the repurchased shares have been retired from our outstanding common shares. The
repurchases were made on the open market at prevailing market prices or in block trades and subject
to restrictions relating to volume, price and timing. Set for below contains certain information
regarding our share repurchase program.
99
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Approximate Value |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
of ADSs that May |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Yet be |
|
|
|
|
|
|
Average Price |
|
Total Number of |
|
Purchased |
|
|
|
|
|
|
Paid |
|
ADSs Purchased |
|
Under the |
|
|
Total Number of |
|
per ADS |
|
Under the |
|
Program(1) |
Period |
|
ADSs Purchased |
|
(US$) |
|
Program |
|
(US$ in thousands) |
2008 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December |
|
|
281,400 |
|
|
|
5.1360 |
|
|
|
281,400 |
|
|
|
48,557 |
|
2009 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
January |
|
|
23,775 |
|
|
|
5.4962 |
|
|
|
23,775 |
|
|
|
48,426 |
|
February |
|
|
2,550 |
|
|
|
5.5000 |
|
|
|
2,550 |
|
|
|
48,412 |
|
March |
|
|
346,087 |
|
|
|
5.4155 |
|
|
|
346,087 |
|
|
|
46,543 |
|
April |
|
|
286,568 |
|
|
|
5.3827 |
|
|
|
286,568 |
|
|
|
45,000 |
|
Total |
|
|
940,380 |
|
|
|
5.3241 |
|
|
|
940,380 |
|
|
|
45,000 |
|
|
|
|
(1) |
|
According to the share repurchase program, we may repurchase up to US$50 million worth of our
issued and outstanding ADSs from the open market from time to time and before December 31,
2009. |
|
|
|
ITEM 16F. |
|
Change in Registrants Certifying Accountant |
Not applicable.
|
|
|
ITEM 16G. |
|
Corporate Governance |
Rule 5615(a)(3) of the Nasdaq Listing Rules permits foreign private issuers like us to follow
home country practice with respect to certain corporate governance matters. We are not aware of any significant ways in which our corporate governance practices differ from
those followed by U.S. domestic companies under the Nasdaq Listing Rules.
Part III
|
|
|
Item 17. |
|
Financial Statements |
We have elected to provide financial statements pursuant to Item 18.
|
|
|
Item 18. |
|
Financial Statements |
The following financial statements are filed as part of this annual report, together with the
report of the independent auditors:
|
|
|
Report of Independent Registered Public Accounting Firm |
|
|
|
|
Consolidated Balance Sheets as of December 31, 2008 and 2009 |
|
|
|
|
Consolidated Statements of Operations for the years ended December 31, 2007, 2008
and 2009 |
|
|
|
|
Consolidated Statements of Changes of Shareholders Equity and Comprehensive Income
for the years ended December 31, 2007, 2008 and 2009 |
|
|
|
|
Consolidated Statements of Cash Flows for the years ended December 31, 2007, 2008
and 2009 |
|
|
|
|
Notes to the Consolidated Financial Statements |
|
|
|
|
Condensed Financial Information of Registrant Schedule I |
100
|
|
|
Exhibit |
|
|
Number |
|
Description of Document |
1.1
|
|
Memorandum and Articles of Association of VisionChina Media Inc.
(incorporated by reference to Exhibit 3.1 from our F-1 registration
statement (File No. 333-147275), as amended, initially filed with the
Commission on November 9, 2007) |
|
|
|
1.2
|
|
Form of Second Amended and Restated Memorandum and Articles of Association
of VisionChina Media Inc. (incorporated by reference to Exhibit 3.2 from
our F-1 registration statement (File No. 333-147275), as amended,
initially filed with the Commission on November 9, 2007) |
|
|
|
2.1
|
|
Specimen Certificate for Common Shares of VisionChina Media Inc.
(incorporated by reference to Exhibit 4.2 from our F-1 registration
statement (File No. 333-147275), as amended, initially filed with the
Commission on November 9, 2007) |
|
|
|
2.2
|
|
Form of American Depositary Receipt of VisionChina Media Inc.
(incorporated by reference to Exhibit 4.1 from our F-1 registration
statement (File No. 333-147275), as amended, initially filed with the
Commission on November 9, 2007) |
|
|
|
2.3
|
|
Form of Deposit Agreement among VisionChina Media Inc., the depositary and
owners and beneficial owners of the American Depositary Receipts
(incorporated by reference to Exhibit 4.3 from our F-1 registration
statement (File No. 333-147275), as amended, initially filed with the
Commission on November 9, 2007) |
|
|
|
4.1
|
|
Share Purchase Agreement, dated April 12, 2006, in respect of the sale of
Series A preferred shares of the Registrant (incorporated by reference to
Exhibit 4.4 from our F-1 registration statement (File No. 333-147275), as
amended, initially filed with the Commission on November 9, 2007) |
|
|
|
4.2
|
|
Share Purchase Agreement, dated March 9, 2007, in respect of the sale of
Series B preferred shares of the Registrant (incorporated by reference to
Exhibit 4.5 from our F-1 registration statement (File No. 333-147275), as
amended, initially filed with the Commission on November 9, 2007) |
|
|
|
4.3
|
|
Shareholders Agreement, dated April 12, 2006, among the Registrant and
certain investors in Registrants Series A preferred shares (incorporated
by reference to Exhibit 4.6 from our F-1 registration statement (File No.
333-147275), as amended, initially filed with the Commission on November
9, 2007) |
|
|
|
4.4
|
|
Amended and Restated Shareholders Agreement, dated March 9, 2007, among
the Registrant and certain investors in Registrants Series A preferred
shares and certain investors in Registrants Series B preferred shares
(incorporated by reference to Exhibit 4.7 from our F-1 registration
statement (File No. 333-147275), as amended, initially filed with the
Commission on November 9, 2007) |
|
|
|
4.5
|
|
Amendment No. 1 to the Amended and Restated Shareholders Agreement, dated
November 8, 2007, among the same parties (incorporated by reference to
Exhibit 4.8 from our F-1 registration statement (File No. 333-147275), as
amended, initially filed with the Commission on November 9, 2007) |
|
|
|
4.6
|
|
Registrants 2006 Share Incentive Plan (initially filed with the
Commission on November 9, 2007) |
|
|
|
4.7
|
|
Form of Indemnification Agreement with the Registrants directors
(incorporated by reference to Exhibit 10.2 from our F-1 registration
statement (File No. 333-147275), as amended, initially filed with the
Commission on November 9, 2007) |
101
|
|
|
Exhibit |
|
|
Number |
|
Description of Document |
4.8
|
|
Translation of Loan Agreement dated February 15, 2007 among China Digital
Technology Consulting (Shenzhen) Co., Ltd. and Limin Li and Yanqing Liang.
(incorporated by reference to Exhibit 10.3 from our F-1 registration
statement (File No. 333-147275), as amended, initially filed with the
Commission on November 9, 2007) |
|
|
|
4.9
|
|
Translation of Loan Agreement dated March 31, 2006 among China Digital
Technology Consulting (Shenzhen) Co., Ltd. and Limin Li and Yanqing Liang.
(incorporated by reference to Exhibit 10.4 from our F-1 registration
statement (File No. 333-147275), as amended, initially filed with the
Commission on November 9, 2007) |
|
|
|
4.10
|
|
Translation of Technology Service and Management Agreement dated February
15, 2007 between China Digital Technology Consulting (Shenzhen) Co., Ltd.
and China Digital Mobile Television Co., Ltd. (incorporated by reference
to Exhibit 10.5 from our F-1 registration statement (File No. 333-147275),
as amended, initially filed with the Commission on November 9, 2007) |
|
|
|
4.11
|
|
Translation of Technology Service and Management Agreement dated March 31,
2006 between China Digital Technology Consulting (Shenzhen) Co., Ltd. and
China Digital Mobile Television Co., Ltd. (incorporated by reference to
Exhibit 10.6 from our F-1 registration statement (File No. 333-147275), as
amended, initially filed with the Commission on November 9, 2007) |
|
|
|
4.12
|
|
Translation of Domain Name License Agreement dated February 15, 2007
between China Digital Technology Consulting (Shenzhen) Co., Ltd. and China
Digital Mobile Television Co., Ltd. (incorporated by reference to Exhibit
10.7 from our F-1 registration statement (File No. 333-147275), as
amended, initially filed with the Commission on November 9, 2007) |
|
|
|
4.13
|
|
Translation of Domain Name License Agreement dated March 31, 2006 between
China Digital Technology Consulting (Shenzhen) Co., Ltd. and China Digital
Mobile Television Co., Ltd. (incorporated by reference to Exhibit 10.8
from our F-1 registration statement (File No. 333-147275), as amended,
initially filed with the Commission on November 9, 2007) |
|
|
|
4.14
|
|
Translation of Option Agreement dated February 15, 2007 among China
Digital Technology Consulting (Shenzhen) Co., Ltd. and Limin Li and
Yanqing Liang. (incorporated by reference to Exhibit 10.9 from our F-1
registration statement (File No. 333-147275), as amended, initially filed
with the Commission on November 9, 2007) |
|
|
|
4.15
|
|
Translation of Option Agreement dated March 31, 2006 among China Digital
Technology Consulting (Shenzhen) Co., Ltd. and Limin Li and Yanqing Liang.
(incorporated by reference to Exhibit 10.10 from our F-1 registration
statement (File No. 333-147275), as amended, initially filed with the
Commission on November 9, 2007) |
|
|
|
4.16
|
|
Translation of Proxy Letter dated March 31, 2006 and Amendment to Proxy
Letter dated February 15, 2007 of Limin Li. (incorporated by reference to
Exhibit 10.11 from our F-1 registration statement (File No. 333-147275),
as amended, initially filed with the Commission on November 9, 2007) |
|
|
|
4.17
|
|
Translation of Proxy Letter dated March 31, 2006 and Amendment to Proxy
Letter dated February 15, 2007 of Yanqing Liang (incorporated by reference
to Exhibit 10.12 from our F-1 registration statement (File No.
333-147275), as amended, initially filed with the Commission on November
9, 2007) |
102
|
|
|
|
Exhibit |
|
|
Number |
|
Description of Document |
4.18
|
|
Translation of Equity Pledge Agreement dated February 15, 2007 among China
Digital Technology Consulting (Shenzhen) Co., Ltd. and Limin Li and
Yanqing Liang (incorporated by reference to Exhibit 10.13 from our F-1
registration statement (File No. 333-147275), as amended, initially filed
with the Commission on November 9, 2007) |
|
|
|
4.19
|
|
Translation of Equity Pledge Agreement dated March 31, 2006 among China
Digital Technology Consulting (Shenzhen) Co., Ltd. and Limin Li and
Yanqing Liang (incorporated by reference to Exhibit 10.14 from our F-1
registration statement (File No. 333-147275), as amended, initially filed
with the Commission on November 9, 2007) |
|
|
|
4.20
|
|
Translation of Cooperation Agreement dated October 13, 2006 between China
Digital Mobile Television Co., Ltd. and Beijing Beiguang Media Mobile
Television Co., Ltd. (incorporated by reference to Exhibit 10.15 from our
F-1 registration statement (File No. 333-147275), as amended, initially
filed with the Commission on November 9, 2007) |
|
|
|
4.21
|
|
Translation of Advertising Time on Bus Mobile Television Platform in
Shenzhen Exclusive Agency Agreement dated December 31, 2006 between China
Digital Mobile Television Co., Ltd. and Shenzhen Mobile Television Co.,
Ltd. (incorporated by reference to Exhibit 10.16 from our F-1 registration
statement (File No. 333-147275), as amended, initially filed with the
Commission on November 9, 2007) |
|
|
|
4.22 |
|
Amended and Restated Agreement and Plan of Merger dated November 16, 2009,
among VisionChina Media Inc., Vision Best Limited, Digital Value Holdings
Limited, Digital Media Group Company Limited and the Shareholder
Representative |
|
|
|
4.23
|
|
Registration Rights Agreement dated as of November 16, 2009 among
VisionChina Media Inc. and the investors signatories thereto |
|
|
|
4.24
|
|
Translation of RMB Loan Agreement, dated as of December 3, 2009, between
VisionChina Media Group Inc., and Bank of China, Shenzhen Branch |
|
|
|
4.25
|
|
Translation of Guarantee Contract between VisionChina Digital Company and
Bank of China Shenzhen Branch |
|
|
|
4.26*
|
|
Securities Purchase Agreement, dated as of December 30, 2010 by and among VisionChina
Media Inc., Focus Media Holding Limited and the other investors named therein |
|
|
|
4.27*
|
|
Shareholders Agreement, dated as of January 13, 2011 by and among Focus Media Holding
Limited, JJ Media Investment Holding Limited, Front Lead Investments Limited, Limin Li, and VisionChina Media Inc. |
|
|
|
4.28*
|
|
Registration Right Agreement, dated as of January 13, 2011 by and among VisionChina Media
Inc., Focus Media Holding Limited, JJ Media Investment Holding Limited, and Front Lead Investments
Limited |
|
|
|
8.1
|
|
List of Subsidiaries |
|
|
|
11.1
|
|
Code of Business Conduct and Ethics (incorporated by reference to Exhibit
99.1 from our F-1 registration statement (File No. 333-147275), as
amended, initially filed with the Commission on November 29, 2007) |
|
|
|
12.1*
|
|
CEO Certification Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 |
|
|
|
12.2*
|
|
CFO Certification Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 |
|
|
|
13.1*
|
|
CEO Certification Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 |
|
|
|
13.2*
|
|
CFO Certification Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 |
|
|
|
23.1*
|
|
Consent of Independent Registered Public Accounting Firm |
|
|
|
|
* |
|
Filed with this annual report |
|
|
|
|
|
Portions of this document have been omitted pursuant to a confidential
treatment request and have been filed separately with the Commission. |
103
SIGNATURES
The registrant hereby certifies that it meets all of the requirements for filing its annual
report on Form 20-F and that it has duly caused and authorized the undersigned to sign this annual
report on its behalf.
|
|
|
|
|
|
VISIONCHINA MEDIA INC.
|
|
|
By |
/s/ Limin Li
|
|
|
Name: |
Limin Li |
|
|
Title: |
Chairman and Chief Executive Officer |
|
|
Date:
January 21, 2011
104
VISIONCHINA MEDIA INC.
|
|
|
|
|
|
|
PAGE |
|
|
|
|
|
|
|
|
|
F-2 |
|
|
|
|
F-3 & F-4 |
|
|
|
|
F-5 |
|
|
|
|
F-6 |
|
|
|
|
F-7 |
|
|
|
|
F-8 F-42 |
|
|
|
|
F-43 F-47 |
|
F-1
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and the Shareholders of VisionChina Media Inc.:
We have audited the accompanying consolidated balance sheets of VisionChina Media Inc. and
subsidiaries and variable interest entity (the Company) as of December 31, 2008 and 2009,
and the related consolidated statements of operations, changes of equity and comprehensive
income, and cash flows for each of the three years in the period ended December 31, 2009 and
the related financial statement schedule listed in the Index as Schedule I. These
consolidated financial statements and financial statement schedule are the responsibility of
the Companys management. Our responsibility is to express an opinion on the consolidated
financial statements and financial statement schedule based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting
Oversight Board (United States). Those standards require that we plan and perform the audit
to obtain reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting the amounts
and disclosures in the financial statements. An audit also includes assessing the
accounting principles used and significant estimates made by management, as well as
evaluating the overall financial statement presentation. We believe that our audits provide
a reasonable basis for our opinion.
In our opinion, such consolidated financial statements present fairly, in all material
respects, the financial position of the Company as of December 31, 2008 and 2009, and the
results of their operations and their cash flows for each of the three years in the period
ended December 31, 2009, in conformity with accounting principles generally accepted in the
United States of America. Also, in our opinion, such financial statement schedule, when
considered in relation to the basic consolidated financial statements taken as whole,
presents fairly, in all material respects, the information set forth therein.
We have also audited, in accordance with the standards of the Public Company Accounting
Oversight Board (United States), the Companys internal control over financial reporting as
of December 31, 2009, based on the criteria established in Internal Control Integrated
Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission and
our report dated June 23, 2010 expressed an unqualified opinion on the Companys internal control
over financial reporting.
DELOITTE TOUCHE TOHMATSU
Certified Public Accountants
Hong Kong
June 23, 2010
F-2
VISIONCHINA MEDIA INC.
CONSOLIDATED BALANCE SHEETS
(Amounts in U.S. Dollars ($), except number of shares)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31, |
|
|
|
Notes |
|
|
2008 |
|
|
2009 |
|
|
ASSETS |
|
|
|
|
|
|
|
|
|
|
|
|
Current Assets: |
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents |
|
|
|
|
|
$ |
163,248,286 |
|
|
$ |
68,834,087 |
|
Restricted cash |
|
|
|
|
|
|
|
|
|
|
64,368,455 |
|
Accounts receivable, net of allowance
for doubtful accounts of $612,135 and $1,177,190 as of
December 31, 2008 and 2009, respectively |
|
|
4 |
|
|
|
38,296,590 |
|
|
|
37,050,076 |
|
Amounts due from related parties |
|
|
19 |
|
|
|
5,225,564 |
|
|
|
4,334,472 |
|
Prepaid expenses and other current assets |
|
|
5 |
|
|
|
9,431,279 |
|
|
|
10,049,007 |
|
Deferred tax assets |
|
|
15 |
|
|
|
273,325 |
|
|
|
41,309 |
|
|
|
|
|
|
|
|
|
|
|
|
Total current assets |
|
|
|
|
|
$ |
216,475,044 |
|
|
$ |
184,677,406 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-current Assets: |
|
|
|
|
|
|
|
|
|
|
|
|
Fixed assets, net |
|
|
8 |
|
|
$ |
10,205,784 |
|
|
$ |
9,192,741 |
|
Investments under equity method |
|
|
9 |
|
|
|
7,686,065 |
|
|
|
6,670,189 |
|
Other investments |
|
|
10 |
|
|
|
2,276,034 |
|
|
|
2,660,189 |
|
Long-term prepayments and deposits |
|
|
6 |
|
|
|
21,888,068 |
|
|
|
65,241,570 |
|
Intangible assets |
|
|
7 |
|
|
|
14,034,343 |
|
|
|
11,455,972 |
|
Goodwill |
|
|
3 |
|
|
|
21,074,229 |
|
|
|
109,017,669 |
|
|
|
|
|
|
|
|
|
|
|
|
Total non-current assets |
|
|
|
|
|
$ |
77,164,523 |
|
|
$ |
204,238,330 |
|
|
|
|
|
|
|
|
|
|
|
|
TOTAL ASSETS |
|
|
|
|
|
$ |
293,639,567 |
|
|
$ |
388,915,736 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES AND EQUITY |
|
|
|
|
|
|
|
|
|
|
|
|
Current Liabilities: |
|
|
|
|
|
|
|
|
|
|
|
|
Short-term bank loan |
|
|
12 |
|
|
$ |
|
|
|
$ |
40,800,000 |
|
Accounts payable |
|
|
|
|
|
|
1,237,262 |
|
|
|
2,311,224 |
|
Amounts due to related parties |
|
|
19 |
|
|
|
786,284 |
|
|
|
213,029 |
|
Consideration payable |
|
|
3 |
|
|
|
30,734,610 |
|
|
|
47,873,901 |
|
Income tax payable |
|
|
|
|
|
|
39,209 |
|
|
|
2,411,156 |
|
Accrued expenses and other current liabilities |
|
|
11 |
|
|
|
9,507,341 |
|
|
|
9,326,208 |
|
|
|
|
|
|
|
|
|
|
|
|
Total current liabilities |
|
|
|
|
|
$ |
42,304,706 |
|
|
$ |
102,935,518 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-current Liabilities: |
|
|
|
|
|
|
|
|
|
|
|
|
Long-term bank loan |
|
|
12 |
|
|
$ |
|
|
|
$ |
731,294 |
|
Consideration payable |
|
|
3 |
|
|
|
2,776,173 |
|
|
|
9,330,085 |
|
Deferred tax liabilities |
|
|
15 |
|
|
|
2,924,073 |
|
|
|
2,503,125 |
|
|
|
|
|
|
|
|
|
|
|
|
Total non-current liabilities |
|
|
|
|
|
|
5,700,246 |
|
|
|
12,564,504 |
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities |
|
|
|
|
|
$ |
48,004,952 |
|
|
$ |
115,500,022 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Commitments and contingency |
|
|
17 |
|
|
|
|
|
|
|
|
|
F-3
VISIONCHINA MEDIA INC.
CONSOLIDATED BALANCE SHEETS
(Amounts in U.S. Dollars ($), except number of shares)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31, |
|
|
|
Note |
|
|
2008 |
|
|
2009 |
|
|
Equity |
|
|
|
|
|
|
|
|
|
|
|
|
Common shares ($0.0001 par value;
200,000,000 shares authorized; 71,819,442 and
72,140,684 shares issued and outstanding as of
December 31, 2008 and 2009, respectively) |
|
|
13 |
|
|
$ |
7,182 |
|
|
$ |
7,214 |
|
Additional paid-in capital |
|
|
|
|
|
|
190,694,719 |
|
|
|
192,362,565 |
|
Accumulated profits |
|
|
|
|
|
|
43,509,296 |
|
|
|
70,112,299 |
|
Accumulated other comprehensive income |
|
|
|
|
|
|
10,862,017 |
|
|
|
10,499,278 |
|
|
|
|
|
|
|
|
|
|
|
|
Total VisionChina Media Inc. shareholders equity |
|
|
|
|
|
$ |
245,073,214 |
|
|
$ |
272,981,356 |
|
Noncontrolling interest |
|
|
|
|
|
|
561,401 |
|
|
|
434,358 |
|
|
|
|
|
|
|
|
|
|
|
|
Total equity |
|
|
|
|
|
|
245,634,615 |
|
|
|
273,415,714 |
|
|
|
|
|
|
|
|
|
|
|
|
TOTAL LIABILITIES AND EQUITY |
|
|
|
|
|
$ |
293,639,567 |
|
|
$ |
388,915,736 |
|
|
|
|
|
|
|
|
|
|
|
|
The accompanying notes are an integral part of these consolidated financial statements.
F-4
VISIONCHINA MEDIA INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(Amounts in U.S. Dollars ($), except number of shares)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended December 31, |
|
|
|
Note |
|
|
2007 |
|
|
2008 |
|
|
2009 |
|
Revenues: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Advertising service revenue |
|
|
|
|
|
$ |
27,489,391 |
|
|
$ |
103,515,250 |
|
|
$ |
120,686,086 |
|
Advertising equipment revenue |
|
|
|
|
|
|
1,896,200 |
|
|
|
565,392 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total revenues |
|
|
|
|
|
|
29,385,591 |
|
|
|
104,080,642 |
|
|
$ |
120,686,086 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cost of revenues: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Advertising service cost |
|
|
|
|
|
|
12,801,957 |
|
|
|
40,602,022 |
|
|
|
61,104,381 |
|
Advertising equipment cost |
|
|
|
|
|
|
1,583,325 |
|
|
|
475,432 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total cost of revenues |
|
|
|
|
|
|
14,385,282 |
|
|
|
41,077,454 |
|
|
|
61,104,381 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit |
|
|
|
|
|
|
15,000,309 |
|
|
|
63,003,188 |
|
|
|
59,581,705 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating expenses: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Selling and marketing |
|
|
|
|
|
|
2,149,067 |
|
|
|
14,711,536 |
|
|
|
24,620,897 |
|
General and administrative |
|
|
|
|
|
|
2,949,509 |
|
|
|
5,414,571 |
|
|
|
7,425,222 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating expenses |
|
|
|
|
|
|
5,098,576 |
|
|
|
20,126,107 |
|
|
|
32,046,119 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Government grant |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
538,085 |
|
Loss from equity method investees |
|
|
|
|
|
|
(1,262,273 |
) |
|
|
(484,969 |
) |
|
|
(998,606 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating profit |
|
|
|
|
|
|
8,639,460 |
|
|
|
42,392,112 |
|
|
|
27,075,065 |
|
Interest income |
|
|
|
|
|
|
505,888 |
|
|
|
3,480,212 |
|
|
|
1,860,017 |
|
Interest expense |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(109,590 |
) |
Government grant |
|
|
|
|
|
|
|
|
|
|
672,515 |
|
|
|
|
|
Other expenses |
|
|
|
|
|
|
(95,719 |
) |
|
|
(38,491 |
) |
|
|
(1,278 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income before income taxes |
|
|
|
|
|
|
9,049,629 |
|
|
|
46,506,348 |
|
|
|
28,824,214 |
|
Income tax benefits (expenses) |
|
|
15 |
|
|
|
332,386 |
|
|
|
212,325 |
|
|
|
(2,348,254 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income |
|
|
|
|
|
|
9,382,015 |
|
|
|
46,718,673 |
|
|
|
26,475,960 |
|
Net loss attributable to noncontrolling interest |
|
|
|
|
|
|
11,343 |
|
|
|
91,277 |
|
|
|
127,043 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income attributable to VisionChina
Media Inc. shareholders |
|
|
|
|
|
|
9,393,358 |
|
|
|
46,809,950 |
|
|
|
26,603,003 |
|
Deemed dividend on convertible redeemable
preferred shares |
|
|
|
|
|
|
6,625,262 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income attributable to VisionChina Media Inc.
common shareholders |
|
|
|
|
|
$ |
2,768,096 |
|
|
$ |
46,809,950 |
|
|
$ |
26,603,003 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income per share: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic |
|
|
|
|
|
$ |
0.11 |
|
|
$ |
0.67 |
|
|
$ |
0.37 |
|
Diluted |
|
|
|
|
|
$ |
0.11 |
|
|
$ |
0.65 |
|
|
$ |
0.37 |
|
Weighted average shares used in computation of
net income per share: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic |
|
|
|
|
|
|
24,709,522 |
|
|
|
70,064,663 |
|
|
|
71,686,900 |
|
Diluted |
|
|
|
|
|
|
25,771,702 |
|
|
|
72,404,916 |
|
|
|
72,676,438 |
|
Share-based compensation expenses during the
related periods included in: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cost of revenues |
|
|
|
|
|
$ |
34,431 |
|
|
$ |
39,847 |
|
|
$ |
63,477 |
|
Selling and marketing expenses |
|
|
|
|
|
|
135,722 |
|
|
|
1,163,623 |
|
|
|
3,698,329 |
|
General and administrative expenses |
|
|
|
|
|
|
51,209 |
|
|
|
263,587 |
|
|
|
570,305 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The accompanying notes are an integral part of these consolidated financial statements.
F-5
VISIONCHINA MEDIA INC.
CONSOLIDATED STATEMENTS OF CHANGES OF
EQUITY AND COMPREHENSIVE INCOME
(Amounts in U.S. Dollars ($), except number of shares)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
VisionChina Media Inc. shareholders |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accumulated |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Additional |
|
|
|
|
|
|
other |
|
|
|
|
|
|
|
|
|
|
|
|
|
Common shares |
|
|
paid-in |
|
|
Accumulated |
|
|
comprehensive |
|
|
Noncontrolling |
|
|
|
|
|
|
Comprehensive |
|
|
|
Number |
|
|
Amount |
|
|
capital |
|
|
(deficits) profit |
|
|
income |
|
|
interest |
|
|
Total |
|
|
income |
|
Balance at January 1, 2007 |
|
|
22,000,000 |
|
|
$ |
2,200 |
|
|
$ |
6,136,689 |
|
|
$ |
(6,068,750 |
) |
|
$ |
511,527 |
|
|
|
|
|
|
$ |
581,666 |
|
|
|
|
|
Issuance of common
shares pursuant to initial
public offering |
|
|
13,500,000 |
|
|
|
1,350 |
|
|
|
100,438,650 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
100,440,000 |
|
|
|
|
|
Direct offering expenses |
|
|
|
|
|
|
|
|
|
|
(3,725,432 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(3,725,432 |
) |
|
|
|
|
Conversion of redeemable
preferred shares to
common shares |
|
|
32,139,088 |
|
|
|
3,214 |
|
|
|
60,106,814 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
60,110,028 |
|
|
|
|
|
Exercise of share options |
|
|
747,750 |
|
|
|
75 |
|
|
|
642,360 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
642,435 |
|
|
|
|
|
Addition on noncontrolling
interest during establishment
of subsidiaries |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
664,021 |
|
|
|
664,021 |
|
|
|
|
|
Share-based compensation |
|
|
|
|
|
|
|
|
|
|
221,362 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
221,362 |
|
|
|
|
|
Cumulative translation
adjustment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,990,664 |
|
|
|
|
|
|
|
2,990,664 |
|
|
$ |
2,990,664 |
|
Net income (loss) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
9,393,358 |
|
|
|
|
|
|
|
(11,343 |
) |
|
|
9,382,015 |
|
|
|
9,382,015 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
12,372,679 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deemed dividend on
convertible redeemable
preferred shares |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(6,625,262 |
) |
|
|
|
|
|
|
|
|
|
|
(6,625,262 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at December 31, 2007 |
|
|
68,386,838 |
|
|
$ |
6,839 |
|
|
$ |
163,820,443 |
|
|
$ |
(3,300,654 |
) |
|
$ |
3,502,191 |
|
|
|
652,678 |
|
|
$ |
164,681,497 |
|
|
|
|
|
Issuance of common
shares pursuant to
follow-on offering |
|
|
1,150,000 |
|
|
|
115 |
|
|
|
17,569,585 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
17,569,700 |
|
|
|
|
|
Direct offering expenses |
|
|
|
|
|
|
|
|
|
|
(1,613,738 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1,613,738 |
) |
|
|
|
|
Shares repurchase |
|
|
(281,400 |
) |
|
|
(28 |
) |
|
|
(1,454,628 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1,454,656 |
) |
|
|
|
|
Exercise of share options |
|
|
2,525,893 |
|
|
|
252 |
|
|
|
10,906,004 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10,906,256 |
|
|
|
|
|
Restricted shares |
|
|
38,111 |
|
|
|
4 |
|
|
|
(4 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Share-based compensation |
|
|
|
|
|
|
|
|
|
|
1,467,057 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,467,057 |
|
|
|
|
|
Cumulative translation
adjustment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
7,359,826 |
|
|
|
|
|
|
|
7,359,826 |
|
|
$ |
7,359,826 |
|
Net income (loss) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
46,809,950 |
|
|
|
|
|
|
|
(91,277 |
) |
|
|
46,718,673 |
|
|
|
46,718,673 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
54,078,499 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at December 31, 2008 |
|
|
71,819,442 |
|
|
$ |
7,182 |
|
|
$ |
190,694,719 |
|
|
$ |
43,509,296 |
|
|
$ |
10,862,017 |
|
|
|
561,401 |
|
|
$ |
245,634,615 |
|
|
|
|
|
Shares repurchase |
|
|
(658,980 |
) |
|
|
(66 |
) |
|
|
(3,582,449 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(3,582,515 |
) |
|
|
|
|
Exercise of share options |
|
|
423,139 |
|
|
|
42 |
|
|
|
918,240 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
918,282 |
|
|
|
|
|
Restricted shares |
|
|
557,083 |
|
|
|
56 |
|
|
|
(56 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Share-based compensation |
|
|
|
|
|
|
|
|
|
|
4,332,111 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4,332,111 |
|
|
|
|
|
Cumulative translation
adjustment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(362,739 |
) |
|
|
|
|
|
|
(362,739 |
) |
|
$ |
(362,739 |
) |
Net income (loss) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
26,603,003 |
|
|
|
|
|
|
|
(127,043 |
) |
|
|
26,475,960 |
|
|
|
26,475,960 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
26,113,221 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at December 31, 2009 |
|
|
72,140,684 |
|
|
$ |
7,214 |
|
|
$ |
192,362,565 |
|
|
$ |
70,112,299 |
|
|
$ |
10,499,278 |
|
|
$ |
434,358 |
|
|
$ |
273,415,714 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The accompanying notes are an integral part of these consolidated financial statements.
F-6
VISIONCHINA MEDIA INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Amounts in U.S. Dollars ($), except number of shares)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the year ended December 31, |
|
|
|
2007 |
|
|
2008 |
|
|
2009 |
|
Cash flows from operating activities: |
|
|
|
|
|
|
|
|
|
|
|
|
Net income |
|
$ |
9,382,015 |
|
|
$ |
46,718,673 |
|
|
$ |
26,475,960 |
|
Adjustments to reconcile net income to net cash (used in)
provided by operating activities: |
|
|
|
|
|
|
|
|
|
|
|
|
Allowance for doubtful accounts |
|
|
|
|
|
|
675,108 |
|
|
|
627,169 |
|
Depreciation and amortization |
|
|
306,491 |
|
|
|
3,285,032 |
|
|
|
5,150,952 |
|
Write-off of fixed assets |
|
|
|
|
|
|
|
|
|
|
30,005 |
|
Loss from equity method investees |
|
|
1,262,273 |
|
|
|
484,969 |
|
|
|
998,606 |
|
Share-based compensation |
|
|
221,362 |
|
|
|
1,467,057 |
|
|
|
4,332,111 |
|
Deferred tax |
|
|
(332,386 |
) |
|
|
(251,433 |
) |
|
|
(183,138 |
) |
Changes in operating assets and liabilities: |
|
|
|
|
|
|
|
|
|
|
|
|
Accounts receivable |
|
|
(11,918,577 |
) |
|
|
(24,799,643 |
) |
|
|
620,661 |
|
Amounts due from related parties |
|
|
(1,904,292 |
) |
|
|
(138,304 |
) |
|
|
891,092 |
|
Prepaid expenses and other current assets |
|
|
(6,719,468 |
) |
|
|
(4,268,436 |
) |
|
|
(3,971,230 |
) |
Accounts payable |
|
|
531,573 |
|
|
|
(3,292,601 |
) |
|
|
1,073,962 |
|
Amounts due to related parties |
|
|
141,712 |
|
|
|
350,158 |
|
|
|
(573,255 |
) |
Income tax payable |
|
|
|
|
|
|
39,209 |
|
|
|
2,371,947 |
|
Accrued expenses and other current liabilities |
|
|
3,028,757 |
|
|
|
4,060,020 |
|
|
|
1,552,425 |
|
|
|
|
|
|
|
|
|
|
|
Net cash (used in) provided by operating activities |
|
|
(6,000,540 |
) |
|
|
24,329,809 |
|
|
|
39,397,267 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from investing activities: |
|
|
|
|
|
|
|
|
|
|
|
|
Restricted cash |
|
|
|
|
|
|
|
|
|
|
(64,368,455 |
) |
Settlements of consideration payable |
|
|
|
|
|
|
|
|
|
|
(64,249,402 |
) |
Deposits for acquisitions of businesses |
|
|
|
|
|
|
(16,689,988 |
) |
|
|
(40,000,000 |
) |
Acquisitions of and prepayment for fixed assets |
|
|
(4,338,779 |
) |
|
|
(4,961,083 |
) |
|
|
(1,408,117 |
) |
Investment in other investments |
|
|
|
|
|
|
|
|
|
|
(389,048 |
) |
Acquisitions of intangible assets |
|
|
|
|
|
|
|
|
|
|
(234,599 |
) |
Investment in equity method investment |
|
|
(3,854,500 |
) |
|
|
(111,396 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash used in investing activities |
|
|
(8,193,279 |
) |
|
|
(21,762,467 |
) |
|
|
(170,649,621 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from financing activities: |
|
|
|
|
|
|
|
|
|
|
|
|
Proceeds from bank loans |
|
|
|
|
|
|
|
|
|
|
41,531,294 |
|
Share repurchases |
|
|
|
|
|
|
|
|
|
|
(5,037,171 |
) |
Proceeds from exercise of share options |
|
|
642,435 |
|
|
|
10,906,256 |
|
|
|
918,282 |
|
Payments of direct offering expenses |
|
|
(1,209,682 |
) |
|
|
(3,860,716 |
) |
|
|
(278,902 |
) |
Payments of expenses for issuance of Series B convertible
redeemable preferred shares |
|
|
(1,735,561 |
) |
|
|
|
|
|
|
|
|
Proceeds from issuance of common shares |
|
|
100,440,000 |
|
|
|
17,569,700 |
|
|
|
|
|
Proceeds from issuance of Series B convertible redeemable
preferred shares |
|
|
40,000,000 |
|
|
|
|
|
|
|
|
|
Contributions from noncontrolling interest of a subsidiary |
|
|
685,439 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by financing activities |
|
|
138,822,631 |
|
|
|
24,615,240 |
|
|
|
37,133,503 |
|
|
|
|
|
|
|
|
|
|
|
Effect of changes in exchange rate |
|
|
1,295,154 |
|
|
|
4,926,045 |
|
|
|
(295,348 |
) |
|
|
|
|
|
|
|
|
|
|
Net increase (decrease) in cash and cash equivalents |
|
|
125,923,966 |
|
|
|
32,108,627 |
|
|
|
(94,414,199 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents at the beginning of the year |
|
|
5,215,693 |
|
|
|
131,139,659 |
|
|
|
163,248,286 |
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents at the end of the year |
|
$ |
131,139,659 |
|
|
$ |
163,248,286 |
|
|
$ |
68,834,087 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Supplemental disclosure of cash flow information: |
|
|
|
|
|
|
|
|
|
|
|
|
Income taxes paid |
|
$ |
|
|
|
$ |
|
|
|
$ |
159,445 |
|
Interest paid |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-cash investing activity: |
|
|
|
|
|
|
|
|
|
|
|
|
Capitalization of an amount due from an existing
equity method investee |
|
$ |
|
|
|
$ |
897,032 |
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-cash financing activity: |
|
|
|
|
|
|
|
|
|
|
|
|
Shares repurchase not yet settled |
|
$ |
|
|
|
$ |
1,454,656 |
|
|
$ |
|
|
The accompanying notes are an integral part of these consolidated financial statements.
F-7
VISIONCHINA MEDIA INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in U.S. Dollars ($), except number of shares)
1. |
|
ORGANIZATION AND PRINCIPAL ACTIVITIES |
VisionChina Media Inc. (the Company) was incorporated under the laws of the Cayman
Islands on January 27, 2006. The Company and its subsidiaries and variable interest
entities (the Group) sell advertising time on its out-of-home digital television networks
in the Peoples Republic of China (the PRC). The Groups principal geographic market is
in the PRC.
The Company holds its interest in the operating subsidiaries and investees through a
holding company, China Digital Technology Consulting Co., Ltd. (CDTC), which is a wholly
owned company it established in the PRC on March 9, 2006. The Company does not conduct any
substantive operations of its own, but conducts its primary business operations through
CDTCs variable interest entity (VIE), VisionChina Media Group Limited (VisionChina Media
Group) and VisionChina Media Groups subsidiaries and investees. VisionChina Media Group
was incorporated under the laws of the PRC on April 8, 2005.
Chinese laws and regulations prohibit or restrict foreign ownership of media content
and advertising business. To comply with these foreign ownership restrictions, the Group
invests in ventures with local television stations and provides advertising services on its
out-of-home digital television networks in the PRC through VisionChina Media Group, a PRC
legal entity, which was established by co-founders of the Company. The paid-in capital of
VisionChina Media Group was funded by the Company or CDTC through a loan extended to the
co-founders. CDTC has entered into certain exclusive agreements with VisionChina Media
Group, which obligate the Company to absorb a majority of the risk of loss from VisionChina
Media Groups activities and entitle it to receive a majority of its residual returns. In
addition, the Company through CDTC has entered into certain agreements with the two
individuals including a loan agreement for the paid-in capital of VisionChina Media Group
described above, an option agreement to acquire the shareholding in VisionChina Media Group
when permitted by the PRC laws, and a share pledge agreement for the shares in VisionChina
Media Group held by the co-founders. Based on these contractual arrangements, the Company
believes that VisionChina Media Group should be considered as a VIE under Financial
Accounting Standards Board (FASB) Accounting Standards Codification (ASC) 810,
Consolidation, because the equity investors in VisionChina Media Group do not have the
characteristics of a controlling financial interest and the Company through CDTC is the
primary beneficiary of VisionChina Media Group. The Company and CDTC hold all the variable
interests of VisionChina Media Group, and the Company and CDTC have been determined to be
the most closely associated with VisionChina Media Group. Therefore, the Company is the
primary beneficiary of VisionChina Media Group. Accordingly, the Company consolidates
VisionChina Media Group.
These contractual arrangements enable the Company to exercise effective control over
VisionChina Media Group and its subsidiaries and receive substantially all of the economic
benefits of VisionChina Media Group and its subsidiaries for a remaining period of 23 years.
The Groups consolidated assets do not include any collateral for VisionChina Media
Groups obligations. The carrying amount of the total assets of VisionChina Media Group as
of December 31, 2008 and 2009 were $223,326,903 and $268,576,744, respectively, and the
total liabilities of VisionChina Media Group as of December 31, 2008 and 2009 were
$153,169,722 and $165,550,085, respectively. There was no pledge or collateral of its
assets. Furthermore, creditors of VisionChina Media Group have no recourse to the general
credit of CDTC, which is the primary beneficiary of VisionChina Media Group.
F-8
VISIONCHINA MEDIA INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in U.S. Dollars ($), except number of shares)
1. |
|
ORGANIZATION AND PRINCIPAL ACTIVITIES continued |
As of December 31, 2009, subsidiaries and variable interest entities of the Company and
VisionChina Media Groups subsidiaries include the following entities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Date of |
|
Place of |
|
|
|
|
Date of |
|
establishment/ |
|
establishment/ |
|
Percentage of |
Companies |
|
acquisition |
|
incorporation |
|
incorporation |
|
ownership |
|
|
|
|
|
|
|
|
|
|
|
Subsidiaries of the Company |
|
|
|
|
|
|
|
|
|
|
CDTC
|
|
N/A
|
|
March 9, 2006
|
|
PRC
|
|
|
100 |
% |
Aim Sky International Limited (Aim)
|
|
April 1, 2008
|
|
January 1, 2008
|
|
British Virgin
Islands (BVI)
|
|
|
100 |
% |
Win Prosper Development Limited
|
|
N/A
|
|
April 23, 2008
|
|
Hong Kong
(HK)
|
|
|
100 |
% |
Century Port Limited (Century)
|
|
May 1, 2008
|
|
March 20 , 2008
|
|
BVI
|
|
|
100 |
% |
Golden Carriage International
Limited (Golden)
|
|
May 1, 2008
|
|
December 13, 2007
|
|
BVI
|
|
|
100 |
% |
Goldwhite Limited (Goldwhite)
|
|
May 1, 2008
|
|
March 21, 2008
|
|
BVI
|
|
|
100 |
% |
Peak Win Limited (Peak)
|
|
May 1, 2008
|
|
March 19, 2008
|
|
BVI
|
|
|
100 |
% |
Ahead Smart Holdings Limited (Ahead)
|
|
August 4, 2008
|
|
June 18, 2008
|
|
BVI
|
|
|
100 |
% |
Shenzhen Huachangshi Digital
Technology Co., Ltd.
(Huachangshi)
|
|
N/A
|
|
November 27, 2008
|
|
PRC
|
|
|
100 |
% |
Vision Best Limited (Vision Best)
|
|
N/A
|
|
September 23, 2009
|
|
BVI
|
|
|
100 |
% |
Digital Value Holdings Limited (Digital
Value)
|
|
N/A
|
|
October 9, 2009
|
|
BVI
|
|
|
100 |
% |
|
|
|
|
|
|
|
|
|
|
|
VIE and subsidiary of CDTC |
|
|
|
|
|
|
|
|
|
|
VisionChina Media Group
|
|
(Note)
|
|
April 8, 2005
|
|
PRC
|
|
(Note)
|
Whole Genius Limited
|
|
N/A
|
|
May 16, 2008
|
|
HK
|
|
|
100 |
% |
|
|
|
|
|
|
|
|
|
|
|
Subsidiaries of VisionChina Media Group |
|
|
|
|
|
|
|
|
|
|
Shenzhen HDTV Industry
Investment Co., Ltd.
(Shenzhen HDTV)
|
|
February 17, 2006
|
|
June 16, 2004
|
|
PRC
|
|
|
100 |
% |
Beijing Beiguang Media
Mobile Television Advertising
Co., Ltd. (Beiguang Media)
|
|
N/A
|
|
December 18, 2006
|
|
PRC
|
|
|
100 |
% |
Beijing Huaguangshi Co., Ltd.
|
|
N/A
|
|
April 22, 2008
|
|
PRC
|
|
|
100 |
% |
Beijing Hua Jingshi Media Advertising
Co., Ltd. (Beijing Hua Jingshi)
|
|
N/A
|
|
July 26, 2007
|
|
PRC
|
|
|
100 |
% |
Beijing Hua Meishi Advertising
Co., Ltd. (Beijing Hua Meishi)
|
|
N/A
|
|
May 25, 2007
|
|
PRC
|
|
|
100 |
% |
Luzhou Huashi Digital Technology
Co., Ltd. (Luzhou Huashi)
|
|
N/A
|
|
November 21, 2008
|
|
PRC
|
|
|
100 |
% |
Nanjing Hua Meishi Advertising
Co., Ltd. (Nanjing Hua Meishi)
|
|
N/A
|
|
July 16, 2007
|
|
PRC
|
|
|
100 |
% |
Shenzhen Hua Meishi Advertising
Co., Ltd. (Shenzhen Hua Meishi)
|
|
N/A
|
|
June 29, 2007
|
|
PRC
|
|
|
100 |
% |
Shenzhen Huashixin Culture Media
Co., Ltd. (Shenzhen Huashixin)
|
|
N/A
|
|
September 3, 2007
|
|
PRC
|
|
|
100 |
% |
Nanjing Media Culture
Co., Ltd. (Nanjing Media Culture)
|
|
N/A
|
|
March 28, 2007
|
|
PRC
|
|
|
100 |
% |
Guangzhou Jiaojian Multimedia
Information Technology
Co., Ltd. (Guangzhou Jiaojian)
|
|
N/A
|
|
October 8, 2007
|
|
PRC
|
|
|
50 |
% |
Shanghai Junshi Advertising
Co., Ltd. (Shanghai Junshi)
|
|
N/A
|
|
June 11, 2008
|
|
PRC
|
|
|
100 |
% |
Xian Qujiang Huachangshi Digital
Technology Co., Ltd.
(Xian Huachangshi)
|
|
N/A
|
|
November 12, 2009
|
|
PRC
|
|
|
100 |
% |
Note: Through a series of recapitalization, VisionChina Media Group became a VIE of CDTC
F-9
VISIONCHINA MEDIA INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in U.S. Dollars ($), except number of shares)
1. |
|
ORGANIZATION AND PRINCIPAL ACTIVITIES continued |
As of December 31, 2009, the VisionChina Media Groups equity method investees include the
following entities:
|
|
|
|
|
|
|
|
|
|
|
|
|
Date of |
|
Date of |
|
Place of |
|
Percentage of |
Investee companies |
|
acquisition |
|
establishment |
|
establishment |
|
ownership |
|
Chengdu Mobile Digital
Television Company Limited
(Chengdu Mobile)
|
|
N/A
|
|
April 29, 2005
|
|
PRC
|
|
|
49 |
% |
Haerbin China Mobile
Television Company limited
(Haerbin Mobile)
|
|
N/A
|
|
November 10, 2005
|
|
PRC
|
|
|
49 |
% |
Jilin Mobile
Television Company Limited
(Jilin Mobile)
|
|
N/A
|
|
November 8, 2005
|
|
PRC
|
|
|
49 |
% |
Dalian Mobile Digital
Television Company Limited
(Dalian Mobile)
|
|
N/A
|
|
February 20, 2006
|
|
PRC
|
|
|
49 |
% |
Henan China Digital Mobile
Television Company Limited
(Henan Mobile)
|
|
N/A
|
|
July 4, 2006
|
|
PRC
|
|
|
49 |
% |
Hubei China Digital
Television Company Limited
(Hubei Mobile)
|
|
N/A
|
|
July 26, 2006
|
|
PRC
|
|
|
49 |
% |
Suzhou China Digital Mobile
Television Company Limited
(Suzhou Mobile)
|
|
N/A
|
|
February 17, 2007
|
|
PRC
|
|
|
49 |
% |
Changzhou China Digital Mobile
Television Company Limited
(Changzhou Mobile)
|
|
N/A
|
|
March 19, 2007
|
|
PRC
|
|
|
49 |
% |
Ningbo China Digital Mobile
Television Company Limited
(Ningbo Mobile)
|
|
N/A
|
|
April 5, 2007
|
|
PRC
|
|
|
49 |
% |
The VisionChina Media Groups equity method investees have been separately formed
with 9 separate parties for the purpose of engaging in provision of digital mobile
television advertising services in the PRC. VisionChina Media Group contributed cash and
another investor contributed advertising broadcasting rights to the equity method investees
for 49% and 51% equity interests, respectively.
F-10
VISIONCHINA MEDIA INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in U.S. Dollars ($), except number of shares)
2. |
|
SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES |
|
(a) |
|
Basis of presentation |
The consolidated financial statements of the Company have been prepared in
accordance with the accounting principles generally accepted in the United States of
America (US GAAP).
|
(b) |
|
Principles of Consolidation |
The consolidated financial statements include the financial statements of the
Company, its subsidiaries and VIE for which the Company is the primary beneficiary. All
inter-company transactions and balances have been eliminated on consolidation.
|
(c) |
|
Noncontrolling interest |
Effective January 1, 2009, the Group adopted an authoritative pronouncement issued
by Financial Accounting Standards Board (FASB) regarding noncontrolling interest in
consolidated financial statements. The pronouncement requires noncontrolling interests
to be separately presented as a component of equity in the consolidated financial
statements. The presentation regarding noncontrolling interest was retroactively applied
for all periods presented.
|
(d) |
|
Significant risks and uncertainties |
The Group participates in a young and dynamic industry and believes that changes in
any of the following areas could have a material adverse effect on the Groups future
financial position, results of operations or cash flows: advances and trends in new
technologies or industry standards; competition; changes in key suppliers; changes in
certain strategic relationships; regulatory or other PRC related factors such as PRC tax
rules and etc.; risks associated with the Groups ability to attract and retain employees
necessary to support its growth; and general risks associated with the advertising
industry.
|
(e) |
|
Cash and cash equivalents |
Cash and cash equivalents consist of cash on hand and highly liquid investments
which are unrestricted as to withdrawal or use, and which have maturities of three months
or less when purchased.
Restricted cash represents the amount of cash pledged as securities for outstanding
borrowings to financial institutions.
|
(g) |
|
Intangible Assets, net |
Intangible assets, which consist of customer base, non-compete agreements and
patents are carried at cost less accumulated amortization. Amortization is calculated
using the straight-line method over their respective expected useful lives as follows:
|
|
|
|
|
|
|
Estimated use life |
|
|
|
|
|
Customer base |
|
5 years |
Non-compete agreements |
|
10 years |
Patents |
|
10 years |
F-11
VISIONCHINA MEDIA INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in U.S. Dollars ($), except number of shares)
2. |
|
SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES continued |
Fixed assets are carried at cost less accumulated depreciation and amortization.
Assembly in progress is not depreciated until it is ready for its intended use.
Depreciation and amortization is computed on a straight-line basis over the
following estimated useful lives, after taking into account the residual values:
|
|
|
Media display equipment
|
|
5 years |
Computers and office equipment
|
|
5 years |
Motor vehicles
|
|
5 years |
Leasehold improvements
|
|
lesser of lease terms or the estimated
useful lives of the assets |
|
(i) |
|
Investments under equity method |
The investments for which the Group has the ability to exercise significant
influence are accounted for using the equity method. Under the equity method, original
investments are recorded at cost and adjusted by the Groups share of undistributed
earnings or losses of these entities, by the amortization of intangible assets recognized
upon purchase price allocation and by dividend distributions or subsequent investments.
All unrecognized inter-company profits and losses have been eliminated under the equity
method.
The Group generates a portion of its revenues from sales of advertising time on
mobile television networks which are owned by its equity method investees. Because the
operations of the Groups investees under equity method form an integral part to the
Groups operating activities, the Groups share of undistributed earnings or losses of
these entities is classified as part of the Groups operating income.
When the estimated amount to be realized from the investments falls below its
carrying value, an impairment charge is recognized in the consolidated statements of
operations when the decline in value is considered other than temporary.
The Groups investments in non-marketable equity securities for which the Group does
not have the ability to exercise significant influence or control are accounted for using
the cost method. Dividends and other distributions of earnings from investees, if any,
are included in income when declared. The Group periodically evaluates the carrying
value of investments accounted for under the cost method of accounting and any impairment
is included in the consolidated statements of operations.
|
(k) |
|
Impairment of long-lived assets |
The Group reviews its long-lived assets for impairment whenever events or changes in
circumstances indicate that the carrying amount of an asset may no longer be recoverable.
When these events occur, the Group measures impairment by comparing the carrying value
of the long-lived assets
to the estimated undiscounted future cash flows expected to result from the use of
the assets and their eventual disposition. If the sum of the expected undiscounted cash
flow were to be less than the carrying amount of the assets, the Group would recognize an
impairment loss based on the fair value of the assets.
F-12
VISIONCHINA MEDIA INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in U.S. Dollars ($), except number of shares)
2. |
|
SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES continued |
The excess of the purchase price over the fair value of net assets acquired is
recorded on the consolidated balance sheet as goodwill. Goodwill is not amortized, but
is tested for impairment at the reporting unit level at least on an annual basis at the
balance sheet date or more frequently if certain indicators arise.
Goodwill impairment is tested using a two-step approach. The first step compares
the fair value of each reporting unit to its carrying amount, including goodwill. If the
fair value of the reporting unit exceeds its carrying amount, goodwill is not considered
to be impaired and the second step is not required. If the carrying amount of a
reporting unit exceeds its fair value, the second step compares the implied fair value of
goodwill to the carrying value of the reporting units goodwill. The implied fair value
of goodwill is determined in a manner similar to accounting for a business combination
with allocation of the assessed fair value determined in the first step to the assets and
liabilities of the reporting unit. The excess of the fair value of the reporting unit
over the amounts assigned to the assets and liabilities is the implied fair value of
goodwill. This allocation process is only performed for the purpose of evaluating
goodwill impairment and does not result in an entry to implied fair value of goodwill.
Management performed an annual goodwill impairment test as of December 31, 2009, and no
impairment loss was required.
The changes in the carrying amount of goodwill for the years ended December 31, 2008
and 2009 are as follows:
|
|
|
|
|
|
|
Total |
|
|
Balance as of January 1, 2008 |
|
$ |
|
|
Goodwill acquired during the year |
|
|
21,074,229 |
|
|
|
|
|
|
|
|
|
|
Balance as of December 31, 2008
and January 1, 2009 |
|
$ |
21,074,229 |
|
Addition |
|
|
87,988,750 |
|
Exchange realignment |
|
|
(45,310 |
) |
|
|
|
|
Balance as of December 31, 2009 |
|
$ |
109,017,669 |
|
|
|
|
|
|
(1) |
|
Time-based advertising services |
For time-based advertising services, the Group recognizes revenues as the
advertisements are aired over the contractual term based on the schedules agreed with the
customer. Payments received in advance of services provided are recorded as customer
deposits.
Deferred revenue is recorded when services are provided before the applicable
revenue recognition criteria set forth in Securities and Exchange Commission (SEC)
Staff Accounting Bulletin 104 are fulfilled.
Periodically, the Group engages in barter transactions which are generally recorded
at fair value. The Group recognizes revenue and assets/expenses of the exchanges based
on the fair value of the advertising provided, which can be determined based on the
Groups historical practice of receiving
cash. The amount of revenues recognized for barter transactions was insignificant
for each of the periods presented.
F-13
VISIONCHINA MEDIA INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in U.S. Dollars ($), except number of shares)
2. |
|
SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES continued |
|
(m) |
|
Revenue recognition continued |
Revenues from sales of advertising equipment, which are from related parties, are
recognized upon delivery, at which time all four of the following criteria are met: (i)
pervasive evidence that an arrangement exists; (ii) delivery of the products and/or
services has occurred and risks and rewards of ownership have passed to the customer;
(iii) the selling price is both fixed and determinable, and (iv) collection of the
resulting receivable is reasonably assured.
Advertising equipment revenues are recorded net of value-added tax incurred, which
amounted to $322,354, $96,117 and Nil for the years ended December 31, 2007, 2008 and
2009, respectively.
Cost of advertising services consists primarily of media costs payable under
advertising agreements, depreciation, business taxes and surcharges and other operating
costs. Media costs are expensed as incurred.
The amount of business taxes and surcharges included in cost of advertising services
totalled $1,171,028, $6,263,811 and $6,750,536 for the years ended December 31, 2007,
2008 and 2009, respectively.
Cost of equipment consists primarily of purchase cost of digital television displays
and other related equipment.
Leases in which substantially all the rewards and risks of ownership of assets
remain with the leasing group are accounted for as operating leases. Payments made under
operating leases are charged to the consolidated statement of operations on a
straight-line basis over the lease periods.
|
(p) |
|
Foreign currency translation |
The functional and reporting currency of the Company is the United States dollars
(US dollars). Monetary assets and liabilities denominated in currencies other than the
US dollars are translated into the US dollars at the rates of exchange at the balance
sheet date. Transactions in currencies other than the US dollars during the year are
converted into the US dollars at the applicable rates of exchange prevailing at the date
of the transactions. Transaction gains and losses are recognized in the consolidated
statements of operations.
The financial records of the Companys subsidiaries and VIE are maintained in their
respective local currency, the Renminbi (RMB) or Hong Kong Dollar (HKD), which are
also their functional currency. Assets and liabilities are translated at the exchange
rates at the balance sheet date; equity accounts are translated at historical exchange
rates; revenues, expenses and gains and losses are translated using the average rates for
the period. Translation adjustments are reported as cumulative
translation adjustments and are shown as a separate component of other comprehensive
income in the consolidated statements of shareholders equity.
F-14
VISIONCHINA MEDIA INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in U.S. Dollars ($), except number of shares)
2. |
|
SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES continued |
Basic net income per share is computed by dividing net income attributable to
VisionChina Media Inc. shareholders by the weighted average number of common shares
outstanding during the year. Diluted net income per common share reflects the potential
dilution that could occur if securities or other contracts to issue common shares were
exercised or converted into common shares. The Companys dilutive securities consist of
outstanding share options and restricted shares. Certain common share equivalents (e.g.
share options and restricted shares) are excluded from calculation of diluted income per
share as their effect is anti-dilutive. The Company had outstanding share options
amounted to 4,838,359, 2,768,550 and 2,399,658 as of December 31, 2007, 2008 and 2009,
respectively. As of December 31, 2008 and 2009, the Company had outstanding restricted
shares of 204,889 and 90,723 respectively.
The following table sets forth the computation of basic and diluted net income
attributable to VisionChina Media Inc. shareholders per share.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended December 31, |
|
|
|
2007 |
|
|
2008 |
|
|
2009 |
|
Numerator: |
|
|
|
|
|
|
|
|
|
|
|
|
Net income attributable to VisionChina
Media Inc. shareholders |
|
$ |
2,768,096 |
|
|
$ |
46,809,950 |
|
|
$ |
26,603,003 |
|
|
|
|
|
|
|
|
|
|
|
|
Denominator: |
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average shares outstanding-basic |
|
|
24,709,522 |
|
|
|
70,064,663 |
|
|
|
71,686,900 |
|
|
Effect of dilutive securities: |
|
|
|
|
|
|
|
|
|
|
|
|
Share options and restricted shares |
|
|
1,062,180 |
|
|
|
2,340,253 |
|
|
|
989,538 |
|
|
|
|
|
|
|
|
|
|
|
Denominator used for diluted earnings per share |
|
|
25,771,702 |
|
|
|
72,404,916 |
|
|
|
72,676,438 |
|
|
|
|
|
|
|
|
|
|
|
|
Basic earnings per share |
|
$ |
0.11 |
|
|
$ |
0.67 |
|
|
$ |
0.37 |
|
Diluted earnings per share |
|
|
0.11 |
|
|
|
0.65 |
|
|
|
0.37 |
|
Deferred tax assets and liabilities are determined based on the difference between
the financial reporting and tax bases of assets and liabilities, and operating loss and
tax credit carryforwards using enacted tax rates that will be in effect for the period in
which the differences are expected to reverse. The Group records a valuation allowance
against the amount of deferred tax assets that it determines is not more likely than not
of being realized. The effect on deferred taxes of a change in tax rates is recognized
in income in the period that includes the enactment date.
The Company recognizes the effect of income tax positions only if those
positions are more likely than not of being sustained. Recognized income tax positions
are measured at the largest amount that is greater than 50% likely of being realized.
Changes in recognition or measurement are reflected in the period in which the change in
judgment occurs. The
Company records interest related to unrecognized tax benefits and penalties, if any,
in income tax expense.
F-15
VISIONCHINA MEDIA INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in U.S. Dollars ($), except number of shares)
2. |
|
SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES continued |
|
(s) |
|
Share-based compensation |
Share-based payments to employees are measured based on the fair values of share
options on the grant dates and recognized as compensation expense over the requisite
service periods with a corresponding addition to paid-in capital.
Share awards issued to non-employees are measured at fair value at the earlier of
the commitment date or the date the services is completed and recognized over the period
the service is provided or as goods are received.
The Group uses the Black-Scholes option pricing model to measure the value of
options granted to non-employees and employees at each measurement date.
Comprehensive income is defined as the change in equity of the Group during a period
from transactions and other events and circumstances excluding transactions resulting
from investments by owners and distributions to owners. Comprehensive income is reported
in the consolidated statements of changes of equity. Comprehensive income of the Group
represents the cumulative foreign currency translation adjustments and net income for the
year.
The preparation of consolidated financial statements in conformity with US GAAP
requires management to make estimates and assumptions that affect reported amounts of
assets and liabilities and disclosure of contingent assets and liabilities at the date of
the consolidated financial statements and the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those estimates.
Significant accounting estimates reflected in the Groups consolidated financial
statements include allowance for doubtful debts, valuation of goodwill and intangible
assets, valuation of investments under equity method, valuation of other investments,
valuation of deferred tax assets, useful lives of fixed assets and fair value of stock
options.
Government grants include cash subsidies received from the PRC government by the
operating subsidiaries of the Company. Government grants are recognized when received
and all the conditions specified in the grant have been met, and classified as operating
or non-operating profit according to the nature of the government grants.
In 2008, the Company received a subsidy of $672,515 from the local government as a
one-off award for the consummation of the Companys initial public offering. Such
subsidy has been classified as non-operating income. In 2009, the Company received a
subsidy of $538,085 from the local government for the expansion of local businesses.
Such subsidy has been classified as operating profit.
F-16
VISIONCHINA MEDIA INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in U.S. Dollars ($), except number of shares)
2. |
|
SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES continued |
|
(w) |
|
Concentration of Risks |
Concentration of Credit Risk
Financial instruments that potentially subject the Company to significant
concentration of credit risk primarily consist of cash and cash equivalents, restricted
cash and accounts receivable. As of December 31, 2008 and 2009, substantially all of the
Groups cash and cash equivalents and restricted cash were managed by financial
institutions with high credit ratings and quality. Accounts receivable are typically
unsecured and are derived from revenues earned from customers in the PRC. The risk with
respect to accounts receivables is mitigated by credit evaluations performed on the
customers and ongoing monitoring of outstanding balances. The Group maintains and
records an allowance for doubtful accounts for estimated losses resulting from the
inability of its customers to make required payments. The allowance for doubtful
accounts is based on a review of aging data and specifically identified accounts.
Accounts receivable are charged against the allowance after all means of collection have
been exhausted and the potential for recovery is considered remote. The accounts
receivable from customers with balances over 10% of the accounts receivable, net
represent 29% and 24% of the balance in the account as of December 31, 2008 and 2009,
respectively.
Current vulnerability due to certain other concentrations
The Groups operations may be adversely affected by significant political, economic
and social uncertainties in the PRC. Although the PRC government has been pursuing
economic reform policies for more than 20 years, no assurance can be given that the PRC
government will continue to pursue such policies or that such policies may not be
significantly altered, especially in the event of a change in leadership, social or
political disruption or unforeseen circumstances affecting the PRCs political, economic
and social conditions. There is also no guarantee that the PRC governments pursuit of
economic reforms will be consistent or effective.
Substantially all of the Groups businesses are transacted in RMB, which is not
freely convertible into foreign currencies. On January 1, 1994, the PRC government
abolished the dual rate system and introduced a single rate of exchange as quoted daily
by the Peoples Bank of China. However, the unification of the exchange rates does not
imply the convertibility of RMB into US dollar or other foreign currencies. All foreign
exchange transactions continue to take place either through the Peoples Bank of China or
other banks authorized to buy and sell foreign currencies at the exchange rates quoted by
the Peoples Bank of China. Approval of foreign currency payments by the Peoples Bank
of China or other institutions requires submitting a payment application form together
with supplier invoices, shipping documents and signed contracts.
|
(x) |
|
Fair value of financial instruments |
The carrying amounts of cash and cash equivalents, restricted cash, accounts
receivable, amounts due from related parties, other current assets, short-term bank
loans, accounts payable, amounts due to related parties, consideration payable and other
current liabilities approximate their fair values due to the short term nature of these
instruments.
F-17
VISIONCHINA MEDIA INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in U.S. Dollars ($), except number of shares)
2. |
|
SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES continued |
|
(y) |
|
Recently issued accounting standards |
In December 2009, the FASB issued Accounting Standards Update (ASU) 2009-17,
Consolidations (Topic 810) Improvements to Financial Reporting by Enterprises Involved
with Variable Interest Entities (ASU 2009-17) which amends the FASB ASC for the
issuance of FASB Statement No. 167, Amendments to FASB Interpretation No. 46(R), issued
by the FASB in June 2009. The amendments in this ASU replace the quantitative-based
risks and rewards calculation for determining which reporting entity, if any, has a
controlling financial interest in a variable interest entity with an approach primarily
focused on identifying which reporting entity has the power to direct the activities of a
variable interest entity that most significantly impact the entitys economic performance
and (1) the obligation to absorb the losses of the entity or (2) the right to receive the
benefits from the entity. ASU 2009-17 also requires additional disclosure about a
reporting entitys involvement in a VIE, as well as any significant changes in risk
exposure due to that involvement. ASU 2009-17 is effective for annual and interim
periods beginning after November 15, 2009. Early application is not permitted. The
adoption of ASU 2009-17 is not expected to have a material impact on the Groups
financial position, results of operations and cash flows.
In June 2009, the FASB issued Statement of Financial Accounting Standard (SFAS)
168, The FASB Accounting Standards Codification and the Hierarchy of Generally Accepted
Accounting Principles a replacement of FASB Statement
No. 162 (SFAS 162) (collectively
SFAS 168) SFAS 168 states that the FASB Accounting Standards Codification will become
the source of authoritative US GAAP recognized by the FASB. Once effective, the
Codifications content will carry the same level of authority as SFAS 162, which will
then be superseded. The US GAAP hierarchy will be modified to include only two levels of
US GAAP: authoritative and nonauthoritative. The adoption of this pronouncement did not
have a material impact on the Groups financial position, results of operations and cash
flows.
Effective January 1, 2009, the Group adopted certain provisions of FASB ASC 805
Business Combination (formerly SFAS No. 141R), intended to improve reporting by creating
greater consistency in the accounting and financial reporting of business combinations.
The standard requires the acquiring entity in a business combination to recognize all, as
of that date, of the assets acquired and liabilities assumed in the acquiree at the
acquisition-date, measured at their fair values. It also requires the acquirer to
disclose to investors and other users all of the information they need to evaluate and
understand the nature and financial effect of the business combination. The adoption of
SFAS 141R did not have a significant effect on the Groups financial position, results of
operations or cash flows.
Effective January 1, 2009, the Group adopted certain provisions of FASB ASC 810
Consolidation (formerly SFAS No. 160), which establish accounting and reporting standards
for the noncontrolling interest in a subsidiary and for the deconsolidation of a
subsidiary. These provisions clarify that a noncontrolling interest in a subsidiary is an
ownership interest in the consolidated entity and should be reported as equity on the
financial statements. These provisions require consolidated net income to be reported at
amounts that include the amounts attributable to both the parent and the noncontrolling
interest. Furthermore, disclosure of the amounts of consolidated net income attributable
to the parent and to the noncontrolling interest is required on the face of the financial
statements. Accordingly, in 2009, minority interests has been renamed noncontrolling
interest, consolidated net income is reported at amounts that include the amounts
attributable to both noncontrolling interests and VisionChina Media Inc. shareholders for
all periods presented. In addition, noncontrolling interests has been reported as a
component of equity in the consolidated balance sheets and consolidated statements of
changes of equity and comprehensive income for all periods presented. The Company has
retrospectively applied the presentation to its prior year balances in the consolidated
financial statements.
F-18
VISIONCHINA MEDIA INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in U.S. Dollars ($), except number of shares)
Acquisitions in 2008
Between April 1, 2008 and August 4, 2008, the Group acquired a 100% equity interest in the
following entities: Aim, Century, Golden, Goldwhite, Peak and Ahead. These six entities are
investing holding companies which own six different advertising agency businesses and were
acquired by the Group separately from six unrelated entities. The purpose of the
acquisitions was to leverage the blue-chip customer base of the advertising planning
companies and integrate their strong sales teams into the Groups sales network to increase
value for shareholders. The purchase price was comprised entirely of contingent
consideration based on certain multiples on the earnings and the percentage of revenues
collected. Pursuant to the terms of the acquisition agreements, the Group paid initial
deposits of $16,689,988 (see note 6) in the year ended December 31, 2008. These initial
deposits will be used to offset a portion of the additional consideration payable at the end
of the earn-out period (see below for details on the additional consideration payable).
Additional consideration is to be calculated based on the earnings of each of the businesses
acquired during the period from date of acquisitions to December 31, 2008, the year ended
December 31, 2009 and the year ending December 31, 2010 (the Earn-out Consideration).
The following table summarizes the fair values of the assets and liabilities assumed by
the Group on the date of acquisition of the businesses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Peak |
|
|
Aim |
|
|
Golden |
|
|
Goldwhite |
|
|
Ahead |
|
|
Century |
|
|
Total |
|
Intangible assets: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Customer base |
|
$ |
4,152,437 |
|
|
$ |
631,587 |
|
|
$ |
1,244,119 |
|
|
$ |
2,102,309 |
|
|
$ |
3,067,790 |
|
|
$ |
811,872 |
|
|
$ |
12,010,114 |
|
Non-compete agreement |
|
|
1,053,864 |
|
|
|
168,560 |
|
|
|
301,796 |
|
|
|
550,971 |
|
|
|
1,413,412 |
|
|
|
206,523 |
|
|
|
3,695,126 |
|
Deferred tax liability |
|
|
(1,062,504 |
) |
|
|
(164,169 |
) |
|
|
(316,005 |
) |
|
|
(542,397 |
) |
|
|
(974,852 |
) |
|
|
(208,759 |
) |
|
|
(3,268,686 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
4,143,797 |
|
|
|
635,978 |
|
|
|
1,229,910 |
|
|
|
2,110,883 |
|
|
|
3,506,350 |
|
|
|
809,636 |
|
|
|
12,436,554 |
|
Goodwill |
|
|
9,933,337 |
|
|
|
2,850,255 |
|
|
|
2,807,483 |
|
|
|
2,698,069 |
|
|
|
1,427,027 |
|
|
|
1,358,058 |
|
|
|
21,074,229 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Consideration payable at
December 31, 2008 |
|
$ |
14,077,134 |
|
|
$ |
3,486,233 |
|
|
$ |
4,037,393 |
|
|
$ |
4,808,952 |
|
|
$ |
4,933,377 |
|
|
$ |
2,167,694 |
|
|
$ |
33,510,783 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The amortization periods for customer base and non-compete agreement are 5 years
and 10 years, respectively.
The following table summarizes the maximum Earn-out Consideration for 2008 and 2009:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Peak |
|
Aim |
|
Golden |
|
Goldwhite |
|
Ahead |
|
Century |
|
Total |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Earn-out Consideration: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2008 |
|
|
22,495,063 |
|
|
|
12,682,567 |
|
|
|
8,976,319 |
|
|
|
9,365,189 |
|
|
|
12,191,410 |
|
|
|
3,727,453 |
|
|
|
69,438,001 |
|
2009 |
|
|
25,823,672 |
|
|
|
11,835,676 |
|
|
|
7,732,219 |
|
|
|
11,122,901 |
|
|
|
13,623,225 |
|
|
|
5,096,020 |
|
|
|
75,233,713 |
|
F-19
VISIONCHINA MEDIA INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in U.S. Dollars ($), except number of shares)
3. |
|
ACQUISITIONS continued |
The following table summarizes the details of the Earn-out Consideration payables from
that date of acquisition to December 31, 2009:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Peak |
|
|
Aim |
|
|
Golden |
|
|
Goldwhite |
|
|
Ahead |
|
|
Century |
|
|
Total |
|
|
Earn-out Consideration payable at
December 31, 2008 |
|
$ |
14,077,134 |
|
|
$ |
3,486,233 |
|
|
$ |
4,037,393 |
|
|
$ |
4,808,952 |
|
|
$ |
4,933,377 |
|
|
$ |
2,167,694 |
|
|
$ |
33,510,783 |
|
Additional Earn-out Consideration for 2008 |
|
|
8,417,929 |
|
|
|
9,196,334 |
|
|
|
4,938,926 |
|
|
|
4,556,237 |
|
|
|
7,258,033 |
|
|
|
1,559,759 |
|
|
|
35,927,218 |
|
Earn-out Consideration for 2009 |
|
|
25,823,672 |
|
|
|
4,881,252 |
|
|
|
5,154,755 |
|
|
|
4,792,551 |
|
|
|
6,917,422 |
|
|
|
4,445,735 |
|
|
|
52,015,387 |
|
Less: Settlements in 2009 |
|
|
(20,280,617 |
) |
|
|
(12,268,699 |
) |
|
|
(8,495,113 |
) |
|
|
(8,065,394 |
) |
|
|
(11,840,634 |
) |
|
|
(3,298,945 |
) |
|
|
(64,249,402 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
At December 31, 2009 |
|
$ |
28,038,118 |
|
|
$ |
5,295,120 |
|
|
$ |
5,635,961 |
|
|
$ |
6,092,346 |
|
|
$ |
7,268,198 |
|
|
$ |
4,874,243 |
|
|
$ |
57,203,986 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Recorded in the balance sheet as: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current |
|
|
23,578,136 |
|
|
|
4,708,215 |
|
|
|
4,829,839 |
|
|
|
4,225,197 |
|
|
|
6,465,574 |
|
|
|
4,066,940 |
|
|
|
47,873,901 |
|
Non-current |
|
|
4,459,982 |
|
|
|
586,905 |
|
|
|
806,122 |
|
|
|
1,867,149 |
|
|
|
802,624 |
|
|
|
807,303 |
|
|
|
9,330,085 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Earn-out Consideration is calculated based certain multiples on the earnings, as
stipulated in the acquisition agreements, of each of the businesses acquired. Payment of
the Earn-out Consideration is based on the percentage of revenues collected. Therefore
receivables recorded at December 31, 2008 related to 2008 revenues that were subsequently
collected in 2009 result in a liability for an additional portion of the 2008 Earn-out
Consideration. For the 2009 Earn-out Consideration, because not all of the 2009 revenues
were collected as of December 31, 2009, additional Earn-out Consideration payable will be
recorded in 2010 as the receivables recorded at December 31, 2009 related to the 2009
revenues are collected in 2010.
The portion of the total Earn-out Consideration that will be offset against the deposit
for acquisitions has been recorded as a long term liability because the right of offset will
not exist until the Earn-out Consideration period is completed.
The accompanying consolidated financial statements include the accounts of the six
acquired businesses as of December 31, 2008 and 2009 and the operating results since the
dates of the respective acquisitions.
The following combined pro forma information of the six acquired businesses summarizes
the effect of the acquisitions, as if the acquisitions had occurred as of January 1, 2007
and January 1, 2008. This pro forma financial information is presented for information
purposes only. It is based on historical information and does not purport to represent the
actual results that may have occurred had the Company consummated the acquisitions on
January 1, 2007 and January 1, 2008, nor is it necessarily indicative of future results of
operations of the consolidated enterprise.
|
|
|
|
|
|
|
|
|
|
|
Pro forma |
|
|
Year ended |
|
Year ended |
|
|
December 31, |
|
December 31, |
|
|
2007 |
|
2008 |
|
|
(unaudited) |
|
(unaudited) |
|
|
|
|
|
|
|
|
|
Revenues |
|
$ |
30,087,061 |
|
|
$ |
104,446,447 |
|
Net income |
|
|
598,382 |
|
|
|
45,996,379 |
|
Income per share basic |
|
$ |
0.02 |
|
|
$ |
0.66 |
|
Income per share diluted |
|
$ |
0.02 |
|
|
$ |
0.64 |
|
F-20
VISIONCHINA MEDIA INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in U.S. Dollars ($), except number of shares)
|
|
|
|
|
|
|
|
|
|
|
December 31, |
|
|
|
2008 |
|
|
2009 |
|
|
|
|
|
|
|
|
|
|
Accounts receivables |
|
$ |
38,908,725 |
|
|
$ |
38,227,266 |
|
Less: Allowance for doubtful accounts |
|
|
(612,135 |
) |
|
|
(1,177,190 |
) |
|
|
|
|
|
|
|
|
|
$ |
38,296,590 |
|
|
$ |
37,050,076 |
|
|
|
|
|
|
|
|
Movements
in allowance for doubtful accounts
|
|
|
|
|
|
|
|
|
|
|
2008 |
|
|
2009 |
|
|
|
|
|
|
|
|
|
|
Balance at beginning of the year |
|
$ |
|
|
|
$ |
612,135 |
|
Exchange realignment |
|
|
|
|
|
|
(1,316 |
) |
Current year additions |
|
|
612,135 |
|
|
|
627,169 |
|
Current year write-offs |
|
|
|
|
|
|
(60,798 |
) |
|
|
|
|
|
|
|
|
|
$ |
612,135 |
|
|
$ |
1,177,190 |
|
|
|
|
|
|
|
|
As at December 31, 2009, the Group had billed receivables of $29,370,464 and unbilled
receivables of $8,856,802. Unbilled receivables represent amounts earned under advertising
contracts in progress but not billable at December 31, 2009. These amounts become billable
according to contract term. The Group anticipates that substantially all of such unbilled
amounts will be billed and collected within twelve months of the balance sheet date.
5. |
|
PREPAID EXPENSES AND OTHER CURRENT ASSETS |
Prepaid expenses and other current assets consist of the following:
|
|
|
|
|
|
|
|
|
|
|
December 31, |
|
|
|
2008 |
|
|
2009 |
|
|
Advances to suppliers |
|
$ |
4,980,084 |
|
|
$ |
6,772,210 |
|
Staff advances |
|
|
274,895 |
|
|
|
782,539 |
|
Deposits |
|
|
617,553 |
|
|
|
390,096 |
|
Interest receivable |
|
|
1,993,549 |
|
|
|
158,257 |
|
Other |
|
|
1,565,198 |
|
|
|
1,945,905 |
|
|
|
|
|
|
|
|
|
|
$ |
9,431,279 |
|
|
$ |
10,049,007 |
|
|
|
|
|
|
|
|
Advances to suppliers mainly represent prepayment for media costs. Deposits mainly
represent deposits for media cost agreements.
F-21
VISIONCHINA MEDIA INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in U.S. Dollars ($), except number of shares)
6. |
|
LONG-TERM PREPAYMENTS AND DEPOSITS |
Long term prepayments and deposits consist of the following:
|
|
|
|
|
|
|
|
|
|
|
December 31, |
|
|
|
2008 |
|
|
2009 |
|
|
|
|
|
|
|
|
|
|
Prepaid service fees |
|
$ |
731,772 |
|
|
$ |
705,798 |
|
Deposits for acquisitions of businesses |
|
|
16,689,988 |
|
|
|
56,689,988 |
|
Prepayments for acquisition of fixed assets |
|
|
1,354,984 |
|
|
|
1,311,766 |
|
Other deposits |
|
|
3,111,324 |
|
|
|
6,534,018 |
|
|
|
|
|
|
|
|
|
|
$ |
21,888,068 |
|
|
$ |
65,241,570 |
|
|
|
|
|
|
|
|
Other deposits mainly represent deposits for media cost agreements.
7. |
|
INTANGIBLE ASSETS, NET |
As of December 31, 2008 and 2009, the Group had the following amounts related to the
intangible assets:
|
|
|
|
|
|
|
|
|
|
|
December 31, |
|
|
|
2008 |
|
|
2009 |
|
|
|
|
|
|
|
|
|
|
Cost |
|
|
|
|
|
|
|
|
Customer base |
|
$ |
12,010,114 |
|
|
$ |
11,984,292 |
|
Non-compete agreements |
|
|
3,695,126 |
|
|
|
3,687,182 |
|
Patents |
|
|
|
|
|
|
234,599 |
|
|
|
|
|
|
|
|
|
|
$ |
15,705,240 |
|
|
$ |
15,906,073 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accumulated amortization |
|
|
|
|
|
|
|
|
Customer base |
|
$ |
1,458,486 |
|
|
$ |
3,852,208 |
|
Non-compete agreements |
|
|
212,411 |
|
|
|
580,675 |
|
Patents |
|
|
|
|
|
|
17,218 |
|
|
|
|
|
|
|
|
|
|
$ |
1,670,897 |
|
|
$ |
4,450,101 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Intangible assets, net |
|
|
|
|
|
|
|
|
Customer base |
|
$ |
10,551,628 |
|
|
$ |
8,132,084 |
|
Non-compete agreements |
|
|
3,482,715 |
|
|
|
3,106,507 |
|
Patents |
|
|
|
|
|
|
217,381 |
|
|
|
|
|
|
|
|
|
|
$ |
14,034,343 |
|
|
$ |
11,455,972 |
|
|
|
|
|
|
|
|
Amortization expense of $1,670,897 and $2,765,578 for the years ended December 31, 2008
and 2009, respectively, was included in selling and marketing expenses in the consolidated
statements of operations while Nil and $17,218 for the years ended December 31, 2008 and
2009, respectively, was included in general and administrative expenses in the consolidated
statement of operations.
The Group will record amortization expenses of $2,786,239 for each of the years ending
December 31, 2010, 2011 and 2012; $1,331,006 for the year ending December 31, 2013; $390,336
for the year ending December 31, 2014.
F-22
VISIONCHINA MEDIA INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in U.S. Dollars ($), except number of shares)
Fixed assets consist of the following:
|
|
|
|
|
|
|
|
|
|
|
December 31, |
|
|
|
2008 |
|
|
2009 |
|
|
|
|
|
|
|
|
|
|
Media display equipment |
|
$ |
10,021,162 |
|
|
$ |
10,577,304 |
|
Computers and office equipment |
|
|
1,128,813 |
|
|
|
1,333,285 |
|
Motor vehicles |
|
|
366,047 |
|
|
|
429,500 |
|
Leasehold improvements |
|
|
712,026 |
|
|
|
1,105,249 |
|
|
|
|
|
|
|
|
Sub-total |
|
$ |
12,228,048 |
|
|
$ |
13,445,338 |
|
Less: accumulated depreciation and amortization |
|
|
2,022,264 |
|
|
|
4,252,597 |
|
|
|
|
|
|
|
|
|
|
$ |
10,205,784 |
|
|
$ |
9,192,741 |
|
|
|
|
|
|
|
|
Depreciation and amortization expense was $306,491, $1,614,135 and $2,368,155 for the
years ended December 31, 2007, 2008 and 2009, respectively.
Included in media display equipment are assembly in progress of $1,988,250 and
$1,348,046 as of December 31, 2008 and 2009, respectively. These assets are expected to be
placed in service in the following year.
9. |
|
INVESTMENTS UNDER EQUITY METHOD |
In 2007, VisionChina Media Group made cash investments totalling $965,581, $772,465 and
$643,720 for its 49% equity interests in Suzhou Mobile, Changzhou Mobile and Ningbo Mobile,
respectively. These equity method investees have been separately established with 3
separate parties for the purpose of engaging in provision of digital mobile television
advertising services in the PRC.
VisionChina Media Group also made additional cash investments in 2007 of $965,580 and
$507,154 to its existing equity method investees, Dalian Mobile and Hubei Mobile,
respectively.
In 2008, VisionChina Media Group made additional cash investments of $111,396 to its
existing equity method investee, Haerbin Mobile and capitalized an amount due from its
existing equity method investee, Henan Mobile, of $897,032.
As of December 31, 2008 and 2009, VisionChina Media Group had, in total, nine equity
method investees. The Group has accounted for these investments using the equity method of
accounting.
F-23
VISIONCHINA MEDIA INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in U.S. Dollars ($), except number of shares)
9. |
|
INVESTMENTS UNDER EQUITY METHOD continued |
The combined results of operations and financial position of these investments are
summarized below:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended December 31, |
|
|
|
2007 |
|
|
2008 |
|
|
2009 |
|
Condensed statement of operations information: |
|
|
|
|
|
|
|
|
|
|
|
|
Revenue |
|
$ |
1,783,008 |
|
|
$ |
5,019,647 |
|
|
$ |
6,607,047 |
|
Net losses |
|
|
(2,124,146 |
) |
|
|
(482,795 |
) |
|
|
(1,708,199 |
) |
|
|
|
|
|
|
|
|
|
|
Groups equity in net loss of investees |
|
$ |
(1,040,832 |
) |
|
$ |
(236,570 |
) |
|
$ |
(837,018 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31, |
|
|
|
2008 |
|
|
2009 |
|
|
Condensed balance sheet information: |
|
|
|
|
|
|
|
|
Current assets |
|
$ |
5,490,270 |
|
|
$ |
5,300,868 |
|
Non-current assets |
|
|
9,785,995 |
|
|
|
8,167,873 |
|
|
|
|
|
|
|
|
Total assets |
|
$ |
15,276,265 |
|
|
$ |
13,468,741 |
|
|
|
|
|
|
|
|
Current liabilities |
|
$ |
4,989,366 |
|
|
$ |
4,913,433 |
|
Equity |
|
|
10,286,899 |
|
|
|
8,555,308 |
|
|
|
|
|
|
|
|
Total liabilities and equity |
|
$ |
15,276,265 |
|
|
$ |
13,468,741 |
|
|
|
|
|
|
|
|
Groups share of net assets |
|
$ |
5,040,581 |
|
|
$ |
4,192,101 |
|
|
|
|
|
|
|
|
As of December 31, 2008 and 2009, the carrying value of the Groups investments under
the equity method was $7,686,065 and $6,670,189, respectively. The difference between the
carrying value of the Groups investments under the equity method and the Groups share in
its investees net assets was attributable to the elimination of unrealised profits on the
sales of certain media display equipment to its investees; and the adjustment attributable
to intangible assets, which represent the broadcasting rights contributed by the investors,
identified on formation and its related amortization.
In 2006, the Group acquired a 25% voting interest in Shenzhen Mobile, through
VisionChina Media Groups subsidiary, Shenzhen HDTV. Shenzhen Mobile was established in the
PRC and engages in the provision of digital mobile television advertising services in the
PRC. As the Group cannot exercise significant influence over Shenzhen Mobiles operating
and financial activities, the Group accounts for this investment using the cost method of
accounting.
In 2006, the Group acquired a 14% voting interest in Wuxi Guangtong Digital Mobile
Television Company Limited (Guangtong Mobile). During the year ended December 31, 2009,
all shareholders of Guangtong Mobile made an additional capital injection and in order to
retain the same percentage of ownership, the Company also made an additional capital
injection of $389,048. Guangtong Mobile was established in the PRC and engages in the
provision of digital mobile television advertising business in the PRC. The Group accounts
for this investment using the cost method of accounting.
F-24
VISIONCHINA MEDIA INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in U.S. Dollars ($), except number of shares)
11. |
|
ACCRUED EXPENSES AND OTHER CURRENT LIABILITIES |
Accrued expenses and other current liabilities consist of the following:
|
|
|
|
|
|
|
|
|
|
|
December 31, |
|
|
|
2008 |
|
|
2009 |
|
|
|
|
|
|
|
|
|
|
Accrued expenses |
|
$ |
1,387,735 |
|
|
$ |
1,415,666 |
|
Accrued direct offering expenses |
|
|
278,902 |
|
|
|
|
|
Accrued professional service fees |
|
|
962,513 |
|
|
|
463,377 |
|
Accrued payroll and welfare |
|
|
2,902,723 |
|
|
|
4,086,989 |
|
Other taxes payable |
|
|
1,010,528 |
|
|
|
1,746,943 |
|
Customer deposits |
|
|
919,938 |
|
|
|
1,107,594 |
|
Deferred revenue |
|
|
253,128 |
|
|
|
2,011 |
|
Other |
|
|
1,791,874 |
|
|
|
503,628 |
|
|
|
|
|
|
|
|
|
|
$ |
9,507,341 |
|
|
$ |
9,326,208 |
|
|
|
|
|
|
|
|
During the year ended December 31, 2009, the Company obtained an unsecured two-year
term bank loan from the Bank of China in Shenzhen, the PRC (BOC (SZ)) in the amount of
$731,294. The interest rate is fixed at 90% of the Peoples Bank of China benchmark rate.
The borrowing is denominated in RMB.
The Company also obtained a secured one-year term bank loan from the Bank of China in
Macau (BOC (Macau)) in the amount of $40,800,000. The interest rate is fixed at 1.72% per
annum. The borrowing is denominated in US dollars. Due to foreign currency exchange
regulation, in order for the Group to borrow amounts denominated in currencies other than
RMB, one of the Companys subsidiaries in the PRC entered into an arrangement with BOC(SZ)
pursuant to which this subsidiary placed a deposit denominated in RMB in the amount of
$64,368,455, and BOC (Macau) provided this loan to another subsidiary of the Company
incorporated in Hong Kong in US dollars.
There were no restrictive financial covenants associated with these loans.
The Companys Memorandum and Articles of Association, as amended, authorizes the
Company to issue 50,000,000 common shares with a nominal or par value of $0.0001 each. Upon
completion of the initial public offering (IPO) in December 2007, the Companys Memorandum
and Articles of Association, as amended, authorized the Company to issue 200,000,000 common
shares with a nominal or par value of US$0.0001 each. There were 68,386,838 common shares
issued and outstanding as of December 31, 2007 after conversion of 14,250,000 Series A and
17,889,088 Series B convertible redeemable preferred shares to 32,139,088 common shares upon
completion of the IPO, 13,500,000 common shares issued in connection with the IPO, and
747,750 share options were exercised with the issuance of 747,750 common shares during the
year ended December 31, 2007.
There were 71,819,442 common shares issued and outstanding as of December 31, 2008
after issuance of 1,150,000 common shares in connection with the follow-on offering,
2,564,004 share options and restricted shares were exercised with the issuance of 2,564,004
common shares, and 281,400 common shares were repurchased by the Company during the year
ended December 31, 2008.
There were 72,140,684 common shares issued and outstanding as of December 31, 2009
after 980,222 share options and restricted shares were exercised with the issuance of
980,222 common shares, and 658,980 common shares were repurchased by the Company during the
year ended December 31, 2009.
F-25
VISIONCHINA MEDIA INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in U.S. Dollars ($), except number of shares)
On December 8, 2006, the Group adopted the 2006 share incentive plan (the Plan) which
allows the Group to offer a variety of incentive awards to consultants and employees. The
Group reserved 7,000,000 ordinary shares in 2006 and 2007 for issuance under the Plan. In
December 2008, the total number of share issuable under the Plan was increased to 8,000,000
shares. In 2007, the Group granted 3,996,639 share options to consultants and employees
with exercise prices ranging from $1.00 and $6.545. In 2008, the Group granted 925,000
share options to employees with exercise prices ranging from $5.82 to $18.00. In 2008, the
Group also granted 288,000 restricted shares to consultants and employees. In 2009, the
Group granted 649,550 share options to empolyees with exercise prices ranging from $5.48 to
$8.53. In 2009, the Group also granted 500,000 restricted shares to consultants and
employees.
The contractual term of the options granted is generally ten years. The majority of
the options granted vest 25% after the first year of service and rateably over the remaining
36-month period, and certain of the options vest based on certain performance conditions.
Included in the 649,550 share options granted during 2009 are 63,700 options that would vest
based on certain performance conditions. Included in the 925,000 share options granted
during 2008 are 394,500 options that would vest based on certain performance conditions.
Included in the 3,996,639 share options granted in 2007 are 2,506,748 options that would
vest based on certain performance conditions.
Management has used the Black-Scholes option pricing model to estimate the fair value
of the options on grant date with the following weighted-average assumptions:
|
|
|
|
|
|
|
|
|
2007 |
|
2008 |
|
2009 |
|
|
|
|
|
|
|
Risk-free interest rate |
|
0.42-5.31% |
|
0.51-3.65% |
|
1.11-2.69% |
Expected life |
|
1.72-2.67 years |
|
0.25-4 years |
|
2.5-4 years |
Expected volatility |
|
0.31-0.361 |
|
0.382-1.122 |
|
1.18-1.32 |
Expected dividends |
|
0% |
|
0% |
|
0% |
Expected volatility was determined by reference to the historical volatility of the
Company or the average annualized standard deviation of the share price of listed comparable
companies. The expected life of the options is based on the assumption that they will be
exercised evenly throughout the option life. The risk free interest rate is based on the
yield to maturity of the PRC government bond as of the grant date with maturity closest to
the relevant option expiry date.
The fair value of the options granted in April and May 2007 were determined on a
contemporaneous basis by the management of the Company, with reference to Series B
convertible redeemable preferred shares. For the options granted on July 6, 2007, August
30, 2007 and October 31, 2007, the fair values of the options were determined on
contemporaneous basis by a third party valuation specialist. The fair values of options
granted in 2008 and 2009 were determined on contemporaneous basis by management of the
Company with reference to the market value of the Companys shares.
F-26
VISIONCHINA MEDIA INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in U.S. Dollars ($), except number of shares)
14. |
|
SHARE INCENTIVE PLAN continued |
A summary of share options under the Plan during the years ended December 31, 2007,
2008 and 2009 is presented below:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted- |
|
|
|
|
Number |
|
Weighted- |
|
average |
|
Weighted- |
|
|
of |
|
average |
|
remaining |
|
average |
|
|
shares |
|
exercise price |
|
contractual life |
|
fair value |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Outstanding as of January 1, 2007 |
|
|
1,894,000 |
|
|
$ |
0.86 |
|
|
|
|
|
|
$ |
0.19 |
|
Granted |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
April 6, 2007 |
|
|
800,739 |
|
|
|
1.90 |
|
|
|
|
|
|
|
0.22 |
|
May 16, 2007 |
|
|
200,000 |
|
|
|
1.84 |
|
|
|
|
|
|
|
0.33 |
|
July 6, 2007 |
|
|
1,230,000 |
|
|
|
3.545 |
|
|
|
|
|
|
|
0.04 |
|
August 30, 2007 |
|
|
1,005,900 |
|
|
|
6.545 |
|
|
|
|
|
|
|
0.07 |
|
October 31, 2007 |
|
|
760,000 |
|
|
|
6.545 |
|
|
|
|
|
|
|
1.30 |
|
Exercised |
|
|
(747,750 |
) |
|
|
0.86 |
|
|
|
|
|
|
|
0.21 |
|
Forfeited |
|
|
(304,530 |
) |
|
|
1.65 |
|
|
|
|
|
|
|
0.18 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Outstanding as of December 31, 2007 |
|
|
4,838,359 |
|
|
$ |
3.78 |
|
|
|
9.46 |
|
|
$ |
0.31 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Granted |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
March 14, 2008 |
|
|
445,000 |
|
|
$ |
10.19 |
|
|
|
|
|
|
$ |
2.46 |
|
June 3, 2008 |
|
|
128,000 |
|
|
|
18.00 |
|
|
|
|
|
|
|
6.01 |
|
June 23, 2008 |
|
|
100,000 |
|
|
|
12.64 |
|
|
|
|
|
|
|
10.09 |
|
September 29, 2008 |
|
|
170,000 |
|
|
|
15.54 |
|
|
|
|
|
|
|
5.37 |
|
December 11, 2008 |
|
|
82,000 |
|
|
|
5.82 |
|
|
|
|
|
|
|
2.48 |
|
Exercised |
|
|
(2,525,893 |
) |
|
|
4.31 |
|
|
|
|
|
|
|
0.37 |
|
Forfeited |
|
|
(468,916 |
) |
|
|
9.06 |
|
|
|
|
|
|
|
1.97 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Outstanding as of December 31, 2008 |
|
|
2,768,550 |
|
|
$ |
5.19 |
|
|
|
8.58 |
|
|
$ |
1.30 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Granted |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
January 22, 2009 |
|
|
25,100 |
|
|
$ |
6.60 |
|
|
|
|
|
|
$ |
4.63 |
|
March 4, 2009 |
|
|
47,450 |
|
|
|
5.81 |
|
|
|
|
|
|
|
4.48 |
|
June 17, 2009 |
|
|
55,000 |
|
|
|
5.48 |
|
|
|
|
|
|
|
4.48 |
|
June 29, 2009 |
|
|
250,000 |
|
|
|
6.03 |
|
|
|
|
|
|
|
4.86 |
|
September 6, 2009 |
|
|
76,000 |
|
|
|
5.85 |
|
|
|
|
|
|
|
4.74 |
|
October 8, 2009 |
|
|
196,000 |
|
|
|
8.53 |
|
|
|
|
|
|
|
7.18 |
|
Exercise |
|
|
(423,139 |
) |
|
|
1.75 |
|
|
|
|
|
|
|
0.22 |
|
Forfeited |
|
|
(595,303 |
) |
|
|
9.69 |
|
|
|
|
|
|
|
4.39 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Outstanding as of December 31, 2009 |
|
|
2,399,658 |
|
|
$ |
5.10 |
|
|
|
8.00 |
|
|
$ |
1.87 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Vested and expected to vest as of
December 31, 2009 |
|
|
2,221,399 |
|
|
$ |
4.93 |
|
|
|
7.91 |
|
|
$ |
1.77 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exercisable as of December 31, 2009 |
|
|
1,284,424 |
|
|
$ |
4.01 |
|
|
|
7.43 |
|
|
$ |
0.50 |
|
The aggregate intrinsic value of the outstanding share options was $14,180,095 as
of December 31, 2009 and the aggregate intrinsic value of options exercisable as of December
31, 2009 was $8,926,553. The aggregate intrinsic value of options vested and expected to
vest as of December 31, 2009 was $13,421,767.
The aggregate intrinsic values of options exercised during the years ended December 31,
2008 and 2009 were $38,778,583 and $3,879,831, respectively.
F-27
VISIONCHINA MEDIA INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in U.S. Dollars ($), except number of shares)
14. |
|
SHARE INCENTIVE PLAN continued |
A summary of restricted shares under the Plan during the years ended December 31, 2007,
2008 and 2009 is presented below:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted |
|
|
|
Number of |
|
|
average |
|
|
|
shares |
|
|
fair value |
|
|
|
|
|
|
|
|
|
|
Outstanding as at January 1, 2007 and December 31, 2007 |
|
|
|
|
|
|
|
|
Granted |
|
|
288,000 |
|
|
|
8.81 |
|
Forfeited |
|
|
(45,000 |
) |
|
|
9.70 |
|
Vested |
|
|
(38,111 |
) |
|
|
6.95 |
|
|
|
|
|
|
|
|
Outstanding as of December 31, 2008 |
|
|
204,889 |
|
|
$ |
8.96 |
|
Granted |
|
|
500,000 |
|
|
|
5.81 |
|
Forfeited |
|
|
(57,083 |
) |
|
|
7.25 |
|
Vested |
|
|
(557,083 |
) |
|
|
6.33 |
|
|
|
|
|
|
|
|
Outstanding as of December 31, 2009 |
|
|
90,723 |
|
|
|
8.80 |
|
|
|
|
|
|
|
|
Restricted shares are granted subject to certain restrictions. The majority of the
restricted shares generally vest 25% after the first year of service and rateably over the
remaining 36-month period, and certain of the restricted shares vest based on certain
performance conditions. All the restricted shares granted during 2009 would vest based on
certain performance conditions. Included in the 288,000 restricted shares granted during
2008 are 135,000 restricted shares that would vest based on certain performance conditions.
The total share-based compensation expense in relation to options and restricted shares
recognized in the statements of operations for the years ended December 31, 2007, 2008 and
2009 was $221,362, $1,467,057 and $4,332,111, respectively.
As of December 31, 2009, there was $3,633,894 of total unrecognized share-based
compensation cost related to non-vested share options and non-vested restricted shares
granted under the Plan. That cost is expected to be recognized over 4 years.
F-28
VISIONCHINA MEDIA INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in U.S. Dollars ($), except number of shares)
The Company is a tax exempted company incorporated in the Cayman Islands and conducts
substantially all of its business through its PRC subsidiary, CDTC, and its VIE, VisionChina
Media Group.
Cayman Islands and British Virgin Islands
The Company was incorporated in the Cayman Islands; Aim, Century, Golden, Goldwhite,
Peak, Ahead, Vision Best and Digital Value were incorporated in BVI, and they are all not
subject to income tax. In addition, upon payments of dividends by the Company to its
shareholders, no Cayman Islands or BVI withholding tax will be imposed.
Hong Kong
The Companys subsidiaries established in HK are subject to HK profits tax on all
profits (excluding profits arising from the sale of capital assets, dividend income and
interest income) arising in or derived from HK from its trade, profession or business. The
normal applicable profits tax rates for the years of assessment 2007/2008 and 2008/2009 are
17.5% and 16.5%, respectively.
PRC
Before the new enterprise income tax (EIT) law in the PRC (the New EIT Law) and its
implementation regulations became effective on January 1, 2008, a foreign invested
enterprise satisfying certain criteria could enjoy preferential tax treatments. CDTC,
located in the Shenzhen Special Economic Zone, was subject to Foreign Enterprise Income Tax
(FEIT) at a rate of 15%. As its headquarters are located in the Shenzhen Special Economic
Zone, VisionChina Media Group is subject to EIT at a rate of 15%. In addition, VisionChina
Media Group was recognized as a Culture Enterprise and thus its headquarters were entitled
to a full exemption from EIT from 2006 to 2008. VisionChina Media Group has sales branches
located in various cities in the PRC which were subject to 30% EIT and 3% local income tax.
On January 1, 2008, the New EIT Law took effect. It applies a uniform tax rate of 25%
for all enterprises (including foreign-invested enterprises) and revoked the current tax
exemption, reduction and preferential treatments applicable to foreign-invested enterprises.
However, there will be a transition period for enterprises, whether foreign-invested or
domestic, that were receiving preferential tax treatments granted by relevant tax
authorities. Enterprises that were subject to an EIT rate lower than 25% prior to January
1, 2008 may continue to enjoy the lower rate and gradually transition to the new tax rate
over the five year period after the effective date of the New EIT Law. According to the
implementation regulations, during the transition period the EIT rate for CDTC is 18%, 20%,
22%, 24% and 25% in the years 2008, 2009, 2010, 2011 and 2012, respectively.
In addition, the Ministry of Finance of the PRC and the State Administration of
Taxation issued a circular Notice on preferential tax treatment of enterprise income tax
in February 2008. The circular stipulates that newly established culture enterprises can
enjoy the corporate income tax exemption treatment which has been approved by the
authorities until the end of the holiday. VisionChina Media Group has already obtained the
tax exemption approval certificate for year 2008 and thus continued to enjoy a full
exemption from EIT in 2008. Further, in accordance with another circular issued in November
2008, VisionChina Media Group has been recognized as a state-encouraged high-new technology
enterprise starting from 2008, and the status is valid for a period of three years. Under
the New EIT Law, a high-new technology enterprise is entitled to a preferential tax rate of
15%. As such, the EIT rate for VisionChina Media Group is 0%, 15%, 15%, 24% and 25% in the
year of 2008, 2009, 2010, 2011 and 2012, respectively.
F-29
VISIONCHINA MEDIA INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in U.S. Dollars ($), except number of shares)
15. |
|
INCOME TAXES continued |
Xian Huachangshi was established subsequent to the promulgation of the New EIT Law and
as such, it is subject to the uniform income tax rate of 25%.
Luzhou Huashi was established in Sichuan. It is recognized as a Local government
encouraged company and is entitled to exemption from EIT for the years ended December 31,
2008 and 2009, and reduced tax rate of 7.5% for the years ending December 31, 2010, 2011 and
2012.
The Companys other subsidiaries in the PRC have minimal operations and the Group has
minimal operations in jurisdictions other than the PRC.
The current and deferred components of the income tax (benefits) expenses appearing in
the consolidated statements of operations are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended December 31, |
|
|
|
2007 |
|
|
2008 |
|
|
2009 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current tax |
|
$ |
|
|
|
$ |
39,108 |
|
|
$ |
2,531,392 |
|
Deferred tax |
|
|
(332,386 |
) |
|
|
(251,433 |
) |
|
|
(183,138 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
$ |
(332,386 |
) |
|
$ |
(212,325 |
) |
|
$ |
2,348,254 |
|
|
|
|
|
|
|
|
|
|
|
The principal components of the Groups deferred income tax assets are as follows:
|
|
|
|
|
|
|
|
|
|
|
December 31, |
|
|
|
2008 |
|
|
2009 |
|
|
|
|
|
|
|
|
|
|
Deferred tax assets: |
|
|
|
|
|
|
|
|
Net operating loss carrying forward |
|
$ |
1,235,881 |
|
|
$ |
2,154,303 |
|
|
|
|
|
|
|
|
Total deferred tax assets |
|
|
1,235,881 |
|
|
|
2,154,303 |
|
Valuation allowance on deferred tax assets |
|
|
(962,556 |
) |
|
|
(2,112,994 |
) |
|
|
|
|
|
|
|
Net deferred tax assets |
|
$ |
273,325 |
|
|
$ |
41,309 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deferred tax liabilities |
|
|
|
|
|
|
|
|
Intangible assets |
|
$ |
2,924,073 |
|
|
$ |
2,503,125 |
|
|
|
|
|
|
|
|
Total deferred tax liabilities |
|
$ |
2,924,073 |
|
|
$ |
2,503,125 |
|
|
|
|
|
|
|
|
F-30
VISIONCHINA MEDIA INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in U.S. Dollars ($), except number of shares)
15. |
|
INCOME TAXES continued |
Movement of valuation allowance
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2007 |
|
|
2008 |
|
|
2009 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
At the beginning of the year |
|
$ |
128,357 |
|
|
$ |
207,759 |
|
|
$ |
962,556 |
|
Exchange realignment |
|
|
|
|
|
|
14,376 |
|
|
|
(2,070 |
) |
Change in tax rate |
|
|
|
|
|
|
11,976 |
|
|
|
24,248 |
|
Current year addition |
|
|
79,402 |
|
|
|
728,445 |
|
|
|
1,128,260 |
|
|
|
|
|
|
|
|
|
|
|
At the end of the year |
|
$ |
207,759 |
|
|
$ |
962,556 |
|
|
$ |
2,112,994 |
|
|
|
|
|
|
|
|
|
|
|
A valuation allowance has been provided on the deferred tax assets because the Group
believes that it is not more likely than not that the assets will be utilized. As of
December 31, 2008 and 2009, a valuation allowance was provided for the deferred tax assets
relating to the future benefit of net operating loss carryforward as the management
determined that the utilization of those net operating loss carryforward is not more likely
than not. If events occur in the future that allow the Group to realize more of its
deferred tax assets than the presently recorded amount, an adjustment to the valuation
allowance will be made when those events occur.
As of December 31, 2007, the Group had net operating loss carryforward of approximately
$207,207, $351,579 and $1,846,589 that will expire in the years ending December 31, 2010,
2011 and 2012, respectively.
As of December 31, 2008, the Group had net operating loss carryforward of approximately
$207,207, $351,579, $1,846,589 and $3,054,018 that will expire in the years ending December
31, 2010, 2011, 2012 and 2013, respectively.
As of December 31, 2009, the Group had net operating loss carryforward of approximately
$207,207, $351,579, $636,400, $3,054,018 and $4,595,515 that will expire in the years ending
December 31, 2010, 2011, 2012, 2013 and 2014, respectively.
A reconciliation of the income tax (benefits) expenses to the amount computed by
applying the current tax rate to income before income taxes in the statements of operations
is as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended December 31, |
|
|
|
2007 |
|
|
2008 |
|
|
2009 |
|
Expected taxation at PRC EIT statutory rate
of 25% (2008: 25% and 2007: 33%) |
|
$ |
3,099,808 |
|
|
$ |
11,626,587 |
|
|
$ |
7,206,054 |
|
Effect of different tax rates |
|
|
|
|
|
|
(36,866 |
) |
|
|
(55,207 |
) |
Effect of loss that cannot be carried forward |
|
|
|
|
|
|
370,960 |
|
|
|
1,474,310 |
|
Tax expense arising from items which are
not deductible or not taxable for tax purpose: |
|
|
|
|
|
|
|
|
|
|
|
|
non-deductible entertainment
expenses |
|
|
|
|
|
|
472,294 |
|
|
|
766,046 |
|
others, net |
|
|
|
|
|
|
58,474 |
|
|
|
280,650 |
|
Effect of tax exemption |
|
|
(3,511,596 |
) |
|
|
(13,432,219 |
) |
|
|
(8,412,656 |
) |
Overprovision in prior year |
|
|
|
|
|
|
|
|
|
|
(39,203 |
) |
Change in valuation allowance |
|
|
79,402 |
|
|
|
728,445 |
|
|
|
1,128,260 |
|
|
|
|
|
|
|
|
|
|
|
Total income tax (benefit) expenses |
|
$ |
(332,386 |
) |
|
$ |
(212,325 |
) |
|
$ |
2,348,254 |
|
|
|
|
|
|
|
|
|
|
|
F-31
VISIONCHINA MEDIA INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in U.S. Dollars ($), except number of shares)
15. |
|
INCOME TAXES continued |
The amounts of $3,511,596, $13,432,219 and $8,412,656 would otherwise have been payable
without tax holidays and tax concessions for the years ended December 31, 2007, 2008 and
2009, respectively. In addition, $0.14, $0.19 and $0.12 would have been deducted from the
basic income per share for the years ended December 31, 2007, 2008 and 2009, respectively.
Uncertainties exist with respect to how the PRCs current income tax law applies to the
Companys overall operations, and more specifically, with regard to tax residency status.
The New EIT Law includes a provision specifying that legal entities organized outside of the
PRC will be considered residents for PRC income tax purposes if their place of effective
management or control is within PRC. The Implementation Rules to the New Law provide that
non-resident legal entities will be considered PRC residents if substantial and overall
management and control over the manufacturing and business operations, personnel,
accounting, properties, etc. occurs within the PRC. The Company does not believe that its
legal entities organized outside of the PRC should be treated as residents for the New EIT
Laws purposes. If one or more of the Companys legal entities organized outside of the PRC
were characterized as PRC tax residents, the impact would adversely affect the Companys
results of operation.
Aggregate undistributed earnings of the Companys subsidiaries and VIE in the PRC that
are available for distribution to the Company of approximately $86 million at December 31,
2009 are considered to be indefinitely reinvested under FASB ASC 740, and accordingly, no
provision has been made for the PRC dividend withholding taxes that would be payable upon
the distribution of those amounts to the Company. In an announcement formally made on
February 22, 2008, the PRC authorities clarified that the distributions made out of
undistributed earnings that arose prior to January 1, 2008 would not give rise to
withholding tax.
Under US GAAP, a deferred tax liability should be recorded for taxable temporary
differences attributable to the excess of financial reporting amounts over tax basis
amounts, including those differences attributable to a more than 50% interest in a domestic
subsidiary. However, recognition is not required in situations where the tax law provides a
means by which the reported amount of that investment can be recovered tax-free and the
enterprise expects that it will ultimately use that means. The Company
has not recorded any such deferred tax liability attributable to the undistributed
earnings of its financial interest in VIE affiliate because it
believes such excess earnings can be distributed in a manner that would not be
subject to tax.
The Group has made its assessment of the level of tax authority for each tax position
(including the potential application of interest and penalties) based on the technical
merits, and has measured the unrecognized tax benefits associated with the tax positions.
Based on this evaluation, the Group has concluded that there are no significant uncertain
tax positions requiring recognition in financial statements. The Group does not anticipate
any significant increases or decreases to its liability for unrecognized tax benefits within
the next twelve months. The Group classifies interest and/or penalties related to income
tax matters in income tax expense. As of December 31, 2009, there are no interest and
penalties related to uncertain tax positions. The years 2005 to 2009 remain subject to
examination by the PRC tax authorities.
F-32
VISIONCHINA MEDIA INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in U.S. Dollars ($), except number of shares)
16. |
|
PRC CONTRIBUTION PLAN |
The Groups full time employees in the PRC participate in a government-mandated
multiemployer defined contribution plan pursuant to which certain medical care unemployment
insurance, employee housing fund and other welfare benefits are provided to employees. The
PRC labor regulations require the Group to accrue for these benefits based on certain
percentages of the employees salaries. The total contributions for such employee benefits
for the years ended December 31, 2007, 2008 and 2009 were $53,387, $483,065 and $743,516,
respectively.
17. |
|
COMMITMENTS AND CONTINGENCY |
The Group has entered into certain leasing arrangements relating to the lease of the
Groups office premises. Rental expense under operating leases for the years ended 2007,
2008 and, 2009 was $373,917, $640,007 and $1,007,991, respectively.
As of December 31, 2009, the Group was obligated under certain operating leases,
relating to the rental of office premises, requiring minimum rental payments as follows:
|
|
|
|
|
Year ending December 31, |
|
|
|
|
2010 |
|
$ |
977,672 |
|
2011 |
|
|
476,199 |
|
2012 |
|
|
158,311 |
|
2013 |
|
|
127,475 |
|
2014 |
|
|
127,475 |
|
2015 and thereafter |
|
|
169,856 |
|
|
|
|
|
|
|
$ |
2,036,988 |
|
|
|
|
|
The Group has entered into several agreements to pay media costs for periods of 5
to 10 years. As of December 31, 2009, future minimum purchase commitments under these
agreements totalled approximately $189,600,000, which will be payable as follow:
|
|
|
|
|
Year ending December 31, |
|
|
|
|
2010 |
|
$ |
46,531,000 |
|
2011 |
|
|
42,455,000 |
|
2012 |
|
|
32,451,000 |
|
2013 |
|
|
24,223,000 |
|
2014 |
|
|
18,802,000 |
|
2015 and thereafter |
|
|
25,138,000 |
|
|
|
|
|
|
|
$ |
189,600,000 |
|
|
|
|
|
F-33
VISIONCHINA MEDIA INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in U.S. Dollars ($), except number of shares)
17. |
|
COMMITMENTS AND CONTINGENCY continued |
|
(c) |
|
Significant legal proceedings |
In February 2008, Xiamen Towona Culture Media Co., Ltd. (Xiamen Towona) filed a claim
against Shanxi Mobile TV Co., Ltd. (Shanxi Mobile TV) in the Taiyuan Intermediate Peoples
Court (the Taiyuan Court) and VisionChina Media Group was a third party defendant. In the
complaint, Xiamen Towona alleged that Shanxi Mobile TV terminated the exclusive agency
agreement in Taiyuan with Xiamen Towona without justification. Xiamen Towona sought
specific performance of the agreement and monetary damages in the amount of RMB8.0 million.
The judgment was issued during the year ended December 31, 2008, and delivered to the
Company during the year ended December 31, 2009, rejecting all of the plaintiffs claims.
Accordingly, no significant impact to the Groups financial position is expected.
In July 2008, Xiamen Towona and Guangzhou Towona Mobile Digital Advertisement Media
Co., Ltd. (Guangzhou Towona) jointly filed a claim against Guangzhou Third Bus Company and
VisionChina Media Group in the Yuexiu District Peoples Court in Guangzhou (the Yuexiu
Court). In the complaint, Xiamen Towona and Guangzhou Towona alleged that Guangzhou Third
Bus Company and VisionChina Media Group removed digital television displays installed by
Xiamen Towona and Guangzhou Towona and replaced them with displays bearing the Groups logo.
Xiamen Towona and Guangzhou Towona requested equitable remedies from the Yuexiu Court. The
trial court issued its judgment on December 19, 2008 rejecting all of the plaintiffs
claims. The plaintiffs appealed the case to Guangzhou Intermediary Peoples Court. The
judgment was delivered during the year ended December 31, 2009 upholding the original
judgment. Accordingly, no significant impact to the Groups financial position is
expected.
The National Standard of Frame Structure and Channel Code and Modulation of Digital
Television Ground Broadcasting Transmission System (the National Standard), was approved
by the Standardization Administration of the PRC on August 18, 2006, and became effective on
August 1, 2007. On March 27, 2006, the PRC State Administration of Radio, Film and
Television (SARFT) promulgated the Notice Concerning Experimental Mobile Digital
Television (the March Notice), which required all of the Groups local operating partners
must adopt the National Standard for their mobile digital television operations and the
SARFT has officially issued a notice to require some of the Groups local operating partners
and direct equity investment entities to complete the adoption of the National Standard by
June 30, 2010. As of April 1, 2010, the mobile digital television network of the Groups
direct equity investment entities and the digital television broadcasting infrastructure of
the Groups local operating partners in 11 cities have been converted to the National
Standard, but those in another 10 cities have not yet completed the conversion and do not
meet the requirements of the National Standard. The Groups direct equity investment
entities and local operating partners may be required to spend significant capital and other
resources, including on new equipment, to convert their digital television broadcasting
infrastructure to the National Standard. Under some of the Groups exclusive advertising
agency agreements, the Group may be responsible for a portion of such expenditures.
However, as there is no reliable basis for management to accurately estimate the amount and
timing of capital expenditures required for these local operating partners and the Group to
comply with the National Standard, no accrual for such liability has been made in the
consolidated financial statements.
F-34
VISIONCHINA MEDIA INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in U.S. Dollars ($), except number of shares)
18. |
|
SEGMENT AND GEOGRAPHIC INFORMATION |
|
|
The Group is engaged in the provision in advertising services and the sales of digital
equipment to its investee companies in the PRC. The Groups chief operating decision maker
has been identified as the Chief Executive Officer, who reviews the consolidated results
when making decisions about allocating resources and assessing performance of the Group. |
|
|
|
Geographical information |
|
|
|
The Group operates in the PRC and all of the Groups identifiable assets are located in
the PRC. |
|
|
|
Although the Group operates in multiple cities in the PRC which include Beijing,
Guangzhou, Shenzhen, Nanjing and other cities, it believes it operates in one segment as the
Group provides services to customers irrespective of their locations. Accordingly all
relevant information about the Groups operations can be found in the consolidated financial
statements. |
|
|
|
Major Customers |
|
|
|
The Group contracts either directly with advertisers or through advertising agents.
For the years ended December 31, 2008 and 2009, there were no single advertisers or
advertising agents that contributed 10% or more of the Groups net revenue. |
|
|
|
In 2007, the Group had not directly contracted with any individual advertiser that
accounted for 10% or more of the total advertising service revenue, but had contracted with
the following advertising agents that accounted for 10% or more of the total advertising
service revenue: |
|
|
|
|
|
|
|
2007 |
|
Agent A |
|
$ |
4,770,915 |
|
Agent B |
|
|
3,870,064 |
|
Agent C |
|
|
3,554,534 |
|
Agent D |
|
|
3,117,335 |
|
The accounts receivable from customers with balances over 10% of the accounts
receivable, net are as follows:
|
|
|
|
|
|
|
|
|
|
|
Percentage of |
|
|
accounts receivable |
|
|
2008 |
|
2009 |
|
|
% |
|
% |
|
Agent A |
|
|
16.04 |
|
|
|
N/A |
|
Agent B |
|
|
12.79 |
|
|
|
N/A |
|
Agent C |
|
|
N/A |
|
|
|
12.47 |
|
Agent D |
|
|
N/A |
|
|
|
11.19 |
|
|
|
|
|
|
|
|
|
|
F-35
VISIONCHINA MEDIA INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in U.S. Dollars ($), except number of shares)
19. |
|
RELATED PARTY TRANSACTIONS |
|
(a) |
|
Details of amounts due from related parties as of December 31, 2008 and 2009
are as follows: |
|
|
|
|
|
|
|
|
|
|
|
December 31, |
|
|
|
2008 |
|
|
2009 |
|
|
Chengdu Mobile |
|
$ |
538,220 |
|
|
$ |
580,025 |
|
Dalian Mobile |
|
|
196,907 |
|
|
|
|
|
Hubei Mobile |
|
|
100,178 |
|
|
|
186,621 |
|
Jilin Mobile |
|
|
504,238 |
|
|
|
513,514 |
|
Suzhou Mobile |
|
|
27,167 |
|
|
|
54,847 |
|
Changzhou Mobile |
|
|
482,753 |
|
|
|
614,358 |
|
Ningbo Mobile |
|
|
1,032,761 |
|
|
|
|
|
Shenzhen Mobile |
|
|
2,149,863 |
|
|
|
2,170,838 |
|
Guangtong Mobile |
|
|
193,477 |
|
|
|
214,269 |
|
|
|
|
|
|
|
|
|
|
$ |
5,225,564 |
|
|
$ |
4,334,472 |
|
|
|
|
|
|
|
|
|
|
|
The amounts due from related parties are non-interest bearing and repayable on demand. |
|
|
(b) |
|
Details of amounts due to related parties as of December 31, 2008 and 2009 are
as follows: |
|
|
|
|
|
|
|
|
|
|
|
December 31, |
|
|
|
2008 |
|
|
2009 |
|
|
Chengdu Mobile |
|
$ |
29,135 |
|
|
$ |
|
|
Dalian Mobile |
|
|
124,471 |
|
|
|
19,132 |
|
Haerbin Mobile |
|
|
8,179 |
|
|
|
2,194 |
|
Hubei Mobile |
|
|
29,616 |
|
|
|
29,552 |
|
Jilin Mobile |
|
|
51 |
|
|
|
|
|
Henan Mobile |
|
|
11,991 |
|
|
|
36,902 |
|
Suzhou Mobile |
|
|
33,365 |
|
|
|
|
|
Ningbo Mobile |
|
|
472,805 |
|
|
|
64,162 |
|
Changzhou Mobile |
|
|
2,348 |
|
|
|
2,343 |
|
Shenzhen Meidi Zhiye Development Co., Ltd. (Zhiye) |
|
|
70,897 |
|
|
|
27,800 |
|
Shenzhen Champs Elysees Renovations Co., Ltd.
(Champs Elysees) |
|
|
3,426 |
|
|
|
30,944 |
|
|
|
|
|
|
|
|
|
|
$ |
786,284 |
|
|
$ |
213,029 |
|
|
|
|
|
|
|
|
The amounts due to related parties are non-interest bearing and repayable on demand.
Zhiye is a company in which the chief executive officer of the Company holds a
beneficial interest and Champs Elysees is a company in which the chief executive
officers wife holds a beneficial interest.
The amounts due from/to related parties mainly arise from trading transactions with
related parties (such as sales of advertising equipment to related parties and/or
receipt of services rendered by related parties) and payments of expenses on behalf of
the related parties.
F-36
VISIONCHINA MEDIA INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in U.S. Dollars ($), except number of shares)
19. |
|
RELATED PARTY TRANSACTIONS continued |
|
(c) |
|
Advertising equipment sales to investee companies |
|
|
|
|
The Group sold digital equipment at negotiated price to related parties for a total
amount of, $1,896,200, $565,392 and Nil for the years ended December 31, 2007, 2008 and
2009, respectively. Details are as follows: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended December 31, |
|
|
|
2007 |
|
|
2008 |
|
|
2009 |
|
|
Chengdu Mobile |
|
$ |
158,605 |
|
|
$ |
15,531 |
|
|
$ |
|
|
Dalian Mobile |
|
|
229,822 |
|
|
|
|
|
|
|
|
|
Haerbin Mobile |
|
|
6,567 |
|
|
|
|
|
|
|
|
|
Henan Mobile |
|
|
128,455 |
|
|
|
162,546 |
|
|
|
|
|
Hubei Mobile |
|
|
148,042 |
|
|
|
|
|
|
|
|
|
Suzhou Mobile |
|
|
216,571 |
|
|
|
157,352 |
|
|
|
|
|
Changzhou Mobile |
|
|
313,558 |
|
|
|
150,407 |
|
|
|
|
|
Ningbo Mobile |
|
|
694,580 |
|
|
|
79,556 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
1,896,200 |
|
|
$ |
565,392 |
|
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
(d) |
|
Services rendered by investee companies |
|
|
|
|
The Group has received broadcasting service from related parties at negotiated
prices for a total amount of $2,708,389, $7,989,832 and $10,251,290 for the years ended
December 31, 2007, 2008 and 2009, respectively. Details are as follows: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended December 31, |
|
|
|
2007 |
|
|
2008 |
|
|
2009 |
|
|
Chengdu Mobile |
|
$ |
76,441 |
|
|
$ |
1,007,951 |
|
|
$ |
1,105,108 |
|
Dalian Mobile |
|
|
40,668 |
|
|
|
883,650 |
|
|
|
1,178,596 |
|
Guangtong Mobile |
|
|
102,531 |
|
|
|
345,491 |
|
|
|
521,450 |
|
Jilin Mobile |
|
|
19,228 |
|
|
|
274,013 |
|
|
|
451,700 |
|
Hubei Mobile |
|
|
7,665 |
|
|
|
430,587 |
|
|
|
617,992 |
|
Haerbin Mobile |
|
|
3,364 |
|
|
|
51,333 |
|
|
|
15,286 |
|
Ningbo Mobile |
|
|
6,769 |
|
|
|
1,334,749 |
|
|
|
1,281,127 |
|
Suzhou Mobile |
|
|
8,849 |
|
|
|
133,183 |
|
|
|
303,346 |
|
Changzhou Mobile |
|
|
1,897 |
|
|
|
268 |
|
|
|
408,225 |
|
Henan Mobile |
|
|
|
|
|
|
41,325 |
|
|
|
101,198 |
|
Shenzhen Mobile |
|
|
2,440,977 |
|
|
|
3,487,282 |
|
|
|
4,267,262 |
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
2,708,389 |
|
|
$ |
7,989,832 |
|
|
$ |
10,251,290 |
|
|
|
|
|
|
|
|
|
|
|
F-37
VISIONCHINA MEDIA INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in U.S. Dollars ($), except number of shares)
19. |
|
RELATED PARTY TRANSACTIONS continued |
|
(e) |
|
Rental expense |
|
|
|
|
During the years ended December 31, 2008 and 2009, the Group rented office space
from Zhiye. The rate for rent was determined based on negotiated prices. The rental
expense for the years ended December 31, 2008 and 2009 was $163,511 and $191,758
respectively. |
|
|
(f) |
|
Others |
|
|
|
|
In March 2007, the Group borrowed an aggregate amount of $2,246,453 from Zhiye.
The amount was interest-free and fully repaid as of December 31, 2007. |
|
|
|
|
For the years ended December 31, 2007, 2008 and 2009, the Group paid office
decoration charges of $347,029, $194,101 and $236,124, respectively, to a company, in
which the chief executive officers wife holds a beneficial interest. During the years
ended December 31, 2007, 2008 and 2009, the Group also paid property management fees and
utility expenses of Nil, $22,661 and $26,820 respectively, to a company, in which the
chief executive officers wife holds a beneficial interest. |
|
|
In accordance with the Regulations on Enterprises with Foreign Investment of China and
their articles of association, the Companys subsidiaries, being foreign invested
enterprises established in China, are required to provide certain statutory reserves, namely
general reserve fund, enterprise expansion fund and staff welfare and bonus fund, all of
which are appropriated from net profit as reported in their PRC statutory accounts. The
Companys subsidiaries are required to allocate at least 10% of their after-tax profits to
the general reserve fund until such fund has reached 50% of their respective registered
capital. Appropriations to the enterprise expansion fund and staff welfare and bonus fund
are at the discretion of the board of directors of the Companys subsidiaries.. |
|
|
|
In accordance with the PRC Company Laws, the Companys VIE and its subsidiaries must
make appropriations from their after-tax profits as reported in their PRC statutory accounts
to non-distributable reserve funds, namely statutory surplus, statutory public welfare and
discretionary surplus funds. The Companys VIE and its subsidiaries are required to
allocate at least 10% of their after-tax profits to the statutory surplus fund until such
fund has reached 50% of their respective registered capital. Appropriations to the
statutory public welfare fund and discretionary surplus fund are at the discretion of the
Companys VIE and its subsidiaries. |
|
|
|
The general reserve fund and statutory surplus fund are restricted to set-off against
losses, expansion of production and operation and increasing registered capital of the
respective company. The staff welfare and bonus and statutory public welfare funds are
restricted to capital expenditures for the collective welfare of employees. These reserves
are not allowed to be transferred to the Company in terms of cash dividends, loans or
advances, nor can they be distributed except under liquidation. |
|
|
|
There were no appropriations to reserves by the Company other than the Companys VIE
and certain of the VIEs subsidiaries in the PRC during any of the periods presented.
During the years ended December 31, 2007, 2008 and 2009, approximately $767,948, $5,597,415
and $4,249,280 was appropriated from retained earnings to the statutory surplus reserve,
respectively. |
F-38
VISIONCHINA MEDIA INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in U.S. Dollars ($), except number of shares)
21. |
|
RESTRICTED NET ASSETS |
|
|
Under PRC laws and regulations, there are certain restrictions on the Companys PRC
subsidiaries and VIE with respect to transferring certain of their net assets and reserves
to the Company either in the form of dividends, loans, or advances. Amounts restricted
include paid up capital and reserves of the Companys PRC subsidiaries and VIE, totaling
approximately $172,216,501 and $205,369,450 as of December 31, 2008 and 2009, respectively. |
22. |
|
CONVERTIBLE REDEEMABLE PREFERRED SHARES |
|
|
In April 2006, the Company issued 14,250,000 Series A convertible redeemable preferred
shares (Series A Preferred Share(s)) for $1 per share for total proceeds of $13,636,994,
net of issuance costs of $613,006. In March and July 2007, the Company issued an aggregate
of 17,889,088 Series B convertible redeemable preferred shares (Series B Preferred
Share(s)) for $2.236 per share for total proceeds of $38,264,439, net of issuance costs of
$1,735,561. The Series A Preferred Shares and Series B Preferred Shares are collectively
referred to as the Preferred Share(s). No preferred shares were issued and outstanding in
2008 and 2009. |
|
|
|
As of December 31, 2006, the Company had 14,250,000 Series A Preferred Shares
outstanding. Upon completion of the IPO in December 2007, all convertible preferred shares
automatically converted into 32,139,088 common shares. |
|
|
|
Movement of convertible redeemable preferred shares |
|
|
|
|
|
At January 1, 2007 |
|
$ |
15,220,327 |
|
Issuance of convertible redeemable preferred shares |
|
|
38,264,439 |
|
Deemed dividend |
|
|
6,625,262 |
|
Conversion into common shares |
|
|
(60,110,028 |
) |
|
|
|
|
At December 31, 2007, 2008 and 2009 |
|
$ |
|
|
|
|
|
|
The holders of Preferred Shares have various rights and preferences as follows:
Redemption
The Preferred Shares are not redeemable at the option of holders of the Preferred
Shares except:
|
(1) |
|
Optional redemption beginning on April 13, 2009; or upon suspension or
termination of wireless television signals representing more than 50% of the
Companys television network. The redemption price for each of Preferred Shares
shall be equal one hundred and fifty percent (150%) of the applicable original
issue price, plus in each case all dividends declared and unpaid with respect
thereto per Preferred Share then held by such holder; or |
|
|
(2) |
|
Insufficient funds. If the Companys assets or funds which are legally
available on the date that any redemption payment is due are insufficient to pay in
full all redemption payments to be paid on such date, those assets and fund funds
which are legally available shall be used to pay all redemption payments due on
such date ratably in proportion to the full amounts to which the holders to which
such redemption payments are due would otherwise be respectively entitled thereon. |
The Company accrued the premium over the redemption period as a deemed dividend with a
charge against the deficit of $6,625,262 for the year ended December 31, 2007.
F-39
VISIONCHINA MEDIA INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in U.S. Dollars ($), except number of shares)
22. |
|
CONVERTIBLE REDEEMABLE PREFERRED SHARES continued |
|
|
|
Dividends |
|
|
|
Each holder of Preferred Shares shall be entitled to receive dividends, on a pari passu
basis, out of any funds or assets legally available therefor, prior and in preference to any
declaration or payment of any dividend on the common shares, at 8% in respect of such
Preferred Shares when, as and if declared by the Board of Directors, but not otherwise. All
such dividends per Preferred Share shall be cumulative from the date that the Board of
Directors declares such dividends. |
|
|
|
Conversion |
|
|
|
Subject to the provisions of the Memorandum and the Articles, Preferred Shares may, at
the option of the holder thereof, be converted at any time into fully-paid and nonassessable
common shares based on the applicable then-effective conversion price. The initial
conversion price for Series A Preferred Shares and Series B Preferred Shares shall be
US$1.00 and US$2.236, respectively, and the initial per share conversion ratio for Preferred
Shares to common shares shall be 1:1, which shall be subject to adjustment subject to
adjustment for stock dividends, stock splits, combinations and similar events. Each
Preferred Share shall automatically be converted into common shares upon the closing of a
qualified initial public offering, based on the applicable then-effective conversion price. |
|
|
|
Voting |
|
|
|
Subject to the provisions of the Memorandum and the Articles, at all general meetings
of the Company: (i) the holder of each common share issued and outstanding shall have one
vote in respect of each common share held, and (ii) the holder of Preferred Shares shall be
entitled to such number of votes as equals the whole number of common shares into which such
holders collective Preferred Shares are convertible immediately after the close of business
on the record date of the determination of the Companys shareholders entitled to vote or,
if no such record date is established, at the date such vote is taken or any written consent
of the Companys shareholders is first solicited. Subject to provisions to the contrary
elsewhere in the memorandum and the Articles, or as required by the Statute, the holders of
Series A Preferred Shares shall vote together with the holders of common shares, and not as
a separate class or series, on all matters put before the shareholders. |
|
|
|
Liquidation |
|
|
|
Upon any liquidation, dissolution or winding up of the Company, either voluntary or
involuntary, before any distribution or payment shall be made with respect to any common
shares, an amount shall be paid on a pari passu basis with respect to each Preferred Share
equal to the greater of (i) one hundred fifty percent (150%) of the applicable original
issue price (as adjusted for any dividend of shares, division or combination of shares
recapitalizations and the like) plus all dividends declared and unpaid with respect thereto;
and (ii) a pro rata share of all funds and assets of the Company legally available for
distribution to shareholders of the Company on the basis as if all the Preferred Shares were
converted into common shares immediately before the holding of the general meeting, plus all
declared but unpaid dividends thereon. |
F-40
VISIONCHINA MEDIA INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in U.S. Dollars ($), except number of shares)
|
|
Acquisition |
|
|
|
On October 15, 2009, the Company entered into a merger agreement with Digital Media
Group Company Limited (DMG) to acquire a 100% equity interest in DMG, a leader in Chinas
subway mobile television advertising market (the Acquisition). The Acquisition will allow
the Company to broaden its subway network and its already extensive bus network.
Significant cost synergies and the addition of technological capabilities will allow the
Company to enhance its profit position and allow the Company to have greater room for future
expansion. The total consideration for the transaction is approximately $167 million in
cash and shares payable by the Company to eligible shareholders of DMG in three installments
over two years including an initial installment of $100 million payable at the closing of
the transaction. The $100 million payable will consist of $40 million payable in cash and
8,476,013 common shares of the Company. Two subsequent installments of $30 million each, in
which $20 million will be payable in cash and $10 million payable, at the election of the
participating DMG shareholders as a Group, either in cash or in common shares of the
Company, will be paid on the first and second anniversaries of the closing of the
transaction. The 8,476,013 common shares issued to the seller of DMG are subject to a
one-year lock-up period. For the $10 million payable in cash or in common shares of the
Company in the first and second anniversaries of the closing of the transaction, if the
participating DMG shareholders elected to receive common shares, these common shares will be
subject to a lock-up period of 3 months from the date of issuance. The transaction cost in
relation to the Acquisition is expected to be approximate to $472,000. |
|
|
|
Pursuant to the agreement, the Group paid the initial deposits of $40 million as of
December 31, 2009 as disclosed in note 6, and 8,476,013 common shares of the Company has
been set aside. |
|
|
|
The transaction has been approved by both companies boards of directors and closed in
the first quarter of 2010. |
|
|
|
The following table summarizes the unaudited fair values of the assets and liabilities,
determined based on provisional estimation, assumed by the Group on the date of acquisition
of DMG: |
|
|
|
|
|
|
|
Unaudited |
|
|
Cash and cash equivalents |
|
$ |
3,840,983 |
|
Restricted cash |
|
|
42,409,500 |
|
Inventories |
|
|
958,615 |
|
Other current assets |
|
|
6,832,670 |
|
Fixed assets, net |
|
|
6,795,102 |
|
Intangible assets, net |
|
|
91,151,402 |
|
Other non-current assets |
|
|
1,384,583 |
|
Short-term bank borrowings |
|
|
(42,898,604 |
) |
Other current liabilities |
|
|
(10,631,163 |
) |
Deferred tax liabilities non-current |
|
|
(22,787,850 |
) |
Noncontrolling interest |
|
|
(2,403 |
) |
|
|
|
|
|
|
|
77,052,835 |
|
Goodwill |
|
|
89,481,623 |
|
|
|
|
|
|
|
$ |
166,534,458 |
|
|
|
|
|
F-41
VISIONCHINA MEDIA INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in U.S. Dollars ($), except number of shares)
23. |
|
SUBSEQUENT EVENTS continued |
|
|
|
The following pro forma information summarizes the effect of the DMG acquisition, as if
the acquisitions had occurred as of January 1, 2009. This pro forma financial information
is presented for information purposes only. It is based on historical information and does
not purport to represent the actual results that may have occurred had the Company
consummated the acquisition on January 1, 2009, nor is it necessarily indicative of future
results of operations of the consolidated enterprise. |
|
|
|
|
|
|
|
Pro forma |
|
|
Year ended |
|
|
December 31, |
|
|
2009 |
|
|
(unaudited) |
|
|
|
|
|
Revenue |
|
$ |
140,917,542 |
|
Net loss |
|
|
(34,320,800 |
) |
Goodwill arose in the business combination because the consideration paid effectively
included the amounts in relation to the benefit of expected synergies, revenue growth,
future technological development and the sale force of DMG.
Bank borrowings
Subsequent to December 31, 2009, the Company obtained the following loans:
|
1. |
|
A secured one-year term bank loan from the BOC (Macau) of $20.4 million with an
interest rate fixed at 1.59% per annum. This borrowing is denominated in US dollars. |
|
|
2. |
|
An unsecured two-year term bank loan from the BOC (SZ) of approximately US$57.8
million with interest rate fixed at 90% of the Peoples Bank of China benchmark rate.
This borrowing is denominated in RMB. |
F-42
VISIONCHINA MEDIA INC.
CONDENSED
FINANCIAL INFORMATION OF REGISTRANT SCHEDULE I
BALANCE SHEET
(Amounts in U.S. Dollars ($), except number of shares)
|
|
|
|
|
|
|
|
|
|
|
December 31, |
|
|
|
2008 |
|
|
2009 |
|
|
|
|
|
|
|
|
|
|
ASSETS |
|
|
|
|
|
|
|
|
Current Assets: |
|
|
|
|
|
|
|
|
Cash and cash equivalents |
|
$ |
56,152,920 |
|
|
$ |
6,961,436 |
|
Amounts due from subsidiaries |
|
|
18,114,223 |
|
|
|
68,114,565 |
|
Prepaid expenses and other current assets |
|
|
281,102 |
|
|
|
2,439 |
|
|
|
|
|
|
|
|
Total current assets |
|
$ |
74,548,245 |
|
|
$ |
75,078,440 |
|
|
|
|
|
|
|
|
|
Non-current Assets: |
|
|
|
|
|
|
|
|
Fixed assets, net |
|
$ |
66,012 |
|
|
$ |
93,676 |
|
Investment in subsidiaries and variable interest entities |
|
|
173,896,938 |
|
|
|
205,794,723 |
|
|
|
|
|
|
|
|
Total non-current assets |
|
$ |
173,962,950 |
|
|
$ |
205,888,399 |
|
|
|
|
|
|
|
|
TOTAL ASSETS |
|
$ |
248,511,195 |
|
|
$ |
280,966,839 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES AND EQUITY |
|
|
|
|
|
|
|
|
Current Liabilities: |
|
|
|
|
|
|
|
|
Amounts due to subsidiaries |
|
$ |
|
|
|
$ |
6,157,970 |
|
Accrued expenses and other current liabilities |
|
|
3,437,981 |
|
|
|
1,827,513 |
|
|
|
|
|
|
|
|
Total liabilities |
|
$ |
3,437,981 |
|
|
$ |
7,985,483 |
|
|
|
|
|
|
|
|
|
Non-current Liabilities: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Equity |
|
|
|
|
|
|
|
|
Common shares ($0.0001 par value;
200,000,000 shares authorized; 71,819,442 and
72,140,684 shares issued and outstanding as of
December 31, 2008 and 2009, respectively) |
|
$ |
7,182 |
|
|
$ |
7,214 |
|
Additional paid-in capital |
|
|
190,694,719 |
|
|
|
192,362,565 |
|
Accumulated profits |
|
|
44,020,823 |
|
|
|
70,623,826 |
|
Accumulated other comprehensive income |
|
|
10,350,490 |
|
|
|
9,987,751 |
|
|
|
|
|
|
|
|
Total shareholders equity |
|
$ |
245,073,214 |
|
|
$ |
272,981,356 |
|
|
|
|
|
|
|
|
TOTAL LIABILITIES AND EQUITY |
|
$ |
248,511,195 |
|
|
$ |
280,966,839 |
|
|
|
|
|
|
|
|
F-43
VISIONCHINA MEDIA INC.
CONDENSED FINANCIAL INFORMATION OF REGISTRANT SCHEDULE I
STATEMENT OF OPERATIONS
(Amounts in U.S. Dollars (US$), except number of shares)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended December 31, |
|
|
|
2007 |
|
|
2008 |
|
|
2009 |
|
|
General and administrative expenses |
|
$ |
(346,777 |
) |
|
$ |
(2,884,499 |
) |
|
$ |
(5,711,551 |
) |
Equity in income of subsidiaries
and variable interest entities |
|
|
9,426,329 |
|
|
|
48,252,862 |
|
|
|
32,260,524 |
|
|
|
|
|
|
|
|
|
|
|
Operating profit |
|
|
9,079,552 |
|
|
|
45,368,363 |
|
|
|
26,548,973 |
|
Interest income |
|
|
313,806 |
|
|
|
1,441,587 |
|
|
|
54,030 |
|
|
|
|
|
|
|
|
|
|
|
Net income attributable to VisionChina Media Inc.
shareholders |
|
|
9,393,358 |
|
|
|
46,809,950 |
|
|
|
26,603,003 |
|
Deemed dividend on convertible redeemable
preferred shares |
|
|
6,625,262 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income attributable to VisionChina Media Inc.
common shareholders |
|
$ |
2,768,096 |
|
|
$ |
46,809,950 |
|
|
$ |
26,603,003 |
|
|
|
|
|
|
|
|
|
|
|
F-44
VISIONCHINA MEDIA INC.
CONDENSED FINANCIAL INFORMATION OF REGISTRANT SCHEDULE I
STATEMENTS OF CHANGES OF SHAREHOLDERS EQUITY AND COMPREHENSIVE INCOME
(Amounts in U.S. Dollars ($), except number of shares)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accumulated |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Additional |
|
|
|
|
|
|
other |
|
|
Total |
|
|
|
|
|
|
Common shares |
|
|
paid-in |
|
|
Accumulated |
|
|
comprehensive |
|
|
shareholders |
|
|
Comprehensive |
|
|
|
Number |
|
|
Amount |
|
|
capital |
|
|
(deficit) profit |
|
|
income |
|
|
equity |
|
|
income |
|
|
Balance at January 1, 2007 |
|
|
22,000,000 |
|
|
$ |
2,200 |
|
|
$ |
6,136,689 |
|
|
$ |
(5,557,223 |
) |
|
$ |
|
|
|
$ |
581,666 |
|
|
|
|
|
Initial public offering of
common shares |
|
|
13,500,000 |
|
|
|
1,350 |
|
|
|
100,438,650 |
|
|
|
|
|
|
|
|
|
|
|
100,440,000 |
|
|
|
|
|
Direct offering expenses |
|
|
|
|
|
|
|
|
|
|
(3,725,432 |
) |
|
|
|
|
|
|
|
|
|
|
(3,725,432 |
) |
|
|
|
|
Conversion of redeemable
preferred shares to common
shares |
|
|
32,139,088 |
|
|
|
3,214 |
|
|
|
60,106,814 |
|
|
|
|
|
|
|
|
|
|
|
60,110,028 |
|
|
|
|
|
Exercise of share options |
|
|
747,750 |
|
|
|
75 |
|
|
|
642,360 |
|
|
|
|
|
|
|
|
|
|
|
642,435 |
|
|
|
|
|
Share-based compensation |
|
|
|
|
|
|
|
|
|
|
221,362 |
|
|
|
|
|
|
|
|
|
|
|
221,362 |
|
|
|
|
|
Cumulative translation
adjustment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,990,664 |
|
|
|
2,990,664 |
|
|
$ |
2,990,664 |
|
Net income |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
9,393,358 |
|
|
|
|
|
|
|
9,393,358 |
|
|
|
9,393,358 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
12,384,022 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deemed dividend on convertible
redeemable preferred shares |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(6,625,262 |
) |
|
|
|
|
|
|
(6,625,262 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at December 31, 2007 |
|
|
68,386,838 |
|
|
$ |
6,839 |
|
|
$ |
163,820,443 |
|
|
$ |
(2,789,127 |
) |
|
$ |
2,990,664 |
|
|
$ |
164,028,819 |
|
|
|
|
|
Issuance of common shares
pursuant to follow-on offering |
|
|
1,150,000 |
|
|
|
115 |
|
|
|
17,569,585 |
|
|
|
|
|
|
|
|
|
|
|
17,569,700 |
|
|
|
|
|
Direct offering expenses |
|
|
|
|
|
|
|
|
|
|
(1,613,738 |
) |
|
|
|
|
|
|
|
|
|
|
(1,613,738 |
) |
|
|
|
|
Shares repurchase |
|
|
(281,400 |
) |
|
|
(28 |
) |
|
|
(1,454,628 |
) |
|
|
|
|
|
|
|
|
|
|
(1,454,656 |
) |
|
|
|
|
Exercise of share options |
|
|
2,525,893 |
|
|
|
252 |
|
|
|
10,906,004 |
|
|
|
|
|
|
|
|
|
|
|
10,906,256 |
|
|
|
|
|
Restricted shares |
|
|
38,111 |
|
|
|
4 |
|
|
|
(4 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Share-based compensation |
|
|
|
|
|
|
|
|
|
|
1,467,057 |
|
|
|
|
|
|
|
|
|
|
|
1,467,057 |
|
|
|
|
|
Cumulative translation
adjustment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
7,359,826 |
|
|
|
7,359,826 |
|
|
$ |
7,359,826 |
|
Net income |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
46,809,950 |
|
|
|
|
|
|
|
46,809,950 |
|
|
|
46,809,950 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
54,169,776 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at December 31, 2008 |
|
|
71,819,442 |
|
|
$ |
7,182 |
|
|
$ |
190,694,719 |
|
|
$ |
44,020,823 |
|
|
$ |
10,350,490 |
|
|
$ |
245,073,214 |
|
|
|
|
|
Shares repurchase |
|
|
(658,980 |
) |
|
|
(66 |
) |
|
|
(3,582,449 |
) |
|
|
|
|
|
|
|
|
|
|
(3,582,515 |
) |
|
|
|
|
Exercise of share options |
|
|
423,139 |
|
|
|
42 |
|
|
|
918,240 |
|
|
|
|
|
|
|
|
|
|
|
918,282 |
|
|
|
|
|
Restricted shares |
|
|
557,083 |
|
|
|
56 |
|
|
|
(56 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Share-based compensation |
|
|
|
|
|
|
|
|
|
|
4,332,111 |
|
|
|
|
|
|
|
|
|
|
|
4,332,111 |
|
|
|
|
|
Cumulative translation
adjustment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(362,739 |
) |
|
|
(362,739 |
) |
|
$ |
(362,739 |
) |
Net income |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
26,603,003 |
|
|
|
|
|
|
|
26,603,003 |
|
|
|
26,603,003 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
26,240,264 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at December 31, 2009 |
|
|
72,140,684 |
|
|
$ |
7,214 |
|
|
$ |
192,362,565 |
|
|
$ |
70,623,826 |
|
|
$ |
9,987,751 |
|
|
$ |
272,981,356 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
F-45
VISIONCHINA MEDIA INC.
CONDENSED FINANCIAL INFORMATION OF REGISTRANT SCHEDULE I
STATEMENTS OF CASH FLOWS
(Amounts in U.S. Dollars (US$), except number of shares)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended December 31, |
|
|
|
2007 |
|
|
2008 |
|
|
2009 |
|
|
Cash flows from operating activities: |
|
|
|
|
|
|
|
|
|
|
|
|
Net income attributable to VisionChina Media Inc.
shareholders |
|
$ |
9,393,358 |
|
|
$ |
46,809,950 |
|
|
$ |
26,603,003 |
|
Adjustments to reconcile net income to net
cash (used in) provided by operating activities: |
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation |
|
|
|
|
|
|
4,514 |
|
|
|
17,917 |
|
Equity in income of subsidiaries
and variable interest entities |
|
|
(9,426,329 |
) |
|
|
(48,252,862 |
) |
|
|
(32,260,524 |
) |
Share-based compensation |
|
|
221,362 |
|
|
|
1,467,057 |
|
|
|
4,332,111 |
|
Changes in operating assets and liabilities: |
|
|
|
|
|
|
|
|
|
|
|
|
Prepaid expenses and other current assets |
|
|
(277,627 |
) |
|
|
37,820 |
|
|
|
278,663 |
|
Amounts due from subsidiaries |
|
|
(2,424,939 |
) |
|
|
|
|
|
|
(50,000,342 |
) |
Accrued expenses and other current liabilities |
|
|
2,449,746 |
|
|
|
1,654,096 |
|
|
|
270,276 |
|
|
|
|
|
|
|
|
|
|
|
Net cash (used in) provided by operating activities |
|
|
(64,429 |
) |
|
|
1,720,575 |
|
|
|
(50,758,896 |
) |
|
|
|
|
|
|
|
|
|
|
|
Cash flows from investing activities: |
|
|
|
|
|
|
|
|
|
|
|
|
Acquisition of fixed assets |
|
|
|
|
|
|
(70,526 |
) |
|
|
(45,581 |
) |
Advances (to) from subsidiaries |
|
|
|
|
|
|
(12,061,513 |
) |
|
|
6,157,970 |
|
Investments in subsidiaries |
|
|
(37,000,000 |
) |
|
|
(59,999,997 |
) |
|
|
(1 |
) |
|
|
|
|
|
|
|
|
|
|
Net cash (used in) provided by investing activities |
|
|
(37,000,000 |
) |
|
|
(72,132,036 |
) |
|
|
6,112,388 |
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from financing activities: |
|
|
|
|
|
|
|
|
|
|
|
|
Proceeds from issuance of common shares, net of
issuance cost |
|
|
99,230,318 |
|
|
|
13,708,984 |
|
|
|
|
|
Proceeds from issuance of Series B convertible
redeemable preferred shares, net of issuance cost |
|
|
38,264,439 |
|
|
|
|
|
|
|
|
|
Proceeds from exercise of share option, net of
issuance cost |
|
|
642,435 |
|
|
|
10,906,256 |
|
|
|
771,097 |
|
Payments of direct offering expenses |
|
|
|
|
|
|
|
|
|
|
(278,902 |
) |
Share repurchases |
|
|
|
|
|
|
|
|
|
|
(5,037,171 |
) |
|
|
|
|
|
|
|
|
|
|
Net cash provided by (used in) financing activities |
|
|
138,137,192 |
|
|
|
24,615,240 |
|
|
|
(4,544,976 |
) |
|
|
|
|
|
|
|
|
|
|
Net increase (decrease) in cash and cash equivalents |
|
|
101,072,763 |
|
|
|
(45,796,221 |
) |
|
|
(49,191,484 |
) |
|
Cash and cash equivalents at the beginning of the year |
|
|
876,378 |
|
|
|
101,949,141 |
|
|
|
56,152,920 |
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents at the end of the year |
|
$ |
101,949,141 |
|
|
$ |
56,152,920 |
|
|
$ |
6,961,436 |
|
|
|
|
|
|
|
|
|
|
|
|
Non-cash financing activity: |
|
|
|
|
|
|
|
|
|
|
|
|
Share repurchase not yet settled |
|
|
|
|
|
|
1,454,656 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
F-46
VISIONCHINA MEDIA INC.
CONDENSED FINANCIAL INFORMATION OF REGISTRANT SCHEDULE I
(Amounts in U.S. Dollars (US$))
Schedule 1 has been provided pursuant to the requirements of Rules 12-04(a) and 4-08(e)(3) of SEC
Regulation S-X, which require condensed financial information as to financial position, changes in
financial position and results of operations of a parent company as of the same dates and for the
same periods for which audited consolidated financial statements have been presented when the
restricted net assets of consolidated and unconsolidated subsidiaries together exceed 25 percent of
consolidated net assets as of the end of the most recently completed fiscal year. As of December
31, 2008 and 2009, approximately $172,216,501 and $205,369,450 of the registered capital and
reserves are not available for distribution, respectively, and as such, the condensed financial
information of VisionChina Media Inc. has been presented for the years ended December 31, 2007,
2008 and 2009.
Basis of Presentation
For the purposes of the presentation of the parent company only financial information, the Company
records its investment in subsidiaries under the equity method of accounting as prescribed in FASB
ASC 323 Investments in Equity Method and Joint Ventures (formerly Accounting Principles Board
Opinions No. 18, The Equity Method of Accounting for Investments in Common Stock). Such
investment is presented on the balance sheet as Investment in subsidiaries and variable interest
entities and 100% of the subsidiaries profit or loss as Equity in income of subsidiaries and
variable interest entities on the statements of operations.
F-47