Loan Agreement - China Finance Online Co. Ltd. and Ning Jun
LOAN AGREEMENT
The Loan Agreement (the "Agreement") is entered into as of May 27, 2004
between the following two parties:
(1) CHINA FINANCE ONLINE CO. LIMITED (the "Lender"), a limited liability
company established and registered in Hong Kong, SAR.
REGISTERED ADDRESS: Unit C, 8/F, East Wing, Sincere Insurance Building
4-6, Hennessy Road, Hong Kong, SAR.
(2) NING JUN (the "Borrower")
PRC ID NUMBER: 210202570527647
ADDRESS: Rm.201, Ping'an Masion, No.23 Financial Street, Xicheng
District, Beijing, 100032, P.R.China
Lender and Borrower will each be referred to as a "Party" and collectively
referred to as the "Parties."
WHEREAS, Borrower holds 45% of the equity of Fuhua Innovation Technology
Development Co., Ltd. ("Fuhua"), a limited liability company established and
registered in the People's Republic of China (the "PRC").
WHEREAS, Borrower wishes to borrow a loan from Lender to finance its
investment in Fuhua and Lender agrees to provide such loan to Borrower.
NOW THEREFORE, the Parties agree as follows:
1. LOAN
1.1 Lender agrees to provide a loan to Borrower with the principal amount equal
to the US Dollar equivalent of RMB 1,350,000 in accordance with the terms
and conditions set forth herein (the "Loan"). Term for such loan shall be
ten (10) years which may be extended upon the agreement of the Parties (the
"Term"). Notwithstanding the foregoing, in the following circumstances,
Borrower shall repay the Loan regardless if the Term has expired:
(1) Borrower deceases or becomes a person without legal capacity or with
limited legal capacity;
(2) Borrower commits a crime or is involved in a criminal act; or
(3) Lender or its designated assignee can legally purchase Borrower's
interest in Fuhua under the PRC law and Lender chooses to do so.
1.2 Lender shall remit the amount of the Loan to an account designated by
Borrower within seven (7) days after receiving Borrower's disbursement
notice in writing, provided that all of the conditions precedent to
disbursement set forth in Section 2 of
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this Agreement have been fully satisfied. Borrower shall deliver a written
confirmation to Lender within one (1) day after receiving the amount of the
Loan.
1.3 The Loan shall only be used by Borrower to invest in Fuhua's registered
capital. Without Lender's prior written consent, Borrower shall not use the
Loan for any other purpose or transfer or pledge his interest in Fuhua to
any third party.
1.4 Borrower can only repay the Loan by transferring all of his interest in
Fuhua to Lender or a third party designated by Lender when such transfer is
permitted under the PRC law.
1.5 In the event Borrower transfers his interest to any third party other than
Lender, Borrower shall pay the full amount of the proceeds it receives from
such transfer to Lender regardless if the amount of such proceeds exceeds
the amount of the Loan.
1.6 Lender and Borrower hereby jointly agree and confirm that Lender has the
right to, but has no obligation to, purchase or designate a third party
(legal person or natural person) to purchase all or part of Borrower's
interest in Fuhua at a price equal to the amount of the Loan when such
purchase is allowed under the PRC law. If Lender or the third party
assignee designated by Lender only purchases part of Borrower's interest in
Fuhua, the purchase price shall be reduced on a pro rata basis.
1.7 In the event when Borrower transfers his interest in Fuhua to Lender or a
third party transferee designated by Lender, (i) if the actual transfer
price paid by Lender or the third party transferee equals or is less than
the principal amount of the Loan, the Loan shall be deemed as interest
free; or (ii) if the actual transfer price paid by Lender or the third
party transferee is higher than the principal amount of the Loan, the
amount exceeding the principal amount of the Loan shall be deemed as an
interest accrued on the Loan and paid by Borrower to Lender in full.
2. CONDITIONS PRECEDENT TO DISBURSEMENT
The following conditions must be satisfied before the Loan is disbursed to
Borrower:
2.1 Subject to the terms of Section 1.2, Lender has received the written
disbursement notice from Borrower.
2.2 Borrower and Lender's wholly owned subsidiary, China Finance Online
(Beijing) Co., Ltd. ("CFO (Beijing)"), have formally executed a equity
pledge agreement (the "Equity Pledge Agreement"), under which Borrower
agrees to pledge all his interest in Fuhua to CFO (Beijing).
2.3 Borrower, CFO (Beijing) and Fuhua have executed a purchase option and
cooperation agreement (the "Purchase Option Agreement"), according to which
Borrower grants CFO (Beijing) an irrevocable option to purchase all of his`
interest in Fuhua when certain conditions provided in the agreement are
met.
2.4 The Equity Pledge Agreement and Purchase Option Agreement remain valid and
effective. None of the parties under such agreements have materially
breached any terms or conditions thereof and all of the necessary
approvals, consents,
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authorizations and registrations required under such agreements have been
obtained or completed.
2.5 The representation and warranties under Section 3 remain true and correct
on the day when the disbursement notice is delivered to Lender and on the
date the Loan is disbursed to Borrower as if such representations and
warranties are made as of such dates.
2.6 Borrower has not materially breached any terms or conditions hereof.
3. REPRESENTATIONS AND WARRANTIES
3.1 Lender hereby represents and warrants to Borrower that:
(a) Lender is a company registered and validly existing under the laws of
Hong Kong, SAR;
(b) subject to its Memorandum and Articles of Association and other
organizational documents, Lender has full right, power and all
necessary approvals and authorizations to execute and perform this
Agreement;
(c) the execution and the performance of this Agreement will not
contravene any provision of law applicable to Lender or any
contractual restriction binding on or affecting him; and
(d) this Agreement shall constitute the legal, valid and binding
obligations of Lender, which is enforceable against Lender in
accordance with its terms upon its execution.
3.2 Borrower hereby represents and warrants to Lender that:
(a) Fuhua is a limited liability company registered and validly existing
under the laws of PRC and Borrower owns 45% of Fuhua's equity;
(b) Borrower has full right, power and all necessary and appropriate
approval and authorization to execute and perform this Agreement;
(c) the execution and the performance of this Agreement will not
contravene any provision of law applicable to Borrower or any
contractual restriction binding on or affecting Borrower;
(d) this Agreement shall constitute the legal and valid obligations of
Borrower, which is enforceable against Borrower in accordance with its
terms upon its execution; and
(e) there are no legal or other proceedings before any court, tribunal or
other regulatory authority pending or threatened against Borrower.
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4. NOTIFICATIONS
Notice or other communications under this Agreement shall be delivered
personally or sent by facsimile transmission or by registered mail to the
address set forth below, except that such address has been changed in
writing. The date noted on the return receipt of the registered mail is the
service date of the notice if the notice is sent by registered mail; the
sending date is the service date of the notice if the notice is sent
personally or by facsimile transmission. The original of the notice shall
be sent personally or by registered mail to the following address after the
notice is sent by facsimile.
Lender: China Finance Online Co., Ltd.
Address: Unit C, 8/F, East Wing
Sincere Insurance Building 4-6
Hennessy Road, Hong Kong, SAR.
Borrower: Ning Jun
Address: Rm.201, Ping'an Masion,
No.23 Financial Street, Xicheng District,
Beijing, 100032, P.R.China
5. CONFIDENTIALITY
The Parties acknowledge and confirm that any oral or written materials
concerning this Agreement exchanged between them are confidential
information. The Parties shall protect and maintain the confidentiality of
all such confidential data and information and shall not disclose to any
third party without the other party's written consent, except (a) the data
or information that was in the public domain or later becomes published or
generally known to the public, provided that it is not released by the
receiving party, (b) the data or information that shall be disclosed
pursuant to applicable laws or regulations, and (c) the data or information
that shall be disclosed to One Party's legal counsel or financial counsel
who shall also bear the obligation of maintaining the confidentiality
similar to the obligations hereof. The undue disclosing of the confidential
data or information of One Party's legal counsel or financial counsel shall
be deemed the undue disclosing of such party who shall take on the
liability of breach of this Agreement.
6. GOVERNING LAW AND SETTLEMENT OF DISPUTES
6.1 The execution, validity, interpretation, performance, implementation,
termination and settlement of disputes of this Agreement shall be governed
by the laws of Hong Kong, SAR.
6.2 In event of any dispute arising from or in connection with this Agreement,
the Parties shall attempt to resolve the dispute through friendly
consultations. In the event that satisfactory resolution is not reached
within thirty (30) days after commencement of such consultation, the
dispute shall be submitted (which submission may be made by either Borrower
or Lender) to resolution by arbitration administered by Hong Kong
International Arbitration Center(the "Center") in Hong Kong, in accordance
with the
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procedural rules of the Center, which are in effect at the time the
application for arbitration is made. The arbitral award shall be final and
binding upon all parties hereto.
6.3 In case of any disputes arising out of the interpretation and performance
of this Agreement or any pending arbitration of such dispute, the Parties
shall continue to perform their rights and obligations under this
Agreement, except that such matters are involved in the disputes.
7. MISCELLANEOUS
7.1 This Agreement is executed in both Chinese and English. In case of any
inconsistency between the two versions, the Chinese version shall prevail.
7.2 This Agreement can only be amended by written agreements jointly executed
by the parties.
7.3 Any provision of this Agreement that is invalid or unenforceable shall not
affect the validity and enforceability of any other provisions hereof.
IN WITNESS WHEREOF, the Parties have duly executed this Agreement, or have
caused this Agreement to be duly executed on their behalf, as of the date and
year first hereinabove set forth.
LENDER:
CHINA FINANCE ONLINE CO., LTD
/s/ Jun Ning
/s/ Zhongshan Qian
_____________________________
By:
Title: CFO
BORROWER:
NING JUN
/s/ Jun Ning
_____________________________
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