Share Pledge Agreement - Jun Ning, Wu Chen and China Finance Online (Beijing) Co. Ltd.
SHARE PLEDGE AGREEMENT
This Share Pledge Agreement (this "Agreement") is executed by and among
the following parties on May 27, 2004.
PLEDGOR A: Jun Ning
ID NUMBER: 210202570527647
ADDRESS: Room 201, Ping'an Mansion, No. 23 Financial Street,
West District, Beijing, China
PLEDGOR B: Wu Chen
ID NUMBER: 110108491204891
ADDRESS: Room 616, Tower A, COFCO Plaza, 8 Jianguomennei Dajie, Beijing, China
PLEDGEE: China Finance Online (Beijing) Co., Ltd.
REGISTERED ADDRESS: Room 610B, Ping'an Mansion, No. 23 Financial Street,
West District, Beijing, China
Unless otherwise provided hereunder, Pledgor A and Pledgor B shall
hereinafter be referred to collectively as the "Pledgors".
WHEREAS:
1. Jun Ning, Pledgor A, and Wu Chen, Pledgor B, are both citizens of the
People's Republic of China (the "PRC"), and each holds 45% and 55% interests in
Beijing Fuhua Innovation Technology Development Co., Ltd. ("Fuhua"),
respectively. Fuhua is a company registered in Beijing, PRC, engaged in the
business of network operation.
2. Pledgee is a wholly foreign-own enterprise registered in Beijing, PRC, with
approvals from the relevant PRC authorities to engage in the business of, among
others, internet technology consulting and technology services. Fuhua and
Pledgee have entered into the agreements listed in Appendix 1 hereto
(collectively, the "Service Agreements").
3. To secure the fees payable under the Service Agreements (the "Service Fee")
from Fuhua to Pledgee, Pledgors hereby pledge their respective interests in
Fuhua to Pledgee.
Pursuant to the provisions of the Service Agreements, Pledgors and
Pledgee have agreed to enter into this Agreement according to the following
terms and conditions.
1. DEFINITIONS
Unless otherwise provided herein, the terms below shall have the following
meanings:
1.1 "Pledge Rights" means the rights set forth in Article 2 of this Agreement.
1.2 "Share Equity" means the equity interest held by Pledgors in Fuhua.
1.3 "Pledged Property" means the share interest and the dividends deriving
therefrom pledged by Pledgors to Pledgee under this Agreement.
1.4 "Secured Indebtedness" means all the amounts payable by Fuhua to Pledgee
under the Service Agreements, including the Service Fee and interests accrued
thereon, liquidated damages, compensations, costs and expenses incurred by
Pledgee in connection with collection of such fees, interest, damages and
compensations, and losses incurred to Pledgee as a result of any default by
Fuhua and other expenses payable under the Service Agreements.
1.5 "Term of Pledge" means the term stated in Section 4.1 of this Agreement.
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1.6 "Service Agreements" means all the agreements entered into by Fuhua and
Pledgee as set forth in Appendix 1 hereto.
1.7 "Event of Default" means any event set forth in Article 9 of this Agreement.
1.8 "Notice of Default" means the notice issued by Pledgee in accordance with
this Agreement declaring an Event of Default.
2. PLEDGE RIGHTS
2.1 Pledgors hereby pledge to Pledgee all of their Share Equity in Fuhua to
secure the Secured Indebtedness of Fuhua. Pledge Rights shall mean Pledgee's
priority right in receiving compensation from the sale or auction proceeds of
the Pledged Property (including the dividends generated by the Share Equity
during the term of this Agreement).
3. SCOPE OF PLEDGE SECURITY
3.1 The scope of pledge security hereunder shall cover all of the Secured
Indebtedness, including all the Service Fee and interest accrued thereon,
liquidated damages, compensation, costs and expenses incurred by Pledgee to
collect such fee, interests, damages and compensation, and losses incurred to
Pledgee as a result of any default by Fuhua and all other expenses payable under
the Service Agreements.
4. TERM OF PLEDGE AND REGISTRATION
4.1 This Agreement shall become effective on the date when the Pledge hereunder
is registered in the Shareholders' List of Fuhua. The term of the Pledge shall
be the same as the term of the Strategy Consulting Services Agreement (should
the term of the Strategy Consulting Services Agreement be extended, the term of
the Pledge shall be extended accordingly). Pledgors shall cause Fuhua to
register the Pledge hereunder in its Shareholders' List within three (3) days
after this Agreement is executed.
4.2 In the event that any change of the matters registered in Fuhua's
Shareholders' List is required as a result of change of any matters relating to
the Pledge, Pledgors and Pledgee shall cause the matters registered in Fuhua's
Shareholders' List be changed accordingly within fifteen (15) days after such
change takes place.
5. CUSTODY OF CERTIFICATES
Pledgors shall deliver to Pledgee the capital contribution certificates
with respect to their interest in Fuhua and Fuhua's Shareholders' List within
seven (7) days after this Agreement is executed.
6. REPRESENTATIONS AND WARRANTIES OF PLEDGORS
6.1 Pledgors are legally registered shareholders of Fuhua and have paid Fuhua
the full amount of their respective portions of Fuhua's registered capital
required under Chinese law. Pledgors neither have sold nor will sell to any
third party their Share Equity in Fuhua.
6.2 Pledgors fully understand the contents of the Service Agreements and have
entered into this Agreement voluntarily. The signatories signing this Agreement
on behalf of Pledgors have the rights and authorizations to do so.
6.3 All documents, materials and certificates provided by Pledgors to Pledgee
hereunder are correct, true, complete and valid.
6.4 When Pledgee exercises its right hereunder in accordance with this
Agreement, there shall be no intervention from any other parties.
6.5 Pledgee shall have the right to dispose of and transfer the Pledge Rights in
accordance with the provisions hereof.
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6.6 Pledgors have not created any mortgage, pledge, secured interests or other
form of debt liabilities over the Share Equity other than the Pledge created
hereunder.
7. COVENANTS OF PLEDGORS
7.1 For the benefit of Pledgee, Pledgors hereby make the following covenants,
during the term of this Agreement:
7.1.1 without the prior written consent of Pledgee, Pledgors shall not
transfer the Share Equity, or create or consent to any creation of any pledge
over, the Share Equity that may affect Pledgee's rights and interests hereunder,
or cause the shareholders' meetings of Fuhua to adopt any resolution on sale,
transfer, pledge or in other manner disposal of the Share Equity or approving
the creation of any other security interest on the Share Equity, provided that
the Share Equity may be transferred to Pledgee or any party designated by
Pledgee according to Purchase Option and Cooperation Agreement dated May 27,
2004 among Pledgee, Pledgors and Fuhua and Pledgors may transfer the Share
Equity to each other to the extent such transfer will not effect Pledgee's
interest (the transferring Pledgor shall deliver a prior notice to Pledgee
before making the transfer).
7.1.2 Pledgors shall comply with all laws and regulations applicable to the
Pledge. Within five (5) days of receipt of any notice, order or recommendation
issued or promulgated by competent government authorities relating to the
Pledge, Pledgors shall deliver such notice, order or recommendation to Pledgee,
and shall comply with the same, or make objections or statements with respect to
the same upon Pledgee's reasonable request or with Pledgee's consent.
7.1.3 Pledgors shall promptly notify Pledgee of any event or notice
received by Pledgors that may have a material effect on Pledgee's rights in the
Pledged Property or any portion thereof, as well as promptly notify Pledgee of
any change to any warranty or obligation of Pledgors hereunder, or any event or
notice received by Pledgors that may have a material effect to any warranty or
obligation of the Pledgors hereunder.
7.2 Pledgors warrant that Pledgee's exercise of the Pledge Rights as pledgee
pursuant to this Agreement shall not be interrupted or impaired by Pledgors or
any successors or representatives of Pledgors or any other parties through any
legal proceedings.
7.3 Pledgors hereby warrant to Pledgee that, to protect or perfect the security
interest created by this Agreement to secure the Secured Indebtedness, Pledgors
will execute in good faith, and cause other parties who have an interest in the
Pledge Rights to execute, all certificates of rights and instruments as
requested by Pledgee, and/or take any action, and cause other parties who have
an interest in the Pledge Rights to take any action, as requested by Pledgee,
and facilitate the exercise by Pledgee of its rights and authority provided
hereunder, and execute all amendment documents relating to certificates of Share
Equity with Pledgee or its designated person(s) (natural persons/legal persons),
and shall provide Pledgee, within a reasonable period of time, with all notices,
orders and decisions regarding the Pledge Rights requested by Pledgee. Pledgors
hereby warrant to Pledgee that, for Pledgee's benefit, Pledgors shall comply
with all warranties, covenants, agreements, representations and conditions
provided hereunder. In the event that Pledgors fail to comply with or perform
any warranties, covenants, agreements, representations and conditions, Pledgors
shall indemnify Pledgee for all of its losses resulting therefrom.
8. EVENTS OF DEFAULT
8.1 Each of the following events shall constitute an Event of Default:
8.1.1 Fuhua fails to pay in full any Secured Indebtedness on time;
8.1.2 Any representation or warranty made by Pledgors under Article 6 of
this Agreement is misleading or untrue, or Pledgors have violated any of the
warranties in Article 6 of this Agreement;
8.1.3 Pledgors breach any of the covenants in Article 7 of this Agreement;
8.1.4 Pledgors breach any other provisions of this Agreement;
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8.1.5 Pledgors give up all or any part of the Pledged Property, or transfer
all or any part of the Pledged Property without the written consent of Pledgee
(except the transfers permitted hereunder);
8.1.6 Any of Pledgors' loans, guarantees, indemnification, commitment or
other indebtedness to any third party (1) have been subject to a demand of early
repayment due to an event of default; or (2) have become due but failed to be
repaid in a timely manner, thus leading Pledgee to believe that Pledgors'
ability to perform their obligations under this Agreement has been impaired;
8.1.7 Pledgors are unable to repay any other material debts;
8.1.8 Any applicable laws have rendered this Agreement illegal or made it
impossible for Pledgors to continue to perform their obligations hereunder;
8.1.9 All approvals, licenses, permits or authorizations from government
agencies that make this Agreement enforceable, legal and effective have been
withdrawn, terminated, invalidated or substantively revised;
8.1.10 Any adverse change has taken place to any properties owned by
Pledgors, which leads Pledgee to believe that Pledgors' ability to perform their
obligations under this Agreement has been affected;
8.1.11 The successor or trustee of Fuhua is only able to partially perform
or refuses to perform the payment obligations under the Service Agreements;
8.1.12 Any breach of other provisions of this Agreement resulting from any
action or omission by Pledgors; and
8.1.13 Any other event whereby Pledgee is unable to exercise its right with
respect to the Pledge hereunder pursuant to relevant laws.
8.2 Pledgors shall immediately notify Pledgee in writing of any event set forth
in Section 8.1 or any circumstance which many lead to any such event as soon as
Pledgors know or are aware of such event.
8.3 Unless an Event of Default set forth in this Section 8.1 has been resolved
to the satisfaction of Pledgee, Pledgee may, upon the occurrence of an Event of
Default or at any time thereafter, issue a Notice of Default to Pledgors in
writing and demand that Pledgors to immediately pay all the amounts due under
the Service Agreements and all other amounts payable due to Pledgee, or exercise
Pledge Rights in accordance with the provisions of this Agreement.
9. EXERCISE OF PLEDGE RIGHTS
9.1 Prior to the full payment of Secured Indebtedness under the Service
Agreements, Pledgors shall not assign, or in any manner dispose of, the Pledged
Property without Pledgee's written consent.
9.2 Pledgee shall issue a Notice of Default to Pledgors when exercising the
Pledge Rights.
9.3 Subject to the provisions of Section 8.3, Pledgee may exercise the right to
dispose of the Pledged Property concurrently with the issuance of the Notice of
Default in accordance with Section 8.3 or at any time after the issuance of the
Notice of Default.
9.4 Pledgee shall have the right to dispose of the Pledged Property under this
Agreement in part or in whole in accordance with legal procedures (including but
not limited to negotiated transfer, auction or sale of the Pledged Property) and
receive a priority payment from the proceeds of the Pledged Property until all
of the Secured Indebtedness have been fully repaid.
9.5 When Pledgee exercises its rights under the Pledge in accordance with this
Agreement, Pledgors shall not create any impediment, and shall provide necessary
assistance to enable Pledgee to exercise the Pledge Rights.
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10. ASSIGNMENT
10.1 Without Pledgee's prior consent, Pledgors cannot give away or assign to any
party their rights and obligations under this Agreement.
10.2 This Agreement shall be valid and binding on each Pledgor and their
respective successors.
10.3 Pledgee may assign any and all of its rights and obligations under the
Service Agreements to its designated person(s) (natural/legal persons) at any
time, in which case the assignees shall have the rights and obligations of
Pledgee under this Agreement, as if it were a party to this Agreement.
10.4 In the event that the Pledgee changes due to any transfer permitted
hereunder, the new parties to the Pledge shall execute a new pledge agreement.
11. TERMINATION
This Agreement shall be terminated when the Secured Indebtedness has been
fully repaid and Fuhua is no longer obliged to undertake any obligations under
the Service Agreements. In this circumstance, Pledgee shall cancel or terminate
this Agreement as soon as reasonably practicable.
12. HANDLING FEES AND OTHER EXPENSES
12.1 All fees and out of pocket expenses relating to this Agreement, including
but not limited to legal fees, cost of documentation, stamp duty and any other
taxes and fees, shall be borne by Pledgors. In the event that the law requires
Pledgee to pay any taxes, Pledgors shall reimburse Pledgee for such taxes paid
by Pledgee.
12.2 In the event that Pledgors fail to pay any taxes or fees in accordance with
the provisions of this Agreement, or due to any other reasons, Pledgee has to
recover such taxes and fees payable by Pledgors through any means or in any
manner, all costs and expenses (including but not limited to all the taxes,
handling fees, management fees, cost of litigation, attorney's fees and
insurance premiums) resulting therefrom shall be borne by Pledgors.
13. FORCE MAJEURE
13.1 In the event that the performance of this Agreement is delayed or impeded
by "an event of force majeure", the party affected by such event of force
majeure shall not be liable for any liability hereunder with respect to the part
of performance being delayed or impeded. "An event of force majeure" means any
event beyond the reasonable control of the effected party and cannot be avoided
even if the affected party has exercised reasonable care, which include but not
limited to government actions, acts of God, fire, explosions, geographic
changes, storms, flood, earthquakes, tides, lightning and war. Notwithstanding
the foregoing, a lack of credit, funds or financing shall not be deemed as a
circumstance beyond the reasonable control of an effected party. The party
affected by "an event of force majeure" and seeking to relieve the performance
liability under this Agreement or any provisions thereof shall notify the other
party of its intention for seeking such relief and the measures it will take to
reduce the impact of the force majeure as soon as possible.
13.2 The party affected by force majeure shall not be liable for any liability
with respect to the part of performance being delayed or impeded if the effected
party has taken reasonable efforts to perform this Agreement. As soon as the
course of such relief is eliminated, the Parties shall use their best efforts to
resume the performance of this Agreement.
14. RESOLUTION OF DISPUTES
14.1 This Agreement shall be governed by and construed according to the laws of
PRC.
14.2 In the event of any dispute with respect to the construction and
performance of the provisions of this Agreement, the parties shall first try to
resolve the dispute through friendly consultations. Upon failure of such
consultations, any party may submit the relevant disputes to the China
International Economic and Trade Arbitration
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Commission for arbitration in accordance with its then effective arbitration
rules. The arbitration shall be administered in Beijing and the language used
for the arbitration shall be Chinese. The arbitration award shall be final and
binding on all parties.
15. NOTICES
Notices sent by the parties hereto shall be in writing ("in writing" shall
include facsimiles and telexes). If sent by hand, such notice shall be deemed to
have been delivered upon actual delivery; if sent by telex or facsimile, such
notice shall be deemed to have been delivered at the time of transmission. If
the date of transmission is not a business day or if transmission is after
working hours, then the next business day shall be deemed as the date of
delivery. The address of delivery shall be the addresses of the Parties stated
on the first page of this Agreement or addresses notified in writing at any time
after this Agreement is executed.
16. AMENDMENTS, TERMINATION AND CONSTRUCTION
16.1 No amendment to this Agreement shall be effective unless such amendment has
been agreed by all of the Parties and Party A and Party D have obtained
necessary authorization and approvals with respect to such amendment (including
the approval that Party A must obtain from the audit committee or other
independent body established according to the Sarbanes-Oxley Act and the NASDAQ
Rules under the board of directors of its overseas holding company - China
Finance Online Co., Limited).
16.2 The provisions to this Agreement are severable from each other. The
invalidity of any provision hereof shall not effect the validity or
enforceability of any other provision hereof.
17. EFFECTIVENESS AND OTHERS
17.1 This Agreement shall take effect upon satisfaction of the following
conditions:
(1) This Agreement has been executed by all parties hereto; and
(2) Pledgors have recorded the Pledge hereunder in the Shareholders' List
of Fuhua.
17.2 This Agreement is written in Chinese in three counterparts. Each of the
Parties shall hold one counterpart.
IN WITNESS WHEREOF, the parties have caused this Agreement executed by their
duly authorized representatives in Beijing on the date first above written.
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[execution page only]
Pledgor A:
Signature: /s/ Jun Ning
_____________
Pledgor B:
Signature: /s/ Wu Chen
_____________
Pledgee: China Finance Online(Beijing) Co., Ltd.
Authorized representative: [/s/ COMPANY SEAL]
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