Purchase Option and Cooperation Agreement - China Finance Online Co. Ltd., Jun Ning, Wu Chen and Beijing Fuhua Innovation Technology Development Co. Ltd.
PURCHASE OPTION AND COOPERATION AGREEMENT
Among
CHINA FINANCE ONLINE CO., LTD.
JUN NING
WU CHEN
and
BEIJING FUHUA INNOVATION TECHNOLOGY DEVELOPMENT CO., LTD.
May 27, 2004
BEIJING, CHINA
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PURCHASE OPTION AND COOPERATION AGREEMENT
This Purchase Option and Cooperation Agreement ("this Agreement") is entered
into in Beijing, People's Republic of China (the "PRC") on this 27th day of May,
2004 by and among:
Party A: China Finance Online Co., Limited.
Address: Unit C, 8/F, East Wing, Sincere Insurance Building 4-6, Hennessy
Road, Hong Kong Special Administrative Region ("SAR"), China
Party B: Jun Ning
Address: Room 201, Ping'an Mansion, No. 23 Financial Street, West District,
Beijing, China
ID Number: 210202570527647
Party C: Wu Chen
Address: Room 616, Tower A, COFCO Plaza, 8 Jianguomennei Dajie, Beijing,
China
ID Number: 110108491204891
Party D: Beijing Fuhua Innovation Technology Development Co., Ltd.
Address: Room 615, Ping'an Mansion, No. 23 Financial Street, West District,
Beijing, China
Party E: China Finance Online (Beijing) Co., Ltd.
Address: Room 610B, Ping'an Mansion, No. 23 Financial Street, West District,
Beijing, China
WHEREAS,
(1) Party B and Party C are shareholders of Party D and each holds 45% and 55%
equity interests in Party D, respectively;
(2) Party A, a company with limited liability duly organized and validly
existing under the laws of the Hong Kong SAR, provides through its wholly owned
subsidiary in the PRC certain technical support, strategic consulting and other
services to Party D, and currently Party E is a major business partner of Party
D;
(3) To finance the investment by Party B and Party C in Party D, Party A has
entered into a loan agreement (hereafter the "Loan Agreement" respectively with
Party B and Party C on May 27, 2004, providing Party B and Party C with loans of
1,350,000 RMB Yuan and 1,650,000 RMB Yuan, respectively. Pursuant to the Loan
Agreement, Party B and Party C shall invest the full amount of the loans in
Party D's registered capital.
(4) To guarantee the payment obligations of Party D to Party E pursuant to
certain contractual agreements, Party B and Party C have entered into a share
pledge agreement (hereafter the "Share Pledge Agreement") with Party E on May
27, 2004, pledging Party B's and Party C's respective Share Equity in Party D to
Party E; and
(5) The Parties hereto wish to grant Party A the exclusive purchase option to
acquire, at any time upon satisfaction of the requirements under the PRC law,
the entire or a portion of Party D's share equity/assets owned by Party B and/or
Party C. Unless expressly provided otherwise, Party E may exercise all rights
granted to Party A hereunder as authorized by Party A.
NOW AND THEREFORE, in accordance with the principle of sincere cooperation,
mutual benefit and joint development and after friendly negotiations, the
Parties hereby enter into the following agreements pursuant to the provisions of
relevant laws and regulations of the PRC:
ARTICLE 1 DEFINITIONS
The terms used in this Agreement shall have the meanings set forth below:
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1.1. "This Agreement" means this Purchase Option and Cooperation Agreement and
all appendices thereto, including written instruments as originally executed and
as may from time to time be amended or supplemented by the Parties hereto
through written agreements;
1.2. "The PRC" means, for the purpose of this Agreement, the People's Republic
of China, excluding Hong Kong, Taiwan and Macao;
1.3. "Date" means the year, month and day. In this Agreement, "within" or "no
later than", when used before a year, month or day, shall always include the
relevant year, month or day.
ARTICLE 2 THE GRANT AND EXERCISE OF PURCHASE OPTION
2.1 The Parties hereto agree that Party A shall be granted an exclusive purchase
option to acquire, at any time upon satisfaction of the requirements under
applicable laws and conditions as agreed in this Agreement (including, without
limitation, as under applicable laws, when Party B and/or Party C cease to be
Party D's directors or employees, or Party B and/or Party C attempt to transfer
their share equity in Party D to any party other than the existing shareholders
of Party D; when Party C is no longer owned by IDG Technology Venture
Investment, Inc. and IDG Technology Venture Investment, LP; or when neither IDG
Technology Venture Investment, Inc. nor IDG Technology Venture Investment, LP is
a shareholder of Party A), the entire or a portion of Party D's share equity
owned by Party B and/or Party C, or the entire or portion of the assets owned by
Party D. The purchase option granted hereby shall be irrevocable during the term
of this Agreement and may be exercised by Party A or any eligible entity
designated by Party A.
2.2 Party A may exercise the aforesaid purchase option by delivering a written
notice to any of Party B, Party C and Party D (the "Exercise Notice").
2.3 Within thirty (30) days of the receipt of the Exercise Notice, Party B,
Party C or Party D (as the case may be) shall execute a share/asset transfer
contract and other documents (collectively, the "Transfer Documents") necessary
to effect the respective transfer of share equity or assets with Party A (or any
eligible party designated by Party A).
2.4 When applicable laws permit the exercise of the purchase option provided
hereunder and Party A elects to exercise such purchase option, Party B, Party C
and Party D shall unconditionally assist Party A to obtain all approvals,
permits, registrations, filings and other procedures necessary to effect the
transfer of relevant share equity or assets.
ARTICLE 3 REPRESENTATIONS AND WARRANTIES
3.1 Each party hereto represents to the other parties that: (1) it has all the
necessary rights, powers and authorizations to enter into this Agreement and
perform its duties and obligations hereunder; and (2) the execution or
performance of this Agreement shall not violate any significant contract or
agreement to which it is a party or by which it or its assets are bounded.
3.2 Party B and Party C hereto represent to Party A and Party E that: (1).they
are both legally registered shareholders of party D and have paid Party D the
full amount of their respective portions of Party D's registered capital
required under Chinese law; (2) neither Party B nor Party C has created any
mortgage, pledge, secured interests or other form of debt liabilities over the
Share Equity other than the Pledge created under the Share Pledge Agreement; and
(3) neither Party B nor Party C has sold or will sell to any third party its
Share Equity in Party D.
3.3 Party D hereto represents to Party A and Party E that: (1) it is a limited
liability company duly registered and validly existing under the PRC law; and
(2) its business operations are in compliance with applicable laws of the PRC in
all material respect.
ARTICLE 4 EXERCISE PRICE
When it is permitted by applicable laws, Party A (or any eligible party
designated by Party A) shall have the right to acquire, at any time, all of
Party D's assets or its share equity owned by Party B and Party C, at a price
equal
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to the sum of the principles of the loans from Party A to Party B and Party C
under the Loan Agreement. If Party A (or any eligible party designated by Party
A) elects to purchase a portion of Party D's share equity or assets, then the
exercise price for such purpose shall be adjusted accordingly based on the
percentage of such share equity or assets to be purchased over the total share
equity or assets. When Party A (or a qualified entity designated by party A) is
to acquire all or a portion of Party D's equity share or assets from Party B and
Party C pursuant to this Agreement, Party A has the right to substitute the
principle amounts Party B and Party C respectively owe Party A under the Loan
Agreement for the purchase prices payable to Party B and Party C, respectively.
When acquiring share equity or assets from Party B, Party C, or Party D pursuant
to this Agreement, Party A shall pay an actual exercise price based on the
exercise price under applicable Chinese laws or requirements of relevant
authorities, if the exercise price under applicable laws or requirements of
relevant authorities is higher than the exercise price under this Agreement.
ARTICLE 5 COVENANTS
The Parties further agree as follows:
5.1 Before Party A has acquired all the equity/assets of Party D by exercising
the purchase option provided hereunder, Party D shall not:
5.1.1 sell, assign, mortgage or otherwise dispose of, or create any
encumbrance on, any of its assets, operations or any legal or beneficiary
interests with respect to its revenues (unless such sale, assignment, mortgage,
disposal or encumbrance is relating to its daily operation or has been disclosed
to and agreed by Party A in writing);
5.1.2 enter into any transaction which may materially affect its assets,
liability, operation, equity or other legal rights (unless such transaction is
relating to its daily operation or has been disclosed to and agreed by Party A
in writing); and
5.1.3 distribute any dividend to its shareholders in any manner.
5.2 Before Party A has acquired all the equity/assets of Party D by exercising
the purchase option provided hereunder, Party B and/or Party C shall not
individually or collectively:
5.2.1 supplement, alter or amend the articles of association of Party D in
any manner to the extent that such supplement, alteration or amendment may have
a material effect on Party D's assets, liability, operation, equity or other
legal rights (except for pro rata increase of registered capital mandated by
applicable laws);
5.2.2 cause Party D enter into any transaction to the extent such
transaction may have a material effect on Party D's assets, liability,
operation, equity or other legal rights (unless such transaction is relating to
Party D's daily operation or has been disclosed to and agreed by Party A in
writing); and
5.2.3 cause Party D's board of directors adopt any resolution on
distributing dividends to its shareholders.
5.3 After the execution of this Agreement, Party B and Party C (the
"Principals") shall each execute and deliver a proxy to Linghai Ma and Jian
Feng, respectively, (the "Agents") to grant the Agents all voting rights as
shareholders of Party D, including without limitations the right to appoint and
elect Party D's directors, general manager and other senior officers in Party
D's shareholders meetings. The initial term of such proxies shall be twenty (20)
years, and the initial term shall be renewed automatically upon expiry of the
proxies unless Party A notifies the Principals in writing thirty (30) days prior
to the expiry date to terminate the proxies. Such proxies shall be based on the
conditions that the Agents are Chinese citizens employed by Party A or Party E
and shall be subject to Party A's consent. Once the Agents cease to be employed
by Party A or Party A delivers a written notice to the Principals requesting the
proxies to be terminated, the Principals shall revoke the relevant proxy
immediately and grant the same rights as provided in the proxies to other PRC
citizens employed and designed by Party A. The Agents have agreed to act with
due care and diligence in exercising their rights under the proxies and
indemnify and keep the Principals harmless from any loss or damages caused by
any action in connection with exercise of their rights under the proxies (unless
any loss or damage is caused by the Principals' own intentional or material
negligent actions).
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5.4 Party B and Party C shall, to the extent permitted by applicable laws, cause
Party D's operational term to be extended to equal the operational term of Party
A.
5.5 Party A shall provide or arrange other parties to provide financings to
Party D to the extent Party D needs such financing to finance its operation. In
the event that Party D is unable to repay such financing due to its losses,
Party A shall waive or cause the relevant parties to waive all recourse against
Party D with respect to such financing.
5.6 To the extent Party B and/or Party C are subject to any legal or economic
liabilities to any institution or individual other than Party A or Party E as a
result of performing their obligations under this Agreement or any other
agreements between them and Party A or Party E, Party E shall provide all
support necessary to enable Party B and/or Party C to duly perform their
obligations under this Agreement and any other agreements and to hold Party B
and/or Party C harmless against any loss or damage caused by their performance
of obligations under such agreements.
ARTICLE 6 CONFIDENTIALITY
Each Party shall keep confidential all the content of this Agreement.
Without the prior consent of all Parties, no Party shall disclose any content of
this Agreement to any other party or make any public announcements with respect
to any content of this Agreement. Notwithstanding the forgoing provisions of
this Article 6, the following disclosure shall be permitted: (i) disclosure made
pursuant to any applicable laws or any rules of any stock exchange; (ii)
disclosure of information which has become public information other than due to
any breach by the disclosing party; (iii) disclosure to any Party's
shareholders, legal counsel, accountants, financial advisors or other
professional advisors, or (iv) disclosure to any potential purchasers of a Party
or its shareholders' equity/assets, its other investors, debts or equity
financing providers, provided that the receiving party of confidential
information has agreed to keep the relevant information confidential (such
disclosure shall be subject to the consent of Party A in the event that Party A
is not the potential purchaser).
ARTICLE 7 APPLICABLE LAW AND EVENTS OF DEFAULT
The execution, effectiveness, interpretation, performance and dispute
resolution of this Agreement shall be governed by the laws of the PRC.
Any violation of any provision hereof, incomplete performance of any
obligation provided hereunder, any misrepresentation made hereunder, material
concealment or omission of any material fact or failure to perform any covenants
provided hereunder by any Party shall constitute an event of default. The
defaulting Party shall assume all the legal liabilities pursuant to the
applicable laws.
ARTICLE 8 DISPUTE RESOLUTION
8.1 Any dispute arising from the performance of this Agreement shall be first
subject to the Parties' friendly consultations. In the event any dispute cannot
be solved by friendly consultations, the relevant dispute shall be submitted for
arbitration;
8.2 The arbitration shall be administered by the Beijing branch of China
International Economic and Trade Arbitration Commission in accordance with the
then effective arbitration rules of the Commission.
8.3 The arbitration award shall be final and binding on the Parties. The costs
of the arbitration (including but not limited to arbitration fee and attorney
fee) shall be borne by the losing party, unless the arbitration award stipulates
otherwise.
ARTICLE 9 EFFECTIVENESS
This Agreement shall be effective upon the execution hereof by all Parties
hereto and shall remain effective thereafter.
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This Agreement may not be terminated without the unanimous consent of all
the Parties except Party A may, by giving a thirty (30) days prior notice to the
other Parties hereto, terminate this Agreement.
ARTICLE 10 AMENDMENT
All Parties hereto shall fulfill their respective obligations hereunder. 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 under the Sarbanes-Oxley Act, the NASDAQ Rules under the board
of directors of its overseas holding company - China Finance Online Co.,
Limited).
ARTICLE 11 COUNTERPARTS
This Agreement is executed in five (5) counterparts. Party A, Party B,
Party C, Party D and Party E shall each hold one counterpart.
ARTICLE 12 MISCELLANEOUS
12.1 Party B and Party C's obligations, covenants and liabilities to Party A
hereunder are joint and several, and Party B and Party C shall assume joint and
several liabilities with respect to such obligations, covenants and liabilities.
With respect to Party A, a default by Party B shall automatically constitute a
default by Party C, and vice versa;
12.2 The title and headings contained in this Agreement are for convenience of
reference only and shall not in any way affect the meaning or interpretation of
any provision of this Agreement;
12.3 The Parties may enter into supplementary agreements to address any issue
not covered by this Agreement. The supplementary agreements so entered shall be
an appendix hereto and shall have the same legal effect as this Agreement.
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[execution page only]
Party A: China Finance Online Co. Limited
Authorized Representative (Signature): /s/ Jun Ning
Party B: Jun Ning
(Signature): /s/ Jun Ning
Party C: Wu Chen
(Signature): /s/ Wu Chen
Party D: Beijing Fuhua Innovation Technology Development Co., Ltd. [/s/ COMPANY
SEAL]
Authorized Representative (Signature):
Party E: China Finance Online (Beijing) Co., Ltd. [/s/ COMPANY SEAL]
Authorized Representative (Signature):
Date: May 27, 2004