o | REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934 |
þ | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
o | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
o | SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
Title of each class | Name of each exchange on which registered | |
None
|
None |
* | Not for trading, but only in connection with the listing on the Nasdaq Global Market of American Depository Shares each representing 5 ordinary shares pursuant to the requirements of the Securities and Exchange Commission |
2
| we, us, our company and our refer to China Finance Online Co. Limited, or CFO Hong Kong, its principle subsidiaries, China Finance Online (Beijing) Co., Ltd., or CFO Beijing, Fortune Software (Beijing) Co., Ltd., or CFO Software, Stockstar Information Technology (Shanghai) Co., Ltd., or CFO Stockstar, Shenzhen Genius Information Technology Co., Ltd., or CFO Genius, Jujin Software (Shenzhen) Co., Ltd. or CFO Jujin, Zhengning Information Technology (Shanghai) Co., Ltd., or CFO Zhengning, Fortune (Beijing) Wisdom Technology Co., Ltd. or CFO Wisdom, Fortune (Beijing) Success Technology Co., Ltd. or CFO Success, Daily Growth Securities Limited, or Daily Growth Securities, which we acquired in November 2007 and subsequently renamed from Daily Growth Investment Company Limited to Daily Growth Securities, and, in the context of describing our operations, also include our PRC-incorporated affiliates, Fuhua Innovation Technology Development Co., Ltd., or CFO Fuhua, Shanghai Meining Computer Software Co., Ltd., or CFO Meining, CFO Fuhuas wholly owned subsidiary, Beijing CFO Glory Co., Ltd., or CFO Glory, and Beijing CFO Premium Technology Co., Ltd., or CFO Premium. | ||
| shares and ordinary shares refer to our ordinary shares, preferred shares refers to our preferred shares, all of which were converted into our ordinary shares upon the completion of our initial public offering on October 20, 2004, ADSs refers to our American depositary shares, each of which represents five ordinary shares, and ADRs refers to the American depositary receipts which evidence our ADSs; | ||
| China or PRC refers to the Peoples Republic of China, excluding Taiwan, Hong Kong and Macau; | ||
| Hong Kong refers to the Hong Kong Special Administrative Region of the Peoples Republic of China; and | ||
| all references to Renminbi, RMB or yuan are to the legal currency of China, all references to U.S. dollars, dollars, $ or US$ are to the legal currency of the United States and all references to Hong Kong dollars or HK$ are to the legal currency of Hong Kong. Any discrepancies in any table between totals and sums of the amounts listed are due to rounding. |
| our goals and strategies, including how we effect our goals and strategies; |
3
| our future business developments, business prospects, financial condition and results of operations; | ||
| our future pricing strategies or policies; | ||
| our plans to expand our service offerings; | ||
| our plans to use acquisitions and strategic investments as part of our corporate strategy; | ||
| competition in the PRC financial data and information services industry; | ||
| performance of Chinas securities markets; | ||
| performance of Hong Kongs securities markets; | ||
| growth in our subscriber base; | ||
| PRC governmental policies relating to taxes and how they will impact our business; | ||
| PRC governmental policies relating to the Internet and Internet content providers; | ||
| PRC governmental policies relating to the distribution of content, especially the distribution of financial content over the Internet; and | ||
| PRC governmental policies relating to mobile value-added services. |
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
77
78
79
80
81
82
83
84
85
86
87
88
89
90
91
92
93
94
95
96
97
98
99
100
101
102
103
104
105
106
107
108
109
110
F-1
F-2
F-3
F-4
F-5
F-6
F-7
F-8
F-9
F-10
F-11
F-12
F-13
F-14
F-15
F-16
F-17
F-18
F-19
F-20
F-21
F-22
F-23
F-24
F-25
F-26
F-27
F-28
F-29
F-30
F-31
F-32
F-33
F-34
F-35
F-36
F-37
F-38
F-39
F-40
F-41
F-42
F-43
F-44
For the year ended December 31,
(in thousands of U.S. dollars, except per share or per ADS data)(1)
2003
2004
2005
2006 (4)
2007
2,271
6,016
7,482
7,128
25,903
(298
)
(393
)
(482
)
(1,468
)
(4,427
)
1,973
5,623
7,000
5,660
21,476
(400
)
(730
)
(1,740
)
(2,956
)
(7,784
)
(149
)
(172
)
(236
)
(742
)
(2,269
)
(284
)
(800
)
(1,795
)
(2,666
)
(6,924
)
(833
)
(1,702
)
(3,771
)
(6,364
)
(16,977
)
136
1,140
3,921
3,229
(704
)
4,635
51
294
1,486
1,003
1,105
(1
)
(2
)
115
9
366
267
424
(1,322
)
(11,127
)
1,190
4,213
5,081
(641
)
(4,954
)
384
(457
)
41
809
15
$
1,190
$
4,597
$
4,624
$
(600
)
$
(4,130
)
(352
)
$
838
$
4,597
$
4,624
$
(600
)
$
(4,130
)
$
0.04
$
0.12
$
0.05
$
(0.01
)
$
(0.04
)
$
0.01
$
0.05
$
0.04
$
(0.01
)
$
(0.04
)
$
0.21
$
0.59
$
0.25
$
(0.03
)
$
(0.22
)
$
0.06
$
0.26
$
0.22
$
(0.03
)
$
(0.22
)
$
0.01
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For the year ended December 31,
(in thousands of U.S. dollars)(1)
2003
2004
2005
2006
2007
$
5,806
$
70,596
$
46,168
$
44,956
$
74,729
4,306
67,590
45,227
38,011
53,811
6,606
71,861
63,113
71,119
103,885
1,278
3,487
1,859
6,419
20,457
1,875
3,773
2,282
8,521
31,009
4,665
$
4,731
$
68,088
$
60,831
$
62,453
$
67,362
(1)
For the results of operations for a specified period, all translations from Renminbi to U.S.
dollars were calculated by using the average of the exchange rates on each day during the
period. All translations from Renminbi to U.S. dollars were calculated for the periods listed
below at the corresponding rates
For the years ended December 31,
RMB per US$1.00
8.2770
8.2780
8.1472
7.9693
7.6072
As at December 31,
RMB per US$1.00
8.2769
8.2765
8.0702
7.8087
7.2946
(2)
Each ADS represents five ordinary shares.
(3)
Current working capital is the difference between total current assets and total current
liabilities.
(4)
In 2006, the Company changed its method of accounting for stock-based compensation to conform
to Statement of Financial Accounting Standard No. 123 (revised 2004), Share-Based Payment,
effective on January 1, 2006. In 2007, the Company adopted the recognition and measurement
methods under Financial Accounting Standards Board Interpretation No. 48 Accounting for
Uncertainty in Income Taxes-An Interpretation of FASB Statement No. 109.
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Average(1)
High
Low
Period-end
(RMB per U.S.$1.00)
8.2770
8.2800
8.2765
8.2769
8.2768
8.2774
8.2764
8.2765
8.1472
8.2765
8.0702
8.0702
7.9693
8.0705
7.8051
7.8087
7.5806
7.8127
7.2946
7.2946
7.0731
7.2946
6.9815
6.9943
(1)
Averages are calculated from month-end rates.
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the acquisition may not further our business strategy, or we may pay more than it is
worth;
we may not realize the anticipated increase in our revenues if we are unable to sell
the acquired companys products to our customer base, or the acquired contract models of
acquired contract models companies;
we may have difficulty identifying suitable acquisition opportunities and integrating
acquired companies with our existing operations or their products and services with our
existing products and services;
we may have higher than anticipated costs in continuing support and development of
acquired products;
we may have multiple and overlapping product lines that are offered, priced and
supported differently, which could cause customer confusion and delays;
our due diligence process may fail to identify problems, such as issues with unlicensed
use of intellectual property;
we may have legal and tax exposures or lose anticipated tax benefits as a result of
unforeseen difficulties in our legal entity integration activities;
we may face contingencies related to intellectual property, financial disclosures and
accounting practices or internal controls;
our ongoing business may be disrupted and our managements attention may be diverted by
transition or integration issues; and
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to the extent that we issue a significant amount of equity securities in connection
with future acquisitions, existing ADS holders and shareholders may be diluted and
earnings per share may decrease.
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Exempting the company from state income tax for 2003 and 2004; and
Providing the company a preferential state income tax rate of 12% from 2005 to 2007, the
rate currently applicable to wholly foreign-owned enterprises based in Beijing and not
subject to other tax holidays.
Exempting the company from enterprise income tax from 2005 to 2007; and
Providing the company a preferential enterprise income tax rate of 7.5% from 2008 to
2010, and 15% for taxable years thereafter, the rate currently applicable to companies
classified as high-technology companies based in Beijing and not subject to other tax
holidays, provided that the company continues to be qualified as a high and new technology
enterprise under the newly enacted PRC Enterprise Income Tax Law taking effect as of
January 1, 2008.
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Any break-downs or system failures resulting in a sustained shutdown of all or a
material portion of our servers, including failures which may be attributable to sustained
power
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shutdowns, or efforts to gain unauthorized access to our systems causing loss or corruption
of data or malfunctions of software or hardware; and
Any disruption or failure in the national backbone network, which would prevent our
users from logging on to our website or accessing our services.
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Revoking business and operating licenses of CFO Beijing, CFO Software, CFO Stockstar,
CFO Genius, CFO Jujin, CFO Zhengning, CFO Wisdom, CFO Success, CFO Fuhua or CFO Meining;
Discontinuing or restricting our operations or those of CFO Beijing, CFO Software, CFO
Stockstar, CFO Genius, CFO Jujin, CFO Zhengning, CFO Wisdom, CFO Success, CFO Fuhua or
CFO Meining;
Imposing conditions or requirements with which we, CFO Beijing, CFO Software, CFO
Stockstar, CFO Genius, CFO Jujin, CFO Zhengning, CFO Wisdom, CFO Success, CFO Fuhua or
CFO Meining;
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Requiring us, CFO Beijing, CFO Software, CFO Stockstar, CFO Genius, CFO Jujin, CFO
Zhengning, CFO Wisdom, CFO Success, CFO Fuhua or CFO Meining to restructure the relevant
ownership structure or operations;
Restricting or prohibiting our use of the proceeds of our initial public offering in
2004 to finance our business and operations in China; or
Taking other regulatory or enforcement actions, including levying fines that could be
harmful to our business.
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Our articles of association provide for a staggered board, which means that our
directors, excluding our chief executive officer, are divided into two classes, with half
of our board, excluding our chief executive officer, standing for election every two
years. Our chief executive officer will at all times serve as a director, and will not
retire as a director, so long as he remains our chief executive officer. This means that,
with our staggered board, at least two annual shareholders meetings, instead of one, are
generally required in order to effect a change in a majority of our directors. Our
staggered board can discourage proxy contests for the election of our directors and
purchases of substantial blocks of our shares by making it more difficult for a potential
acquirer to take control of our board in a relatively short period of time.
Hong Kong law permits shareholders of a company to remove directors by a shareholders
resolution. Our articles of association require any shareholder who wishes to remove a
director in this way to give us at least 120 days notice of the resolution, making it
more difficult and time consuming for a potential acquirer who has
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accumulated a substantial voting position to obtain control of our board by removing
opposing directors.
Our articles of association provide that our board can have no less than five and no
more than nine directors. Our board currently has five directors. Any increase in the
maximum number of directors on our board beyond nine directors can only be accomplished by
amending our articles of association, which under Hong Kong law requires a shareholders
supermajority vote of 75% and at least 21 days notice. These restrictions can make it
more difficult for a potential acquirer who has accumulated a majority of our shares to
take control of us by promptly increasing the size of our board and appointing new
directors that are its nominees.
Hong Kong does not have merger laws that permit Hong Kong companies to merge in the
same way as U.S. companies could in the U.S. However, the Hong Kong Companies Ordinance
has provisions that facilitate arrangements for the reconstruction and amalgamation of
companies. The arrangement must be approved by a majority in number of each class of
shareholders and creditors with whom the arrangement is to be made, representing
three-fourths in value of each such class of shareholders or creditors that are present
and voting either in person or by proxy at meetings convened by the High Court of Hong
Kong. The arrangements must be sanctioned by the High Court of Hong Kong after
shareholders or creditors approve it at the court-convened meeting.
Our shareholders have authorized our board of directors, without any further action by
shareholders, to issue additional shares. Under Hong Kong law, the authority granted by
our shareholders will remain valid until the conclusion of our next annual general
meeting, or the time when our next annual general meeting is required to be held. For as
long as this approval remains effective, or is renewed, our board of directors will have
the power to issue additional ordinary shares (including ordinary shares represented by
ADSs) and preference shares without any further action by shareholders.
to recognize or enforce against us judgments of courts of the United States based on
the civil liability provisions of U.S. securities laws; or
to allow original actions brought in Hong Kong, based on the civil liability provisions
of U.S. securities laws that are penal in nature.
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financial analysis tools that permit users to calculate and analyze quantitatively
financial data;
current and historical financial data and information for Chinas listed company
stocks, bonds and mutual funds;
categorized news and research reports; and
online forums and bulletin boards.
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increase our sales force scale and improve efficiency by recruiting more telemarketing
sales personnel and training them with better sales skills;
increase our subscriber base by expanding distribution channels such as banks, mutual
funds and brokerage firms;
build our customer database by better understanding and in depth mining registered
users;
upgrade our existing service offerings and expand our present service offerings to
include data and information relating to other financial instruments such as mutual funds,
currencies, futures and commodities; and
continue to encourage our subscribers to migrate to newer, more comprehensive and
higher priced service offerings.
acquire strategic resources and capabilities in order to strength entry barriers,
expand business scale, diverse revenue resources and monetize registered user base; and
get access to complementary resources and capabilities through strategic partnership
that enables to penetrate into a bigger market in order to solidify our leading position
and enhance our brand awareness.
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Fundamental analysis tools, which are designed to enable investors to analyze data
based on company fundamentals; and
Technical analysis tools, which are designed to enable investors to analyze data based
on trends formulated by historical trading data.
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to attract visitors and market our subscription based service offerings;
to store content and serve as an integral part of our information platform;
to serve as download platforms for our service offerings; and
to display online advertisements.
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Categorized macro information
. This feature allows subscribers to search and sort
up-to-date and comprehensive news and information relating to the broader financial
markets or a specific financial topic or industry sector. We have a dedicated team of
professional editors who collect, organize, categorize and index macro-economic and
financial market information on a daily basis, according to user feedback and
classification methods that we believe are accepted practice in securities markets in
China.
Industry sector analysis
. Many investors in China seek to distinguish between listed
companies with investment potential and those prone to financial trouble by analyzing
listed companies financial data published in their financial statements and comparing
such data among companies within the same industry sector. We collect and process listed
company financial data and information according to classification methods set by relevant
PRC regulatory authorities, and allow subscribers to view the relative standings of listed
companies in the same industry sector or geographical locations based on market accepted
performance parameters such as price-to-earnings ratios and profit margins.
Fundamental analysis
. Historical and real-time financial information are important to
investors because they provide insight into company fundamentals. This research tool
integrates the historical and real-time trading information we maintain in our database,
as well as fundamental financial information such as earnings-per-share, shareholdings and
other related data and information. Our subscribers can receive fundamental financial and
trading information organized by their specifications and display these results on a
graphical interface that we designed to be easy to visualize and navigate.
Mutual fund analysis
. Our mutual fund research tool focuses on categorizing information
relating to the portfolio holdings of mutual funds. This feature allows subscribers to
study the collective effect of large market players on individual stocks. This feature
also offers information relating to the performance of individual mutual funds, allowing
subscribers to assess the risks and rewards of investing in mutual funds.
Technical analysis
. This feature allows investors interested in trends formulated by
historical trading data to perform technical analysis on listed companies. With over 60
markets accepted technical indicators and a complete database of historical data and
information on all of Chinas listed company stocks, our subscribers can perform extensive
chart analysis and pattern recognition on any stock listed on Chinas stock exchanges.
Securities Market Data
. Our Securities Market Data service packages are developed on
the basis of Level II quotes and TopView data licensed from Shanghai Stock Exchange. On June 15,
2006, we entered into an agreement with Shanghai Stock Exchange Information Network Co., Ltd.,
(SSEINC) which is associated with the Shanghai Stock Exchange, or SSE. Under the definitive
agreement, we are certified by SSE to develop service packages based on Level II quotes, and
upgrade the features and functions of our current products. The definitive agreement is
contemplated to continue through April 30, 2009.
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Technical Analysis
. Technical Analysis involves researching historical price and
volume data, patterns and trends to predict the performance of a given stock. This type of analysis
focuses on chart formations and formulas to identify major and minor trends to recognize buying
opportunities and exit points.
Fundamental Analysis
. Fundamental Analysis involves examining the companys
financials and operations, especially sales, earnings, growth potential, assets, debt, management,
products, and competition. Fundamental Analysis takes into consideration only those variables that
are directly related to the company itself, rather than the overall state of the market or
technical analysis data.
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to increase the breadth of our service offerings through the addition of new features
and functions to our service packages;
to enhance our subscribers experience by improving the quality of our research tools
and website;
to develop additional research tools, features and content specifically targeting the
high-end subscribers; and
to design and build new financial instrument service products that fit our strategies.
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publishers and distributors of traditional media, including print, radio and
television, such as China Securities News, Shanghai Securities News, International
Financial Times, 21st Century Economic Reports, as well as radio and television programs
and news focused on financial news and information;
internet portals providing information on business, finance and investing, such as
sina.com.cn and sohu.com;
financial information web pages offered by websites such as hexun.com;
personal stock research software vendors, such as Shanghai Qian Long High Tech
Corporation, that develop and market stock research software through stock brokerage
companies; and
stock brokerage companies, especially stock brokerage companies with online trading
capabilities, such as Haitong Securities.
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Ministry of Industry and Information;
the China Securities Regulatory Commission;
the Ministry of Culture;
the General Administration of Press and Publication (National Copyright
Administration);
the State Administration of Industry and Commerce;
the Ministry of Public Security; and
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the Ministry of Commerce.
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Percentage of
Jurisdiction
Beneficial
of
Ownership
Name
Incorporation
Interest
PRC
100
PRC
100
PRC
100
PRC
100
PRC
100
PRC
100
PRC
100
PRC
100
PRC
100
PRC
100
PRC
100
PRC
100
Hong Kong
98.5
*
Denotes variable interest entity
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(1)
Zhiwei Zhao is our chief executive officer and director.
(2)
Jun Wang is our chief financial officer.
(3)
Zhenfei Fan is our financial manager.
(4)
Wei Xiong is our director of Human Resource and Administrative Department.
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an equipment leasing agreement, pursuant to which CFO Fuhua leases a substantial
majority of its operating assets from CFO Beijing;
a technical support agreement, pursuant to which CFO Beijing provides technical support
for CFO Fuhuas operations;
an amended and restated strategic consulting agreement, pursuant to which CFO Beijing
provides strategic consulting services to CFO Fuhua, including consulting services in
relation to CFO Fuhuas online advertising business;
the shareholders of CFO Fuhua have granted us or individuals designated by us an
irrevocable proxy to exercise all their voting rights as shareholders of CFO Fuhua,
including the right to appoint directors, the general manager and other senior management
of CFO Fuhua;
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CFO Fuhua will not enter into any transaction that may materially affect its assets,
liabilities, equity or operations without our prior written consent;
CFO Fuhua will not distribute any dividends;
we may purchase the entire equity interest in, or all the assets of, CFO Fuhua when and
if such purchase is permitted by PRC law or the current shareholders of CFO Fuhua cease to
be directors or employees of CFO Fuhua;
the shareholders of CFO Fuhua have pledged their equity interest in CFO Fuhua to CFO
Beijing to secure the payment obligations of CFO Fuhua under the equipment leasing
agreement, the technical support agreement and the amended and restated strategic
consulting agreement between CFO Beijing and CFO Fuhua; and
the shareholders of CFO Fuhua will not transfer, sell, pledge, dispose of or create any
encumbrance on their equity interest in CFO Fuhua without the prior written consent of CFO
Beijing.
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the shareholders of CFO Premium have granted us or individuals designated by us an
irrevocable proxy to exercise all their voting rights as shareholders of CFO Premium,
including the right to appoint directors, the general manager and other senior management
of CFO Premium;
CFO Premium will not enter into any transaction that may materially affect its assets,
liabilities, equity or operations without our prior written consent;
CFO Premium will not distribute any dividends;
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we may purchase the entire equity interest in, or all the assets of, CFO Premium when
and if such purchase is permitted by PRC law or the current shareholders of CFO Premium
cease to be employees of CFO Premium;
the shareholders of CFO Premium will not transfer, sell, pledge, dispose of or create
any encumbrance on their equity interest in CFO Premium without our prior written consent.
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performance of Chinas securities markets, and user demand for market intelligence on
Chinas securities markets, as well as the overall performance of Chinas economy;
contribution of alternative revenue resources such as revenues from online advertising;
seasonality associated with the level of activity of our users and subscribers and the
trading activities of Chinas securities markets;
tax refund from the PRC tax authorities for value-added-taxes we are required to pay on
the sale of subscriptions to our service packages;
other tax incentives we receive from PRC tax authorities resulting from CFO Beijing
being a foreign invested software development company and CFO Software being a foreign
invested high-technology company;
our cost structure, including, in particular, our cost for raw data;
the desirability of our service packages relative to other products and offerings
available in the market;
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our ability to benefit from the acquisition of CFO Stockstar, CFO Genius, and Daily
Growth Securities; and
PRC telecommunication and regulatory policies.
the number of registered user accounts on our websites;
the number of active paying individual subscribers; and
the service packages selected by our subscribers.
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Years ended December 31,
2005
2006
2007
$
5,811,395
$
5,075,830
$
22,712,043
996,311
1,337,630
1,560,194
298,232
1,339,321
80,896
674,460
416,386
210,620
$
7,482,166
$
7,128,078
$
25,903,074
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if we enter into additional commercial agreements for purchasing data from new sources
or if we obtain different or additional data from existing sources or
due to rate increases we may experience in the future upon renewal of our existing
agreements.
salary and compensation for our employees, particularly our sales and marketing
personnel and our management team;
stock- based compensation expenses for the grant of the performance-based restricted
stock and for new grants issued in 2007;
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professional services and other related costs associated with being publicly listed in
the U.S; and
expansion in operating scale associated with the acquisition of CFO Stockstar, CFO
Genius and Daily Growth Securities.
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For the year ended December 31,
(in thousands of U.S. dollars, except as % of net revenues)(1)
2005
2006
2007
$
7,627
101.9
%
$
7,337
102.9
%
$
26,570
102.6
%
(145
)
(1.9
)
(209
)
(2.9
)
(667
)
(2.6
)
7,482
100
%
7,128
100
%
25,903
100
%
(482
)
(6.4
)
(1,468
)
(20.6
)
(4,427
)
(17.1
)
7,000
93.6
5,660
79.4
21,476
82.9
(1,740
)
(23.3
)
(2,956
)
(41.5
)
(7,784
)
(30.1
)
(236
)
(3.2
)
(742
)
(10.4
)
(2,269
)
(8.8
)
(1,795
)
(24.0
)
(2,666
)
(37.4
)
(6,924
)
(26.7
)
(3,771
)
(50.5
)
(6,364
)
(89.3
)
(16,977
)
(65.5
)
136
0.5
3,229
43.2
(704
)
(9.9
)
4,635
17.9
1,486
19.9
1,003
14.1
1,105
4.3
366
4.9
267
3.7
424
1.6
115
1.6
9
0.03
(1,322
)
(18.5
)
(11,127
)
(43.0
)
5,081
67.9
(641
)
(9.0
)
(4,954
)
(19.1
)
15
0.06
(457
)
(6.1
41
(0.58
)
809
3.1
$
4,624
61.8
%
$
(600
)
(8.4
%)
$
(4,130
)
(15.9
%)
(1)
For the results of operations for a specified period, all translations from Renminbi to U.S. dollars were calculated at the average exchange rate for that period. For the years
ended
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December 31, 2005, 2006 and 2007, all translations from Renminbi to U.S. dollars were calculated at RMB8.1472, RMB7.9693 and RMB7.6072 per US$1.00, respectively.
(2)
For subscriptions provided to individual investors, we receive subscription fees at the beginning of the subscribers subscription periods. Revenues from the
subscription fees are deferred and recognized ratably over the subscription period, typically twelve months.
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For the year ended December 31
(in thousands of U.S. dollars)
2005
2006
2007
$
3,059
$
5,892
$
28,426
(15,235
)
(8,202
)
(4,830
)
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For the year ended December 31
(in thousands of U.S. dollars)
2005
2006
2007
(12,923
)
(76
)
3,226
(24,428
)
(1,213
)
29,773
70,596
46,168
44,956
$
46,168
$
44,956
$
74,729
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increase the breadth of our service offerings through the addition of new features and
functions to our service packages;
enhance our subscribers experience by improving the quality of our research tools and
website; and
develop additional research tools, features and content specifically targeting the
high-end subscribers.
Office Premises
Data Purchase
Total
(in U.S. dollars)
1,521,127
486,673
2,007,800
2,845,844
21,934
2,867,778
22,128
22,128
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Name
Age
Position
45
Chief Executive Officer and a member of the Board of Directors
52
Chairman of the Board of Directors
60
Director
45
Director
52
Director
37
Chief Financial Officer
42
Chief Operating Officer
(1)
Member, audit committee
(2)
Member, compensation committee
(3)
Member, nominations committee
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Number of
ordinary Shares to
be issued upon
Exercise price per
exercise of options
ordinary share
Date of grant
Date of expiration
400,000
$
1.120
November 15, 2005
November 15, 2015
400,000
$
1.070
July 5, 2006
July 5, 2016
800,000
$
0.960
January 18, 2007
January 17, 2017
*
$
0.160
January 5, 2004
March 5, 2009
*
$
1.040
June 15, 2004
March 5, 2009
*
$
1.314
February 18, 2005
February 18, 2015
*
$
0.960
January 18, 2007
January 17, 2017
*
$
0.160
February 18, 2004
March 5, 2009
*
$
1.040
June 15, 2004
March 5, 2009
*
$
1.314
February 18, 2005
February 18, 2015
*
$
0.960
January 18, 2007
January 17, 2017
*
$
0.160
January 5, 2004
March 5, 2009
*
$
1.040
June 15, 2004
March 5, 2009
*
$
1.314
February 18, 2005
February 18, 2015
*
$
0.960
January 18, 2007
January 17, 2017
*
$
0.160
January 5, 2004
March 5, 2009
*
$
1.040
June 15, 2004
March 5, 2009
*
$
1.314
February 18, 2005
February 18, 2015
*
$
0.960
January 18, 2007
January 17, 2017
*
$
1.070
July 5, 2006
July 5, 2016
*
$
0.960
January 18, 2007
January 17, 2017
*
$
1.158
November 30, 2005
November 30, 2015
*
$
0.96
January 18, 2007
January 17, 2017
*
Upon exercise of all options granted, would beneficially own less than
1% of our outstanding ordinary shares.
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Name
Number
Percent
8,958,493
8.16
%
*
*
*
*
10,558,493
9.62
%
recommending to our shareholders, if appropriate, the annual re-appointment of our
independent registered public accounting firm and pre-approving all auditing and
non-auditing service fees permitted to be performed by the independent registered public
accounting firm;
annually reviewing an independent registered public accounting firms report describing
the independent registered public accounting firms internal quality-control procedures,
any material issues raised by the most recent internal quality control review, or peer
review, of the independent registered public accounting firm and all relationships between
the independent registered public accounting firm and our company;
setting clear hiring policies for employees or former employees of the independent
registered public accounting firm;
reviewing with the independent registered public accounting firm 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 U.S. securities laws;
discussing the annual audited financial statements with management and the independent
registered public accounting firm;
discussing with management and the independent registered public accounting firm major
issues regarding accounting principles and financial statement presentations; reviewing
reports prepared by management or the independent auditors relating to significant
financial reporting issues and judgments;
reviewing reports prepared by management or the independent registered public
accounting firm relating to significant financial reporting issues and judgments;
discussing earnings press releases, as well as financial information and earnings
guidance provided to analysts and rating agencies;
reviewing with management and the independent registered public accounting firm the
effect of regulatory and accounting initiatives, as well as off-balance sheet structures
on our financial statements;
discussing policies with respect to risk assessment and risk management;
reviewing major issues as to the adequacy of our internal controls and any special
audit steps adopted in light of material control deficiencies;
timely reviewing annual reports from the independent registered public accounting firm
regarding all critical accounting policies and practices to be adopted by our company, all
alternative treatments of financial information within U.S. GAAP that have been discussed
with management and all other material written communications between the independent
registered public accounting firm and management;
establishing procedures for the receipt, retention and treatment of complaints received
from our employees regarding accounting, internal accounting controls or auditing matters
and the confidential, anonymous submission by our employees of concerns regarding
questionable accounting or auditing matters;
annually reviewing and reassessing the adequacy of our audit committee charter;
such other matters that are specifically delegated to our audit committee by our board
of directors from time to time;
meeting separately, periodically, with management and the independent registered public
accounting firm; and
reporting regularly to the full board of directors.
determining and recommending the compensation of our senior management;
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reviewing and making recommendations to our board of directors regarding our
compensation policies and forms of compensation provided to our directors and officers;
reviewing and determining bonuses for our officers and other employees;
reviewing and determining stock-based compensation for our directors, officers,
employees and consultants;
administering our equity incentive plans in accordance with the terms thereof; and
such other matters that are specifically delegated to the compensation committee by our
board of directors from time to time.
convening shareholders meetings and reporting its work to shareholders at such
meetings;
implementing shareholders resolutions;
determining our business plans and investment proposals;
formulating our profit distribution plans and loss recovery plans;
determining our debt and finance policies and recommending proposals for the increase
or decrease in our share capital and the issuance of debentures;
formulating our major acquisition and disposition plans, and plans for consolidation,
division or dissolution;
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proposing amendments to our articles of association; and
exercising any other powers conferred at shareholders meetings or under our memorandum
and articles of association.
each person known to us to own beneficially more than 5% of our ordinary shares; and
each of our directors and executive officers who beneficially own any of our ordinary shares.
Name
Number
Percent
20,580,652
18.75
%
6,723,115
6.13
%
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Name
Number
Percent
11,595,569
10.57
%
7,156,121
6.52
%
8,746,370
7.97
%
10,558,493
9.62
%
*
*
*
*
*
*
*
*
*
*
*
*
*
*
2,815,200
2.56
%
*
Upon exercise of all options currently exercisable
or vesting within 60 days of the date of this
annual report, would beneficially own less than 1%
of our ordinary shares.
(1)
Includes 20,580,652 ordinary shares held by IDG
Technology Venture Investment, Inc. IDG Technology
Venture Investment, Inc. is the limited partner of
IDG Technology Venture Investments, LP and does not
control IDG Technology Venture Investments, LP. IDG
Technology Venture Investment, Inc., a
Massachusetts corporation, is wholly owned by
International Data Group Inc., a Massachusetts
corporation, which is controlled by Patrick
McGovern, the majority shareholder, founder and
chairman of International Data Group Inc. IDG
Technology Venture Investment, Inc. disclaims
beneficial ownership of all of the ordinary shares
owned by IDG Technology Venture Investments, LP.
The registered address of IDG Technology Venture
Investment, Inc. is 5 Speen Street, Framingham, MA
01701, U.S.A.
(2)
Includes 6,723,115 ordinary shares held by IDG
Technology Venture Investments, LP. The general
partner of IDG Technology Venture Investments, LP
is IDG Technology Venture Investments, LLC. Messrs.
Patrick McGovern and Quan Zhou are managing members
of IDG Technology Venture Investments, LLC, both of
whom disclaim beneficial ownership of our shares
held by IDG Technology Venture Investments, LLC.
IDG Technology Venture Investment, Inc. is a
limited partner of IDG Technology Venture
Investments, LP, and does not control IDG
Technology Venture Investments, LP. IDG Technology
Venture Investments, LP disclaims beneficial
ownership of all of the ordinary shares owned by
IDG Technology Venture Investment, Inc. The
registered address of IDG Technology Venture
Investments, LP is Corporation Service Company,
1013 Centre Road, Wilmington, County of New Castle,
Delaware 19805-1297, U.S.A.
(3)
Includes 11,595,569 ordinary shares held by Vertex
Technology Fund (III) Ltd as of 31 March 2008 in
the form of 2,319,113 ADS and 4 ordinary shares.
Vertex Management (II) Pte Ltd is the fund manager
of Vertex Technology Fund (III) Ltd, and may be
deemed to have power to vote and dispose of the
shares held of record by Vertex Technology Fund
(III) Ltd. Vertex Venture Holdings Ltd, as the sole
shareholder of Vertex Technology Fund (III) Ltd,
and as the sole shareholder of Vickers Capital
Limited, which is the sole shareholder of Vertex
Management (II) Pte Ltd, may also be deemed to have
the power to vote and dispose of these shares. The
address of Vertex Technology Fund (III) Ltd is 51
Cuppage Road, #10-03 Starhub Centre, Singapore
229469.
(4)
Includes (i) 4,028,156 ordinary shares held by Cast
Technology, Inc.; and (ii) 3,127,965 ordinary
shares held by Fanasia Capital Limited. Both Cast
Technology, Inc. and Fanasia Capital Limited are
held 45% and 55% by Jianping Lu and Ling Zhang,
respectively.
(5)
Includes (i)4,923,302 ordinary shares held by Cast
Technology, Inc.; and (ii) 3,823,068 ordinary
shares held by Fanasia
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Capital Limited. Both Cast
Technology, Inc. and Fanasia Capital Limited are
held 45% and 55% by Jianping Lu and Ling Zhang,
respectively.
(6)
Includes 10,558,493 ordinary shares held by C&F
International Holdings Limited, a company
incorporated in British Virgin Islands. C&F
International Holdings Limited holds the ordinary
shares on behalf of and exclusively for the benefit
of the group of employees eligible for the 2007
Equity Incentive Plan. C&F International Holdings
Limited is 100% owned by C&F Global Limited, a
British Virgin Islands Company, which is in turn
owned by the selected employees.
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the fifth anniversary of the consummation of our initial public offering;
upon such holder holding less than 1% of our outstanding ordinary shares after our
initial public offering; and
upon such holder becoming eligible to sell all of such holders registrable securities
pursuant to Rule 144 under the Securities Act within any three-month period without volume
limitations, under Rule 144(k), or under any comparable securities law of a jurisdiction
other than the United States for sale of registrable securities in such jurisdiction.
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Sales Price
High
Low
15.99
8.30
11.14
5.22
9.68
3.95
47.68
4.53
9.68
5.66
7.37
4.74
6.60
4.95
5.60
3.95
7.27
4.53
10.18
6.04
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Sales Price
High
Low
44.48
8.17
47.68
16.55
22.43
10.02
39.99
16.55
27.74
19.3
22.43
10.02
21.85
14.6
21.35
12.8
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dealers in securities or currencies;
traders in securities that elect to use a mark-to-market method of accounting for
securities holdings;
banks or other financial institutions;
insurance companies;
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tax-exempt organizations;
partnerships and other entities treated as partnerships for U.S. federal income tax
purposes or persons holding ADSs through any such entities;
persons that hold ADSs as part of a hedge, straddle, constructive sale, conversion
transaction or other integrated investment;
U.S. Holders (as defined below) whose functional currency for tax purposes is not the
U.S. dollar;
persons liable for alternative minimum tax; or
persons who actually or constructively own 10% or more of the total combined voting
power of all classes of our shares (including ADSs) entitled to vote.
a citizen or resident of the United States for U.S. federal income tax purposes;
a corporation, or other entity taxable as a corporation, that was created or
organized in or under the laws of the United States or any political
subdivision thereof;
an estate the income of which is subject to U.S. federal income tax regardless
of its source; or
a trust if (a) a court within the United States is able to exercise primary
supervision over its administration and one or more U.S. persons have the
authority to control all substantial decisions of the trust, or (b) the trust
has a valid election in effect to be treated as a U.S. person.
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that gain is effectively connected with the conduct of a U.S. trade or
business and, if an applicable income tax treaty so requires as a
condition for you to be subject to U.S. federal income tax with
respect to income from your ADSs, such gain is attributable to a
permanent establishment that you maintain in the United States; or
you are a nonresident alien individual and are present in the United
States for at least 183 days in the taxable year of the sale or other
disposition and either (1) your gain is attributable to an office or
other fixed place of business that you maintain in the United States
or (2) you have a tax home in the United States.
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2007(USD)
8,109,972
3,999,090
80,896
(103,180
)
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Beijing, the Peoples Republic of
China
May 30, 2008
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For the Year Ended December 31,
2007
2006
2005
US$
635,000
US$
257,000
US$
192,500
22,278
(1)
Audit Fees means the aggregate fees in each of the fiscal years listed for
professional services rendered by Deloitte Touche Tohmatsu CPA Ltd. for the audit of our annual
financial statements, review of interim financial statements and attestation services that are
provided in connection with statutory and regulatory filings or engagements.
(2)
Tax Fees means the aggregate fees billed in each of the fiscal years listed for
professional tax services rendered by Deloitte Touche Tohmatsu CPA Ltd.
Exhibit
Number
Description
Amended and Restated Memorandum and Articles of
Association of China Finance Online Co. Limited
(incorporated by reference to Exhibit 3.1 from our
Registration Statement on Form F-1 (File No.
333-119166) filed with the
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Exhibit
Number
Description
Securities and Exchange
Commission on October 4, 2004)
Specimen ordinary share certificate (incorporated
by reference to Exhibit 4.1 from our Registration
Statement on Form F-1 (File No. 333-119166) filed
with the Securities and Exchange Commission on
September 21, 2004)
Specimen American depositary receipt of China
Finance Online Co. Limited (Incorporated by
reference to the Registration Statement on Form F-6
(File No. 333-119530) filed with the Securities and
Exchange Commission with respect to American
depositary shares representing ordinary shares on
October 5, 2004
Shareholders Agreement of China Finance Online Co.
Limited dated June 2000 among China Finance Online
Co., Ltd. and certain of its shareholders
(incorporated by reference to Exhibit 4.2 from our
Registration Statement on Form F-1 (File No.
333-119166) filed with the Securities and Exchange
Commission on September 21, 2004)
2004 Incentive Stock Option Plan and form of option
agreement (incorporated by reference to Exhibit 4.1
from our 2006 Annual Report on Form 20-F (File
No.000-50975) filed with the Securities and
Exchange Commission on May 29, 2007)
Restricted Stock Issuance and Allocation
Agreement-2007 Equity Incentive Plan (incorporated
by reference to Exhibit 99.1 on Form 6-K (File No.
000-50975) filed with the Securities and Exchange
Commission on August 24, 2007
Form of Option Agreement with outside consultants
and strategic advisors (incorporated by reference
to Exhibit 10.2 from our Registration Statement on
Form F-1 (File No. 333-119166) filed with the
Securities and Exchange Commission on September 21,
2004)
Purchase Option and Cooperation Agreement dated May
27, 2004 among China Finance Online Co. Limited,
Jun Ning, Wu Chen and CFO Fuhua Innovation
Technology Development Co., Ltd. (incorporated by
reference to Exhibit 10.3 from our Registration
Statement on Form F-1 (File No. 333-119166) filed
with the Securities and Exchange Commission on
September 21, 2004)
Share Pledge Agreement dated May 27, 2004 among Jun
Ning, Wu Chen and China Finance Online (Beijing)
Co., Ltd. (incorporated by reference to Exhibit
10.4 from our Registration Statement on Form F-1
(File No. 333-119166) filed with the Securities and
Exchange Commission on September 21, 2004)
Proxy from Wu Chen to Jian Feng dated May 27, 2004
(incorporated by reference to Exhibit 10.6 from our
Registration Statement on Form F-1 (File No.
333-119166) filed with the Securities and Exchange
Commission on September 21, 2004)
Framework Agreement on Exercising Purchase Option
dated November 20, 2006 by and among Jun Ning, Wu
Chen, Zhiwei Zhao, CFO Fuhua Innovation Technology
Development Co., Ltd. and China Finance Online
(Beijing) Co., Ltd. (incorporated by reference to
Exhibit 4.7 from our 2006 Annual Report on Form
20-F (File No.000-50975 ) filed with the Securities
and Exchange Commission on May 29, 2007)
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Exhibit
Number
Description
Share Transfer Contract (related to shares of
Beijing Fuhua Innovation Technology Development
Co., Ltd.) dated November 20, 2006 by and between
Jun Ning and Zhiwei Zhao (incorporated by reference
to Exhibit 4.8 from our 2006 Annual Report on Form
20-F (File No.000-50975 ) filed with the Securities
and Exchange Commission on May 29, 2007)
Loan Agreement dated November 20, 2006 by and
between China Finance Online Co. Limited by and
Zhiwei Zhao (incorporated by reference to Exhibit
4.9 from our 2006 Annual Report on Form 20-F (File
No.000-50975 ) filed with the Securities and
Exchange Commission on May 29, 2007)
Purchase Option and Cooperation Agreement dated
November 20, 2006 among China Finance Online Co.
Limited, Zhiwei Zhao, Wu Chen, Fuhua Innovation
Technology Development Co., Ltd. and China Finance
Online (Beijing) Co., Ltd. (incorporated by
reference to Exhibit 4.10 from our 2006 Annual
Report on Form 20-F (File No.000-50975 ) filed with
the Securities and Exchange Commission on May 29,
2007)
Share Pledge Agreement dated November 20, 2006
among Zhiwei Zhao, Wu Chen, Fuhua Innovation
Technology Development Co., Ltd. and China Finance
Online (Beijing) Co., Ltd. (incorporated by
reference to Exhibit 4.11 from our 2006 Annual
Report on Form 20-F (File No.000-50975 ) filed with
the Securities and Exchange Commission on May 29,
2007)
Equipment Lease Agreement between China Finance
Online (Beijing) Co., Ltd. and Fuhua Innovative
Technology Development Co., Ltd. dated May 27, 2004
(incorporated by reference to Exhibit 10.7 from our
Registration Statement on Form F-1 (File No.
333-119166) filed with the Securities and Exchange
Commission on September 21, 2004)
Technical Support Agreement between China Finance
Online (Beijing) Co., Ltd. and Fuhua Innovative
Technology Development Co., Ltd. dated May 27, 2004
(incorporated by reference to Exhibit 10.8 from our
Registration Statement on Form F-1 (File No.
333-119166) filed with the Securities and Exchange
Commission on September 21, 2004)
Amended and Restated Strategic Consulting Agreement
between China Finance Online (Beijing) Co., Ltd.
and Fuhua Innovative Technology Development Co.,
Ltd. dated May 27, 2004 (incorporated by reference
to Exhibit 10.9 from our Registration Statement on
Form F-1 (File No. 333-119166) filed with the
Securities and Exchange Commission on September 21,
2004)
Framework Agreement on Exercising Purchase Option
dated October 18, 2007 by and among China Finance
Online Co. Limited, Wu Chen, Zhiwei Zhao, Jun Wang,
CFO Fuhua Innovation Technology Development Co.,
Ltd and China Finance Online (Beijing) Co., Ltd.
Loan Agreement between China Finance Online Co.
Limited and Jun Wang dated October 18, 2007
Share Transfer Contract (related to shares of
Beijing Fuhua Innovation Technology Development
Co., Ltd.) dated October 18, 2007 by and between Wu
Chen and Jun Wang
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Exhibit
Number
Description
Share Pledge Agreement dated October 18, 2007 among
Zhiwei Zhao, Jun Wang, Fuhua Innovation Technology
Development Co., Ltd. and China Finance Online
(Beijing) Co., Ltd.
Purchase Option and Cooperation Agreement dated
October 18, 2007 among China Finance Online Co.
Limited, Zhiwei Zhao, Jun Wang and CFO Fuhua
Innovation Technology Development Co., Ltd.
Purchase Option and Coopration Agreement dated
March 3, 2008 among China Finance Online Co.
Limited, Zhiwei Zhao, Jun Wang and CFO Fuhua
Innovation Technology Development Co., Ltd.
Capital Increase Agreement relating to CFO Fuhua
Innovation Technology Development Co., Ltd. dated
March 3, 2008 among CFO Fuhua Innovation Technology
Development Co., Ltd. , Jun Wang and Zhiwei Zhao
Loan Agreement dated March 3,
2008 among China Finance Online (Beijing) Co., Ltd., Jun Wang and
Zhiwei Zhao
Share Pledge Agreement dated March 3, 2008 among
Zhiwei Zhao, Jun Wang, Fuhua Innovation Technology
Development Co., Ltd. and China Finance Online (Beijing) Co., Ltd.
Loan Agreement dated
August 21, 2007 among Fortune Software (Beijing)
Co., Ltd., Wei Xiong and
Zhenfei Fan
Operation Agreement among dated
August 21, 2007 by
and between Fortune Software (Beijing) Co., Ltd.
and Beijing CFO Premium Technology Co., Ltd.
Technical Support Agreement between
Fortune Software (Beijing)
Co., Ltd. and Beijing CFO Premium
Technology Co., Ltd. dated August 21, 2007
Strategic Consulting and Service Agreement between
Fortune Software (Beijing) Co., Ltd. and
Beijing Premium Technology Co., Ltd. dated August
21, 2007
Purchase Option Agreement dated August 21, 2007
among Fortune Software (Beijing) Co. Limited, Wei Xiong,
Zhenfei Fan and Beijing Premium Technology Co.,
Ltd.
Framework Agreement among Fortune
Software (Beijing)
Co., Ltd., Wu Chen, Jun Wang and Beijing
Glory Co., Ltd. dated September 10, 2007
Loan Agreement dated September 1, 2007 among Fortune Software (Beijing)
Co., Ltd., Wu Chen and
Zhiwei Zhao
Share Transfer Contract (related to shares of
Beijing Glory Co., Ltd.) dated September 10, 2007
by and between Wu Chen and Jun Wang
Operation Agreement among dated
September 10, 2007
by and between Fortune Software (Beijing)
Co.,Ltd. and Beijing Glory Co., Ltd.
Technical Support Agreement between
Fortune Software (Beijing) Co., Ltd. and Beijing CFO Glory
Co., Ltd. dated September 10, 2007
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Exhibit
Number
Description
Strategic Consulting and Service Agreement between
Fortune Software (Beijing) Co., Ltd. and
Beijing Glory Co., Ltd. dated September 10, 2007
Purchase Option Agreement dated September 10, 2007
among China Finance Online Co. Limited, Jun Wang,
Zhiwei Zhao and Beijing Glory Co., Ltd.
Shanghai Stock Exchange Level-II Quotations License
Agreement dated June 15, 2006 between SSE Infonet
Ltd. and Fortune Software (Beijing) Co., Ltd.
(incorporated by reference to Exhibit 4.15 from our
2006 Annual Report on Form 20-F (File No.000-50975
) filed with the Securities and Exchange Commission
on May 29, 2007)
License Agreement relating to the distribution of
TopView between Fortune Software (Beijing) Co.,
Ltd. and Shanghai Stock Exchange Information
Network Co., Ltd. dated December 26, 2007
Shenzhen Stock Exchange Proprietary Information
License Agreement dated March 20, 2007 between
Fortune Software (Beijing) Co., Ltd. and Shenzhen
Securities Information Co., Ltd. (incorporated by
reference to Exhibit 4.16 from our 2006 Annual
Report on Form 20-F (File No.000-50975 ) filed with
the Securities and Exchange Commission on May 29,
2007)
Domain Name Transfer Agreement dated October 30,
2006 by and among China Finance Online Co., Ltd.,
China Finance Online (Beijing) Co., Ltd. and Being
Fuhua Innovation Technology Development Co.,
Ltd.(incorporated by reference to Exhibit 4.17 from
our 2006 Annual Report on Form 20-F (File
No.000-50975 ) filed with the Securities and
Exchange Commission on May 29, 2007)
Domain Name Transfer Agreement dated October 30,
2006 between Stockstar Information Technology
(Shanghai) Co., Ltd. and Shanghai Meining Computer
Software Company Limited (incorporated by reference
to Exhibit 4.18 from our 2006 Annual Report on Form
20-F (File No.000-50975 ) filed with the Securities
and Exchange Commission on May 29, 2007)
Lease Contract for Housing Unit of Corporate Square
dated January 19, 2006 between Fortune Software
(Beijing) Co. Ltd. and China Galaxy Securities
Company Limited (incorporated by reference to
Exhibit 4.20 from our Annual Report on Form 20-F
filed with the Securities and Exchange Commission
on May 23, 2006)
Lease Contract for Housing Unit of Corporate Square
dated January 19, 2006 between Beijing Fuhua
Innovation Technology Co., Ltd. and China Galaxy
Securities Company Limited (incorporated by
reference to Exhibit 4.20 from our Annual Report on
Form 20-F filed with the Securities and Exchange
Commission on May 23, 2006)
Lease Contract for Housing Unit of Corporate Square
dated January 19, 2006 between China Finance Online
Co., Ltd. and China Galaxy Securities Company
Limited (incorporated by reference to Exhibit 4.20
from our Annual Report on Form 20-F filed with the
Securities and Exchange Commission on May 23, 2006)
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Exhibit
Number
Description
Lease Contract for Housing Unit of Corporate Square
dated December 29, 2006 between Beijing Fuhua
Innovation Technology Co., Ltd. and China Galaxy
Securities Company Limited (incorporated by
reference to Exhibit 4.22 from our 2006 Annual
Report on Form 20-F (File No.000-50975 ) filed with
the Securities and Exchange Commission on May 29,
2007)
Lease Contract for Housing Unit of Corporate Square
dated December 29, 2006 between Fortune Software
(Beijing) Co. Ltd. and China Galaxy Securities
Company Limited (incorporated by reference to
Exhibit 4.23 from our 2006 Annual Report on Form
20-F (File No.000-50975 ) filed with the Securities
and Exchange Commission on May 29, 2007)
Lease Contract for Housing Unit of Corporate Square
dated August 9, 2007 between Fortune Software
(Beijing) Co. Ltd. and China Galaxy Securities
Company Limited
Lease Contract for Housing Unit of Corporate Square
dated August 9, 2007 between Beijing Fuhua
Innovation Technology Co., Ltd. and China Galaxy
Securities Company Limited
Lease Contract for Housing Unit of Corporate Square
dated August 1, 2007 between China Finance Online
(Beijing) Co., Ltd. and China Galaxy Securities
Company Limited
Lease Contract for Housing Unit of Corporate Square
dated August 1, 2007 between Beijing Fuhua
Innovation Technology Co., Ltd. and China Galaxy
Securities Company Limited
Lease Contract for Housing Unit of Corporate Square
dated August 1, 2007 between Fortune Software
(Beijing) Co. Ltd. and China Galaxy Securities
Company Limited
Agreement for the Sale and Purchase of Shares in
Daily Growth Investment Company Limited dated
September 7, 2007 among William Wang, FNG
International Holdings Limited and China Finance
Online Co. Limited
Agreement for the Sale and Purchase of Shares in
Daily Growth Investment Company Limited dated
September 7, 2007 among Tsang Kin-Woo, FNG
International Holdings Limited and China Finance
Online Co., Limited
Agreement for the Sale and Purchase of Shares in
Daily Growth Investment Company Limited dated
September 7, 2007 among Wong Chan Miu-Wan Stella,
FNG International Holdings Limited and China
Finance Online Co. Limited
Agreement for the Sale and Purchase of Shares in
Daily Growth Investment Company Limited dated
September 7, 2007 among Shun Kin Enterprises
Limited, FNG International Holdings Limited and
China Finance Online Co. Limited
Agreement for the Sale and Purchase of Shares in
Daily Growth Investment Company Limited dated
September 7, 2007 among Midopa Enterprises Limited,
FNG International Holdings Limited and China
Finance Online Co. Limited
Table of Contents
Exhibit
Number
Description
Agreement for the Sale and Purchase of Shares in
Daily Growth Investment Company Limited dated
September 7, 2007 among Hung Yung, FNG
International Holdings Limited and China Finance
Online Co. Limited
Agreement for the Sale and Purchase of Shares in
Daily Growth Investment Company Limited dated
September 7, 2007 among Chu Ping-Im, FNG
International Holdings Limited and China Finance
Online Co. Limited
Agreement for the Sale and Purchase of Shares in
Daily Growth Investment Company Limited dated
September 7, 2007 among Eternal Growth Investment
Limited, FNG International Holdings Limited and
China Finance Online Co. Limited
Form of indemnification agreement for directors and
officers (incorporated by reference to Exhibit
10.18 from our Registration Statement on Form F-1
(File No. 333-119166) filed with the Securities and
Exchange Commission on September 21, 2004)
Labor Contract of Jeff Wang dated May 24, 2006
(incorporated by reference to Exhibit 4.25 from our
2006 Annual Report on Form 20-F (File No.000-50975
) filed with the Securities and Exchange Commission
on May 29, 2007)
Labor Contract of Zhao Zhiwei dated June 21, 2005
(incorporated by reference to Exhibit 4.26 from our
Annual Report on Form 20-F filed with the
Securities and Exchange Commission on May 23, 2006)
[Intentionally Omitted]
[Intentionally Omitted]
Form of Change in Control Agreement (incorporated
by reference to Exhibit 10.1 from our Registration
Statement on Form F-1 (File No. 333-119166) filed
with the Securities and Exchange Commission on
October 4, 2004)
Shanghai Meining Computer Software Company Limited
Share Transfer Agreement dated August 15, 2006
among Shanghai Kemei Taidi Telecommunication
Equipment Co., Ltd., Beijing Fuhua Innovation
Technology Development Co., Ltd., China Finance
Online (Beijing) Co., Ltd.(incorporated by
reference to Exhibit 4.30 from our 2006 Annual
Report on Form 20-F (File No.000-50975 ) filed with
the Securities and Exchange Commission on May 29,
2007)
Stockstar Information Technology (Shanghai) Co.,
Ltd. Share Transfer Agreement dated August 15, 2006
by and among Stockstar.com, Inc. and China Finance
Online Co., Ltd.(incorporated by reference to
Exhibit 4.31 from our 2006 Annual Report on Form
20-F (File No.000-50975 ) filed with the Securities
and Exchange Commission on May 29, 2007)
Engagement Letter between China Finance Online Co.,
Ltd. and Deloitte Touche Tohmatsu CPA. Ltd dated
February 26, 2008
List of subsidiaries
Consent of Deloitte Touche Tohmatsu CPA Ltd.
Table of Contents
Exhibit
Number
Description
CEO Certification Pursuant to Rule 13a-14(a) (17
CFR 240.13a-14(a)) (17 CFR 240.13a-14(a)) or Rule
15d-1(a) (17 CFR 240.15d-14(a))
CFO Certification Pursuant to Rule 13a-14(a) (17
CFR 240.13a-14(a)) or Rule 15d-1(a) (17 CFR
240.15d-14(a))
CEO Certification Pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002
CFO Certification Pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002
Table of Contents
Date: June 4, 2008
CHINA FINANCE ONLINE CO.
LIMITED
/s/ Jeff Wang
Name:
Jeff Wang
Title:
Chief Financial Officer
Table of Contents
CONTENTS
PAGE
F - 2
F - 3
F - 4
F - 5
F - 6
F - 7
F - 42
Table of Contents
CHINA FINANCE ONLINE CO. LIMITED
Beijing, the Peoples Republic of China
May 30, 2008
Table of Contents
(In U.S. dollars, except share-related data)
December 31,
2006
2007
$
44,955,553
$
74,729,033
927,697
2,947,054
2,850,541
1,672,575
477,778
1,491,454
170,478
1,129,515
46,531,506
84,820,172
1,697,481
5,454,858
2,045,224
1,938,177
12,606,571
1,479,571
86,216
500,222
8,151,851
9,651,719
25,647
14,382
$
71,118,849
$
103,884,748
$
6,418,502
$
20,457,316
2,086,017
6,950,254
2,850,541
10,535
763,458
5,483
11,968
8,520,537
31,033,537
4,665,112
145,533
352,273
8,666,070
36,050,922
471,431
13,474
14,172
52,555,919
58,727,378
1,634,269
4,501,432
8,249,117
4,119,413
62,452,779
67,362,395
$
71,118,849
$
103,884,748
Table of Contents
(In U.S. dollars, except share-related data)
Years ended December 31,
2005
2006
2007
$
7,482,166
$
7,128,078
$
25,903,074
482,068
1,467,745
4,426,602
7,000,098
5,660,333
21,476,472
1,740,117
2,955,948
7,783,668
236,438
742,728
2,268,878
1,794,569
2,665,847
6,924,336
3,771,124
6,364,523
16,976,882
135,834
3,228,974
(704,190
)
4,635,424
1,486,276
1,002,975
1,104,701
365,965
381,875
433,069
(1,322,000
)
(11,127,000
)
5,081,215
(641,340
)
(4,953,806
)
(457,028
)
40,707
808,625
15,477
$
4,624,187
$
(600,633
)
$
(4,129,704
)
$
0.05
$
(0.01
)
$
(0.04
)
$
0.04
$
(0.01
)
$
(0.04
)
94,341,061
93,650,653
94,500,529
104,781,492
93,650,653
94,500,529
Table of Contents
(In U.S. dollars, except share-related data)
Accumulated
other
Additional
Deferred
comprehensive
Total
Ordinary shares
paid-in
stock-based
income
Retained
shareholders
Comprehensive
Shares
Amount
capital
compensation
(loss)
earnings
equity
income
99,329,933
$
12,814
$
64,175,132
$
(325,221
)
$
(11
)
$
4,225,563
$
68,088,277
(13,200,394
)
(13,200,394
)
2,000,000
263
276,713
276,976
112,689
112,689
258,092
258,092
671,133
671,133
$
671,133
4,624,187
4,624,187
4,624,187
101,329,933
13,077
51,364,140
(67,129
)
671,122
8,849,750
60,830,960
$
5,295,320
(67,129
)
67,129
3,000,000
390
66,453
66,843
55,000
7
8,793
8,800
1,183,662
1,183,662
963,147
963,147
$
963,147
(600,633
)
(600,633
)
(600,633
)
104,384,933
13,474
52,555,919
1,634,269
8,249,117
62,452,779
$
362,514
2,366,697
2,366,697
5,369,500
698
858,422
859,120
2,946,340
2,946,340
2,867,163
2,867,163
$
2,867,163
(4,129,704
)
(4,129,704
)
(4,129,704
)
109,754,433
$
14,172
$
58,727,378
$
$
4,501,432
$
4,119,413
$
67,362,395
$
(1,262,541
)
Table of Contents
(In U.S. dollars)
Years ended December 31,
2005
2006
2007
$
4,624,187
$
(600,633
)
$
(4,129,704
)
370,781
1,183,662
2,946,340
129,833
301,941
973,953
322,289
(40,081
)
(737,712
)
9,686
84,796
1,322,000
11,127,000
(116,071
)
(15,477
)
(110,773
)
122,363
37,377
14,573
(799,572
)
334,687
(1,786,912
)
(1,672,575
)
(465,101
)
(10,657
)
(31,955
)
(403,912
)
(1,627,937
)
3,840,892
17,509,161
(30,297
)
95,997
(388,662
)
4,566,829
465,101
40,762
(36,041
)
(43,267
)
3,059,169
5,892,102
28,425,600
(234,696
)
(1,042,423
)
(3,836,412
)
(8,346,856
)
(993,845
)
1,187,500
(15,000,000
)
(15,234,696
)
(8,201,779
)
(4,830,257
)
276,976
66,843
2,366,697
8,800
859,120
(13,200,394
)
(12,923,418
)
75,643
3,225,817
671,133
1,021,202
2,952,320
(24,427,812
)
(1,212,832
)
29,773,480
70,596,197
46,168,385
44,955,553
$
46,168,385
44,955,553
74,729,033
$
93,977
$
36,089
$
38,761
Table of Contents
FOR THE YEARS ENDED DECEMBER 31, 2005, 2006 AND 2007
(In U.S. dollars)
Date of
Beneficial
Place of
incorporation or
ownership
Company name
incorporation
establishment
interest
Beijing, PRC
Jul.9, 1998
100%
Beijing, PRC
Dec.7, 2004
100%
Beijing, PRC
Dec.31, 2000
100%
Beijing, PRC
Aug.31, 2007
100%
Beijing, PRC
Sep.11, 2007
100%
Beijing, PRC
Oct.16, 2007
100%
Beijing, PRC
Oct.16, 2007
100%
Shenzhen, PRC
Sep.21, 2006
100%
Shenzhen, PRC
Mar.9, 2007
100%
Shanghai, PRC
Oct.1, 2006
100%
Shanghai, PRC
Oct.1, 2006
100%
Shanghai, PRC
Jan.31, 2007
100%
BVI
Jul.16, 2007
100%
BVI
Jul.16, 2007
100%
BVI
Jul.23, 2007
100%
HongKong, PRC
Oct.22, 2007
100%
HongKong, PRC
Oct.22, 2007
100%
HongKong, PRC
Nov.30, 2007
100%
HongKong, PRC
Nov.23, 2007
85%
*
Represents variable interest entity (VIE)
Table of Contents
FOR THE YEARS ENDED DECEMBER 31, 2005, 2006 AND 2007
(In U.S. dollars)
an equipment leasing agreement, pursuant to which CFO Fuhua leases a substantial
majority of its operating assets from CFO Beijing;
a technical support agreement, pursuant to which CFO Beijing provides technical
support for CFO Fuhuas operations;
an amended and restated strategic consulting agreement, pursuant to which CFO
Beijing provides strategic consulting services to CFO Fuhua, including consulting
services in relation to CFO Fuhuas online advertising business; and
a domain name licensing agreement, pursuant to which CFO Beijing licenses to CFO
Fuhua its domain name, www.jrj.com.cn.
the shareholders of CFO Fuhua have granted China Finance Online or individuals
designated by China Finance Online an irrevocable proxy to exercise all their voting
rights as shareholders of CFO Fuhua, including the right to appoint directors, the
general manager and other senior management of CFO Fuhua;
Table of Contents
FOR THE YEARS ENDED DECEMBER 31, 2005, 2006 AND 2007
(In U.S. dollars)
CFO Fuhua will not enter into any transaction that may materially affect its
assets, liabilities, equity or operations without China Finance Onlines prior written
consent;
CFO Fuhua will not distribute any dividends;
China Finance Online may purchase the entire equity interest in, or all the assets
of, CFO Fuhua at a price equal to the total principal amount of the loan lent by the
Company to the owners of CFO Fuhua when and if such purchase is permitted by PRC law
or the current shareholders of CFO Fuhua cease to be directors or employees of CFO
Fuhua;
the shareholders of CFO Fuhua have pledged their equity interest in CFO Fuhua to
CFO Beijing to secure the payment obligations of CFO Fuhua under the equipment leasing
agreement, the technical support agreement and the amended and restated strategic
consulting agreement between CFO Beijing and CFO Fuhua; and
the shareholders of CFO Fuhua will not transfer, sell, pledge, dispose of or create
any encumbrance on their equity interest in CFO Fuhua without the prior written
consent of CFO Beijing.
Table of Contents
FOR THE YEARS ENDED DECEMBER 31, 2005, 2006 AND 2007
(In U.S. dollars)
strategic consulting services agreement, pursuant to which the amount of the fee to
be charged is 30% of CFO Premium and CFO Glorys income before tax ;
technical support services agreement, pursuant to which the amount of the fee to be
charged is 30% of CFO Premium and CFO Glorys income before tax;
operating support services agreement, pursuant to which the amount of the fee to be
charged is 40% of CFO Premium and CFO Glorys income before tax;
the shareholders of CFO Premium and CFO Glory have granted CFO Software or
individuals designated by CFO Software an irrevocable proxy to exercise all their
voting rights as shareholders of CFO Premium and CFO Glory, including the right to
appoint directors, the general manager and other senior management of CFO Premium and
CFO Glory;
CFO Premium and CFO Glory will not enter into any transaction that may materially
affect its assets, liabilities, equity or operations without CFO Softwares prior
written consent;
CFO Premium and CFO Glory will not distribute any dividends;
CFO Premium and CFO Glory may purchase the entire equity interest in, or all the
assets of, CFO Premium and CFO Glory at a price equal to the total principal amount of
the loan lent by the Company to the owners of CFO Premium and CFO Glory when and if
such purchase is permitted by PRC law or the current shareholders of CFO Premium and
CFO Glory cease to be directors or employees of CFO Premium and CFO Glory;
Table of Contents
FOR THE YEARS ENDED DECEMBER 31, 2005, 2006 AND 2007
(In U.S. dollars)
the shareholders of CFO Premium and CFO Glory will not transfer, sell, pledge,
dispose of or create any encumbrance on their equity interest in CFO Premium and CFO
Glory without the prior written consent of CFO Software.
Year ended December 31,
2006
2007
CFO Fuhua
CFO Fuhua
CFO Premium
CFO Glory
$
3,294,204
$
3,215,556
$
617,495
$
13,838,596
2,915,166
3,865,930
480,708
13,709,484
Year ended December 31,
2005
2006
2007
CFO Fuhua
CFO Fuhua
CFO Fuhua
CFO Premium
CFO Glory
1,222,747
1,286,614
1,022,735
435
(4,999
)
(1,013,166
)
(296
)
(7,828
)
Table of Contents
FOR THE YEARS ENDED DECEMBER 31, 2005, 2006 AND 2007
(In U.S. dollars)
Table of Contents
FOR THE YEARS ENDED DECEMBER 31, 2005, 2006 AND 2007
(In U.S. dollars)
5 years
5 years
5 years
5 years
Shorter of the lease term or 5 years
Table of Contents
FOR THE YEARS ENDED DECEMBER 31, 2005, 2006 AND 2007
(In U.S. dollars)
Table of Contents
FOR THE YEARS ENDED DECEMBER 31, 2005, 2006 AND 2007
(In U.S. dollars)
Table of Contents
FOR THE YEARS ENDED DECEMBER 31, 2005, 2006 AND 2007
(In U.S. dollars)
Table of Contents
FOR THE YEARS ENDED DECEMBER 31, 2005, 2006 AND 2007
(In U.S. dollars)
Table of Contents
FOR THE YEARS ENDED DECEMBER 31, 2005, 2006 AND 2007
(In U.S. dollars)
Table of Contents
FOR THE YEARS ENDED DECEMBER 31, 2005, 2006 AND 2007
(In U.S. dollars)
Table of Contents
FOR THE YEARS ENDED DECEMBER 31, 2005, 2006 AND 2007
(In U.S. dollars)
Table of Contents
FOR THE YEARS ENDED DECEMBER 31, 2005, 2006 AND 2007
(In U.S. dollars)
Table of Contents
FOR THE YEARS ENDED DECEMBER 31, 2005, 2006 AND 2007
(In U.S. dollars)
Amortization
period
$
2,631,008
998,320
2,391,925
55,761
26,100
(350,261
)
(2,391,925
)
(57,137
)
(49,225
)
(9,562
)
(488,186
)
54,642
Indefinite
813,393
3,624,853
Table of Contents
FOR THE YEARS ENDED DECEMBER 31, 2005, 2006 AND 2007
(In U.S. dollars)
Amortization
period
$
35,802
14,174
14,023
42,506
3-5 years
332,545
5.3 years
75,866
Indefinite
117,592
5.3 years
632,508
(361,361
)
(231,904
)
(67,520
)
(28,277
)
1,068,358
$
1,040,081
Table of Contents
FOR THE YEARS ENDED DECEMBER 31, 2005, 2006 AND 2007
(In U.S. dollars)
Amortization
Period
$
792,692
432,753
78,298
297,024
652,446
Indefinite
402,089
5.3 years
10,495
3 years
475,426
4.3 years
23,392
3.3 years
3,164,615
(222,868
)
(1,702,727
)
(136,710
)
1,102,310
7,032,959
$
8,135,269
Table of Contents
FOR THE YEARS ENDED DECEMBER 31, 2005, 2006 AND 2007
(In U.S. dollars)
For the years ended December 31,
2005
2006
2007
(unaudited)
(unaudited)
(unaudited)
$
10,915,618
$
10,671,796
$
26,930,986
$
2,136,433
$
(2,891,544
)
$
235,997
$
0.02
$
(0.03
)
$
0.00
$
0.02
$
(0.03
)
$
0.00
December 31,
2006
2007
$
$
844,800
181,913
809,221
685,439
415,441
216,947
330,343
390,647
$
927,697
$
2,947,054
Notes:
1.
As of December 31, 2007, $685,439 had been held by the CEO, who is the
designated owner of CFO Fuhua, for the additional capital to be injected to CFO Fuhua.
2.
Interest receivable is interest earned from the Groups bank deposits.
Table of Contents
FOR THE YEARS ENDED DECEMBER 31, 2005, 2006 AND 2007
(In U.S. dollars)
December 31,
2006
2007
$
1,277,972
$
3,360,909
255,246
1,036,325
354,488
894,783
64,374
129,636
354,399
1,268,731
2,306,479
6,690,384
(608,998
)
(1,235,526
)
$
1,697,481
$
5,454,858
Table of Contents
FOR THE YEARS ENDED DECEMBER 31, 2005, 2006 AND 2007
(In U.S. dollars)
December 31,
2006
2007
737,638
789,625
54,498
$
744,042
$
796,480
600,612
642,941
23,692
25,361
10,629
11,378
2,116,613
2,320,283
(71,389
)
(382,106
)
$
2,045,224
$
1,938,177
50,534
1,068,358
7,032,959
8,151,851
813,393
686,475
9,651,719
Table of Contents
FOR THE YEARS ENDED DECEMBER 31, 2005, 2006 AND 2007
(In U.S. dollars)
December 31,
2006
2007
$
598,388
$
1,956,670
200,706
1,188,163
13,268
1,139,110
386,806
936,625
56,811
440,149
303,474
425,076
120,538
130,820
18,891
81,406
387,135
652,235
$
2,086,017
$
6,950,254
Table of Contents
FOR THE YEARS ENDED DECEMBER 31, 2005, 2006 AND 2007
(In U.S. dollars)
Years ended December 31,
2006
2007
5.24
%
4.71
%
5.75 years
5.96 years
58.84
%
59.92
%
Table of Contents
FOR THE YEARS ENDED DECEMBER 31, 2005, 2006 AND 2007
(In U.S. dollars)
Years ended December 31,
2005
2006
2007
3.48
%
4.70
%
3.26
%
2.14 years
5.76 years
3.73 years
56.96
%
53.33
%
51.85
%
2005
2006
2007
Weighted
Weighted
Weighted
Number
average
Number
average
Number
average
of options
exercise price
of options
exercise price
of options
exercise price
12,492,988
$
0.18
15,250,488
$
0.52
14,843,688
$
0.56
5,003,000
$
1.29
700,000
$
1.07
3,848,000
$
1.07
(1,731,500
)
$
0.16
(473,000
)
$
0.17
(7,746,280
)
$
0.42
(514,000
)
$
1.05
(633,800
)
$
0.69
(387,840
)
$
0.87
15,250,488
$
0.52
14,843,688
$
0.56
10,557,568
$
0.84
9,986,488
$
0.29
11,705,508
$
0.43
5,939,888
$
0.68
Table of Contents
FOR THE YEARS ENDED DECEMBER 31, 2005, 2006 AND 2007
(In U.S. dollars)
Options outstanding
Option exercisable
Aggregate
Aggregate
Weighted
Weighted
intrinsic
Weighted
intrinsic
average
average
value as of
average
value as of
Number
remaining
exercise
December 31
Number
exercise
December 31
outstanding
contractual life
price
2007
exercisable
price
2007
3,373,988
3,069,988
200,000
200,000
1,846,580
1,700,900
27,000
19,000
400,000
400,000
200,000
200,000
700,000
350,000
3,240,000
100,000
150,000
317,000
3,000
10,557,568
5.97 years
$
0.83
$
3.55
5,939,888
$
0.68
$
3.70
Table of Contents
FOR THE YEARS ENDED DECEMBER 31, 2005, 2006 AND 2007
(In U.S. dollars)
Year ended
December 31, 2005
4,624,187
13,589
(1,935,649
)
2,702,127
$
0.05
$
0.04
$
0.04
$
0.03
Year ended
Option grants
December 31, 2005
3.37
%
2.94 years
65.08
%
Table of Contents
FOR THE YEARS ENDED DECEMBER 31, 2005, 2006 AND 2007
(In U.S. dollars)
Weighted-
Weighted-
average
average
Aggregate
exercise
grant date
intrinsic
Non-vested shares
Shares
price
fair value
value
10,558,493
1.84
10,558,493
1.84
46,246,199
Table of Contents
FOR THE YEARS ENDED DECEMBER 31, 2005, 2006 AND 2007
(In U.S. dollars)
Chinese state
Chinese
Concession from
Concession from
Year of
income
local income
Chinese State
Chinese local
commencement
PRC entities
tax rate
tax rate
unified income tax*
income tax
of tax holiday
24
%
3
%
Full exemption for the year
2003and 2004; 50% tax
relief from 2005 to 2007
Full exemption from 2003
to 2007
2003
15
%
3
%
Full exemption from
2005 to 2007
Full exemption from
2005 to 2007
2005
30
%
3
%
N/A
N/A
N/A
15
%
N/A
15% in 2007
N/A
N/A
15
%
N/A
Same as CFO Meining
N/A
N/A
15
%
N/A
Same as CFO Meining
N/A
N/A
15
%
N/A
Same as CFO Meining
N/A
N/A
15
%
N/A
Same as CFO Meining
N/A
N/A
30
%
3
%
N/A
N/A
N/A
30
%
3
%
N/A
N/A
N/A
30
%
3
%
N/A
N/A
N/A
30
%
3
%
N/A
N/A
N/A
*
The concession from Chinese State unified income tax is shown on the
assumption that the subsidiary, VIE and the VIEs subsidiaries will not be qualified
as a high and new technology enterprise strongly supported by the state by the
authorities.
Table of Contents
FOR THE YEARS ENDED DECEMBER 31, 2005, 2006 AND 2007
(In U.S. dollars)
December 31,
2005
2006
2007
$
(134,739
)
$
626
$
70,913
(322,289
)
40,081
737,712
$
(457,028
)
$
40,707
$
808,625
December 31,
2006
2007
$
135,658
$
841,315
34,820
288,200
$
170,478
$
1,129,515
$
802,010
$
1,136,729
(204,043
)
(321,816
)
(30,457
)
597,967
784,456
(743,500
)
(1,136,729
)
$
(145,533
)
$
(352,273
)
$
$
14,382
Table of Contents
FOR THE YEARS ENDED DECEMBER 31, 2005, 2006 AND 2007
(In U.S. dollars)
Years ended December 31,
2005
2006
2007
%
%
%
33.0
(33.0
)
(33.0
)
(18.0
)
(92.1
)
(91.8
)
3.6
139.9
99.7
(10.3
)
(54.8
)
(16.7
)
18.5
0.7
33.7
7.0
9.0
(6.3
)
(16.3
)
Table of Contents
FOR THE YEARS ENDED DECEMBER 31, 2005, 2006 AND 2007
(In U.S. dollars)
2005
2006
2007
$
365,965
$
267,302
$
424,338
116,071
(1,498
)
8,731
$
365,965
$
381,875
$
433,069
Table of Contents
FOR THE YEARS ENDED DECEMBER 31, 2005, 2006 AND 2007
(In U.S. dollars)
Years ended December 31,
2005
2006
2007
$
4,624,187
$
(600,633
)
$
(4,129,704
)
94,341,061
93,650,653
94,500,529
10,440,431
104,781,492
93,650,653
94,500,529
$
0.05
$
(0.01
)
$
(0.04
)
$
0.04
$
(0.01
)
$
(0.04
)
Note:
1.
In 2006, the Company transferred 3,000,000 ordinary shares to its depositary
bank representing 750,000 ADSs to be issued to employees and non-employees upon the
exercise of their vested share options. As of December 31, 2007, shares out of such
2,526,280 shares had been issued to the employees and non-employees upon exercise of
their share options and 473,720 shares remained available for future issuances. As a
result, 473,720 ordinary shares were excluded in computing basic net income per share.
2.
In July 2007, the Company adopted granted non-vested shares covering 10,558,493
ordinary shares of the Company to the employees who are eligible for the 2007 Plan.
The vesting of the non-vested shares are subject to achieving certain financial
performance targets stated in the 2007 Plan. Nonvested shares have not be included in
the computation of basic earnings per share as such shares are considered contingently
returnable shares if the employee does not render the requisite service, the shares are
returned to the Company.
3.
The Group has options and non-vested shares outstanding which could potentially
dilute basic net income/(loss) per share, but which were excluded from the computation
of diluted net income/(loss) per share for the year end December 31, 2006 and 2007, as
their effects would have been auti-dilutive. Such outstanding options and non-vested
shares consist of 15,950,488 options for year end December 31, 2006, and 18,691,688
options and 10,558,493 non-vested shares for year end December 31, 2007.
Table of Contents
FOR THE YEARS ENDED DECEMBER 31, 2005, 2006 AND 2007
(In U.S. dollars)
Year ending
$
2,007,800
1,496,496
1,046,944
324,338
22,128
$
4,897,706
Table of Contents
FOR THE YEARS ENDED DECEMBER 31, 2005, 2006 AND 2007
(In U.S. dollars)
Subscription
services and
other related
Brokerage
services
services
Consolidated
$
25,822,178
$
80,896
$
25,903,074
(4,403,605
)
(22,997
)
(4,426,602
)
(7,599,367
)
(184,301
)
(7,783,668
)
(2,268,878
)
(2,268,878
)
(6,911,624
)
(12,712
)
(6,924,336
)
(16,779,869
)
(197,013
)
(16,976,882
)
135,834
135,834
4,774,538
(139,114
)
4,635,424
95,774,776
8,109,972
103,884,748
Years ended December 31,
2005
2006
2007
$
5,811,395
$
5,075,830
$
22,712,043
996,311
1,337,630
1,560,194
298,232
1,339,321
80,896
674,460
416,386
210,620
$
7,482,166
$
7,128,078
$
25,903,074
Table of Contents
FOR THE YEARS ENDED DECEMBER 31, 2005, 2006 AND 2007
(In U.S. dollars)
Table of Contents
Balance sheets
(In U.S. dollars, except share-related data)
December 31,
2006
2007
$
5,758,063
$
19,374,617
64,172
4,408,362
93,618
133,572
2,473,269
8,389,122
23,916,551
37,615,158
43,844,335
12,606,571
1,479,571
50,534
50,534
4,000,000
$
62,661,385
$
69,290,991
148,072
1,868,059
60,534
60,537
$
208,606
$
1,928,596
13,474
14,172
52,555,919
58,727,378
1,634,269
4,501,432
8,249,117
4,119,413
62,452,779
67,362,395
$
62,661,385
$
69,290,991
Table of Contents
Statements of operations
(In U.S. dollars)
December 31,
2005
2006
2007
$
692,453
$
873,496
$
975,931
370,781
1,183,662
2,946,340
1,063,234
2,057,158
3,922,271
560,772
202,484
253,003
5,126,649
2,395,622
10,299,974
180,419
366,590
(1,322,000
)
(11,127,000
)
$
4,624,187
$
(600,633
)
$
(4,129,704
)
Table of Contents
Statement of Shareholders Equity and Other Comprehensive Income
(In U.S. dollars, except share-related data)
Accumulated
other
Additional
Deferred
comprehensive
Total
Ordinary shares
paid-in
stock-based
income
Retained
shareholders
Comprehensive
Shares
Amount
capital
compensation
(loss)
earnings
equity
income
99,329,933
$
12,814
$
64,175,132
$
(325,221
)
$
(11
)
$
4,225,563
$
68,088,277
(13,200,394
)
(13,200,394
)
2,000,000
263
276,713
276,976
112,689
112,689
258,092
258,092
671,133
671,133
$
671,133
4,624,187
4,624,187
4,624,187
101,329,933
13,077
51,364,140
(67,129
)
671,122
8,849,750
60,830,960
$
5,295,320
(67,129
)
67,129
3,000,000
390
66,453
66,843
55,000
7
8,793
8,800
1,183,662
1,183,662
963,147
963,147
$
963,147
(600,633
)
(600,633
)
(600,633
)
104,384,933
13,474
52,555,919
1,634,269
8,249,117
62,452,779
$
362,514
2,366,697
2,366,697
5,369,500
698
858,422
859,120
2,946,340
2,946,340
2,867,163
2,867,163
$
2,867,163
(4,129,704
)
(4,129,704
)
(4,129,704
)
109,754,433
$
14,172
$
58,727,378
$
$
4,501,432
$
4,119,413
$
67,362,395
$
(1,262,541
)
Table of Contents
Statements of cash flows
(In U.S. dollars, except share-related data)
December 31,
2005
2006
2007
4,624,187
(600,633
)
(4,129,704
)
370,781
1,183,662
2,946,340
1,322,000
11,127,000
(116,071
)
(4,455,510
)
(958,872
)
(10,299,974
)
(2,473,269
)
2,473,269
42,226
(56,221
)
(39,954
)
(64,543
)
(4,344,190
)
(27,234
)
27,032
1,719,911
(477,841
)
41,947
3
76,609
(1,694,968
)
(547,299
)
(13,990,000
)
9,990,000
4,000,000
1,187,500
(6,582,144
)
(2,300,476
)
(20,500,000
)
(15,000,000
)
(49,490,000
)
4,595,356
1,699,524
276,976
66,843
2,366,697
8,800
859,120
(13,200,394
)
5,373,182
9,238,436
(7,550,236
)
75,643
12,464,253
(6
)
5
76
(56,963,633
)
2,976,036
13,616,554
59,745,660
2,782,027
5,758,063
$
2,782,027
$
5,758,063
$
19,374,617
Table of Contents
[Translated from the Chinese original]
FRAMEWORK AGREEMENT ON EXERCISING PURCHASE OPTION
The framework agreement is entered into as of the date of October 18, 2007 in Beijing by and among the following parties:
PARTY A: CHINA FINANCE ONLINE CO., LTD.
Registered Address: Unit C, 8/F, East Wing, Sincere Insurance Building 4-6,
Hennessy Road, Hong Kong SAR, China
PARTY B: CHEN WU
Address: Room 616, Tower A, COFCO Plaza, 8 Jianguomennei Avenue, Beijing, China
ID No.: 110108491204891
PARTY C: ZHAO ZHIWEI
Address: Floor 9, Tower C, Corporate Square, No. 35 Financial Street, Xicheng
District, Beijing, China
ID No: 110102196307100139
PARTY D: WANG JUN
Address: Floor 9, Tower C, Corporate Square, No. 35 Financial Street, Xicheng
District, Beijing, China
ID No.: 370102197012163311
PARTY E: BEIJING FUHUA INNOVATION TECHNOLOGY DEVELOPMENT CO., LTD.
Register Address: Room 938-941, Tower C, Corporate Square, No. 35 Financial
Street, Xicheng District, Beijing, China
Postal Code: 100032
PARTY F: CHINA FINANCE ONLINE (BEIJING) CO., LTD.
Registered Address: Room 946-949, Tower C, Corporate Square, No. 35 Financial
Street, Xicheng District, Beijing, China
Postal Code: 100032
Whereas:
1. Party B and Party C are current shareholders of Party E which have made registrations at the Administration of Industry and Commerce authorities, and each holding 55% and 45% shares in Party E respectively;
2. Party A is a limited liability company duly organized and validly existing under the laws of Hong Kong Special Administration Region of the People's Republic of China, and through its wholly owned enterprise in China -- Party F to provide technical support, strategic consultation and other relevant services to Party E;
3. To finance the investment by Party B and Party C in Party D, Party A has entered into Loan Agreements with Party B and Party C respectively on May 27, 2004, and November 20, 2006 providing Party B and Party C with loans of RMB 1,650,000 and RMB 1,350,000, respectively. Pursuant to the Loan Agreement, Party B and Party C has invested the full amount of the loans in Party E's registered capital;
4. As the consideration for the loans provided by Party A to Party B and Party C, Party B and Party C entered into a Purchase Option and Cooperation Agreement ("Purchase Option Agreement") with Party A, Party E and Party F on November 20, 2006, granting Party A the exclusive option to purchase all or part of shares/assets in Party E holding by both parties or either party of Party B and Party C at any time, in accordance with China laws;
5. For making securities of the payment obligations of Party E under numerous agreements executed between Party E and Party F, Party B and Party C entered into a Share Pledge Agreement ("Pledge Agreement") with Party F on November 20, 2006, pledging their respective shares in Party E to Party F;
6. Party A is intended to exercise the purchase option to purchase entire shares in Party E held by Party B in accordance with the Purchase Option Agreement, and designates Party D as the subject to exercise the aforesaid purchase option.
THEREFORE, in accordance with the principle of sincere cooperation, mutual benefit and joint development, through friendly negotiation, the Parties hereby enter into the following agreements:
1. EXERCISE OF THE PURCHASE OPTION
1.1. Party A hereby authorizes Party D in accordance with the purchase option granted to Party A under Article 2.1 of the Purchase Option Agreement, and Party D agrees to accept the aforesaid authorization, on behalf of Party A, to purchase entire shares in Party E holding by Party B in accordance with the conditions stipulated in the Purchase Option Agreement .
1.2. In accordance with Article 4 under the Purchase Option Agreement, the purchase price of entire shares in Party E held by Party B, purchased by Party D in accordance with Party A's authorization, shall be the sum of the loan principal lent by Party A to Party B, which is equivalent to RMB 1,650,000. ("Purchase Price").
2. SHARE TRANSFER
2.1. Party B shall enter into a Share Transfer Agreement with Party D, in accordance with the content and form of Appendix II hereto, within thirty (30) days after receiving exercise notice from Party A ("Appendix I"), in accordance with Article 2.3 of the Purchase Option Agreement, and other documents required to make change registrations at industrial and commerce authorities.
2.2. Party C hereby agrees to waive its shareholder's first right of refusal for the shares in Party E holding by Party B, which is enjoyed by Party C in accordance with articles of association of Party E or relevant laws and regulations.
3. LOAN ARRANGEMENTS
3.1. The purchase price of entire shares in Party E holding by Party B, purchased by Party D shall be contributed in full amount by Party A. However, Party D shall enter into a loan agreement with Party A to the satisfaction of Party A, in accordance with the content and form of Appendix III hereto.
3.2. Party D agrees and irrevocably instructs Party A to pay the aforesaid loan provided to Party D, which used to purchase Party B's shares, directly to Party B, in accordance with the conditions and terms stated in the frame agreement.
3.3. Party B agrees to contribute its entire income obtained from selling the shares in Party E in accordance with the agreement, to perform its repayment obligations to Party A under the Loan Agreement. The Loan Agreement between Party B and Party A will be terminated when Party B pay off all the loans in accordance with Article 4.2 hereof.
4. PAYMENT AND OBLIGATION SET-OFF
4.1. In accordance with article 3.2 hereof, the parties agree the purchase price shall be paid by Party A to Party B directly, at the day of share change registration procedures at industrial and commerce authorities are completed, concerning entire shares in Party E holding by Party B, purchased by Party D ("registration day"). Whereas Party B shall pay off all the loans when Party A exercises the purchase option, in accordance with article 1.1 of Loan Agreement, Party A and Party B agree the aforesaid payment made by Party A to Party B will then be set off by the loan principal which shall be paid by Party B to Party A under the Loan Agreement. As the aforesaid set-off is completed, Party A is not required to make any other payments to Party B for the purpose of paying for the purchase price, and Party B is not required to make any other payments to Party A for the purpose of repaying the loan.
4.2. Notwithstanding the foregoing agreement, when the set-off is completed, Party B shall issue a receipt to Party D for all purchase price it received ("Party B's receipt", as Appendix IV hereto), and shall expressly acknowledge Party D's payment obligation under the Share Transfer Agreement has been carried out. Party A shall issue immediately a receipt to Party B for entire loan principal it received ("Party A's receipt", as Appendix V hereto) after Party B have issued the aforesaid party B's receipt, and shall expressly acknowledge Party B's payment obligation under the Loan Agreement has been carried out.
5. CHANGE OF PURCHASE OPTION AGREEMENT
5.1. The parties agree that, as one prerequisite to Party A's contribution of purchase price to Paty D, Party D shall enter into a new purchase option and cooperation agreement with Party A, Party C, Party E and Party F, in accordance with the content and form stipulated in Appendix VI hereto, at the date of the execution of the Share Transfer Agreement.
5.2. Except as otherwise stated or agreed by the parties, all obligations of Party B under the original Purchase Option Agreement will be terminated at the registration day.
6. CHANGE OF PLEDGE AGREEMENT
6.1. The parties agree that, as one prerequisite to Party A's contribution of purchase price to Paty D, Party D shall enter into a new pledge agreement with Party C, Party F and Party A, in accordance with the content and form stipulated in Appendix VII hereto, at the date of the execution of the Share Transfer Agreement.
6.2. The original Pledge Agreement will be terminated at registration day. Except as otherwise stated or agreed by the parties, all obligations of Party B under the original Pledge Agreement will be terminated at the registration day.
7. CONFIDENTIALITY
Without prior approval of the parties, any party shall keep confidential the content of the agreement, and shall not disclose to any other person the content of the agreement or make any public disclosure of the content hereof. However, the article does not make any restrictions on (i) any disclosure made in accordance with relevant laws or regulations of any stock exchange market; (ii) any disclosed information which may be obtained through public channels, and is not caused so by the defaulting of the disclosing party; (iii) any disclosure to shareholders, legal consultants, accountants, financial consultants and other professional consultants of any parties; or (iv) disclosure made to one party's potential buyer of shares/assets, other investors, debt or share financing providers, and the receiving party shall make proper confidentiality undertakings (in the event that the transfer party is not Party A, the approval from Party A shall be obtained as well).
8. NOTIFICATION
8.1. Any notice, request, requirement and other correspondences required by the agreement or made in accordance with the agreement, shall be made in written form and sent to the addresses of the parties first above written herein.
8.2. Notices hereunder shall be sent to the other party's address and/or number, by ways of personal delivery, prepaid registered airmail, acknowledged carrier or fax. Such notices shall be deemed to have been effectively given on the following dates: (1) notices delivered by person shall be deemed to have been effectively served on the date of personal delivery; (2) notices sent by prepaid registered airmail shall be deemed to have been effectively served on the seventh day after the day they were delivered for mailing (as indicated by the postmark); (3) notices sent by courier service shall be deemed to have been effectively served on the third day after they were delivered to an acknowledged courier; (4) notices sent by facsimile shall be deemed to have been effectively served on the first working day after being transmitted.
9. DISPUTE RESOLUTION
9.1. Any dispute arises from the interpretation or performance of terms hereof by the parties, shall be settled through friendly consultation. If the parties fail to make an written agreement after consultation, the dispute shall be submitted for arbitration in accordance with the agreement. The arbitration shall be final and exclusive. Unless otherwise expressly stipulated herein, any party waives expressly its right to submit a dispute to court for a legal action, and the waiver is irrevocable.
9.2. The arbitration shall be submitted to China International Economic and Trade Arbitration Committee ("Arbitration Committee") to be arbitrated in accordance with then-in-force arbitration rules. The place of arbitration shall be Beijing. Unless otherwise stipulated in the arbitration award, the arbitration fee (including reasonable attorney fees and expenses) shall be borne by the losing party.
10. SUPPLEMENTARY PROVISIONS
10.1.The failure or delay of any party hereof to exercise any right hereunder shall not be deemed as a waiver thereof, nor any single or partial exercise of any right preclude further exercise thereof in future by the party.
10.2.The headings of articles herein are provided for the purpose of index.
Such headings shall in no event be used or affected interpretations of
the terms herein.
10.3.The conclusion, effectiveness, interpretation of the agreement and the settlement of disputes in connection therewith, shall be governed by laws of Hong Kong Special Administration Region of the People's Republic of China.
10.4.Each party hereunder concludes the agreement with legal purpose. Each term hereof is severable and independent from the others. If at any time one or more of such terms is or becomes invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining terms hereof shall not in any way be affected thereby; and the parties shall make every endeavor to negotiate and arrive at new terms to substitute the invalid, illegal and unenforceable terms, and preserve as near as possible business purposes of the original terms.
10.5.Upon the effectiveness of the agreement, the parties shall fully perform the agreement. Any modifications of the agreement shall only be effective in written form, through consultations of the parties, and obtained necessary authorization and approval by Party A, Party E and Party F respectively (including Party A shall obtain approval from its board's auditing committee conforming to Sarbanes-Oxley Act and NASDAQ rules or other independent organizations).
10.6.Matters not covered in the agreement shall be dealt with in a supplementary agreement, and annexed hereto. The supplementary agreement shall have the same legal force as the agreement.
10.7.The agreement is executed in six original copies, and are equally authentic. Each party hereto shall hold one copy.
10.8. The agreement shall be effective upon execution.
(The reminder of this page is intentionally left blank.)
[Signature page, no body text]
The Frame Agreement is executed by the following parties(pound)(0)
Party A: China Finance Online Co., Ltd.
Seal:
Authorized Representative (signature):
Party B: Chen Wu
(signature):
Party C: Zhao Zhiwei
(signature):
Party D: Wang Jun
(signature):
Party E: Beijing Fuhua Innovation Technology Development Co., Ltd.
Seal:
Authorized Representative (signature):
Party F: China Finance Online (Beijing) Co., Ltd.
Seal:
Authorized Representative (signature):
EXHIBIT 4.16
[Translated from Chinese Original]
LOAN AGREEMENT
The Loan Agreement (the "Agreement") is entered into as of October 18, 2007 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) JUN WANG (the "Borrower") ID No.: 370102197012163311 Address: 9/F., Tower C, Corporation Mansion, No. 35 Financial Avenue Xicheng District, Beijing 100032 China
Lender and Borrower will each be referred to as a "Party" and collectively referred to as the "Parties."
WHEREAS, Borrower is to acquire from an existing shareholder (Mr. Chen Wu) 55% of the equity ("Fuhua 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") corresponding to the registered capital contribution of RMB 1,650,000,.
WHEREAS, Borrower wishes to borrow a loan from Lender to finance his investment in Fuhua and Lender agrees to provide such loan to Borrower.
NOW THEREFORE, the Parties agree as follows:
ARTICLE 1. LOAN
1.1 Lender agrees to provide a loan to Borrower with the principal amount equal to the US Dollar equivalent of RMB 1,650,000 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 Borrower hereby irrevocably instructs Lender to remit the amount of the Loan direct to Chen Wu as Borrower's payment of the purchase price of the equity.
1.3 The Loan shall only be used by Borrower to acquire the equity of Fuhua. 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.
ARTICLE 2. CONDITIONS PRECEDENT TO DISBURSEMENT
The following conditions must be satisfied before the Loan is disbursed to Borrower:
2.1 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.
2.2 Borrower has not materially breached any terms or conditions hereof.
ARTICLE 3. REPRESENTATION 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;
(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.
ARTICLE 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: Jun Wang Address: 9/F., Tower C, Corporation Mansion, No.35 Financial Avenue Xicheng District, Beijing 100032 China |
ARTICLE 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.
ARTICLE 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 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 maters are involved in the disputes.
ARTICLE 7. MISCELLANEOUS
7.1 This Agreement can only be amended by written agreements jointly executed by the parties.
7.2 Any provision of this Agreement that is invalid or unenforceable shall not affect the validity and enforceability of any other provisions hereof.
7.3 This Agreement is executed in two (2) counterparts. Party A and Party B shall each hold one counterpart.
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:
Title:
BORROWER:
JUN WANG
[Translated from Chinese Original]
WU CHEN
AND
JUN WANG
SHARE TRANSFER CONTRACT
IN RELATION TO SHARES IN
BEIJING FUHUA INNOVATION TECHNOLOGY
DEVELOPMENT CO., LTD.
OCTOBER, 2007
TABLE OF CONTENT ARTICLE 1 DEFINITIONS........................................................................1 1.1 Definitions........................................................................1 1.2 Interpretation.....................................................................2 ARTICLE 2 TRANSFER...........................................................................2 ARTICLE 3 CONSIDERATION......................................................................2 ARTICLE 4 TERM AND TERMINATION...............................................................2 ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF THE TRANSFEROR...................................3 ARTICLE 6 NOTICES............................................................................3 ARTICLE 7 GOVERNING LAW AND DISPUTE RESOLUTION...............................................4 7.1 Governing Law......................................................................4 7.2 Arbitration........................................................................4 ARTICLE 8 MISCELLANEOUS......................................................................4 8.1 Further Assurance..................................................................4 8.2 Non-Assignability..................................................................4 8.3 Waivers............................................................................4 8.4 Amendments.........................................................................5 8.5 Severability.......................................................................5 8.6 Entire Agreement...................................................................5 8.7 Force Majeure......................................................................5 8.8 Successors and Assigns.............................................................6 8.9 Counterparts.......................................................................6 8.10 Signature and Language.............................................................6 8.11 Third Party Agreements.............................................................6 8.12 No Third Party Beneficiaries.......................................................6 |
SHARE TRANSFER CONTRACT
This Share Transfer Contract is entered into by the following Parties on October 18, 2007:
(1) WU CHEN (the "TRANSFEROR"),
Address: Room 616, Tower A, COFCO Plaza, 8 Jianguomennei Avenue, Beijing, China ID Number: 110108491204891; and (2) JUN WANG (the "TRANSFEREE") Address: 9/F., Tower C, Corporation Mansion, No.35 Financial Avenue Xicheng District, Beijing 100032 China ID Number: 370102197012163311 |
WHEREAS:
1(pound)(R) Fuhua Innovation Technology Development Co., Ltd. (the "Company") is a limited liability company registered in Beijing, PRC in compliance with law of China, and its registered capital is RMB 3,000,000.
2(pound)(R) The Transferor is the beneficiary owner of 55% of equity shares of the Company.
3(pound)(R) The Transferor desires to sell to the Transferee, and the Transferee desires to purchase from the Transferor, all shares of the Company owned by the Transferor, representing 55% of the total share capital of the Company.
NOW, THEREFORE, after friendly consultations conducted in accordance with the principles of equality, the Transferor and the Transferee hereby agree as follows:
ARTICLE 1. DEFINITIONS
1.1 Definitions
The following terms as used in this Contract shall have the meanings set forth below unless otherwise specified:
(1) CONTRACT: shall mean this Share Transfer Contract; (2) SHARES: shall mean all shares of the Company owned by the Transferor, representing 55% of the total share capital of the Company; (3) RMB: shall mean the lawful currency of China; (4) PRC/CHINA: shall mean the People's Republic of China which, for the purposes of this Contract, does not include the Hong Kong Special Administrative Regions, the Macau Special Administrative Region, and Taiwan. |
1.2 Interpretation
(1) The articles of the Whereas clause and the Schedule of this Contract form an integral part of this Contract and shall have the same effect as if set out in the body of this Contract. References to this Contract shall be construed as this Contract in its form as so supplemented, revised, altered, or amended, and shall include their articles under the Whereas section and Schedules;
(2) The headings of each article and schedule are for convenience only and shall not affect or restrict the meaning or interpretation of this Contract; and
(3) Each of the Transferor and the Transferee is also be referred to as "a Party" and collectively as "the Parties" to this Contract.
ARTICLE 2.TRANSFER
Subject to the terms and conditions of this Contract, the Transferor agrees to sell the Shares to the Transferee, and the Transferee agrees to purchase the Shares from the Transferor.
ARTICLE 3.CONSIDERATION
Both Parties agree after negotiation that the consideration for the transfer of the Shares shall be an aggregate of the RMB 1,650,000.
ARTICLE 4.TERM AND TERMINATION
4.1 This Contract and the rights and obligations of the Parties to this Contract shall take effect upon the execution of this Contract and shall continue in full force and effect unless earlier terminated as provided herein.
4.2 This Contract may be terminated as follows:
(1) The Parties unanimously agree to terminate this Contract through consultation.
(2) If any Party enters into any voluntary or involuntary bankruptcy proceedings unless the same are dismissed within 90 days after their commencement or such Party is declared bankrupt by courts or any other Governing Authorities, any of the other Parties may terminate this Contract upon written notice to such Party.
(3) This Contract may be terminated due to the occurrence of any event of Force Majeure under Article 8.7.
(4) If, because of any substantial change in Applicable Laws or the interpretation thereof, or any amendment or supplement to or rescission by any Governing Authority thereof, the major objectives of any of the Relevant Contracts cannot be achieved or the major interests of any Party thereunder cannot be realized, the affected Party may upon written notice to the other Party terminate this Contract.
4.3 When the term of this Contract expires or in the event of earlier termination, unless such earlier termination is due to a material breach of a Party and Article 8 above applies, this Contract shall become invalid and the Parties shall not be required to bear the obligations and duties under the terms of this Contract unless otherwise required herein (that is Articles 10, 11, 12, 13, 14,15 and 16 of this Contract).
ARTICLE 5.REPRESENTATIONS AND WARRANTIES OF THE TRANSFEROR
5.1 The execution and performance by the Transferor of this Contract does not contravene any law or contract binding on it.
5.2 The Transferor is the legal owner of the Shares and has full legal right, power and authority to enter into this Contract, and to perform all its obligations hereunder.
5.3 As of the Execution Date, the Company is duly incorporated and validly existing. All required approval and permission relating to the production and operations of Lucky Film have been properly obtained. To the knowledge of the Transferor in its capacity as the controlling shareholder of Lucky Film, Lucky Film is not in material violation of any statute, rule or regulation and is not subject to any ongoing or potential litigation, arbitration, or disputes.
ARTICLE 6.NOTICES
Any and all notices, requests, demands and other communications required or
otherwise contemplated to be made under this Contract shall be in writing and in
English and Chinese and shall be provided by one or more of the following means,
and the effective date thereof shall be deemed to be (a) when received, if
delivered personally, (b) on the date of transmission with receipt of a
transmittal confirmation, if transmitted by facsimile, or (c) on the fourth
(4th) Business Day following the date of deposit with a courier service, or such
earlier delivery date as may be confirmed in writing to the sender by a courier
service, if sent by EMS or other courier service. All such notices, requests,
demands and other communications shall be addressed as follows or as a Party may
notify the other Party from time to time:
Transferor: Wu Chen Address: Room 616, Tower A, COFCO Plaza, 8 Jianguomennei Dajie, Beijing, China Telephone: 010-65264022 Fax: Transferee: Jun Wang Address: 9/F.,Tower C, Corporation Mansion, No. 35 Financial Avenue Xicheng District, Beijing 100032 China Telephone: 010-58325388 Fax: 010-58325300 |
ARTICLE 7.GOVERNING LAW AND DISPUTE RESOLUTION
7.1 Governing Law
This Contract shall be governed by and construed under the laws of China.
7.2 Arbitration
Any dispute arising out of or in connection with, or related to, this Contract, including any question regarding its existence, validity or termination or as to rights or obligations of the Parties hereunder which is not settled by friendly discussions shall be referred to the Beijing Arbitration Commission for final resolution in accordance with its Arbitration Rules from time to time in force which rules are deemed to be incorporated by reference into this Article. The Parties hereby exclude any rights of appeals to any court on the merits of the dispute subject to arbitration.
ARTICLE 8.MISCELLANEOUS
8.1 Further Assurance
During all time after the Execution Date, for the realization of the interests of the other Party, and in consummation of the Transaction described herein, each Party shall take all necessary action and execute all documents as reasonably requested by the other Party, and shall act as reasonably requested by the other Party. The Parties shall use their best efforts to cause any other third party to execute such documents and to perform such acts.
8.2 Non-Assignability
Unless otherwise agreed in writing by the Parties to this Contract, neither this Contract nor any of the rights, interests or obligations hereunder may be assigned by either of the Parties without the prior written consent of the other Party.
8.3 Waivers
No waiver of any right of a Party under this Contract will be effective unless evidenced by an instrument in writing duly executed by such Party. No failure on the part of a Party to exercise, and no delay in exercising, any of its rights hereunder will operate as a waiver thereof (for the avoidance of doubt, if the exercise of any right is subject to a term, such right shall be exercised within such term), nor will any single or partial exercise by either Party of any right preclude any other or future exercise thereof or the exercise of any other right.
8.4 Amendments
Amendments to this Contract (or documents mentioned herein) shall be made in writing and signed by the Parties or their duly authorized representatives and shall be subject to the completion of the examination and approval procedures as required by laws and regulations (if applicable).
8.5 Severability
If any provision of this Contract should be or become fully or partly invalid, illegal or unenforceable in any respect for any reason whatsoever, such provision shall have no effect to the extent that it is invalid or unenforceable and shall be deemed to be excluded from this Contract. The validity and enforceability of the remaining provisions of this Contract shall not be impaired. The Parties shall use their best reasonable efforts to substitute such invalid or unenforceable provision with a suitable and equitable provision that serves the intent and purpose of such invalid or unenforceable provision. If the exclusion of a provision of this Contract results in the inability of the Parties to achieve the material objectives of this Contract, the Parties will negotiate in good faith to amend or terminate this Contract on mutually acceptable terms.
8.6 Entire Agreement
This Contract and the Cooperation Framework Contract constitute the entire agreement, and supersede all prior agreements and understandings, both written and oral, among the Parties with respect to the subject matter hereof.
8.7 Force Majeure
"Force Majeure" shall mean unforeseeable, unavoidable and insurmountable objective conditions (such conditions include but shall not be limited to earthquakes, typhoons, flood, fire, strikes, war, or riots). If an event of Force Majeure occurs and affects a Party's performance of its obligations under this Contract, such performance shall be suspended during the period of delay caused by the Force Majeure and shall be extended, without penalty, for a period equal to such suspension. The Party claiming Force Majeure shall promptly inform the other Party in writing and shall, within seven (7) Business Days of the occurrence of the event of Force Majeure, or in the event of communication disruption, within seven (7) Business Days upon the restoration of the communication facilities, furnish the other Party by fax and by express-mail with sufficient detailed information regarding the event of Force Majeure and shall provide proof of the occurrence and duration of such Force Majeure.
If such Party claiming Force Majeure fails to notify the other Party and furnish it with proof pursuant to the above provision, such Party shall not be excused from the non-performance of its obligations hereunder. The Party so affected by the event of Force Majeure shall use the reasonable efforts to minimize the consequences of such Force Majeure and to promptly resume performance hereunder whenever the causes of such excuse are cured. Should the Party so affected by the event of Force Majeure fail to resume performance hereunder when the causes of such excuse are cured, such Party shall be liable to the other Party.
In the event of Force Majeure, the Parties shall immediately consult with each other in order to find an equitable solution and shall use all reasonable endeavours to minimize the consequences of such Force Majeure.
8.8 Successors and Assigns
This Contract is executed for the interests of the Parties and their respective successors and authorized assigns and shall be binding among them.
8.9 Counterparts
This Contract may be executed in any number of counterparts, and each counterpart, upon execution and delivery, shall constitute an original instrument, but all such separate counterparts shall constitute only one and the same instrument.
8.10 Signature and Language
This Contact shall be executed in 2 original copies in Chinese with equal validity.
8.11 Third Party Agreements
Neither Party shall make any separate agreement with any third party that is inconsistent with any of the provisions of this Contract.
8.12 No Third Party Beneficiaries
No provisions of this Contract, whether expressed or implied, are intended or shall be construed to confer upon or give to any person or entity other than the specific parties hereto any rights, remedies or other benefits under or by reason of this Contract.
(Execution Page)
IN WITNESS WHEREOF, the Parties hereto have signed this Contract as of the date first written above.
Transferor: Wu Chen
_________________(signature)
Transferee: Jun Wang
________________(signature)
EXHIBIT 4.18
[Translated from Chinese Original]
SHARE PLEDGE AGREEMENT
This Share Pledge Agreement (this "Agreement") is executed by and among the following parties on October 18, 2007.
PLEDGOR A: ZHIWEI ZHAO ID NUMBER: 110102196307100139 ADDRESS: 9/F., Tower C, Corporation Mansion, No.35 Financial Avenue, Xicheng District, Beijing 100032 China PLEDGOR B: JUN WANG ID NUMBER: 370102197012163311 ADDRESS: 9/F., Tower C, Corporation Mansion, No.35 Financial Avenue, Xicheng District, Beijing 100032 China PLEDGEE: CHINA FINANCE ONLINE (BEIJING) CO., LTD. |
REGISTERED ADDRESS: ROOM 946-949, 9/F., Tower C, Corporation Mansion, No.35 Financial Avenue Xicheng District, Beijing 100032 China
Unless otherwise provided hereunder, Pledgor A and Pledgor B shall hereinafter be referred to collectively as the "Pledgors".
WHEREAS:
1. Zhiwei Zhao, Pledgor A, and Jun Wang, 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 (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.
ARTICLE 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.
1.6 "Service Agreements" means all the agreements entered into by Fuhua and Pledgee, including but not limited to Strategy Consulting Services Agreement, Technical Support Agreement and Equipment Rent Agreement.
1.7 "Event of Default" means any event set forth in Article 8 of this Agreement.
1.8 "Notice of Default" means the notice issued by Pledgee in accordance with this Agreement declaring an Event of Default.
ARTICLE 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).
ARTICLE 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.
ARTICLE 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.
ARTICLE 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.
ARTICLE 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.
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.
ARTICLE 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 [ ], 2007 among Pledgee, Pledgors, China Finance Online Co., Ltd. and Fuhua and Pledgors may transfer the Share Equity to China Finance Online Co., Ltd. or 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.
ARTICLE 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;
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.
ARTICLE 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.
ARTICLE 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.
ARTICLE 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.
ARTICLE 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.
ARTICLE 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.
ARTICLE 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 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.
ARTICLE 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.
ARTICLE 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. Theiiinvalidity of any provision hereof shall not effect the validity oriienforceability of any other provision hereof.
ARTICLE 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' Listiiof
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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
[execution page only]
Pledgor A: Zhiwei Zhao
Pledgor B: Jun Wang
Pledgee: China Finance Online(Beijing) Co., Ltd. [COMPANY SEAL]
Authorized representative:
EXHIBIT 4.19
[Translated from Chinese Original]
PURCHASE OPTION AND COOPERATION AGREEMENT
among
CHINA FINANCE ONLINE CO. LIMITED
ZHIWEI ZHAO
WANG JUN
and
BEIJING FUHUA INNOVATION TECHNOLOGY DEVELOPMENT CO., LTD.
CHINA FINANCE ONLINE (BEIJING) CO., LTD.
October, 2007
BEIJING, CHINA
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 18th day of October, 2007 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: ZHIWEI ZHAO
Address: 9/F., Tower C, Corporation Mansion, No.35 Financial Avenue Xicheng District, Beijing 100032 China ID Number: 110102196307100139
Party C: JUN WANG
Address: 9/F., Tower C, Corporation Mansion, No.35 Financial Avenue Xicheng
District, Beijing 100032 China ID Number: 370102197012163311
Party D: Beijing Fuhua Innovation Technology Development Co., Ltd.
Address: ROOM 938-941, 9/F., Tower C, Corporation Mansion, No.35 Financial Avenue Xicheng District, Beijing 100032 China
Party E: China Finance Online (Beijing) Co., Ltd.
Address: ROOM 946-949, 9/F., Tower C, Corporation Mansion, No.35 Financial
Avenue Xicheng District, Beijing 100032 China
WHEREAS,
(1) 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, Party E, certain technical support, strategic consulting and other services to Party D, and currently is a major business partner of Party D;
(2) To finance the investment by Party B and Party C in Party D, Party A has entered into loan agreements (hereafter the "Loan Agreement" respectively with Party B and Party C on November 20, 2006 and October 18,2007, 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 has invested the full amount of the loans in Party D's registered capital, and each holds 45% and 55% equity interests in Party D, respectively;
(3) 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:
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), 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 to the sum of the principles of the loans from Party A to Party B and Party C under the Loan Agreement (RMB3,000,000). 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 the agents (the
"Agents") to the satisfaction of Party A 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).
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.
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.
[execution page only]
Party A: China Finance Online Co. Limited [COMPANY SEAL]
Authorized Representative (Signature): [ ]
Party B: ZHIWEI ZHAO
(Signature):
Party C: JUN WANG
(Signature):
Party D: Beijing Fuhua Innovation Technology Development Co., Ltd. [COMPANY
SEAL]
Authorized Representative (Signature):
Party E: China Finance Online (Beijing) Co., Ltd. [COMPANY SEAL]
Authorized Representative (Signature):
EXHIBIT 4.20
[Translated from Chinese Original]
PURCHASE OPTION AND COOPERATION AGREEMENT
among
CHINA FINANCE ONLINE (BEIJING) CO., LTD.
ZHIWEI ZHAO
WANG JUN
and
BEIJING FUHUA INNOVATION TECHNOLOGY DEVELOPMENT CO., LTD.
CHINA FINANCE ONLINE CO. LIMITED
March 2008
BEIJING, CHINA
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 March 3, 2008 by and among:
Party A CHINA FINANCE ONLINE (BEIJING) CO., LTD. Address Room 946-949, Tower C, Corporation Mansion, No. 35 Financial Avenue Xicheng District, Beijing 100032 China Party B: JUN WANG Address: 9/F.,Tower C, Corporation Mansion, No.35 Financial Avenue Xicheng District, Beijing 100032 China ID Number: 370102197012163311 Party C: ZHIWEI ZHAO Address: 9/F., Tower C, Corporation Mansion, No.35 Financial Avenue Xicheng District, Beijing 100032 China ID Number: 110102196307100139 Party D: BEIJING FUHUA INNOVATION TECHNOLOGY DEVELOPMENT CO., LTD. Address: Room 938-941, 9/F., Tower C, Corporation Mansion, No.35 Financial Avenue Xicheng District, Beijing 100032 China Party E: CHINA FINANCE ONLINE CO. LIMITED |
Registered Address: Unit C, 8/F East Wing, Sincere Insurance Building 406, Hennessey Road, Hong Kong SAR, China
WHEREAS,
(1) Party E, 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, Party A, certain technical support, strategic consulting and other services to Party D, and currently is a major business partner of Party D;
(2) To finance the investment by Party B and Party C in Party D, Party A has entered into loan agreements (hereafter the "Loan Agreement" respectively with Party B and Party C on March 2008, providing Party B and Party C with loans of 3,850,000 RMB Yuan and 3,150,000 RMB Yuan, respectively. Pursuant to the Loan Agreement, Party B and Party C have invested the full amount of the loans in Party D's registered capital;
(3) For securing the payment obligation of Party D to Party A under the several agreements, Party B and Party C entered into a Share Pledge Agreement with Party A in March 2008 (" Share Pledge Agreement") by which they pledge their holding shares in Party D to Party A, and
(4) 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 by the Loan. 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:
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), 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 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 (or any eligible party designated by 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 (or any eligible party designated by 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 the agents (the
"Agents") to the satisfaction of Party A 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).
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.
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 and Party E have obtained necessary authorization and approvals with respect to such amendment (including the approval that Party E 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 This Agreement shall substitute any option purchase agreement entered into prior to the execution of this Agreement between Party A (if applicable), Party D, or Party E (if applicable) and the shareholders of Party B or Party C which specifies when it is permitted by applicable laws, it shall have the right to acquire, at any time, all or part of Party D's assets or its share equity owned by such shareholders.
[execution page only]
Party A: China Finance Online (Beijing) Co. Limited
[COMPANY SEAL]
Authorized Representative (Signature): [ ]
Party B: JUN WANG
(Signature):
Party C: ZHIWEI ZHAO
(Signature):
Party D: Beijing Fuhua Innovation Technology Development Co., Ltd.
[COMPANY SEAL]
Authorized Representative (Signature):
Party E: China Finance Online Co., Ltd.
[COMPANY SEAL]
Authorized Representative (Signature):
EXHIBIT 4.21
[Translated from Chinese Original]
CAPITAL INCREASE AGREEMENT
OF
BEIJING FUHUA INNOVATION TECHNOLOGY
DEVELOPMENT CO., LTD.
MARCH 2008
This Agreement is entered into in Beijing as of March 3, 2008 by and among the following parties:
PARTY A: BEIJING FUHUA INNOVATION TECHNOLOGY DEVELOPMENT CO., LTD.
Registered Address: Room 938-941, Power C, Corporate Square, No. 35 Financial
Street, Xicheng District, Beijing, the People's Republic of China (the "PRC")
Postal Code: 100032
PARTY B: WANG JUN
Address: Floor 9, Tower C, Corporate Square, No. 35 Financial Street, Xicheng
District, Beijing, the PRC
ID No. :370102197012163311
PARTY C: ZHAO ZHIWEI
Address: Floor 9, Tower C, Corporate Square, No. 35 Financial Street, Xicheng
District, Beijing, the PRC
ID No. :110102196307100139
Whereas
A. Party A is a limited liability company duly organized and validly existing under the laws of the PRC, with a registered capital of RMB 3,000,000.
B. Party B and Party C are current shareholders of Party A; Party B holds RMB
1.65 million contribution (55%) in the registered capital of Party A, and Party
C holds RMB 1.35 million contribution (45%) in the registered capital of Party
A.
C Party A intends to increase its registered capital, and Party B and Party C agree to subscribe and contribute to the newly increased registered capital in accordance with this Agreement.
THEREFORE, in accordance with the principle of fairness and mutual benefit, through friendly negotiation, the Parties hereby enter into the following agreements:
1. Definitions and Interpretations
1.1 Definitions
Unless otherwise specified herein, the terms used in this Agreement shall have the meanings set forth below:
"Articles of Association" means the amended Articles of Association, which shall reflect the terms of this Agreement executed by the Parties.
"Company" means Beijing Fuhua Innovation Technology Development Co., Ltd.
"Effective Date" means the date when this Agreement takes effect pursuant to Article 5.1 herein.
"Newly Increased Registered Capital" means the registered capital Party A intends to increase, i.e. RMB 7 million.
"Increased Registered Capital" means the registered capital of the Company after the capital increase pursuant to this Agreement, i.e. RMB 10 million.
1.2 Interpretation
The headings of articles herein are provided for the purpose of reference. Such headings shall in no event be used or affected interpretations of the terms herein.
2. Capital Increase
2.1 Party A has the registered capital of RMB 3 million and has decided to increase the registered capital to RMB 10 million ("Increased Registered Capital"), in which the amount of the newly increased registered capital is RMB 7 million ("Newly Increased Registered Capital").
2.2 Party B agrees to contribute RMB 3.85 million to Party B for the subscription of the Newly Increased Registered Capital; Party C agrees to contribute RMB 3.15 million to Party B for the subscription of the Newly Increased Registered Capital. After completing the above capital increase, Party B will account for RMB 5.50 million (55%) in the registered capital of Party A, and Party C will account for RMB 4.50 million (45%) in the registered capital of Party A.
2.3 Party A agrees Party B and Party C to subscribe for the Newly Increased Registered Capital of Party A pursuant to this Agreement.
2.4 The Parties shall amend the Articles of Association of Party A and other relevant legal documents pursuant to this Agreement, and assist Party A in completing the registration procedures at the industry and commerce authorities.
3. Closing
3.1 Party B and Party C shall contribute all the subscriptions of the Newly Increased Registered Capital to Party A in one payment prior to March 10, 2008.
3.2 After receiving the payment for the Newly Increased Registered Capital from Party B and Party C, Party A shall immediately arrange a PRC certified accountant to make the capital verification of the capital contributed by Party B and Party C within the time period specified by the Articles of Association, and issue a capital verification report and capital contribution certification to Party B and Party C.
4. Representation and Warranties
Each party hereby represents to the other parties that:
4.1 It has all the necessary rights, powers and authorizations to enter into this Agreement and perform its duties and obligations hereunder.
4.2 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 is or its assets are bounded.
4.3 This Agreement will constitute legal, valid and binding obligations to such Party, and such obligations can be enforced upon the execution of this Agreement.
5. Effectiveness
5.1 The agreement shall be effective upon execution ("Effective Date").
6. Breach of this Agreement
6.1 Any non performance of any provision hereof, incomplete performance of any obligation provided hereunder by any Party shall constitute an event of default. The defaulting Party shall assume all the losses of other Parties suffered. If any violation of the obligations hereunder or the misrepresentation made in the representation, undertakings and warranties hereunder fail to be remedied effectively within 15 days after the non-breaching party sent a written notice ( or such other longer time as agreed by the non-breach party in writing), the non-breaching party is entitled to terminate this Agreement immediately unilaterally. The defaulting Party shall assume all the losses of other Parties suffered.
7. Dispute Resolution
7.1 Any dispute arises from the interpretation or performance of terms hereof by the parties, shall be settled through friendly consultation. If the parties fail to make an written agreement after consultation, the dispute shall be submitted for arbitration in accordance with the agreement. The arbitration shall be final and exclusive. Unless otherwise expressly stipulated herein, any party waives expressly its right to submit a dispute to court for a legal action, and the waiver is irrevocable.
7.2 The arbitration shall be submitted to China International Economic and Trade Arbitration Committee ("Arbitration Committee") to be arbitrated in accordance with then-in-force arbitration rules. The place of arbitration shall be Beijing. Unless otherwise stipulated in the arbitration award, the arbitration fee (including reasonable attorney fees and expenses) shall be borne by the losing party.
8. Miscellaneous
8.1 The failure or delay of any party hereof to exercise any right hereunder shall not be deemed as a waiver thereof, nor any single or partial exercise of any right preclude further exercise thereof in future by the party.
8.2 Each party hereunder concludes the agreement with legal purpose. Each term hereof is severable and independent from the others. If at any time one or more of such terms is or becomes invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining terms hereof shall not in any way be affected thereby; and the parties shall make every endeavor to negotiate and arrive at new terms to substitute the invalid, illegal and unenforceable terms, and preserve as near as possible business purposes of the original terms.
8.3 Matters not covered in the agreement shall be dealt with by the Parties otherwise, pursuant to Chinese laws.
8.4 The agreement is executed in five original copies, and are equally authentic. Each party hereto shall hold one copy, and the remaining two shall be used for relevant industry and commerce registration procedures.
(The reminder of this page is intentionally left blank.)
This Agreement is executed by the following parties on March 3, 2008:
Party A: Beijing Fuhua Innovation Technology Development Co., Ltd.
SEAL:
Party B: Wang Jun
Signature:
Party C: Zhao Zhiwei
Signature:
EXHIBIT 4.22
[Translated from Chinese Original]
LOAN AGREEMENT
The Loan Agreement (the "Agreement") is entered into as of March 3, 2008 between the following parties:
Lender: CHINA FINANCE ONLINE CO., (BEIJING) LTD.
Registered Address: Room 946-949, Tower C, Corporation Mansion, No.35 Financial
Street Xicheng District, Beijing 100032 China.
Legal Representative: Zhao Zhiwei
Borrower A: JUN WANG
Address: 9/F., Tower C, Corporation Mansion, No.35 Financial Avenue Xicheng
District, Beijing 100032 China
ID No.: 370102197012163311
Borrower: ZHAO ZHIWEI
Address: 9/F, Tower C, Corporation Mansion, No. 35 Financial Avenue Xicheng
District, Beijing 100032 China
ID No. :110102196307100139
(Borrower B and Borrower C are collectively referred to as "Borrowers").
WHEREAS,
(1) Borrowers enter into the Capital Increase Agreement with Fuhua Innovation Technology Development Co., Ltd. (the "Company"), whereby the Borrowers will contribute RMB 7 million fort he subscription of the newly increased registered capital of the Company;
(2) Borrowers wishes to borrow a loan from Lender to finance his subscription for the newly increased registered capital of the Company;
(3) Lender wishes to offer such Loan to Borrowers.
THEREFORE, in accordance with the principle of sincere cooperation, mutual benefit and joint development, through friendly negotiation, the Parties hereby enter into the following agreements pursuant to relevant Chinese laws and regulations:
ARTICLE 1. LOAN
1.1 Lender agrees to provide the Loan to Borrowers as follows: providing RMB 3.85 million to Borrower A, and RMB 3.15 million to Borrow B.
1.2 Term for such Loan shall be ten (10) years which may be extended upon the agreement of the Parties (the "Term").
1.3 Notwithstanding the foregoing, in the following circumstances, Borrowers 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 the Company under the PRC law and Lender chooses to do so.
1.4 Subject to the satisfaction of the conditions precedent as specified in Article 2, Lender shall remit the amount of the Loan direct to the bank account designated by Borrowers payment within 7 days after receiving the written request of payment of Borrowers. Borrowers shall send a written receipt of the Loan to Lender within 1 days after receiving the Loan.
1.5 The Loan shall only be used by Borrowers to the contribution of the newly increased registered capital of the Company. Without Lender's prior written consent, Borrowers shall not use the Loan for any other purpose or transfer or pledge his interest in the Company to any third party.
1.6 Borrowers can only repay the Loan by transferring all of his interest in the Company obtained by using the Loan to Lender or a third party designated by Lender when such transfer is permitted under the PRC law.
1.7 Lender and Borrowers 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 Borrowers' shares in the Company 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 Borrowers' interest in the Company, the purchase price shall be reduced on a pro rata basis.
1.8 In the event when Borrowers transfer their shares in the Company 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 Borrowers to Lender in full.
ARTICLE 2. CONDITIONS PRECEDENT TO DISBURSEMENT
The following conditions must be satisfied before the Loan is disbursed to Borrowers:
2.1 Lender has received the request of payment sent by Borrowers pursuant to Article 1.2;
2.2 Borrowers and Lender have executed the Share Pledge Agreement to the satisfaction of Lender;
2.3 Borrowers and Lender have executed the Option Purchase and Cooperative Agreement to the satisfaction of Lender;
2.4 The above Share Pledge Agreement and the Option Purchase and Cooperative Agreement have been and remain effective. The parties to the contracts or agreements have not materially breached any term or condition thereof, and all the necessary governmental approval, consent, authorization and registration have been obtained or completed.
2.5 The representations and warranties specified in Article 3 herein is true and accurate on the date of Lender's receiving the request of payment and the date of making the payment.
2.6 Borrowers have not materially breached any terms or conditions hereof.
ARTICLE 3. REPRESENTATION AND WARRANTIES
3.1 Lender hereby represents and warrants to Borrowers that:
(a) Lender is a company registered and validly existing under the laws of China;
(b) 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 Borrowers hereby represent and warrant to Lender that:
(a) Borrowers have 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 Borrowers or any contractual restriction binding on or affecting Borrowers;
(d) this Agreement shall constitute the legal and valid obligations of Borrowers, which is enforceable against Borrowers 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 Borrowers.
ARTICLE 4. CONFIDENTIALITY
Without prior approval of the parties, any party shall keep confidential the content of the agreement, and shall not disclose to any other person the content of the agreement or make any public disclosure of the content hereof. However, the article does not make any restrictions on (i) any disclosure made in accordance with relevant laws or regulations of any stock exchange market; (ii) any disclosed information which may be obtained through public channels, and is not caused so by the defaulting of the disclosing party; (iii) any disclosure to shareholders, legal consultants, accountants, financial consultants and other professional consultants of any parties; or (iv) disclosure made to one party's potential buyer of shares/assets, other investors, debt or share financing providers, and the receiving party shall make proper confidentiality undertakings (in the event that the transfer party is not Lender, the approval from Lender shall be obtained as well).
ARTICLE 5. GOVERNING LAW AND LIABILITY FOR BREACH
5.1 The execution, validity, interpretation, performance, implementation, termination and settlement of disputes of this Agreement shall be governed by the laws of People's Republic of China.
5.2 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 6. SETTLEMENT OF DISPUTES
6.1 Any dispute arising from the performance of this Agreement shall be first subject to the Parties' friendly consultations. If such consultation fails, such dispute can be submitted to arbitration.
6.2 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 in Beijing.
6.3 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 7.MISCELLANEOUS
7.1 This Agreement shall take effect after the execution of the Parties.
7.2 Upon the effectiveness of the agreement, the parties shall fully perform the agreement. Any modifications of the agreement shall only be effective in written form, through consultations of the parties.
7.3 This Agreement is executed in three (3) counterparts. Each Party shall each hold one counterpart.
(The reminder of this page is intentionally left blank.)
[Signature page, no body text]
LENDER:
CHINA FINANCE ONLINE (BEIJING) CO., LTD.
Seal:
Authorized Representative:
BORROWER A: Wang Jun
(Signature)
BORROWER B: Zhao Zhiwei
(Signature)
EXHIBIT 4.23
[Translated from Chinese Original]
SHARE PLEDGE AGREEMENT
This Share Pledge Agreement (this "Agreement") is executed by and among the following parties on March 3, 2008.
Pledgor A: Zhiwei Zhao
ID No.: 110102196307100139
Address: 9/F.,Tower C, Corporation Mansion, No.35 Financial Avenue Xicheng
District, Beijing 100032 China
Pledgor B: Jun Wang
ID No.: 370102197012163311
Address: 9/F.,Tower C, Corporation Mansion, No.35 Financial Avenue Xicheng
District, Beijing 100032 China
Pledgee: China Finance Online (Beijing) Co., Ltd.
Address: ROOM 946-949, 9/F., Tower C, Corporation Mansion, No.35 Financial
Avenue Xicheng District, Beijing 100032 China
Unless otherwise provided hereunder, Pledgor A and Pledgor B shall hereinafter be referred to collectively as the "Pledgors".
WHEREAS:
1. Zhiwei Zhao, Pledgor A, and Jun Wang, 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 (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.
ARTICLE 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.
1.6 "Service Agreements" means all the agreements entered into by Fuhua and Pledgee , including but not limited to Strategy Consulting Services Agreement, Technical Support Agreement and Equipment Rent Agreement.
1.7 "Event of Default" means any event set forth in Article 8 of this Agreement.
1.8 "Notice of Default" means the notice issued by Pledgee in accordance with this Agreement declaring an Event of Default.
ARTICLE 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).
ARTICLE 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.
ARTICLE 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.
ARTICLE 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.
ARTICLE 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.
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.
ARTICLE 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 March 3, 2008 among Pledgee, Pledgors, China Finance Online Co., Ltd. and Fuhua and Pledgors may transfer the Share Equity to China Finance Online Co., Ltd. or 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.
ARTICLE 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;
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.
ARTICLE 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.
ARTICLE 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.
ARTICLE 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.
ARTICLE 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.
ARTICLE 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.
ARTICLE 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 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.
ARTICLE 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.
ARTICLE 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 Pledgee 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.
ARTICLE 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
[execution page only]
Pledgor A: Zhiwei Zhao
Pledgor B: Jun Wang
Pledgee: China Finance Online(Beijing) Co., Ltd. [COMPANY SEAL]
Authorized representative:
EXHIBIT 4.24
[Translated from Chinese original]
LOAN AGREEMENT
AMONG
FORTUNE SOFTWARE (BEIJING) CO. LTD.
XIONG WEI
AND
FAN ZHENFEI
AUGUST 2007
BEIJING
LOAN AGREEMENT
The Loan Agreement (the "Agreement") is entered into as of August 21, 2007 among the following parties in Beijing, the People's Republic of China (the "PRC"):
PARTY A: FORTUNE SOFTWARE (BEIJING) CO., LTD. (the "Lender")
Address: Floor 9, Tower C, Corporate Square, No. 35 Financial Street, Xicheng District, Beijing, the People's Republic of China (the "PRC") Legal Representative: Zhao Zhiwei
PARTY B: XIONG WEI
Address: Floor 9, Tower C, Corporate Square, No. 35 Financial Street, Xicheng
District, Beijing, the PRC
ID No.: 610113197206201645
Tel: 010-58325321
PARTY C: FAN ZHENFEI
Address: Floor 9, Tower C, Corporate Square, No. 35 Financial Street, Xicheng
District, Beijing, the PRC
ID No. :370282197711186915
Tel: 010-58325320
Party B and Party C are collectively referred to as the "Borrowers".
Party A, Party B and Party C will each be referred to as a "Party" and collectively referred to as the "Parties."
WHEREAS,
1. The Lender is a wholly foreign owned enterprise duly organized and validly existing under the laws of the PRC.
2. The Borrowers desire to establish a company in the PRC ("New Company"), and will collectively hold 100% equity interest in the Company.
3. The Borrowers desire to borrow loans from the Lender to invest in the New Company, and the Lender agrees to provide such loans to Borrowers.
THEREFORE, in accordance with the principle of sincere cooperation, mutual benefit and joint development, through friendly negotiation, the Parties hereby enter into the following agreements pursuant to relevant PRC laws and regulations.
ARTICLE 1. AMOUNT AND PURPOSE
1.1 Loan Amount: the Lender agrees to provide a loan from its self-owned fund to Party B and Party with the amount of RMB 550,000, and RMB 450,000 respectively.
1.2 Purpose of the Loan: the Borrowers shall only use the Loan hereunder to establish the New Company as registered capital. Without the prior written consent of the Lender, the Borrowers shall not use such Loan for any other purpose, or pledge their equity interests in the New Company to any other third party.
ARTICLE 2. PAYMENT FOR THE LOAN
2.1 Payment Notice: the Lender shall deposit the loan amount to the following accounts designated by the Borrowers within ten days after the execution of this Agreement:
Party B: Bank of deposit: Bank of Communication, Beijing Branch Account Name: Xiong Wei Account No.: 6222 6009 1002 0808 945
Party C: Bank of deposit: CITIC Bank Account Name: Fan Zhenfie Account No.: 6226 9007 0313 2890
ARTICLE 3. TERM, REPAYMENT AND INTEREST OF THE LOAN
3.1 The term of the loan shall be 10 years and may be renewed pursuant to the agreement between the Parties ("Term"). Notwithstanding the foregoing, in the following circumstances, the Borrowers shall repay the Loan regardless if the Term has expired:
(1) The Borrowers deceases or becomes a person without legal capacity or with limited legal capacity;
(2) The Borrowers commit a crime or are involved in a criminal act; or
(3) The Lender or its designated assignee can legally purchase the Borrowers' shares in the New Company under the PRC law and the Lender chooses to do so.
3.2 The Borrowers can repay the Loan by transferring all of their equity interests in the New Company to the Lender or a third party designated by the Lender when such transfer is permitted under the PRC law. In the event (1) the Borrowers transfer all of their equity interests in the New Company to the Lender or a third party designated by the Lender when such transfer is permitted under the PRC law, or (2) the Borrowers receive dividends from the New Company, the Borrowers shall deposit all the funds or dividends obtained from such transfer or the New Company, as the case may be, to the account designated by the Lender (no matter such amount is higher or less than the principal amount of the Loan).
3.3 The Lender and the Borrowers hereby jointly agree and confirm that the 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 the New Company 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 the New Company, the purchase price shall be reduced on a pro rata basis.
3.4 In the event when the Borrowers transfer their interest in the New Company to the Lender or a third party transferee designated by Lender, (i) if the total of (1) the actual transfer price paid by Lender or the third party transferee and (2) the dividends obtained from the New Company by the Lender (if applicable) equals or is less than the principal amount of the Loan, the Loan shall be deemed as interest free; (ii) if the total of (1) the actual transfer price paid by Lender or the third party transferee and (2) the dividends obtained from the New Company by the Lender (if applicable) 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 Borrowers to Lender in full.
ARTICLE 4. 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.
ARTICLE 5. DISPUTE RESOLUTION
5.1 The execution, validity, interpretation, performance, implementation, termination and settlement of disputes of this Agreement shall be governed by the laws of the PRC.
5.2 Any dispute arising from or in connection with this Agreement shall be settled through friendly negotiation. If the parties fail to make any written agreement within thirty days after consultation, such dispute will be submitted (by the Lender or the Borrowers) to the China International Economic and Trade Arbitration Commission ("CIETAC") in accordance with its arbitration rules/procedures. The arbitration shall commence from the date of filing. The tribunal will be composed of one (1) arbitrator appointed by the chairman of CIETAC. The arbitration shall be final and bind the Parties. Unless otherwise stipulated by the arbitrator, the arbitration fee (including reasonable attorney fees and attorney expenses) shall be borne by the losing party.
ARTICLE 6. EFFECTIVENESS
6.1 This Agreement shall become effective after the execution of the Parties. The Agreement can be terminated by one Party through sending a written notice to the other Parties thirty days prior to the termination. Otherwise any Party shall not terminate this Agreement unilaterally without the mutual agreement of the Parties.
ARTICLE 7. AMENDMENT
7.1 Upon the effectiveness of the agreement, the parties shall fully perform the agreement. Any modifications of the agreement shall only be effective in written form through consultations of the parties. Any modification and supplementary to this Agreement after signed by both Parties, become an integral part of this Agreement, and has the same legal force with this Agreement.
ARTICLE 8.MISCELLANEOUS
8.1 The headings of articles herein are provided for the purpose of reference. Such headings shall in no event be used or affected interpretations of the terms herein.
8.2 Matters not covered in the agreement shall be dealt with in a supplementary agreement, and annexed hereto. The supplementary agreement shall be an integral part of this Agreement and have the same legal force as the agreement.
8.3 Any provision of this Agreement that is invalid or unenforceable shall not affect the validity and enforceability of any other provisions hereof.
8.4 The agreement is executed in three original copies, and are equally authentic. Each party hereto shall hold one copy.
IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of the date and year first hereinabove set forth.
Party A: FORTUNE SOFTWARE CO., LTD ------------------------- Seal Authorized Representative: Party B: XIONG WEI ------------------------- (signature) PARTY C: FAN ZHENFI ------------------------- (signature) |
EXHIBIT 4.25
[Translated from Chinese Original]
OPERATION AGREEMENT
between
FORTUNE SOFTWARE (BEIJING) CO., LTD.
and
BEIJING PREMIUM TECHNOLOGY CO., LTD.
August, 2007
BEIJING, CHINA
OPERATION AGREEMENT
This Operation Agreement ("this Agreement") is entered into in Beijing, People's Republic of China (the "PRC") on this August 21, 2007 between:
Party A: Fortune Software (Beijing) Co., Ltd Address: Room 626, Beijing Hangtian Jingmi Mansion, No. 30 Haidian Nalu Road, Haidian District, Beijing Legal Representative: Zhao Zhiwei Tel: 010-58325388
Party B: Beijing Premium Technology Co., Ltd.
Address: Room 619, Beijing Hangtian Jingmi Mansion, No. 30 Haidian Nalu Road, Haidian District, Beijing Legal Representative: Xiong Wei Tel: 010-58325388
WHEREAS,
(1) Party A is a wholly foreign owned enterprise duly organized and validly existing under the laws of PRC, and has expertise and resources in developing and manufacturing computer hardware and software, system software, and application software; Party A desires to provide to Party B operational services in connection with developing and manufacturing computer hardware and software, system software, and application software.
(2) Party B is a company with limited liability duly organized and validly existing under the laws of PRC; and to expanding its business operation in the aspects of developing and producing computer hardware, software, system software, and application software, Party B engages Party A to provide the operational services in connection with such operation.
(3) Party A has entered into a technical support agreement and strategic consulting agreement with Party B (collectively the "Binding Agreements"), and hence the Parties have established certain business relationship.
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:
1.1 "This Agreement" means this Operation 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. OPERATIONAL SUPPORT
2.1 Party A agrees, according to the operational needs of Party B, to act as the guarantor of Party B in the contracts, agreements, or transactions entered into between Party B and third parties, in order to fully guarantee the performance by Party B of such contracts, agreements, and transactions.
2.2 Party A agrees, according to the operational needs Party B, to recommend directors and senior management to Party B and Party B agrees to appoint the such personnel recommended by Party A to be its directors and senior management. The relevant personnel recommended by Party A pursuant to this Article shall meet the qualification requirements for directors and senior management under applicable laws.
2.3 To ensure the performance of this Agreement, Party A agrees to provide to Party B cooperative policy advice and guidance, which is consistent with the daily operation and financial management and the employment policy of Party B.
ARTICLE 3. OBLIGATIONS OF PARTY B
3.1 Party B agrees not to conduct the following business which may materially affect its assets, rights, obligations and operation (except for the sales or purchase of assets, and contracts and agreements entered into during the ordinary course of business of Party B, and the lien imposed by the contracting parties pursuant to the above contracts), without the prior written consent of Party A, including but not limited to:
3.1.1 borrowing loans from any third party or bearing any debt liability;
3.1.2 selling to or obtaining any asset or rights from any third party; and
3.1.3 using its own assets to secure any real obligation of any third party.
3.2 Without the written consent of Party A, Party B shall not transfer its rights and obligations hereunder to any third party. Party B agrees, Party A may transfer its rights and obligations hereunder as it finds necessary, and Party A only needs to give a written notice to Party B after such transfer, without the necessity to obtain any consent from Party B.
ARTICLE 4. CONSIDERATION FOR PROVIDING OPERATIONAL SUPPORT
4.1 In consideration of the above operational support provided by Party A, Party B shall pay to Party A certain fees as specified in Exhibit 1 attached hereto.
ARTICLE 5. REPRESENTATIONS AND WARRANTIES
5.1 Each Party hereby represents to the other Party that:
5.1.1 It has all the necessary rights, powers and authorizations to enter into this Agreement and to perform its duties and obligations hereunder; and
5.1.2 The execution or performance of this Agreement does not violate any significant contract or agreement to which it is a party or any contract of agreement that binds it or its assets.
ARTICLE 6. CONFIDENTIALITY
6.1 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 of the United States, the PRC or other relevant jurisdictions; (ii) disclosure of information which has become public information other than due to any breach by the disclosing party; or (iii) disclosure to any Party's shareholders, legal counsel, accountants, financial advisors or other professional advisors who bear the obligation of confidentiality to such Party.
6.2 The Parties agree this Article 6 will survive any invalidity, modification, cancellation or termination of this Agreement, if applicable.
ARTICLE 7. GOVERNING LAW AND OBLIGATIONS UPON DEFAULT
7.1 The execution, effectiveness, interpretation, performance and dispute resolution of this Agreement shall be governed by the laws of the PRC.
7.2 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. If the parties fail to make an written agreement within thirty days after consultation, such dispute will be submitted to the China International Economic and Trade Arbitration Commission ("CIETAC") in accordance with its arbitration rules/procedures. The arbitration tribunal will be composed of three (3) arbitrators, two of which shall be appointed by both Parties hereto, and the third one shall be appointed by the chairman of CIETAC.
8.2 The arbitration shall be administered by the Beijing branch of CIETAC in accordance with the then effective arbitration rules of the Commission in Beijing.
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
9.1 This Agreement shall be effective upon the execution hereof by both Parties hereto.
9.2 The term of this Agreement shall be ten (10) years. Party B shall not terminate this Agreement during this term.
9.3 Unless Party A notifies Party B of no renewal of this Agreement by giving a thirty (30) days prior notice. This Agreement will be renewed for one year automatically after the expiry of the term hereof. This provision will apply to all the subsequent renewal.
ARTICLE 10. NO SUBSEQUENT OBLIGATION
10.1 Once this Agreement is terminated, Party A will not have any obligation to provide to Party B any operational support hereunder.
ARTICLE 11. AMENDMENT
11.1 All Parties hereto shall fulfill their respective obligations hereunder. No amendment to this Agreement shall be effective unless such amendment has been made in written form, and agreed by both Parties and both Parties have obtained necessary authorization and approvals with respect to such amendment. Any modification and supplementary to this Agreement after signed by both Parties, become an integral part of this Agreement, and has the same legal force with this Agreement.
ARTICLE 12. COUNTERPARTS
12.1 This Agreement is executed in duplicate, and are equally authentic. Party A and Party B shall each hold one counterpart.
ARTICLE 13. MISCELLANEOUS
13.1 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.
13.2 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.
[The remaining of this page is intentionally left blank]
Exhibit 1 Consideration for Operation Guarantee
The annual fees in consideration of provision of the operational support by Party A ("Consideration") shall be 40% of the "profits" of Party B in such year. The "profits" of Party B in such year should be equal to (gross revenue of Party B in such year) minus (the sales tax, sales expenses, management fees, financial expenses and other expenses resulting from the daily operation and outside daily operation of Party B), and such "profit" shall be the profit before paying for other service fees as specified by the Binding Agreements. Such expenses shall be determined by both Parties every quarter in written form, and shall be paid by Party B within three (3) months after the accounting date.
[execution page only]
This Agreement is executed by the following Parties as of the date listed first above.
Party A: Fortune Software (Beijing) Co., Limited
Seal:
Authorized Representative (Signature):
Party B: Beijing Premium Technology Co., Ltd.
Seal:
Authorized Representative (Signature):
[Translated from Chinese Original]
TECHNICAL SUPPORT AGREEMENT
between
FORTUNE SOFTWARE (BEIJING) CO., LTD.
and
BEIJING PREMIUM TECHNOLOGY CO., LTD.
August, 2007
BEIJING, CHINA
TECHNICAL SUPPORT AGREEMENT
This Technical Support Agreement ("this Agreement") is entered into in Beijing, the People's Republic of China (the "PRC") on this August 21, 2007 between:
Party A: Fortune Software (Beijing) Co., Ltd.
Address: Room 626, Beijing Hangtian Jingmi Mansion, No. 30 Haidian Nanlu Road,
Haidian District, Beijing
Postal code: 100080
Party B: Beijing Premium Technology Co., Ltd.
Address: Room 619, Beijing Hangtian Jingmi Mansion, No. 30 Haidian Nalu Road,
Haidian District, Beijing
Postal code: 100080
WHEREAS,
(1) Party A is a wholly foreign owned enterprise duly organized and validly existing under the laws of the PRC, and has expertise and resources in developing and manufacturing computer hardware and software, system software, and application software; Party A desires to provide to Party B relevant services, including without limitation technical support services, in connection with developing and manufacturing computer hardware and software, system software, and application software;
(2) Party B is a company with limited liability duly organized and validly existing under the laws of the PRC. In order to expand Party B's business in the aspects of developing and manufacturing computer hardware and software, system software and the network operation of application software, Party B engages Party A to provide the technical support services in connection with the foregoing.
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:
1.1 "This Agreement" means this Technical Support 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. TECHNICAL SUPPORT SERVICES
2.1 The technical support services (the "Services"): Party A agrees to provide to Party B the relevant services requested by Party B, which are specified in Exhibit 1 attached hereto ("Exhibit 1").
2.2 Exclusive Services Provider: Party A is the exclusive services provider of Party B. Without the written consent of Party A, Party B shall not entrust any other third party to provide the Services stated herein.
ARTICLE 3. TECHNICAL SUPPORT SERVICES FEE
3.1 Amount and payment: Party B shall pay certain fees in accordance with the provisions of Exhibit 2 to Party B in consideration of the technical support service provided by Party A (the "Service Fee").
3.2 Reasonable expenses: besides the Service Fee, Party A shall charge Party B for all the reasonable expenses relating to the Services, including but not limited to travel, accommodation, traffic and communication expenses.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES
4.1 Each party hereto represents to the other party that:
4.1.1 it has all the necessary rights, powers and authorizations to enter into this Agreement and to perform its duties and obligations hereunder; and
4.1.2 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 is or its assets are bounded.
ARTICLE 5. CONFIDENTIALITY
5.1 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 5, the following disclosure shall be permitted: (i) disclosure made pursuant to any applicable laws or any rules of any stock exchange of US, PRC or relevant countries; (ii) disclosure of information which has become public information other than due to any breach by the disclosing party; or (iii) disclosure to any party's shareholders, legal counsel, accountants, financial advisors or other professional advisors who bear the obligation of confidentiality to such party.
5.2 The parties agree this Article 5 will survive any invalidity, modification, cancellation or termination of this Agreement, if applicable.
ARTICLE 6. GOVERNING LAW AND EVENTS OF DEFAULT
6.1 The execution, effectiveness, interpretation, performance and dispute resolution of this Agreement shall be governed by the laws of the PRC.
6.2 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 covenant 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 7. DISPUTE RESOLUTION
7.1 Any dispute arising from the performance of this Agreement shall be first subject to the parties' friendly consultations. If the parties fail to make an written agreement within thirty days after consultation, such dispute will be submitted to the China International Economic and Trade Arbitration Commission ("CIETAC") in accordance with its arbitration rules/procedures.
7.2 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 in Beijing. The tribunal will be composed of one (1) arbitrator appointed by the chairman of CIETAC
7.3 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 8. EFFECTIVENESS
8.1 This Agreement shall become effective upon the execution by both parties hereto.
8.2 The term of this Agreement shall be ten (10) years. Party B shall not terminate this Agreement during this term.
8.3 Unless Party A notifies Party B of no renewal of this Agreement by giving a thirty (30) days prior notice, this Agreement will be renewed for one year automatically after the expiry of the term hereof. This provision will apply to all the subsequent renewal.
ARTICLE 9. NO SUBSEQUENT OBLIGATION
9.1 Once this Agreement is terminated, Party A will not have any obligation of providing to Party B any Service hereunder.
ARTICLE 10. TRANSFER LIMITATION
10.1 Without the prior written consent of the other party, neither party shall transfer any of their rights or obligations hereunder.
ARTICLE 11. AMENDMENT
11.1 Both parties hereto shall fulfill their respective obligations hereunder. No amendment to this Agreement shall be effective unless such amendment has been made in written form, and agreed by both parties and both parties have obtained necessary authorization and approvals with respect to such amendment. Any modification and supplementary to this Agreement after signed by both parties, become an integral part of this Agreement, and has the same legal force with this Agreement.
ARTICLE 12. COUNTERPARTS
12.1 This Agreement is executed in two counterparts, with Party A and Party B each hold a counterpart. Each counterpart has the same legal force.
ARTICLE 13. MISCELLANEOUS
13.1 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;
13.2 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.
[The remaining of this page is intentionally left blank]
Party A shall provide the following technical support services to Party B to the extent permitted by PRC laws:
(1) providing the technical support and professional trainings necessary for Party B to operate its business;
(2) maintaining the computer system of Party B;
(3) providing Party B with website design, and the design, installation, adjustment and maintenance services of Party B's computer network system;
(4) providing comprehensive security services of Party B's websites;
(5) providing database support and software services;
(6) other services in connection with Party B's business;
(7) providing labor support upon requested by Party B, including but not limited to sending or dispatching relevant personnel to Party B (provided however that Party B shall bear the relevant labor costs); and
(8) other services agreed to by the parties.
The Service Fee in consideration of provision of the Service provided by Party A shall be 30% of the "profits" of Party B in such year. The "profits" of Party B in such year should be equal to gross revenue of Party B in such year minus (the sales tax, sales expenses, management fees, financial expenses and other expenses resulting from the daily operation and other business operation of Party B, and such "profit" shall be the profit before paying for other service fees as specified by the Binding Agreements. Such expenses shall be determined by both parties every quarter in written form, and shall be paid by Party B within three (3) months after the accounting date.
[execution page only]
This Agreement is executed by the following parties as of the date listed first above.
Party A: Fortune Software (Beijing )Co. Limited
Seal:
Authorized Representative
(Signature):
Party B: Beijing Premium Technology Co, Ltd.
Seal:
Authorized Representative
(Signature):
EXHIBIT 4.27
[Translated from Chinese Original]
STRATEGIC CONSULTING SERVICE AGREEMENT
between
BEIJING PREMIUM TECHNOLOGY CO., LTD.
and
FORTUNE SOFTWARE (BEIJING) CO., LTD.
August, 2007
BEIJING, CHINA
STRATEGIC CONSULTING SERVICE AGREEMENT
This Strategic Consulting Service Agreement ("this Agreement") is entered into in Beijing, the People's Republic of China (the "PRC") on this August 21, 2007 beween:
Party A: Beijing Premium Technology Co., Ltd.
Address: Room 621, Beijing Hangtian Jingmi Mansion, No. 30 Haidian Nalu Road,
Haidian District, Beijing, the PRC
Legal Representative: Xiong Wei
Postal code: 100080
Party B: Fortune Software (Beijing) Co., Ltd.
Address: Room 626, Beijing Hangtian Jingmi Mansion, No. 30 Haidian Nanlu Road,
Haidian District, Beijing, the PRC
Legal Representative: Zhao Zhiwei
Postal code: 100080
WHEREAS,
(1) Party A is a company with limited liability duly organized and validly existing under the laws of the PRC, primarily engaged in developing and manufacturing of computer hardware and software, system software and application software, etc. (the "Business").
(2) Party B is a wholly foreign owned enterprise duly organized and validly existing under the laws of the PRC, and has expertise and resources in providing strategic consulting services in the foregoing business area.
(3) Party A agrees to engage Party B to provide strategic consulting services in the foregoing area, and Party A desires to accept such strategic consulting services according to the terms and conditions of this Agreement.
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:
1.1 "This Agreement" means this Strategic Consulting Service 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. TECHNICAL SUPPORT SERVICES
2.1 The strategic consulting services (the "Services"): Party A engages Party B to provide to Party A the strategic consulting services specified in Exhibit 1 attached hereto ("Exhibit 1") from the execution date of this Agreement.
2.2 Exclusive Services Provider: Party B is the exclusive services provider of Party A. Without the written consent of Party B, Party A shall not entrust any other third party to provide the Services stated herein.
ARTICLE 3. STRATEGIC CONSULTING SERVICE FEE
3.1 Amount and payment: Party A shall pay certain fees in accordance with the provisions of Exhibit 2 to Party B in consideration of the technical support service provided by Party A (the "Service Fee");
3.2 Reasonable expenses: besides the Service Fee, Party B shall charge Party A for all the reasonable expenses relating to the Services, including but not limited to travel, accommodation, traffic and communication expenses.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES
4.1 Each party hereto represents to the other party that:
4.1.1 it has all the necessary rights, powers and authorizations to enter into this Agreement and to perform its duties and obligations hereunder; and
4.1.2 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 is or its assets are bounded.
ARTICLE 5. CONFIDENTIALITY
5.1 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 5, the following disclosure shall be permitted: (i) disclosure made pursuant to any applicable laws or any rules of any stock exchange of US, PRC or relevant countries; (ii) disclosure of information which has become public information other than due to any breach by the disclosing party; or (iii) disclosure to any party's shareholders, legal counsel, accountants, financial advisors or other professional advisors who bear the obligation of confidentiality to such party.
5.2 The parties agree this Article 5 will survive any invalidity, modification, cancellation or termination of this Agreement, if applicable.
ARTICLE 6. GOVERNING LAW AND EVENTS OF DEFAULT
6.1 The execution, effectiveness, interpretation, performance and dispute resolution of this Agreement shall be governed by the laws of the PRC.
6.2 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 covenant 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 7. DISPUTE RESOLUTION
7.1 Any dispute arising from the performance of this Agreement shall be first subject to the parties' friendly consultations. If the parties fail to make an written agreement within thirty days after consultation, such dispute will be submitted to the China International Economic and Trade Arbitration Commission ("CIETAC") in accordance with its arbitration rules/procedures.
7.2 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 in Beijing. The tribunal will be composed of one (1) arbitrator appointed by the chairman of CIETAC.
7.3 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 8. EFFECTIVENESS
8.1 This Agreement shall become effective upon the execution by both parties hereto.
8.2 The term of this Agreement shall be twenty (20) years. Party A shall not terminate this Agreement during this term.
8.3 Unless Party B notifies Party A of no renewal of this Agreement by giving a thirty (30) days prior notice, this Agreement will be renewed for one year automatically after the expiry of the term hereof. This provision will apply to all the subsequent renewal.
ARTICLE 9. NO SUBSEQUENT OBLIGATION
9.1 Once this Agreement is terminated, Party A will not have any obligation of providing to Party B any Service hereunder.
ARTICLE 10. TRANSFER LIMITATION
10.1 Without the prior written consent of the other party, neither party shall transfer any of their rights or obligations hereunder.
ARTICLE 11. AMENDMENT
11.1 Both parties hereto shall fulfill their respective obligations hereunder. No amendment to this Agreement shall be effective unless such amendment has been made in written form, and agreed by both parties and both parties have obtained necessary authorization and approvals with respect to such amendment. Any modification and supplementary to this Agreement after signed by both parties, become an integral part of this Agreement, and has the same legal force with this Agreement.
ARTICLE 12. COUNTERPARTS
12.1 This Agreement is executed in two counterparts, with Party A and Party B each hold a counterpart. Each counterpart has the same legal force.
ARTICLE 13. MISCELLANEOUS
13.1 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;
13.2 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.
[The remaining of this page is intentionally left blank]
Party B shall provide the following strategic consultation services to Party A pursuant to this Agreement to the extent permitted by PRC laws:
(1) evaluation of new products/services;
(2) industry and client research;
(3) marketing strategies;
(4) training of Party A's personnel; and
(5) other services in connection with Party A's business.
The Service Fee in consideration of provision of the Service provided by Party B shall be 30% of the "profits" of Party A in such year. The "profits" of Party A in such year should be equal to gross revenue of Party A in such year minus (the sales tax, sales expenses, management fees, financial expenses and other expenses resulting from the daily operation and other business operation of Party A, and such "profit" shall be the profit before paying for other service fees as specified by the Binding Agreements. Such expenses shall be determined by both parties every quarter in written form, and shall be paid by Party B within three (3) months after the accounting date.
[execution page only]
This Agreement is executed by the following parties as of the date listed first above.
Party A: Beijing Premium Technology Co., Ltd.
Seal:
Authorized Representative
(Signature):
Party B: Fortune Software (Beijing )Co. Ltd.
Seal:
Authorized Representative
(Signature):
EXHIBIT 4.28
[Translated from Chinese Original]
PURCHASE OPTION AGREEMENT
among
FORTUNE SOFTWARE (BEIJING) CO., LTD.
XIONG WEI
FAN ZHENFEI
and
BEIJING PREMIUM TECHNOLOGY CO., LTD.
August, 2007
BEIJING, CHINA
PURCHASE OPTION AGREEMENT
This Purchase Option Agreement ("this Agreement") is entered into in Beijing, People's Republic of China (the "PRC") on this August 21, 2007 by and among:
Party A: Fortune Software (Beijing) Co. Ltd.
Address: Room 626, Beijing Hangtian Jingmi Mansion, No. 30 Haidian Nalu Road,
Haidian District, Beijing, the People's Republic of China (the "PRC")
Postal code: 100080
Party B: Xiong Wei
Address: 9/F., Tower C, Corporation Mansion, No.35 Financial Avenue, Xicheng
District, Beijing, the PRC
ID No.: 610113197206201645
Party C: Fan Zhenfei
Address: 9/F., Tower C, Corporation Mansion, No.35 Financial Avenue Xicheng
District Beijing, the PRC
ID No.: 370282197711186915
Party D: Beijing Premium Technology Co., Ltd.
Address: Room 621, Beijing Hangtian Jingmi Mansion, No. 30 Haidian Nalu Road,
Haidian District, Beijing
Postal code: 100080
Party A, Party B, Party C and Party D will each be referred to as a "Party" and collectively referred to as the "Parties.
WHEREAS,
(1) Party D is a company with limited liability duly organized and validly existing under the laws of PRC; Party B and Party C are current shareholders of Party D and each holding 55% and 45% shares in Party D respectively.
(2) To finance the investment by Party B and Party C in Party D, Party A has entered into loan agreements respectively with Party B and Party C on September 10, 2007, providing Party B and Party C with loans of RMB 550,000 Yuan and RMB 450,000 Yuan, respectively. Pursuant to the Loan Agreement, Party B and Party C has invested the full amount of the loans in Party D's registered capital.
(3) Party B and Party C hereto wish to grant Party A or the qualified entity designated by 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 owned by Party B and/or Party C, or the all or a portion of the Party's D's assets.
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:
1.1 "This Agreement" means this Purchase Option 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 propose to transfer their share equity in Party D to any party other than the existing shareholders of Party D), 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 ("Purchase Option"). 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 (or the eligible entity designated by Party A) may exercise the aforesaid purchase option by delivering a written notice to Party B, Party C and/or Party D (as the case may be) subject to the PRC laws and regulations (the "Exercise Notice"), specifying the number of shares intended to be purchased from Party B and/or Party C, or the amount of assets intended to be purchased from Party B ("Purchased Shares (Assets)"), and the method of purchase.
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. EXERCISE PRICE
3.1 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 to the registered capital of Party D.
3.2 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.
3.3 When Party A (or a qualified entity designated by party A) is to acquire all or a portion of Party D's equity share 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.
3.4 When acquiring share equity or assets from Party B, Party C, or Party D
pursuant to this Agreement, Party A (or a qualified entity designated by party
A) shall pay an actual exercise price based on the exercise price under
applicable PRC 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 4. REPRESENTATIONS AND WARRANTIES
4.1 Each party hereto represents to the other parties that:
4.1.1 it has all the necessary rights, powers and authorizations to enter into this Agreement and perform its duties and obligations hereunder; and
4.1.2 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.
ARTICLE 5. OTHER COVENANTS
The Parties further agree as follows:
5.1 Before Party A (or a qualified entity designated by 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 (or a qualified entity designated by 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 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.
5.4 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.
5.5 To the extent Party B and/or Party C are subject to any legal or economic liabilities to any institution or individual as a result of performing their obligations under this Agreement or any other agreements between them and Party A, Party A 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.
5.6 If Party A decides to transfer its rights under the Loan Agreement to any third party, and has sent a written notice to the other Parties, Party A has the right to transfer its rights and obligation hereunder to such third party at the same time, with no need to obtain the prior consent of the Parties hereto.
5.7 Party B and Party C shall execute a Proxy of voting rights to the satisfaction of Party A, attached hereto as Exhibit 1, authorizing a qualified third party designated by Party A to exercise all the voting rights on behalf of Party B and Party C. The first term of such Proxy shall be 20 years. Unless Party A notifies Party B and Party C in writing to terminate such Proxy, the term of this Proxy will be extended automatically after the expiry of the first term.
ARTICLE 6. CONFIDENTIALITY
6.1 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 of US, PRC or relevant countries; (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).
6.2 The Parties agree this Article 6 will survive any invalidity, modification, cancellation or termination of this Agreement, if applicable.
ARTICLE 7. APPLICABLE LAW AND EVENTS OF DEFAULT
7.1 The execution, effectiveness, interpretation, performance and dispute resolution of this Agreement shall be governed by the laws of the PRC.
7.2 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. If the parties fail to make an written agreement within thirty days after consultation, such dispute will be submitted to the China International Economic and Trade Arbitration Commission ("CIETAC") in accordance with its arbitration rules/procedures. The tribunal will be composed of one (1) arbitrator appointed by the chairman of CIETAC.
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 in Beijing.
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
9.1 This Agreement shall be effective upon the execution hereof by all Parties hereto and shall remain effective thereafter. 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.
9.2 If during the term of this Agreement, the operation term of Party A or Party D (including any extended term) expires or is terminated due to other reasons, this Agreement shall be terminated at the time such Party terminates, unless Party A has transferred its rights and obligations hereunder to others pursuant to Article 5.6.
ARTICLE 10. AMENDMENT
10.1 All Parties hereto shall fulfill their respective obligations hereunder. No amendment to this Agreement shall be effective unless such amendment has been made in written form, and agreed by all of the Parties and Party A and Party D have obtained necessary authorization and approvals with respect to such amendment. Any modification and supplementary to this Agreement after signed by both Parties, become an integral part of this Agreement, and has the same legal force with this Agreement.
ARTICLE 11. COUNTERPARTS
11.1 This Agreement is executed in four (4) counterparts, and are equally authentic. . Party A, Party B, Party C, and Party D 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.
[The remaining of this page is intentionally left blank]
I, Xiong Wei the citizen of People Republic of China, ID No. 610113197206201645, hereby authorizes Fortune Software Beijing to exercise the following rights and powers during the term of this Proxy:
(1) attend the shareholders' meeting of Beijing Premium Technology Co. Ltd. ("Company") as my proxy, and exercise all the voting rights of shareholders granted by the relevant laws and the Articles of Association of the Company on behalf of the Company; and
(2) Designate and appoint the directors, general manager, chief financial officer and other senior management of the Company as my authorized representative;
Party A hereby accepts the authorization herein.
The above authorization shall be subject to Fortune Software (Beijing) Co. Ltd. continuing to be the designated party (or appointed party). Unless Fortune Software (Beijing) Co. Ltd. (the appointed party) sends a written notice to terminate or replace the title of Fortune Software (Beijing) Co. Ltd. as the designated party (or appointed party), this Proxy shall continue to be valid for 20 years after the execution, and shall be renewed automatically after the expiry of the first term.
Entrusting Party(signature):
Date:
I, Fan Zhenfei, the citizen of People Republic of China, ID No.
370282197711186915, hereby authorizes Fortune Software to exercise the following
rights and powers during the term of this Proxy:
(1) attend the shareholders' meeting of Beijing Premium Technology Co. Ltd. ("Company") as my proxy, and exercise all the voting rights of shareholders granted by the relevant laws and the Articles of Association of the Company on behalf of the Company; and
(2) Designate and appoint the directors, general manager, chief financial officer and other senior management of the Company as my authorized representative;
Party A hereby accepts the authorization herein.
The above authorization shall be subject to Fortune Software (Beijing) Co. Ltd. continuing to be the designated party (or appointed party). Unless Fortune Software (Beijing) Co. Ltd. (the appointed party) sends a written notice to terminate or replace the title of Fortune Software (Beijing) Co. Ltd. as the designated party (or appointed party), this Proxy shall continue to be valid for 20 years after the execution, and shall be renewed automatically after the expiry of the first term.
Entrusting Party(signature):
Date:
[execution page only]
Party A: Fortune Software (Beijing )Co. Limited
Seal:
Authorized Representative (Signature):
Party B: Xiong Wei
(Signature):
Party C: Fan Zhenfei
(Signature):
Party D: Beijing Premium Technology Co, Ltd.
Seal:
Authorized Representative
(Signature):
EXHIBIT 4.29
[Translated from Chinese original]
FRAMEWORK AGREEMENT
The Framework Agreement is entered into as of the date of September 10, 2007 in Beijing, the People's Republic of China (the "PRC") by and among the following parties:
PARTY A: FORTUNE SOFTWARE (BEIJING) CO, LTD.
Registered Address: Room 626, Beijing Hangtian Jingmi Mansion, No. 30 Haidian
Nanlu Road, Haidian District, Beijing, the PRC
PARTY B: CHEN WU
Address: Room 616, Tower A, COFCO Plaza, No. 8, Jiangguomennei Avenue, Beijing,
the PRC
ID No.: 110108491204891
PARTY C: WANG JUN
ADDRESS: FLOOR 9, TOWER C, CORPORATE SQUARE, NO. 35 FINANCIAL STREET, XICHENG
DISTRICT, Beijing, the PRC
ID No. :370102197012163311
PARTY D: BEIJING GLORY CO, LTD.
Address: Room 621, Beijing Hangtian Jingmi Mansion, No. 30 Haidian Nanlu Road,
Haidian District, Beijing, the PRC
Party A, Party B, Party C and Party D will each be referred to as a "Party" and collectively referred to as the "Parties."
WHEREAS:
1. Party B is the current shareholder of Party D which has made registrations at the Administration of Industry and Commerce authorities, and holding 55% shares in Party D;
2. Party D is a limited liability company duly organized and validly existing under the laws of the PRC;
3. Party A is a limited liability company duly organized and validly existing under the laws of the PRC;
4. To finance the investment by Party B in Party D, Party A has entered into the Loan Agreement with Party B on September 1, 2007, providing Party B with loans of RMB 550,000. Pursuant to the Loan Agreement, Party B has invested the full amount of the Loan in Party D's registered capital;
5. Party B intends to transfer its shares in Party D to Party C; and
6. Party C intends to enter into a loan agreement with Party A and get loan from Party A as the purchase price paid to Party B.
FRAMEWORK AGREEMENT
THEREFORE, in accordance with the principle of sincere cooperation, mutual benefit and joint development, through friendly negotiation, the Parties hereby enter into the following agreements:
ARTICLE 1. SHARE TRANSFER
1.1 The Parties agree that Party B shall enter into a Share Transfer Agreement with Party C ("Exhibit 1").
1.2 For the purpose of this Agreement, the Completion Day referred to herein shall mean the date of completing the procedures of changing the registration of Party D's shares at the industry and commerce authorities(the "Completion Day"). From the Completion Day of shares transfer, Party C shall replace Party B to enjoy all the rights and perform all the obligations in relations to the Party B's transferred shares in Party D.
1.3 The Parties shall take all the necessary actions to assist Party C and Party D in completing all the necessary procedures of shares transfer until the Completion Day.
ARTICLE 2. LOAN ARRANGEMENTS
2.1 The purchase price of shares held by Party B, purchased by Party C shall be contributed in full amount by Party A. Without the consent of Party A, Party C shall not use such Loan for the purposes other than paying for the shares purchase price. Party C shall enter into a loan agreement with Party A to the satisfaction of Party A, in accordance with the content and form specified in Exhibit 2 attached hereto.
2.2 Party A agrees to offer the Loan to Party C after the execution of the loan agreement with Party C, in accordance with the terms and conditions stated herein.
ARTICLE 3. REPAYMENT OBLIGATION
3.1 Party B agrees to contribute its entire income obtained from selling the shares in Party D in accordance with the Agreement, to perform its repayment obligations to Party A under the Loan Agreement. The Loan Agreement between Party B and Party A will be terminated when Party B pays off all the loans in accordance with Article 4.2 hereof.
ARTICLE 4. PAYMENT AND OBLIGATION SET-OFF
4.1 In accordance with the Share Transfer Agreement, the Parties agree that the share purchase price shall be paid by Party C to Party B directly on the Completion Day; the Loan Agreement between Party A and Party B provides that Party B may repay the loan by transferring its shares in Party D to Party A or a third party designated by Party A to the extent permitted by PRC laws; and the contemplated Loan Agreement to be entered into between Party A and Party C provides that Party A will pay Party C the price for acquiring Party B's shares. The Parties agree, the payment obligation of Party C to Party B for the share purchase price under the Shares Transfer Agreement, the repayment obligation of Party B under the Loan Agreement between Party A and Party B, and loan extended by Party A under the Loan Agreement between Party A and Party C, will set off one another. Upon the completion of the aforesaid set-off , Party C is not required to make any
FRAMEWORK AGREEMENT
other payments to Party B for the purpose of paying for the purchase price; Party B is not required to make any other payments to Party A for the purpose of repaying the loan; and Party A is not required to offer any loan to Party C.
4.2 Notwithstanding the foregoing, when the set-off is completed, Party B shall issue a receipt to Party C for all purchase price it received ("Party B's receipt" attached hereto as Exhibit 3 ), and shall expressly acknowledge Party C's payment obligation under the Share Transfer Agreement has been fulfilled. Party A shall immediately issue a receipt to Party B for the entire loan principal it received ("Party A's receipt", attached hereto as Exhibit 4) after Party B issued the aforesaid party B's receipt, and shall expressly acknowledge Party B's payment obligation under the Loan Agreement has been fulfilled. Party C shall issue immediately a receipt to Party A for the entire loan principal it received ("Party C's receipt", attached hereto as Exhibit 5) after Party B issued the aforesaid party B's receipt and Party A has issued the aforesaid Party A's receipt, and shall expressly acknowledge Party A's payment obligation under the Loan Agreement has been fulfilled out.
ARTICLE 5. CONFIDENTIALITY
Without prior approval of the parties, any party shall keep confidential the content of the Agreement, and shall not disclose to any other person the content of the agreement or make any public disclosure of the content hereof. However, the article does not make any restrictions on (i) any disclosure made in accordance with relevant laws or regulations of any stock exchange; (ii) any disclosed information which may be obtained through public channels, and is not caused so by the defaulting of the disclosing party; (iii) any disclosure to shareholders, legal consultants, accountants, financial consultants and other professional consultants of any parties.
ARTICLE 6. NOTIFICATION
6.1 Any notice, request, requirement and other correspondences required by the agreement or made in accordance with the agreement, shall be made in written form and sent to the addresses of the parties first above written herein.
6.2 Notices hereunder shall be sent to the other party's address and/or number, by ways of personal delivery, prepaid registered airmail, acknowledged carrier or fax. Such notices shall be deemed to have been effectively given on the following dates: (1) notices delivered by person shall be deemed to have been effectively served on the date of personal delivery; (2) notices sent by prepaid registered airmail shall be deemed to have been effectively served on the seventh day after the day they were delivered for mailing (as indicated by the postmark); (3) notices sent by courier service shall be deemed to have been effectively served on the third day after they were delivered to an acknowledged courier; (4) notices sent by facsimile shall be deemed to have been effectively served on the first working day after being transmitted.
ARTICLE 7. DISPUTE RESOLUTION
7.1 Any dispute arises from the interpretation or performance of terms hereof by the parties, shall be settled through friendly consultation. If the parties fail to make an written agreement after consultation, the dispute shall be submitted for arbitration in accordance with the agreement. The arbitration shall be final and exclusive. Unless otherwise expressly stipulated herein, any party waives expressly its right to submit a dispute to court for a legal action, and the waiver is irrevocable.
FRAMEWORK AGREEMENT
7.2 The arbitration shall be submitted to China International Economic and Trade Arbitration Committee ("Arbitration Committee") to be arbitrated in accordance with then-in-force arbitration rules. The place of arbitration shall be Beijing. Unless otherwise stipulated in the arbitration award, the arbitration fee (including reasonable attorney fees and expenses) shall be borne by the losing party.
ARTICLE 8. MISCELLANEOUS
8.1 The failure or delay of any party hereof to exercise any right hereunder shall not be deemed as a waiver thereof, nor any single or partial exercise of any right preclude further exercise thereof in future by the party.
8.2 The headings of articles herein are provided for the purpose of index. Such headings shall in no event be used or affected interpretations of the terms herein.
8.3 The conclusion, effectiveness, interpretation of the agreement and the settlement of disputes in connection therewith, shall be governed by laws of People's Republic of China.
8.4 Each party hereunder concludes the agreement with legal purpose. Each term hereof is severable and independent from the others. If at any time one or more of such terms is or becomes invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining terms hereof shall not in any way be affected thereby; and the parties shall make every endeavor to negotiate and arrive at new terms to substitute the invalid, illegal and unenforceable terms, and preserve as near as possible business purposes of the original terms.
8.5 Upon the effectiveness of the agreement, the parties shall fully perform the agreement. Any modifications of the agreement shall only be effective in written form, through consultations of the Parties, and obtained necessary authorization and approval by Party A, Party D and Party B respectively.
8.6 Matters not covered in the agreement shall be dealt with in a supplementary agreement, and annexed hereto. The supplementary agreement shall have the same legal force as the agreement.
8.7 The agreement is executed in four original copies, and are equally authentic. Each party hereto shall hold one copy.
8.8 The agreement shall be effective upon execution.
(The reminder of this page is intentionally left blank.)
FRAMEWORK AGREEMENT
Exhibit 1
Share Transfer Agreement
FRAMEWORK AGREEMENT
Exhibit 2
Loan Agreement
FRAMEWORK AGREEMENT
Exhibit 3
Party B Receipt
FRAMEWORK AGREEMENT
Exhibit 4
Party A Receipt
FRAMEWORK AGREEMENT
Exhibit 5
Party C Receipt
FRAMEWORK AGREEMENT
[Signature page, no body text]
The Frame Agreement is executed by the following parties:
Party A:
Seal:
Authorized Representative (signature):
Party B:
(signature):
Party C:
(signature):
Party D:
Seal:
Authorized Representative (signature):
EXHIBIT 4.30
[Translated from Chinese original]
LOAN AGREEMENT
AMONG
FORTUNE SOFTWARE (BEIJING) CO. LTD.
CHEN WU
AND
ZHAO ZHIWEI
SEPTEMBER 2007
BEIJING
LOAN AGREEMENT
The Loan Agreement (the "Agreement") is entered into as of September 1, 2007 among the following parties in Beijing, the People's Republic of China (the "PRC"):
PARTY A: FORTUNE SOFTWARE (BEIJING) CO., LTD. (the "Lender")
Registered Address: Floor 9, Tower C, Corporate Square, No. 35 Financial Street, Xicheng District, Beijing, the People's Republic of China (the "PRC") Legal Representative: Zhao Zhiwei
PARTY B: CHEN WU
Address: Floor 9, Tower C, Corporate Square, No. 35 Financial Street, Xicheng
District, Beijing, the PRC
ID No.: 110108194912048913
Tel: 010-58325388
PARTY C: ZHAO ZHIWEI
Address: Floor 9, Tower C, Corporate Square, No. 35 Financial Street, Xicheng
District, Beijing, the PRC
ID No. :110102196307100139
Tel: 010-58325388
Party B and Party C are collectively referred to as the "Borrowers".
Party A, Party B and Party C will each be referred to as a "Party" and collectively referred to as the "Parties."
WHEREAS,
1. The Lender is a wholly foreign owned enterprise duly organized and validly existing under the laws of the PRC.
2. The Borrowers desire to establish a company in the PRC ("New Company"), and will collectively hold 100% equity interest in the Company.
3. The Borrowers desire to borrow loans from the Lender to invest in the New Company, and the Lender agrees to provide such loans to Borrowers.
THEREFORE, in accordance with the principle of sincere cooperation, mutual benefit and joint development, through friendly negotiation, the Parties hereby enter into the following agreements pursuant to relevant PRC laws and regulations.
ARTICLE 1. AMOUNT AND PURPOSE
1.1 Loan Amount: the Lender agrees to provide a loan from its self-owned fund to Party B and Party with the amount of RMB 550,000, and RMB 450,000 respectively.
1.2 Purpose of the Loan: the Borrowers shall only use the Loan hereunder to establish the New Company as registered capital. Without the prior written consent of the Lender, the Borrowers shall not use such Loan for any other purpose, or pledge their equity interests in the New Company to any other third party.
ARTICLE 2. PAYMENT FOR THE LOAN
2.1 Payment Notice: the Lender shall deposit the loan amount to the following accounts designated by the Borrowers within ten days after the execution of this Agreement:
Party B: Bank of deposit: CITIC Bank Account Name: Chen Wu Account No.: 7110 3101 9201 1228 584
Party C: Bank of deposit: CITIC Bank Account Name: Zhiwei Zhao Account No.: 7112 3101 9200 9610 244
ARTICLE 3. TERM, REPAYMENT AND INTEREST OF THE LOAN
3.1 The term of the loan shall be 10 years and may be renewed pursuant to the agreement between the Parties ("Term"). Notwithstanding the foregoing, in the following circumstances, the Borrowers shall repay the Loan regardless if the Term has expired:
(1) The Borrowers deceases or becomes a person without legal capacity or with limited legal capacity;
(2) The Borrowers commit a crime or are involved in a criminal act; or
(3) The Lender or its designated assignee can legally purchase the Borrowers' shares in the New Company under the PRC law and the Lender chooses to do so.
3.2 The Borrowers can repay the Loan by transferring all of their equity
interests in the New Company to the Lender or a third party designated by
the Lender when such transfer is permitted under the PRC law. In the event
(1) the Borrowers transfer all of their equity interests in the New Company
to the Lender or a third party designated by the Lender when such transfer
is permitted under the PRC law, or (2) the Borrowers receive dividends from
the New Company, the Borrowers shall deposit all the funds or dividends
obtained from such transfer or the New Company, as the case may be, to the
account designated by the Lender (no matter such amount is higher or less
than the principal amount of the Loan).
3.3 The Lender and the Borrowers hereby jointly agree and confirm that the 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 the New Company 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 the New Company, the purchase price shall be reduced on a pro rata basis.
3.4 In the event when the Borrowers transfer their interest in the New Company
to the Lender or a third party transferee designated by Lender, (i) if the
total of (1) the actual transfer price paid by Lender or the third party
transferee and (2) the dividends obtained from the New Company by the
Lender (if applicable) equals or is less than the principal amount of the
Loan, the Loan shall be deemed as interest free; (ii) if the total of (1)
the actual transfer price paid by Lender or the third party transferee and
(2) the dividends obtained from the New Company by the Lender (if
applicable) 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 Borrowers to Lender in full.
ARTICLE 4. 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.
ARTICLE 5. DISPUTE RESOLUTION
5.1 The execution, validity, interpretation, performance, implementation, termination and settlement of disputes of this Agreement shall be governed by the laws of the PRC.
5.2 Any dispute arising from or in connection with this Agreement shall be settled through friendly negotiation. If the parties fail to make any written agreement within thirty days after consultation, such dispute will be submitted (by the Lender or the Borrowers) to the China International Economic and Trade Arbitration Commission ("CIETAC") in accordance with its arbitration rules/procedures. The arbitration shall commence from the date of filing. The tribunal will be composed of one (1) arbitrator appointed by the chairman of CIETAC. The arbitration shall be final and bind the Parties. Unless otherwise stipulated by the arbitrator, the arbitration fee (including reasonable attorney fees and attorney expenses) shall be borne by the losing party.
ARTICLE 6. EFFECTIVENESS
6.1 This Agreement shall become effective after the execution of the Parties. The Agreement can be terminated by one Party through sending a written notice to the other Parties thirty days prior to the termination. Otherwise any Party shall not terminate this Agreement unilaterally without the mutual agreement of the Parties.
ARTICLE 7. AMENDMENT
7.1 Upon the effectiveness of the agreement, the parties shall fully perform the agreement. Any modifications of the agreement shall only be effective in written form through
consultations of the parties. Any modification and supplementary to this Agreement after signed by both Parties, become an integral part of this Agreement, and has the same legal force with this Agreement.
ARTICLE 8.MISCELLANEOUS
8.1 The headings of articles herein are provided for the purpose of reference. Such headings shall in no event be used or affected interpretations of the terms herein.
8.2 Matters not covered in the agreement shall be dealt with in a supplementary agreement, and annexed hereto. The supplementary agreement shall be an integral part of this Agreement and have the same legal force as the agreement.
8.3 Any provision of this Agreement that is invalid or unenforceable shall not affect the validity and enforceability of any other provisions hereof.
8.4 The agreement is executed in three original copies, and are equally authentic. Each party hereto shall hold one copy.
IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of the date and year first hereinabove set forth.
Party A:
FORTUNE SOFTWARE CO., LTD
Party B:
CHEN WU
PARTY C: ZHAO ZHIWEI
EXHIBIT 4.31
[Translated from Chinese Original]
SHARE TRANSFER AGREEMENT
This Share Transfer Agreement is entered into by the following Parties on September 10, 2007:
CHEN WU (the "TRANSFEROR"),
Address: Room 616, Tower A, COFCO Plaza, 8 Jianguomennei Avenue, Beijing, the
People's Republic of China (the "PRC")
ID Number: 110108194912048913; and
WANG JUN (the "TRANSFEREE")
Address: 9/F., Tower C, Corporation Mansion, No.35 Financial Street, Xicheng
District, Beijing, the PRC
ID Number: 370102197012163311
WHEREAS:
1. Beijing Glory, Ltd. (the "Company") is a limited liability company registered in Beijing, PRC in compliance with law of China, and its registered capital is RMB 1,000,000.
2. The Transferor is the beneficiary owner of 55% of equity shares of the Company, and have paid up its contributions.
3. The Transferor desires to sell to the Transferee, and the Transferee desires to purchase from the Transferor, all shares of the Company owned by the Transferor, representing 55% of the total share capital of the Company.
NOW, THEREFORE, after friendly consultations conducted in accordance with the principles of equality, the Transferor and the Transferee hereby agree as follows:
ARTICLE 1. TRANSFER SUBJECT
1.1 Subject to the terms and conditions of this Agreement, the Transferor agrees to sell the Shares to the Transferee, and the Transferee agrees to purchase the shares representing the registered capital of RMB 550,000 (55% in the total registered capital of the Company) which has been paid up by the Transferor and all the rights and benefits belonging to such shares (collectively "Shareholder's Equity").
ARTICLE 2. CONSIDERATION AND PAYMENT
2.1 Transfer consideration: The Transferee shall pay RMB 550,000 ("Consideration") to the Transferor to the account designated by the Transferee, as the consideration for the Shareholder's Equity transferred by the Transferor to the Transferee pursuant to this Agreement.
2.2 Date of Payment: the Transferee shall pay the Consideration to the Transferor within thirty days after the execution of this Agreement.
ARTICLE 3. SHARE TRANSFER
3.1 For the purpose of this Agreement, the Completion Day referred to herein shall mean the date of completing the procedures of changing the registration of Party D's shares at the industry and commerce authorities ("Completion Day"). From the Completion Day of shares transfer, Party C shall enjoy all the rights and perform all the obligations hereunder within the scope of the transferred shares which have once been enjoyed or performed by Party B.
3.2 The Parties shall take all the necessary actions to assist Party B and Party C in completing all the necessary procedures of shares transfer until the Completion Day.
3.3 All the expenses and the taxation incurred from this Shares Transfer shall be borne by the Parties respectively in accordance with laws.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES
4.1 The Transferor represents and warrants to the Transferee unconditionally and irrevocably:
4.1.1 The Transferor is the legal and actual owner of the Shareholder's Equity, which is free and clear of any lien, pledge, claim, or the securities or the right of third parties, and is not subject to any binding of priority right (including but not limited to the right of first refusal and the right of first purchase). The Shareholder's Equity after transferred to the Transferee will not be claimed by any third party.
4.1.2 The Company is a limited liability company duly incorporated and validly existing under the laws of China. The share transfer hereunder will not contravene any provision of the Articles of Association of the Company.
4.1.3 The execution by the Transferor of this Agreement and the completion of the transaction hereunder does not lead to the violation, cancellation or termination of any Agreement it has executed, or any branch of any agreement, undertaking or other formal document.
4.1.4 The warranty and representation made by the Transferor and the statement relevant to this transfer is true, accurate, and complete as of the date of this Agreement, without any concealment or misleading content.
4.2 The Transferee represents and warrants to the Transferor unconditionally and irrevocably:
4.2.1 The execution by the Transferee of this Agreement and the completion of the transaction hereunder does not lead to the violation, cancellation or termination of any
Agreement it has executed, or any branch of any agreement, undertaking or other formal document.
4.2.2 The warranty and representation made by the Transferor and the statement relevant to this transfer is true, accurate, and complete as of the date of this Agreement, without any concealment or misleading content.
ARTICLE 5. NOTICES
Any and all notices, requests, demands and other communications required or otherwise contemplated to be made under this Agreement shall be in writing. Notices hereunder shall be sent to the other party's address and/or number, by ways of personal delivery, prepaid registered airmail, acknowledged carrier or fax. Such notices shall be deemed to have been effectively given on the following dates: (1) notices delivered by person shall be deemed to have been effectively served on the date of personal delivery; (2) notices sent by prepaid registered airmail shall be deemed to have been effectively served on the seventh day after the day they were delivered for mailing (as indicated by the postmark); (3) notices sent by courier service shall be deemed to have been effectively served on the third day after they were delivered to an acknowledged courier; (4) notices sent by facsimile shall be deemed to have been effectively served on the first working day after being transmitted.
ARTICLE 6. DISPUTE RESOLUTION
After the execution of this Agreement, if either Party breaches or fails to perform any of its obligations hereunder, such Party shall bear the liability for breach, and bear all the economic losses of the other Party incurred from such.
ARTICLE 7. APPLICABLE LAW
7.1 This Agreement shall be governed by and construed under the laws of China.
7.2 If any provision of this Agreement is determined as invalid or unenforceable by relevant effective laws and regulations, but does not affect the effectiveness of this Agreement, the remaining provisions of this Agreement will not be affected. The Parties shall revise such invalid or unenforceable provision pursuant to the relevant effective laws and regulations to make it a valid provision, which should reflect the principle and spirit of this Agreement to the greatest extent.
ARTICLE 8.EFFECTIVENESS AND DISPUTE RESOLUTION
8.1 This Agreement shall become effective after the execution of the Parties.
8.2 Any dispute arises from the interpretation or performance of terms hereof by the parties, shall be settled through friendly consultation. If the parties fail to make a written agreement after consultation, the dispute shall be submitted for arbitration in accordance with the agreement. The arbitration shall be final and exclusive. Unless otherwise expressly stipulated herein, any party waives expressly its right to submit a
dispute to court for a legal action, and the waiver is irrevocable. The Parties hereby exclude any rights of appeals to any court on the merits of the dispute subject to arbitration.
8.3 Arbitration shall be submitted to China International Economic and Trade Arbitration Committee ("Arbitration Committee") to be arbitrated in accordance with then-in-force arbitration rules. The place of arbitration shall be Beijing. Unless otherwise stipulated in the arbitration award, the arbitration fee (including reasonable attorney fees and expenses) shall be borne by the losing party.
ARTICLE 9.MISCELLANEOUS
9.1 The failure or delay of any party hereof to exercise any right hereunder shall not be deemed as a waiver thereof, nor any single or partial exercise of any right preclude further exercise thereof in future by the party.
9.2 The headings of articles herein are provided for the purpose of index. Such headings shall in no event be used or affected interpretations of the terms herein.
9.3 Each party hereunder concludes the agreement with legal purpose. Each term hereof is severable and independent from the others. If at any time one or more of such terms is or becomes invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining terms hereof shall not in any way be affected thereby; and the parties shall make every endeavor to negotiate and arrive at new terms to substitute the invalid, illegal and unenforceable terms, and preserve as near as possible business purposes of the original terms.
9.4 This Agreement shall bind the legal transferees of the Parties.
9.5 Matters not covered in the agreement shall be dealt with in a supplementary agreement. The supplementary agreement shall only be effective in written form, with the signatures of the Parties.
9.6 The agreement is executed in four original copies, and are equally authentic. Each party hereto shall hold one copy, and the remaining two shall be used for relevant legal procedures.
(The reminder of this page is intentionally left blank.)
(Execution Page)
IN WITNESS WHEREOF, the Parties hereto have signed this Agreement as of the date first written above.
Transferor: Chen Wu
Transferee: Wang Jun
EXHIBIT 4.32
[Translated from Chinese Original]
OPERATION AGREEMENT
between
FORTUNE SOFTWARE (BEIJING) CO., LTD.
and
BEIJING GLORY CO., LTD.
September, 2007
BEIJING, CHINA
OPERATION AGREEMENT
This Operation Agreement ("this Agreement") is entered into in Beijing, People's Republic of China (the "PRC") on this September 10, 2007 between:
Party A: Fortune Software (Beijing) Co., Ltd
Address: Room 626, Beijing Hangtian Jingmi Mansion, No. 30 Haidian Nalu Road,
Haidian District, Beijing
Legal Representative: Zhao Zhiwei
Tel: 010-58325388
Party B: Beijing Glory Co., Ltd.
Address: Room 621, Beijing Hangtian Jingmi Mansion, No. 30 Haidian Nalu Road,
Haidian District, Beijing
Legal Representative: Zhao Zhiwei
Tel: 010-58325388
WHEREAS,
(1) Party A is a wholly foreign owned enterprise duly organized and validly existing under the laws of PRC, and has expertise and resources in developing and manufacturing computer hardware and software, system software, and application software; Party A desires to provide to Party B operational services in connection with developing and manufacturing computer hardware and software, system software, and application software.
(2) Party B is a company with limited liability duly organized and validly existing under the laws of PRC; and to expand its business operation in the aspects of developing and manufacturing computer hardware, software, system software, and application software, Party B engages Party A to provide the operational services in connection with the foregoing.
(3) Party A has entered into a technical support agreement and strategic consulting service agreement with Party B (collectively the "Binding Agreements"), and hence the Parties have established certain business relationship.
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:
1.1 "This Agreement" means this Operation 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. OPERATIONAL SUPPORT
2.1 Party A agrees, according to the operational needs of Party B, to act as the guarantor of Party B in the contracts, agreements, or transactions entered into between Party B and third parties, in order to fully guarantee the performance by Party B of such contracts, agreements, and transactions.
2.2 Party A agrees, according to the operational needs Party B, to recommend directors and senior management to Party B and Party B agrees to appoint the such personnel recommended by Party A to be its directors and senior management. The relevant personnel recommended by Party A pursuant to this Article shall meet the qualification requirements for directors and senior management under applicable laws.
2.3 To ensure the performance of this Agreement, Party A agrees to provide to Party B cooperative policy advice and guidance, which is consistent with the daily operation and financial management and the employment policy of Party B.
ARTICLE 3. OBLIGATIONS OF PARTY B
3.1 Party B agrees not to conduct the following business which may materially affect its assts, rights, obligations and operation (except for the sales or purchase of assets, and contracts and agreements entered into during the ordinary course of business of Party B, and the lien imposed by the contracting parties pursuant to the above contracts), without the prior written consent of Party A, including but not limited to:
3.1.1 borrowing loans from any third party or bearing any debt liability;
3.1.2 selling to or obtaining any asset or rights from any third party; and
3.1.3 using its own assets to secure any real obligation of any third party.
3.2 Without the written consent of Party A, Party B shall not transfer its rights and obligations hereunder to any third party. Party B agrees, Party A may transfer its rights and obligations hereunder as it finds necessary, and Party A only needs to give a
written notice to Party B after such transfer, without the necessity to obtain any consent from Party B.
ARTICLE 4. CONSIDERATION FOR PROVIDING OPERATIONAL SUPPORT
4.1 In consideration of the above operational support provided by Party A, Party B shall pay to Party A certain fees as specified in Exhibit 1 attached hereto.
ARTICLE 5. REPRESENTATIONS AND WARRANTIES
5.1 Each Party hereby represents to the other Party that:
5.1.1 It has all the necessary rights, powers and authorizations to enter into this Agreement and to perform its duties and obligations hereunder; and
5.1.2 The execution or performance of this Agreement does not violate any significant contract or agreement to which it is a party or any contract of agreement that binds it or its assets.
ARTICLE 6. CONFIDENTIALITY
6.1 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 of the United States, the PRC or other relevant jurisdictions; (ii) disclosure of information which has become public information other than due to any breach by the disclosing party; or (iii) disclosure to any Party's shareholders, legal counsel, accountants, financial advisors or other professional advisors who bear the obligation of confidentiality to such Party.
6.2 The Parties agree this Article 6 will survive any invalidity, modification, cancellation or termination of this Agreement, if applicable.
ARTICLE 7. GOVERNING LAW AND OBLIGATIONS UPON DEFAULT
7.1 The execution, effectiveness, interpretation, performance and dispute resolution of this Agreement shall be governed by the laws of the PRC.
7.2 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. If the parties fail to make an written agreement within thirty days after consultation, such dispute will be submitted to the China International Economic and Trade Arbitration Commission ("CIETAC") in accordance with its arbitration rules/procedures. The arbitration tribunal will be composed of three (3) arbitrators, two of which shall be appointed by both Parties hereto, and the third one shall be appointed by the chairman of CIETAC.
8.2 The arbitration shall be administered by the Beijing branch of CIETAC in accordance with the then effective arbitration rules of the Commission in Beijing.
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
9.1 This Agreement shall be effective upon the execution hereof by both Parties hereto.
9.2 The term of this Agreement shall be ten (10) years. Party B shall not terminate this Agreement during this term.
9.3 Unless Party A notifies Party B of no renewal of this Agreement by giving a thirty (30) days prior notice. This Agreement will be renewed for one year automatically after the expiry of the term hereof. This provision will apply to all the subsequent renewal.
ARTICLE 10. NO SUBSEQUENT OBLIGATION
10.1 Once this Agreement is terminated, Party A will not have any obligation to provide to Party B any operational support hereunder.
ARTICLE 11. AMENDMENT
11.1 All Parties hereto shall fulfill their respective obligations hereunder. No amendment to this Agreement shall be effective unless such amendment has been made in written form, and agreed by both Parties and both Parties have obtained necessary authorization and approvals with respect to such amendment. Any modification and supplementary to this Agreement after signed by both Parties, become an integral part of this Agreement, and has the same legal force with this Agreement.
ARTICLE 12. COUNTERPARTS
12.1 This Agreement is executed in duplicate, and are equally authentic. Party A and Party B shall each hold one counterpart.
ARTICLE 13. MISCELLANEOUS
13.1 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.
13.2 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.
[The remaining of this page is intentionally left blank]
Exhibit 1 Consideration for Operation Guarantee
The annual fees in consideration of provision of the operational support by Party A ("Consideration") shall be 40% of the "profits" of Party B in such year. The "profits" of Party B in such year should be equal to (gross revenue of Party B in such year) minus (the sales tax, sales expenses, management fees, financial expenses and other expenses resulting from the daily operation and outside daily operation of Party B), and such "profit" shall be the profit before paying for other service fees as specified by the Binding Agreements. Such expenses shall be determined by both Parties every quarter in written form, and shall be paid by Party B within three (3) months after the accounting date.
[execution page only]
This Agreement is executed by the following Parties as of the date listed first above.
Party A: Fortune Software (Beijing) Co., Ltd.
Seal:
Authorized Representative (Signature): [ ]
Party B: Beijing Glory Co., Ltd.
Seal:
Authorized Representative (Signature): [ ]
EXHIBIT 4.33
[Translated from Chinese Original]
TECHNICAL SUPPORT AGREEMENT
between
FORTUNE SOFTWARE (BEIJING) CO., LTD.
and
BEIJING GLORY CO., LTD.
September, 2007
BEIJING, CHINA
TECHNICAL SUPPORT AGREEMENT
This Technical Support Agreement ("this Agreement") is entered into in Beijing, the People's Republic of China (the "PRC") on this September 10, 2007 between:
Party A: Fortune Software (Beijing) Co., Ltd.
Address: Room 626, Beijing Hangtian Jingmi Mansion, No. 30 Haidian Nanlu
Road, Haidian District, Beijing
Postal code: 100080
Party B: Beijing Glory Co., Ltd.
Address: Room 621, Beijing Hangtian Jingmi Mansion, No. 30 Haidian Nalu
Road, Haidian District, Beijing
Postal code: 100080
WHEREAS,
(1) Party A is a wholly foreign owned enterprise duly organized and validly existing under the laws of the PRC, and has expertise and resources in developing and manufacturing computer hardware and software, system software, and application software; Party A desires to provide to Party B relevant services, including without limitation technical support services, in connection with developing and manufacturing computer hardware and software, system software, and application software;
(2) Party B is a company with limited liability duly organized and validly existing under the laws of the PRC. In order to expand Party B's business in the aspects of developing and manufacturing computer hardware and software, system software and the network operation of application software, Party B engages Party A to provide the technical support services in connection with the foregoing.
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:
1.1 "This Agreement" means this Technical Support 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. TECHNICAL SUPPORT SERVICES
2.1 The technical support services (the "Services"): Party A agrees to provide to Party B the relevant services requested by Party B, which are specified in Exhibit 1 attached hereto ("Exhibit 1").
2.2 Exclusive Services Provider: Party A is the exclusive services provider of Party B. Without the written consent of Party A, Party B shall not entrust any other third party to provide the Services stated herein.
ARTICLE 3. TECHNICAL SUPPORT SERVICES FEE
3.1 Amount and payment: Party B shall pay certain fees in accordance with the provisions of Exhibit 2 to Party B in consideration of the technical support service provided by Party A (the "Service Fee").
3.2 Reasonable expenses: besides the Service Fee, Party A shall charge Party B for all the reasonable expenses relating to the Services, including but not limited to travel, accommodation, traffic and communication expenses.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES
4.1 Each party hereto represents to the other party that:
4.1.1 it has all the necessary rights, powers and authorizations to enter into this Agreement and to perform its duties and obligations hereunder; and
4.1.2 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 is or its assets are bounded.
ARTICLE 5. CONFIDENTIALITY
5.1 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 5, the following disclosure shall be permitted: (i) disclosure made pursuant to any applicable laws or any rules of any stock exchange of US, PRC or relevant countries; (ii) disclosure of information which has become public information other than due to any breach by the disclosing party; or (iii) disclosure to any party's shareholders, legal counsel, accountants, financial advisors or other professional advisors who bear the obligation of confidentiality to such party.
5.2 The parties agree this Article 5 will survive any invalidity, modification, cancellation or termination of this Agreement, if applicable.
ARTICLE 6. GOVERNING LAW AND EVENTS OF DEFAULT
6.1 The execution, effectiveness, interpretation, performance and dispute resolution of this Agreement shall be governed by the laws of the PRC.
6.2 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 covenant 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 7. DISPUTE RESOLUTION
7.1 Any dispute arising from the performance of this Agreement shall be first subject to the parties' friendly consultations. If the parties fail to make an written agreement within thirty days after consultation, such dispute will be submitted to the China International Economic and Trade Arbitration Commission ("CIETAC") in accordance with its arbitration rules/procedures.
7.2 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 in Beijing. The tribunal will be composed of one (1) arbitrator appointed by the chairman of CIETAC
7.3 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 8. EFFECTIVENESS
8.1 This Agreement shall become effective upon the execution by both parties hereto.
8.2 The term of this Agreement shall be ten (10) years. Party B shall not terminate this Agreement during this term.
8.3 Unless Party A notifies Party B of no renewal of this Agreement by giving a thirty (30) days prior notice, this Agreement will be renewed for one year automatically after the expiry of the term hereof. This provision will apply to all the subsequent renewal.
ARTICLE 9. NO SUBSEQUENT OBLIGATION
9.1 Once this Agreement is terminated, Party A will not have any obligation of providing to Party B any Service hereunder.
ARTICLE 10. TRANSFER LIMITATION
10.1 Without the prior written consent of the other party, neither party shall transfer any of their rights or obligations hereunder.
ARTICLE 11. AMENDMENT
11.1 Both parties hereto shall fulfill their respective obligations hereunder. No amendment to this Agreement shall be effective unless such amendment has been made in written form, and agreed by both parties and both parties have obtained necessary authorization and approvals with respect to such amendment. Any modification and supplementary to this Agreement after signed by both parties, become an integral part of this Agreement, and has the same legal force with this Agreement.
ARTICLE 12. COUNTERPARTS
12.1 This Agreement is executed in two counterparts, with Party A and Party B each hold a counterpart. Each counterpart has the same legal force.
ARTICLE 13. MISCELLANEOUS
13.1 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;
13.2 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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Exhibit 1 Content of the Technical Support Services
Party A shall provide the following technical support services to Party B to the extent permitted by PRC laws:
(1) providing the technical support and professional trainings necessary for Party B to operate its business;
(2) maintaining the computer system of Party B;
(3) providing Party B with website design, and the design, installation, adjustment and maintenance services of Party B's computer network system;
(4) providing comprehensive security services of Party B's websites;
(5) providing database support and software services;
(6) other services in connection with Party B's business;
(7) providing labor support upon requested by Party B, including but not limited to sending or dispatching relevant personnel to Party B (provided however that Party B shall bear the relevant labor costs); and
(8) other services agreed to by the parties.
Exhibit 2 Technical Support Service Fee
The Service Fee in consideration of provision of the Service provided by Party A shall be 30% of the "profits" of Party B in such year. The "profits" of Party B in such year should be equal to gross revenue of Party B in such year minus (the sales tax, sales expenses, management fees, financial expenses and other expenses resulting from the daily operation and other business operation of Party B, and such "profit" shall be the profit before paying for other service fees as specified by the Binding Agreements. Such expenses shall be determined by both parties every quarter in written form, and shall be paid by Party B within three (3) months after the accounting date.
[execution page only]
This Agreement is executed by the following parties as of the date listed first above.
Party A: Fortune Software (Beijing )Co. Limited
Seal:
Authorized Representative (Signature):
Party B: Beijing Glory Co, Ltd.
Seal:
Authorized Representative (Signature):
EXHIBIT 4.34
[Translated from Chinese Original]
STRATEGIC CONSULTING SERVICE AGREEMENT
between
FORTUNE SOFTWARE (BEIJING) CO., LTD.
and
BEIJING GLORY CO., LTD.
September, 2007
BEIJING, CHINA
STRATEGIC CONSULTING SERVICE AGREEMENT
This Strategic Consulting Service Agreement ("this Agreement") is entered into in Beijing, the People's Republic of China (the "PRC") on this September 10, 2007 between:
Party A: Beijing Glory Co., Ltd.
Address: Room 621, Beijing Hangtian Jingmi Mansion, No. 30 Haidian Nalu
Road, Haidian District, Beijing, the PRC
Postal code: 100080
Party B: Fortune Software (Beijing) Co., Ltd.
Address: Room 626, Beijing Hangtian Jingmi Mansion, No. 30 Haidian Nanlu
Road, Haidian District, Beijing, the PRC
Postal code: 100080
WHEREAS,
(1) Party A is a company with limited liability duly organized and validly existing under the laws of the PRC, primarily engaged in developing and manufacturing of computer hardware and software, system software and application software, etc. (the "Business").
(2) Party B is a wholly foreign owned enterprise duly organized and validly existing under the laws of the PRC, and has expertise and resources in providing strategic consulting services in the foregoing business area.
(3) Party A agrees to engage Party B to provide strategic consulting services in the foregoing area, and Party A desires to accept such strategic consulting services according to the terms and conditions of this Agreement.
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:
1.1 "This Agreement" means this Strategic Consulting Service 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. TECHNICAL SUPPORT SERVICES
2.1 The strategic consulting services (the "Services"): Party A engages Party B to provide to Party A the strategic consulting services specified in Exhibit 1 attached hereto ("Exhibit 1") from the execution date of this Agreement.
2.2 Exclusive Services Provider: Party B is the exclusive services provider of Party A. Without the written consent of Party B, Party A shall not entrust any other third party to provide the Services stated herein.
ARTICLE 3. STRATEGIC CONSULTING SERVICE FEE
3.1 Amount and payment: Party A shall pay certain fees in accordance with the provisions of Exhibit 2 to Party B in consideration of the technical support service provided by Party A (the "Service Fee");
3.2 Reasonable expenses: besides the Service Fee, Party B shall charge Party A for all the reasonable expenses relating to the Services, including but not limited to travel, accommodation, traffic and communication expenses.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES
4.1 Each party hereto represents to the other party that:
4.1.1 it has all the necessary rights, powers and authorizations to enter into this Agreement and to perform its duties and obligations hereunder; and
4.1.2 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 is or its assets are bounded.
ARTICLE 5. CONFIDENTIALITY
5.1 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 5, the following disclosure shall be permitted: (i) disclosure made pursuant to any applicable laws or any rules of any stock exchange of US, PRC or relevant countries; (ii) disclosure of information which has become public information other than due to any breach by the
disclosing party; or (iii) disclosure to any party's shareholders, legal counsel, accountants, financial advisors or other professional advisors who bear the obligation of confidentiality to such party.
5.2 The parties agree this Article 5 will survive any invalidity, modification, cancellation or termination of this Agreement, if applicable.
ARTICLE 6. GOVERNING LAW AND EVENTS OF DEFAULT
6.1 The execution, effectiveness, interpretation, performance and dispute resolution of this Agreement shall be governed by the laws of the PRC.
6.2 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 covenant 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 7. DISPUTE RESOLUTION
7.1 Any dispute arising from the performance of this Agreement shall be first subject to the parties' friendly consultations. If the parties fail to make an written agreement within thirty days after consultation, such dispute will be submitted to the China International Economic and Trade Arbitration Commission ("CIETAC") in accordance with its arbitration rules/procedures.
7.2 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 in Beijing. The tribunal will be composed of one (1) arbitrator appointed by the chairman of CIETAC.
7.3 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 8. EFFECTIVENESS
8.1 This Agreement shall become effective upon the execution by both parties hereto.
8.2 The term of this Agreement shall be twenty (20) years. Party A shall not terminate this Agreement during this term.
8.3 Unless Party B notifies Party A of no renewal of this Agreement by giving a thirty (30) days prior notice, this Agreement will be renewed for one year automatically after the expiry of the term hereof. This provision will apply to all the subsequent renewal.
ARTICLE 9. NO SUBSEQUENT OBLIGATION
9.1 Once this Agreement is terminated, Party A will not have any obligation of providing to Party B any Service hereunder.
ARTICLE 10. TRANSFER LIMITATION
10.1 Without the prior written consent of the other party, neither party shall transfer any of their rights or obligations hereunder.
ARTICLE 11. AMENDMENT
11.1 Both parties hereto shall fulfill their respective obligations hereunder. No amendment to this Agreement shall be effective unless such amendment has been made in written form, and agreed by both parties and both parties have obtained necessary authorization and approvals with respect to such amendment. Any modification and supplementary to this Agreement after signed by both parties, become an integral part of this Agreement, and has the same legal force with this Agreement.
ARTICLE 12. COUNTERPARTS
12.1 This Agreement is executed in two counterparts, with Party A and Party B each hold a counterpart. Each counterpart has the same legal force.
ARTICLE 13. MISCELLANEOUS
13.1 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;
13.2 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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Exhibit 1 Content of the Strategic Consulting Services
Party B shall provide the following strategic consultation services to Party A pursuant to this Agreement to the extent permitted by PRC laws:
(1) evaluation of new products/services;
(2) industry and client research;
(3) marketing strategies;
(4) training of Party A's personnel; and
(5) other services in connection with Party A's business.
Exhibit 2 Strategic Consulting Service Fee
The Service Fee in consideration of provision of the Service provided by Party B shall be 30% of the "profits" of Party A in such year. The "profits" of Party A in such year should be equal to gross revenue of Party A in such year minus (the sales tax, sales expenses, management fees, financial expenses and other expenses resulting from the daily operation and other business operation of Party A, and such "profit" shall be the profit before paying for other service fees as specified by the Binding Agreements. Such expenses shall be determined by both parties every quarter in written form, and shall be paid by Party B within three (3) months after the accounting date.
[execution page only]
This Agreement is executed by the following parties as of the date listed first above.
Party A: Fortune Software (Beijing )Co. Limited
Seal:
Authorized Representative (Signature):
Party B: Beijing Glory Co., Ltd.
Seal:
Authorized Representative (Signature):
EXHIBIT 4.35
[Translated from Chinese Original]
PURCHASE OPTION AGREEMENT
among
FORTUNE SOFTWARE (BEIJING) CO., LTD.
WANG JUN
ZHAO ZHIWEI
and
BEIJING GLORY CO., LTD.
September, 2007
BEIJING, CHINA
PURCHASE OPTION AGREEMENT
This Purchase Option Agreement ("this Agreement") is entered into in Beijing, People's Republic of China (the "PRC") on this August 21, 2007 by and among:
Party A: Fortune Software Co. Limited.
Address: Room 626, Beijing Hangtian Jingmi Mansion, No. 30 Haidian Nalu Road,
Haidian District, Beijing, the People's Republic of China (the "PRC")
Postal code: 100080
Party B: Wang Jun
Address: 9/F., Tower C, Corporation Mansion, No.35 Financial Avenue Xicheng
District, Beijing, the PRC
ID No.: 370102197012163311
Party C: Zhao Zhiwei
Address: 9/F., Tower C, Corporation Mansion, No.35 Financial Avenue Xicheng
District, Beijing, the PRC
ID No.: 110102196307100139
Party D: Beijing Glory Co., Ltd.
Address: Room 621, Beijing Hangtian Jingmi Mansion, No. 30 Haidian Nalu Road,
Haidian District, Beijing
Postal code: 100080
Party A, Party B, Party C and Party D will each be referred to as a "Party" and collectively referred to as the "Parties".
WHEREAS,
(1) Party D is a company with limited liability duly organized and validly existing under the laws of PRC; Party B and Party C are current shareholders of Party D and each holding 55% and 45% shares in Party D respectively.
(2) To finance the investment by Party B and Party C in Party D, Party A has entered into loan agreements respectively with Party B and Party C on September 10, 2007, providing Party B and Party C with loans of RMB 550,000 Yuan and RMB 450,000 Yuan, respectively. Pursuant to the Loan Agreement, Party B and Party C has invested the full amount of the loans in Party D's registered capital.
(3) Party B and Party C hereto wish to grant Party A or the qualified entity designated by 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 owned by Party B and/or Party C, or the all or a portion of the Party's D's
assets.
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:
1.1 "This Agreement" means this Purchase Option 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 propose to transfer their share equity in Party D to any party other than the existing shareholders of Party D), 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 ("Purchase Option"). 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 (or the eligible entity designated by Party A) may exercise the aforesaid purchase option by delivering a written notice to Party B, Party C and/or Party D (as the case may be) subject to the PRC laws and regulations (the "Exercise Notice"), specifying the number of shares intended to be purchased from Party B and/or Party C, or the amount of assets intended to be purchased from Party B ("Purchased Shares (Assets)"), and the method of purchase.
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. EXERCISE PRICE
3.1 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 to the registered capital of Party D.
3.2 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.
3.3 When Party A (or a qualified entity designated by party A) is to acquire all or a portion of Party D's equity share 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.
3.4 When acquiring share equity or assets from Party B, Party C, or Party D
pursuant to this Agreement, Party A (or a qualified entity designated by party
A) shall pay an actual exercise price based on the exercise price under
applicable PRC 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 4. REPRESENTATIONS AND WARRANTIES
4.1 Each party hereto represents to the other parties that:
4.1.1 it has all the necessary rights, powers and authorizations to enter into this Agreement and perform its duties and obligations hereunder; and
4.1.2 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.
ARTICLE 5. OTHER COVENANTS
The Parties further agree as follows:
5.1 Before Party A (or a qualified entity designated by 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 (or a qualified entity designated by 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 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.
5.4 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.
5.5 To the extent Party B and/or Party C are subject to any legal or economic liabilities to any institution or individual as a result of performing their obligations under this Agreement or any other agreements between them and Party A, Party A 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.
5.6 If Party A decides to transfer its rights under the Loan Agreement to any third party, and has sent a written notice to the other Parties, Party A has the right to transfer its rights and obligation hereunder to such third party at the same time, with no need to obtain the prior consent of the Parties hereto.
5.7 Party B and Party C shall execute a Proxy of voting rights to the satisfaction of Party A, attached hereto as Exhibit 1, authorizing a qualified third party designated by Party A to exercise all the voting rights on behalf of Party B and Party C. The first term of such Proxy shall be 20 years. Unless Party A notifies Party B and Party C in writing to terminate such Proxy, the term of this Proxy will be extended automatically after the expiry of the first term.
ARTICLE 6. CONFIDENTIALITY
6.1 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 of US, PRC or relevant countries; (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).
6.2 The Parties agree this Article 6 will survive any invalidity, modification, cancellation or termination of this Agreement, if applicable.
ARTICLE 7. APPLICABLE LAW AND EVENTS OF DEFAULT
7.1 The execution, effectiveness, interpretation, performance and dispute resolution of this Agreement shall be governed by the laws of the PRC.
7.2 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. If the parties fail to make an written agreement within thirty days after consultation, such dispute will be submitted to the China International Economic and Trade Arbitration Commission ("CIETAC") in accordance with its arbitration rules/procedures. The tribunal will be composed of one (1) arbitrator appointed by the chairman of CIETAC.
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 in Beijing.
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
9.1 This Agreement shall be effective upon the execution hereof by all Parties and shall remain effective thereafter. 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.
9.2 If during the term of this Agreement, the operation term of Party A or Party D (including any extended term) expires or is terminated due to other reasons, this Agreement shall be terminated at the time such Party terminates, unless Party A has transferred its rights and obligations hereunder to others pursuant to Article 5.6.
ARTICLE 10. AMENDMENT
10.1 All Parties hereto shall fulfill their respective obligations hereunder. No amendment to this Agreement shall be effective unless such amendment has been made in written form, and agreed by all of the Parties and Party A and Party D have obtained necessary authorization and approvals with respect to such amendment. Any modification and supplementary to this Agreement after signed by both Parties, become an integral part of this Agreement, and has the same legal force with this Agreement.
ARTICLE 11. COUNTERPARTS
11.1 This Agreement is executed in four (4) counterparts, and are equally authentic. . Party A, Party B, Party C, and Party D 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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Exhibit 1 Proxy
I, Wang Jun the citizen of People Republic of China, ID No. 370102197012163311, hereby authorizes Fortune Software to exercise the following rights and powers during the term of this Proxy:
(1) attend the shareholders' meeting of Beijing Glory Co. Ltd. ("Company") as my proxy, and exercise all the voting rights of shareholders granted by the relevant laws and the Articles of Association of the Company on behalf of the Company; and
(2) Designate and appoint the directors, general manager, chief financial officer and other senior management of the Company as my authorized representative;
Party A hereby accepts the authorization herein.
The above authorization shall be subject to Fortune Software (Beijing) Co. Ltd. continuing to be the designated party (or appointed party). Unless Fortune Software (Beijing) Co. Ltd. (the appointed party) sends a written notice to terminate or replace the title of Fortune Software (Beijing) Co. Ltd. as the designated party (or appointed party), this Proxy shall continue to be valid for 20 years after the execution, and shall be renewed automatically after the expiry of the first term.
Entrusting Party(signature):
Date:
Exhibit 1 Proxy
I, Zhao Zhiwei, the citizen of People Republic of China, ID No.
110102196307100139, hereby authorizes Fortune Software to exercise the following
rights and powers during the term of this Proxy:
(1) attend the shareholders' meeting of Beijing Glory Co. Ltd. ("Company") as my proxy, and exercise all the voting rights of shareholders granted by the relevant laws and the Articles of Association of the Company on behalf of the Company; and
(2) Designate and appoint the directors, general manager, chief financial officer and other senior management of the Company as my authorized representative;
Party A hereby accepts the authorization herein.
The above authorization shall be subject to Fortune Software (Beijing) Co. Ltd. continuing to be the designated party (or appointed party). Unless Fortune Software (Beijing) Co. Ltd. (the appointed party) sends a written notice to terminate or replace the title of Fortune Software (Beijing) Co. Ltd. as the designated party (or appointed party), this Proxy shall continue to be valid for 20 years after the execution, and shall be renewed automatically after the expiry of the first term.
Entrusting Party(signature):
Date:
[execution page only]
Party A: Fortune Software (Beijing )Co. Limited
Seal:
Authorized Representative (Signature):
Party B: Wang Jun
(Signature):
Party C: Zhao Zhiwei
(Signature):
Party D: Beijing Glory Co, Ltd.
Seal:
Authorized Representative (Signature):
EXHIBIT 4.37
LICENSE NO.:TVPH04-2008
[Translated from the original Chinese version]
SHANGHAI STOCK EXCHANGE AFTER-HOURS
TRADING DATA AND STATISTICS
LICENSE AGREEMENT
Party A: SSE INFONET LTD.
Address: No.528, Pudong Nan Lu, Shanghai
Party B: Fortune Software (Beijing) Co. Ltd.
Address: Floor 9, Tower C, Corporate Square, No. 35 Financial Street,
Xicheng District, Beijing, China
Whereas:
Party A hereto is an organization fully authorized by the Shanghai Stock Exchange to distribute stock information of the Shanghai Stock Exchange; Party B is an information management company willing to pay for the distribution of stock information of the Shanghai Stock Exchange at cost.
Through friendly consultation, both parties hereby enter into this agreement with respect to Party A granting to Party B the license to distribute the Shanghai Stock Exchange TopView After-Hours Trading Data and Statistics.
LICENSE NO.:TVPH04-2008
ARTICLE 1. DEFINITIONS
1. "SSE" means the Shanghai Stock Exchange.
2. "SSE TopView" means the brand used by Party A for its static information products.
3. "After-Hours Trading Data and Statistics" means the information product developed by SSE based on After-Hours analysis of real trade data on the stock market in accordance with the Securities Law of the Peoples Republic of China and relevant regulations promulgated by China Securities and Regulatory Commission and SSE.
4. "License for After-Hours Trading Data and Statistics " (hereinafter referred to as the "License") means the certifying documents issued by Party A to Party B, authorizing Party B to distribute After-Hours Trading Data and Statistics within a limited scope and term, and in certain ways.
5. "Terminal Users" means the end users who receive and use value-added products developed by Party B based on After-Hours Trading Data and Statistics, or special customers who directly receive After-Hours Trading Data and Statistics through Party B.
6. "User Charge" means the charge by Party A to Party B for After-Hours Trading Data and Statistics according to Appendix I-A or B attached hereto.
7. "End Users" means the end users who can only use After-Hours Trading Data and Statistics or Party B Products on their own, but cannot provide the foregoing (including derivatives developed based on Party B Products or After-Hours Trading Data and Statistics) to any third party by any means (including without limitation, re-license, transfer, assign, distribute, duplicate, or spread, etc.).
8. "Party B Products" means value-added products developed by Party B based on After-Hours Trading Data and Statistics
ARTICLE 2. RECEIVING INFORMATION
1. Party B shall receive After-Hours Trading Data and Statistics with the receiving methods approved by Party A in writing. If Party B's receiving methods fail to get approval from Party A, Party A is entitled to refuse to transmit After-Hours Trading Data and Statistics to Party B.
2. If Party B encounters technical problems while receiving After-Hours Trading Data and Statistics, it may contact Party A on a timely basis, and Party A shall assist in solving the problems to enable Party B to obtain After-Hours Trading Data and Statistics in a customary fashion.
3. Party A has the right to change the transmitting method, but shall notify Party B in writing one month in advance of such change.
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4. Regardless of the reason for terminating the transmitting and receiving relations by both parties, in the event of such termination, each party shall return the relevant equipment provided by the other party in good and intact conditions.
ARTICLE 3. MANAGEMENT OF INFORMATION
1. Party A agrees that Party B may operate the business in a manner that is within the scope and purposes as specified in Appendix I (License) hereto, and within the term of the License (the License shall be deemed becoming invalid upon the expiration or revocation of the License by Party A in accordance with this agreement).
2. Party B agrees to be bound by the following terms and conditions:
(1) covenants to manage After-Hours Trading Data and Statistics in accordance with this agreement (including the Appendices thereto).
(2) covenants not to provide all or any part of After-Hours
Trading Data and Statistics to any entities or individuals
not specified in the License, or use such information in
other aspects or purposes, without written approval of Party
A.
(3) Before transmitting After-Hours Trading Data and Statistics
or providing Party B Products to users, Party B shall enter
into binding agreements with its users which shall
expressively specify the rights and obligations of the
contracting parties and set forth the following provisions:
(A) all intellectual rights with respect to After-Hours
Trading Data and Statistics belong to SSE and Party A; (B)
SSE and Party A shall bear no liability with respect to the
completeness, timeliness, or accuracy of the information
provided.
(4) Party B shall enter into agreements with special users (the special users are End Users permitted by Party A in advance to utilize to After-Hours Trading Data and Statistics, and such End Users shall be entities not individuals) specified under the item "Usage" on the License before transmitting After-Hours Trading Data and Statistics to such special users. Such agreements shall contain provisions requiring such special user to protect the intellectual property rights relating to After-Hours Trading Data and Statistics, including without limitation, requiring such special user not to distribute, spread, transfer or develop derivatives of After-Hours Trading Data and Statistics in any direct or indirect way, or allow other persons to duplicate, distribute, spread, edit, transfer or develop derivatives of After-Hours Trading Data and Statistics in any direct or indirect way.
(5) Party B shall be responsible for supervising the special users' utilization of After-Hours Trading Data and Statistics. If Party B discovers any violation of the above Item 2(4) of this Article, which is regarded as the infringement on Party A's intellectual property rights by such special user, Party B shall immediately report to Party A and request such special user to stop the infringement immediately. In the meanwhile, Party B shall be responsible for retrieving the benefits such special user gained from the infringement and transfer such benefits to Party A (which shall not preclude the right of Party A to directly retrieve such benefits from the special user). If such special user
LICENSE NO.:TVPH04-2008
does not stop infringement within the time limit set by Party A, Party B shall immediately suspend transmitting After-Hours Trading Data and Statistics to such special user until Party A acknowledges that such special user has corrected its wrong doing and allows Party B to transmit After-Hours Trading Data and Statistics to such special user.
(6) covenants not to use all or part of After-Hours Trading Data and Statistics for any illegal purpose, or to provide such information to a third party to be used for any illegal purpose.
(7) covenants to respect the value of After-Hours Trading Data and Statistics, and to take no unfair competitive measures to manage relevant information such as low-price dumping, sale under cost, etc.
(8) Party B covenants to provide complete, accurate and timely After-Hours Trading Data and Statistics to its special users; if omissions, errors, or delays occur, it shall promptly remedy such problems and report to Party A, orally and in writing.
(9) Upon the occurrence of disruption of After-Hours Trading Data and Statistics transmitted by Party A to Party B for any reason, or the disruption of the provision of After-Hours Trading Data and Statistics or Party B Products by Party B to its users for any other reasons, Party B shall make an announcement upon Party A's approval through a media outlet named by Party A in accordance with Party A's requirements, within the time specified by Party A, and shall bear and deal with all the subsequent matters. A sample of the announcement is attached as Appendix III hereto.
(10) Without written approval from Party A, Party B shall not enter into a sub-license or re-license of After-Hours Trading Data and Statistics License issued by Party A, and shall not sell or purchase such license.
(11) Without Party A's written approval otherwise, all users of Party B shall only be End Users.
ARTICLE 4. EXPENSES
Party B agrees to pay the expenses to Party A in accordance with Appendix I-A "Expense Payment Agreement".
ARTICLE 5. INTELLECTUAL PROPERTY AND PROTECTION
1. SSE and Party A have the rights of After-Hours Trading Data and Statistics specified herein and in the License; without Party A's written approval, any organizations or individuals (including Party B, its directors, supervisors, managers or staffs, etc.) shall not save or permanently use After-Hours Trading Data and Statistics (including but not limited to copy, translate, distribute, edit, transfer, license others to use or develop derivatives in any direct or indirect way, etc.).
2. Party B shall get written approval from Party A before providing test result or announced After-Hours Trading Data and Statistics by Party B to any third party. If Party B provides such information to any third party without Party A's written
LICENSE NO.:TVPH04-2008
approval, upon Party A's warning letter, Party B shall cease such provision; in the event Party B ignores such warning letter and fails to stop such provision by the following day after Party A sends such warning letter, Party A may suspend provision of After-Hours Trading Data and Statistics to Party B directly without bearing any liabilities.
3. Any Party B Products shall be announced (including but not limited to providing to a third party) or updated to the public only after submitting an announcement or an updating application and other relevant materials to Party A and getting Party A's written approval. Party B shall warrant that the application and materials are true, accurate and complete. Without Party A's written approval, Party B shall not announce or update any Party B Products to the public.
4. Party B shall accept and cooperate in the regular or irregular technical inspection of Party B Products by Party A or a third party entrusted by Party A. During the term of the agreement, if any Party B Products have serious problems such as a security problem, including but not limited to difficulty of user certification, susceptibility of data being stolen, systems vulnerability, or nonconformity of products to materials submitted to Party A, Party B shall make corrections within the specified time, according to Party A's requirements, after receiving Party A's written notice.
5. Party B warrants to only use display data provided by Party A for demonstration of relevant products or services to clients. Without written approval of Party A, Party B shall not provide trials of the relevant products to any third party.
6. Party B shall note on the interface of its users' terminals that the source of After-Hours Trading Data and Statistics is Party A, and the name, number and term of the license certificate issued.
7. During the data processing of Party B Products , Party B shall prohibit the users saving After-Hours Trading Data and Statistics and files on the users' terminals to prevent effectively the occurrence of the data being transferred or duplicated. Party B shall warrant all or part of After-Hours Trading Data and Statistics will be not be misappropriated though Party B Products.
8. As to advertising or public statements of Party B:
(1) for any relevant text with "SSE", "SSE Infonet Ltd.", "SSE TopView", "After-Hours Trading Data and Statistics" or any introduction to the content of After-Hours Trading Data and Statistics, Party B shall complete the Approval Letter (in accordance with the form attached hereto as Appendix IV) for relevant advertisements or pamphlets and submit it to Party A for approval, at least one working day in advance. Such advertisements and pamphlets shall only be used upon Party A's written approval. Party B shall not use the name, brand, logo (including but not limited to text, patterns or marks, etc.) of SSE or Party A without getting written approval from Party A.
(2) public statements regarding the License obtained by Party B shall note the number, validity, purposes and scope of the License.
LICENSE NO.:TVPH04-2008
(3) if the License is expired and not extended, or is revoked by Party A, Party B shall not continue to make public statements that After-Hours Trading Data and Statistics are sourced from Party A, and shall not include any information from the former License on the interface of its terminals.
9. Party B agrees to accept and cooperate with Party A in the supervision of the relevant operations by Party A:
(1) Before the Party B Products are available online, Party B shall give Party A the access to sales statistics of After-Hours Trading Data and Statistics and value-added products for the convenience of Party A to supervise and examine the sales performance of Party B's distributors from time to time.
(2) Party B shall submit the statistical reports on the users of After-Hours Trading Data and Statistics and Party B Products on a regular basis to Party A, in accordance with Appendix II of this agreement, "Supervision and Management of Information", and warrant that the data submitted shall be true, complete and accurate.
(3) Party B shall keep the original material of its users and charges for three (3) years, and warrant that the aforesaid materials shall be complete and accurate.
(4) Party B shall accept and cooperate with Party A or a third Party entrusted by Party A to make inspections of Party B's income derived from the management of After-Hours Trading Data and Statistics and Party B Products and users of the foregoing (including Party may entrust of relevant personnel to audit the income derived from After-Hours Trading Data and Statistics and Party B Products.) If Party A discovers any cover-up, or omitted or discounted reports of sales volume of Party B, Party B shall not only make up such covered-up, omitted or discounted portion of revenue but also pay to Party A in the amount of ten (10) times of the foregoing as the defaulting fine. In addition, Party A is entitled to ask Party B to bear all reasonable expenses incurred from the inspection (including auditing fees, travel fees, etc.) and ask Party B to make corrections in a limited time period.
10. Party B shall be responsible for supervising its users to comply with the Item 2 (3) and (4) of Article 3 hereof.
ARTICLE 6. DISCLAIMERS
1. SSE and Party A shall bear no liability for completeness, timeliness, or accuracy of the information provided (including but not limited to After-Hours Trading Data and Statistics).
2. Party B agrees that SSE and Party A bear no liability for abnormal information results or abnormal information transmission for whatever reasons.
3. Party B undertakes that it will always avoid and eliminate factors which may have an adverse effect on SSE and Party A, such as omission, mistakes, losses, delay and intermissions of information, and that it will protect SSE and Party A from economic
LICENSE NO.:TVPH04-2008
and credit losses, and shall not claim compensations from SSE or Party A for aforesaid reasons in connection herewith.
4. SSE and Party A shall bear no liability for any business risks Party B may take, or resulting from the management of After-Hours Trading Data and Statistics
5. SSE and Party A shall bear no liability for any risks Party B or its users may take, or resulting from investments based on After-Hours Trading Data and Statistics.
ARTICLE 7. LIABILITY FOR BREACH OF AGREEMENT
1. If Party B breaches the agreement, and fails to remedy such breach within the specified term stated in the written notice and requiring corrections requested by Party A, Party A is entitled to cancel the agreement, and revoke the License. Meanwhile, Party B shall pay any applicable penalty and compensation to Party A in accordance with the agreement, in addition to all payable expenses as stated herein. Party B bears all other liabilities and consequences incurred from such default.
2. If Party B breaches Item 2 (2) and (10) of Article 3, Party B shall transfer to Party A the earnings from such breach, and shall pay any applicable defaulting fine to Party A (which shall be equivalent to twice the earnings from the breach); meanwhile, Party B shall take prompt and effective measures to terminate such breach.
3. If Party B breaches the covenants as set forth in Item 2 (4) and (5) of Article 3, the loss of Party A caused by the infringement of such customers shall be bore by Party B.
4. If Party B fails to pay for the relevant expenses in accordance with the time stated herein, Party B shall pay 0.3% of all past due payments per day as the defaulting fine (calculated from the due date). If Party B fails to pay after Party A's call, Party A shall be entitled to cancel this agreement, revoke the License, and cease to provide After-Hours Trading Data and Statistics to Party B. Meanwhile, Party B shall pay a defaulting fine to Party A, equivalent to twice of past due payments, and compensate Party A for other losses incurred from such default.
5. Except for liabilities due to breaches of this agreement set forth above in the above item 2, 3, and 4 of this Article and Item 9(4) of Article 5 hereof, if Party B fails to perform other terms herein, Party B shall pay a defaulting fine to Party A (equivalent to twice the amount of the monthly base fee stated in Appendix I-A "Payment Agreement"); if there are any losses of Party A as a result of such breach, Party B shall compensate Party A for all losses.
6. Once Party A discovers that Party B breaches Item 7 of Article 5 hereof, Party A shall be entitled to stop transmitting After-Hours Trading Data and Statistics to Party B immediately and Party A shall bear no liabilities for such termination. However, Party B shall bear all the loss and liabilities resulting from such breach. .
ARTICLE 8. EFFECTIVENESS, AMENDMENT AND TERMINATION OF THE AGREEMENT
1. This agreement shall be effective when signed and stamped by a legal representative or an authorized representative of both parties. The term of this agreement is three (3) years. If for six (6) consecutive months, the aggregate amount of revenue to be
LICENSE NO.:TVPH04-2008
distributed to Party A, which is derived from the sales revenue of Party B is not higher than the aggregate amount of base fees payable to Party A for such six months (see Item 1 of Article 2 of the Appendix I-A attached hereto for details on the base fees), Party A is entitled to terminate this agreement and revoke the License at any time.
2. Any provisions herein shall only be modified with written approval from both parties; any modified provisions confirmed in written form shall be deemed to be an integral part of the agreement. The License shall be changed in the event of major modification.
3. Upon the expiration of Appendix I hereto, Appendix I-A shall also be terminated. Party B may make a written application to Party A for an extension or change of the license thirty (30) business days prior to the expiration of the License. Upon the approval of Party A, both parties may extend Appendix I-A. Upon the extension of the aforesaid Appendix I-A and Party B's payment specified in Appendix I-A, Party A will issue a new term License to Party B, and the agreement will also extend in accordance with the valid term specified in the new license. Both parties shall perform all rights and obligations in accordance with this agreement, as modified by additional content agreed upon by both parties.
4. If this agreement expires or Party A does not give approval for the renewal of the license, Party A will cease to provide After-Hours Trading Data and Statistics to Party B, and Party B shall not continue to manage After-Hours Trading Data and Statistics.
5. Upon the termination of this agreement, Party B shall pay all expenses to Party A in accordance with this agreement (including but not limited to the expenses which are due but Party B has failed to pay, any defaulting fine, compensations, or payable expenses which are not yet due) within ten (10) business days prior to the termination of the agreement. If Party B fails to make a payment in time, Party B shall pay 0.3% of the payable expenses per day as a defaulting fine to Party A, after the due date.
6. Articles 5, 6 and 7 herein will not become invalid even if the remaining sections herein are found to be invalid, or this agreement is terminated.
ARTICLE 9. DISPUTE RESOLUTION
Any dispute that arises from the performance of this agreement or in connection herewith, shall be settled though friendly consultation by both parties; if the dispute is not settled through friendly consultation, both parties agree to submit the dispute to People's Court at the place of Party A for settlement. All reasonable expenses of either party, including attorneys' fees, auditing fees, travel fees, etc, shall be borne by the losing party.
ARTICLE 10. APPENDIX TO THE AGREEMENT
The appendices included hereto have the same legal force as this agreement. Appendices include the following documents and other documents signed during the performance of the agreement:
Appendix I: After-Hours Trading Data and Statistics License Certificate;
Appendix I-A: Expense Payment Agreement;
LICENSE NO.:TVPH04-2008
Appendix I --B: Pricing Scheme for TopView After-Hours Trading Data and Statistics
Appendix II: Agreement on Supervision and Management of Information Operation;
Appendix III: Announcement (Sample);
Appendix IV: Approval Letter for Relevant Advertisements or Pamphlets
(Sample)
ARTICLE 11. MISCELLANEOUS
1. This agreement is governed by laws and regulations of PRC (excluding Hong Kong, Macau, and Taiwan), regulations of China Securities Regulatory Commission and the rules of SSE. If any change in relevant regulations occurs, the relevant provisions herein are changed accordingly without conditions.
2. Notices or documents issued by both parties may be delivered by hand, post or in other ways. The addresses of the addressees are as indicated herein.
3. Notices or documents shall be deemed to have been effectively given as of the following dates:
(1) if delivered by hand, the served date shall be the signed date on the receipt.
(2) if delivered by post, the served date shall be the date noted on the return of service.
4. Contact Information:
(1) Party A: SSE Infonet Ltd.
Address: Building 12, Nantai, No. 528, Pudong Nan Lu, Shanghai, China 200120
(2) Party B: Fortune Software (Beijing) Co. Ltd.
Address: Floor 9, Tower C, Corporate Square, No. 35 Financial Street, Xicheng District, Beijing, China
Attn: Ma Linghai
Tel: 010-58325300
5. Upon the effectiveness of this agreement, this agreement shall supersede all previous relevant agreements by both parties on TopView license, including but not limited to any written or oral agreements, contracts, consultations, representations, plans, and appendices, etc.
6. All the headings herein are for the convenience of reading, and shall not affect the interpretation and meaning of the agreement.
7. This agreement is executed in four (4) originals. Each party holds two
(2) originals. Each original has equal legal effect.
LICENSE NO.:TVPH04-2008
PARTY A: SSE INFONET LTD. (Company Seal)
Signature of Authorized Person:____________________
Date: December 26, 2007
PARTY B: FORTUNE SOFTWARE (BEIJING ) CO. LTD. (Company Seal)
Signature of Authorized Person:____________________
Date: December 26, 2007
LICENSE NO.:TVPH04-2008
APPENDIX I:
SSE TOPVIEW AFTER-HOURS TRADING DATA AND STATISTICS
LICENSE CERTIFICATE
License No.: TVPH04-2008
NAME OF LICENSEE: Fortune Software (Beijing ) Co. Ltd.
ADDRESS OF LICENSEE: Floor 9, Tower C, Corporate Square, No. 35 Financial Street
LEGAL REPRESENTATIVE OF LICENSEE: Zhao Zhiwei
LICENSED PRODUCT INFORMATION: After-Hours Trading Data and Statistics
PURPOSE:
(1) May utilize the licensed information product to develop value-added products and transmit such value-added products to End Users through internet; the End Users may utilize such value-added products through special terminals and display software, but cannot receive all or part of the information product licensed by this certificate through any method;
(2) May transmit the licensed information product to special users recognized by the Licensor as well as utilize the licensed information product to provide to special users value-added development services. Special users refer to those End Users permitted by the Licensor to use After-Hours Trading Data and Statistics in advance, who must be entities not individuals.
SCOPE: China Mainland (excluding Hong Kong, Macau, and Taiwan)
TERM: from January 1, 2008 to December 31, 2008
DATE OF ISSUE: January 1, 2008
LICENSOR: SSE Infonet Ltd.
Appendix I --A and B attached hereto:
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APPENDIX I- A.
EXPENSE PAYMENT AGREEMENT TO LICENSE (No: TVPH04-2008)
I. User Charge shall be calculated as follows:
1. The price of products sold to entity users shall be determined by both parties through consultations. Party B shall submit the price of products for Party A's approval prior to applying such prices. Party A and Party B shall distribute the sales revenues according to this agreement, the details of the distribution scheme is set forth in Appedix I-B, "Pricing Schemen of TopView After-Hours Trading Data and Statistics" attached hereto.
2. The User Charge shall be calculated on a monthly basis.
II. Party B shall pay Party A User Charge calculated as follows:
After Party B obtains the License, it shall pay Party A User Charge on monthly basis. The base fee for each month shall be RMB 800,000 ("Base Fee"). If the monthly User Charge calculated according to Article 1 of this agreement exceeds the Base Fee (i.e. RMB 800,000), Party B shall pay Party A the actually incurred User Charge of such month, otherwise the Base Fee shall apply.
III. Payment Agreement
Party B shall remit the payment hereunder to the bank of deposit and account designated by Party A, in accordance with the following dates and amounts.
1. Party B shall pay the Base Fee for the current month plus the exceeding portion of the Base Fee for the previous month before the fifth working day of each month.
2. Bank account information of Party A:
Bank of Deposit: Shanghai Branch of China Merchants Bank
Owner of Account: SSE Infonet Ltd.
Bank Account: 06945-65808018001
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PARTY A: SSE INFONET LTD. (Company Seal)
Signature of Authorized Person:____________________
Date: December 26, 2007
PARTY B: FORTUNE SOFTWARE (BEIJING ) CO. LTD. (Company Seal)
Signature of Authorized Person:____________________
Date: December 26, 2007
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APPENDIX I- B.
PRICING SCHEME FOR TOPVIEW AFTER-HOURS TRADING DATA AND STATISTICS
I. TYPE OF DATA PROVIDED BY TOPVIEW
Party B may provide to users four types of data including T+1 daily data, T+2 daily data, weekly data and monthly data.
1. Daily Data:
Party B may control in its self-developed products the frequency of daily data it provides to users. Based on different frequencies, the daily data may be divided into two categories, i.e. T+1 and T+2.
T+1 daily data: refers to the TopView After-Hours Trading Data and Statistics of the previous trading day reported by Party A after closing of the stock market on T day.
T+2: refers to the TopView After-Hours Trading Data and Statistics of the day before previous trading day reported by Party A after closing of the stock market on T day.
2. Weekly Data: means the TopView After-Hours Trading Data and Statistics of the current week reported by Party A after closing of the stock market of each week.
3. Monthly Data: means the TopView After-Hours Trading Data and Statistics of the current month reported by Party A after closing of the stock market of each month.
II. DATA UTILIZATION AND PRICING
Party B will utilize the TopView After-Hours Trading Data and Statistics in two forms, i.e. in the form of terminals and other forms.
1. If Party B utilizes the TopView After-Hours Trading Data and Statistics in the form of terminals, it shall pay relevant fees to Party A as follows:
a. If only using terminals of monthly data, Party B shall pay Party A RMB
2,000 for each terminal annually;
b. If only using terminals of weekly data, Party B shall pay Party A RMB
4,000 for each terminal annually;
c. If only using terminals of T+2 daily data, Party B shall pay Party A
RMB 6,000 for each terminal annually; and
d. If only using terminals of T+1 daily data, Party B shall pay Party A
RMB 8,000 for each terminal annually.
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2. If Party B utilizes the TopView After-Hours Trading Data and Statistics in other forms (including in the form of clicking on the search function and only using partial data, etc.), Party B shall pay Party A 30% of sales revenue.
III. MINIMUM FEE PAYMENT REQUEST
After settlement of accounts on a monthly basis, Party B shall pay Party A relevant fees according to Appendix I-A and I-B, which shall not be lower than RMB 800,000 per month ("Base Fee"), i.e., where the fees payable by Party B to Party A is less than RMB 800,000, such Base Fee shall apply.
IV. DISCOUNT AWARDS
In order to encourage Party B to expand its business on the market, Party A will give Party B certain discount awards with respect to fees exceeding the Base Fee. In particular, as for the portion exceeding 0%--50% of the Base Fee, Party A will return to Party B 5% of such exceeding portion; as for the portion exceeding 50%--100% of the Base Fee, Party A will return to Party B 5% of such exceeding portion; as for the portion exceeding 100% of the Base Fee, Party A will return to Party B 15% of such exceeding portion.
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APPENDIX II:
AGREEMENT ON SUPERVISION AND INFORMATION OPERATION
1. Party B shall provide detailed data of End Users as to the real time use, in accordance with the methods, forms and content specified by Party A.
2. Party B shall submit the Monthly Statistics Report of Users to Party A by 10:00 am of the first working day of each month, stating the detail of the use of After-Hours Trading Data and Statistics by its End Users.
3. A Monthly Statistics Report of Users shall be submitted in written form with Party B's signature and seal, in the following forms and content:
Monthly Statistics Report of Users
Filing Date:
1. Party B's products:
(1) aggregate entity users of previous month: _________ ; aggregate entity users of previous year: _________ ;
(2) aggregate individual users of previous month:_________; aggregate individual users of previous year: _________ ;
(3) aggregate special users of previous month:_________; aggregate special users of previous year:_________. (If this item is zero, please provide the name of the special user, amount of charges and reasons of above users, a separate form may be attached.)
2. After-Hours Trading Data and Statistics: Aggregate entity users of previous month:_________; aggregate entity users of previous year:________________.
3. Total User Charge of the previous month:
Person to submit:____________
Date:___________
Company (Seal):
Notes:
Date: the form shall be yyyy/ mm. The month means the month of submission. The statistics of End Users of all categories shall follow the methods required by Party A.
Aggregate user number of the previous month: means the number of users who receive information services relating to After-Hours Trading Data and Statistics and from whom Party A receives the User Charge in accordance with the sales price and allocation of revenue agreed to by Party A and Party B;
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Aggregate special user number of the previous month: means the number of special users who receive information services relating to After-Hours Trading Data and Statistics after obtaining prior permission of Party A for special reasons and from whom Party A receives special User Charge in accordance with the sales price and relevant allocation of revenue agreed to by Party A and Party B;
Total User Charge: means the total User Charges payable to Party A by Party B in accordance with the aggregate total number of each item.
4. Contacting Information during the Performance of the Agreement
Operation Monitoring Port:
[ ] website visit link:
[ ] special terminal (including installation software package)
Financial contact:
Tel:
e-mail:
Technical contact:
Tel:
e-mail:
Emergency contact.:
Emergency call:
5. Party A is entitled to make adjustments to the abovementioned agreement based on actual conditions.
PARTY A: SSE INFONET LTD. (Company Seal)
Signature of Authorized Person:____________________
Date: December 26, 2007
PARTY B: FORTUNE SOFTWARE (BEIJING ) CO. LTD. (Company Seal)
Signature of Authorized Person:____________________
Date: December 26, 2007
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APPENDIX III:
ANNOUNCEMENT (SAMPLE)
This is to announce that, After-Hours Trading Data and Statistics provided by _________was suspended as of ___ (time) of_____(DD/MM/ YYYY). The reason is ___________.
Fortune Software (Beijing) Co. Ltd.
Date:_______________________
LICENSE NO.:TVPH04-2008
APPENDIX IV:
INVITATION LETTER FOR RELEVANT ADVERTISEMENTS OR PAMPHLETS
(Sample)
Subject and Purpose for Advertisement or Publicity:
Distribution Channel:
[ ]Web, Website address;
[ ]Radio Station, TV, Name of the radio station, TV station or channel;
[ ]Print Media, Name of the print media and layout;
[ ]Fax;
[ ]E-mail;
[ ]Others
Contents:
Distribution Time:
Distribution Scope:
1. "Contents" shall state the places in the advertisement or pamphlets that contain actual text or implications of "SSE", "SSE Infonet Ltd.", "After-Hours Trading Data and Statistics", or relevant introduction to After-Hours Trading Data and Statistics content.
2. A sample of the advertisement or pamphlet is submitted as an attachment.
Applicant (seal): Fortune Software (Beijing) Co. Ltd.
Date:_____________
EXHIBIT 4.46
[Translated from Chinese Original]
LEASE CONTRACT FOR HOUSING UNIT OF CORPORATE SQUARE
Numbers: [2007] Guo Zu No. H07
PARTY A (the Lessor): China Galaxy Securities Company Limited
Legal Representative: Xu Guoping
Title: chairman Address: Tower C, Corporate Square, 35 Financial Street, Xicheng District, Beijing Postal code: 100032 Phone: (8610) 66568629 Fax: (8610) 66568253 |
PARTY B (the Lessee): Fortune Software (Beijing) Co., Ltd.
Legal Representative: Zhao Zhiwei
Title: CEO Address: Room 610, Ping'an Plaza, 23 Financial Street, Xicheng District, Beijing |
Postal code:
Phone:
Fax:
Pursuant to the Contracts Law and related laws and regulations of the People's Republic of China, and for the purpose of defining their rights and obligations, the Parties hereby agree on the contract as follows (the "Contract") after friendly negotiations:
ARTICLE 1. QUALIFICATION, REPRESENTATIONS AND WARRANTIES
1.1 Party A is a company duly established and existing under the laws of the People's Republic of China and the legal owner of Tower C of Corporate Square located at 35 Financial Street in Xicheng District in Beijing.
1.2 Party B is a company duly established and existing under the law of the People's Republic of China and has the full qualification and power to sign and perform the Contract hereto.
1.3 Party A and Party B both represent that they have completely understood and agreed on each provision of the Contract and are clearly aware of the benefits, risks and liabilities under the Contract.
1.4 Party A and Party B both undertake to perform the Contract in a positive, careful and complete manner, following principles of fairness, justice and good faith and in compliance with requirements of relevant policies, laws and regulations.
ARTICLE 2. SCOPE, AREA, TERM AND PURPOSE OF THE LEASE
2.1 Per Party B's request, Party A agrees to lease to Party B the housing units of 942 to 945 of the ninth floor of Tower C of Corporate Square as indicated in Appendix 1 (the "Leased Units"), with a total area of 494.21 square meters (referring to the construction area measured by the Bureau of Land Resources and Housing Management of Beijing Municipality) for a lease term of 55 months (the "Lease Term"), commencing on August 9, 2007 (the "Commencement Date") and ending on February 8, 2012.
ARTICLE 3. DELIVERY OF LEASED UNITS AND CONDITIONS FOR DELIVERY
3.1 Party A shall deliver to Party B the Leased Units on the Commencement Date. Party A shall guarantee that the equipment for electricity, lighting, air conditioning, elevators and washing have been installed in the public areas of the Leased Units and are operating in good condition.
3.2 Party A provides Party B with equipment and facilities in the Leased Units including but not limited to air conditioning, temperature controllers, alarms and fire sprinkler system, which shall be examined and confirmed by Party B's signature if no objection.
ARTICLE 4. DECORATION AND PLACEMENT
4.1 In the case of decoration, placement and other changes to the Leased Units made by Party B, Party B shall give a prior notice to Party A and timely provide Party A or the Property Management Department of Corporate Square with various patterns, design plans, list of decoration materials and other documents with respect to decorating and placing internal equipment and auxiliary objects to facilitate the procedure for related approvals.
4.2 Party B shall conduct the decoration after receipt of examination and approvals. Party B shall strictly perform in compliance with the approved decoration plan and relevant regulations set forth in Appendix 1 by the Property Management Department of Corporate Square. Party B shall pay the price of decoration and other related expenses.
4.3 Party B shall undertake that decorations shall not have a negative impact either on the structure and framework of Corporate Square or on the interests of other lessees and users. Otherwise, Party B and not Party A shall exclusively bear all liabilities and losses arisen thereby.
4.4 Party B shall undertake to be responsible for the equipment and facilities altered and improved in the decoration and to never violate related laws, regulations, rules or connected rules of Corporate Square listed in Appendix 1.
ARTICLE 5. FREE LEASE PERIOD, PREEMPTED RIGHT OF RENEWAL AND SUBLEASE
5.1 Party B has a right to a free lease period for 0 days from the Commencement Date. The term of free lease period is included in the whole Lease Term. Within the term of the free lease period, Party B shall have free rent, but it shall pay for fees other than the rent specified in accordance with the Contract.
5.2 Upon the expiration of the Contract, Party B has a right to demand renewal of the lease, provided the conditions of Party B are the same as other parties have. Both parties shall negotiate and sign a new contract with respect to the rent and other fees during the renewal of the lease. Party B shall be deemed to waive the right of renewal in the event that Party B cannot notify Party A of the renewal request at least 3 months prior to the expiration of the Contract or both parties cannot reach a new contract at least 1 month prior to the expiration of the Contract.
ARTICLE 6. RENT, PROPERTY MANAGEMENT FEE, DEPOSIT AND PAYMENT
6.1 The rent and property management fee are calculated in accordance with construction area measured by the Bureau of Land Resources and Housing Management of Beijing Municipality.
6.2 The rent and property management fee shall be calculated in RMB and shall be collected monthly. The rent for each square meter per day is RMB4.62 yuan and the property management fee for each square meter per day is RMB0.98 yuan.
6.3 The property management fee shall be calculated on the basis of the property management fee charged by the Property Management Department in compliance with the rules of Corporate Square. Party A can adjust reasonably the property management fee pursuant to the conditions and procedures of Corporate Square.
6.4 Within 3 working days after the execution of the Contract, Party B shall pay to Party A rent and property management fees for a 3 month period, in the total amount of RMB 22541.31 yuan as the deposit, functioning as the security of Party B to make in time all payment of rent and property management fees to Party A.
6.5 Within 3 working days after the execution of the Contract, Party B shall pay to Party A the property management fee of the first month in the amount of RMB 84180.44 yuan. Party B shall pay for the rent and property management fee of every month after term of the free lease period. Subsequent payment for the rent and property management fee of each month shall be made by Party B within the first 3 working days of such month. If the Commencement Date is not the initial date of a month, payment for the rent and property management fee of the month shall be calculated upon the actual days for lease.
6.6 Party B shall remit the money for payment through bank transfer to the account designated by Party A as follows:
Account: China Galaxy Securities Company Limited Bank: China Construction Bank, Beijing Fuxing Branch Account Number: 11001046500053002517 |
6.7 If Party B makes the payment by RMB within the territory of People's Republic of China, the exchange rate between US dollars and RMB shall adopt the middle rate announced by Bank of People's China on the first day of the month it makes the payment.
ARTICLE 7. RIGHTS AND OBLIGATIONS OF PARTY A
7.1 Party A is entitled to the ownership and beneficial right of the Leased Units and any other property rights provided pursuant to the laws and regulations.
7.2 During the Lease Term, Party A has a right to transfer the ownership of the Leased Units in whole to third parties. Party A shall transfer its rights and obligations under the Contract to such third parties. The rights and obligations of Party B under the Contract shall not be affected by the ownership transfer. In the event Party A transfers separate parts of the Leased Units, Party B shall has the right of first refusal based on the same conditions.
7.3 During the Lease Term, Party A has a right to set up a mortgage, offer to compensate and exchange on the Leased Units, in whole or part, regardless of consent from Party B. The rights and obligations of Party B under the Contract shall not be affected by the Party A's activities as aforesaid.
7.4 During the Lease Term, Party A shall pay the taxes imposed upon it by relevant laws and regulations.
7.5 Party A has a right to dispatch its personnel to inspect the equipment and hardware of Corporate Square in the Leased Units, giving a prior notice to Party B except in emergency circumstances. Party A shall use its best endeavors to avoid any interruption to the ordinary working environment of Party B.
ARTICLE 8. RIGHTS AND OBLIGATIONS OF PARTY B
8.1 Party B is entitled to use the Leased Units in accordance with the Contract. Party B may set a notable mark on the exit of elevators of the floor of leasing pursuant to the relevant management regulations of the Corporate Squares. The detailed conditions shall be discussed by both Parties.
8.2 Party B shall carry out the business activities in the Leased Units in compliance with laws, regulations and rules of the People's Republic of China and is prohibited to harm Party A's reputation through its activities.
8.3 Party B shall duly make the payments with respect to the rent, property management fee, electricity usage fee and any other charges it shall be responsible for.
8.4 Starting from the Commencement Date, Party B shall purchase insurance for the properties in the Leased Units, including property insurance and third party liability insurance. Otherwise, Party B and not Party A shall be solely responsible for all liabilities and losses.
8.5 Party B shall not alter the purpose of use of the Leased Units without consent in writing from Party A.
8.6 Party B shall not re-lend, sublease, and exchange the Leased Units, in whole or part, to third parties or allow third parties to use the Leased Units by other means, without consent in writing from Party A.
8.7 Party B shall not alter the locking and security system on the gate of the Leased Units without consent in writing from Party A or approval from related departments.
8.8 Party B shall not alter or move the equipment for usage of water and electricity and shall not enlarge the capacities of central air conditioning, without consent in writing from Party A.
8.9 Party B shall take necessary actions to prevent the Leased Units from fires accident or man-made damage. Party B shall immediately notify to Party A with respect to any damage of the Leased Units. Party B shall restore the damaged parts of the Leased Units to their former condition within one month upon receipt of Party A's notice, provided that the damages resulted from negligence by Party B and its employees. If Party B fails to do so timely, Party A has the right to repair the damaged parts. All the expenses thus incurred shall be borne by Party B.
8.10 Party B is entitled to require Party A repairing the Leased Units, and the public facilities and equipment, and repair such based on the original standards by itself if Party A fails to perform the obligation of repairing timely and affects the normal use of such. All the expenses thus incurred shall be borne by Party A. The equipment newly added or improved by Party B shall be repaired by Party B.
ARTICLE 9. LIABILITIES FOR BREACH
9.1 The party in breach shall be responsible for the liabilities resulting from the breach. If both parties are deemed to be in breach of the Contract, liabilities shall be allocated between the two parties in accordance with corresponding facts and actual results of the breach.
9.2 The party in breach shall pay liquidated damages to the other party duly performing the Contract. The other party is entitled to claim all of its losses incurred but with a limit to all actual losses.
9.3 If Party A delays in delivering to Party B the Leased Units, it shall pay a late payment charge in the amount of 0.5% of the monthly rent for each day of delay.
9.4 If Party B delays in making payment of fees, it shall pay a late payment charge in the amount of 0.5% of unpaid fees for each day of delay.
9.5 If Party B delays in moving out of the Leased Units, it shall pay a late payment charge in amount of 1% of the monthly rent for each day of delay.
9.6 If Party B in breach cannot duly pay the liquidated damages, late payment charge or indemnity due upon receipt of a notice from Party A asking for payment, Party B agrees that all the properties in the Leased Units can be taken by Party A as a lien and Party A has a right to dispose the properties in accordance with the laws.
ARTICLE 10. EXPIRATION AND TERMINATION OF THE CONTRACT
10.1 The Contract shall be terminated automatically upon expiration of the Lease Term. Party A shall return the deposit of the rent and property management fee (less the amount ought to be paid by Party B and not including addition of interests or indemnity) to Party B within 10 days after Party B's completion of its performance.
10.2 Party B shall complete the obligations below upon the expiration of the Lease Term or 7 days before the termination of the Contract:
(1) Party B shall deliver to Party A the equipment and facilities in the Leased Units in good operating condition, except normal wear and tear, damages existing before the Lease Term or caused by force majeure events.
(2) Party B shall uninstall the decoration and equipment subsequently improved and restore the Leased Units to their former condition when moving out, except if given a written consent from Party A to maintain the decoration and improvement.
(3) Party B shall pay off the rent, property management fee and electricity usage fee and other fees required.
10.3 Party A has a right to unilaterally terminate the contract and keep the rent, provided that Party B has acted as follows. Party B shall be bound to pay the liquidated damages equal to 3 months' rent and other damages to any economic losses of Party A if:
(1) Party B conducts illegal business activities.
(2) Party B alters the purpose of use of the Leased Units without consent from Party A.
(3) The Leased Units are used by third parties other than Party B without consent from Party A.
(4) The Leased Units, in whole or part, are subleased, re-lent and exchanged to third parties or used in common by Party B and third parties, without consent from Party A.
(5) Party B delays for more than 30 days in making payment for the rent, property management fee and other fees set forth in Article 6 of the Contract.
(6) Party B is in a breach of Article 7 of the Contract and cannot efficiently redress within 30 days upon notice from Party A.
10.4 Party B has a right to terminate the Contract before the expiration of the Lease Term because of the business development, after giving notice to Party A 3 months in advance and obtaining mutual consent. This Contract may be terminated in advance through the mutual agreement of both Parties, the deposit of Party B will not be returned.
10.5 Party B has a right to terminate the contract and claim twice the amount of the deposit, provided that Party A cannot deliver the Leased Units within 30 days from execution of the Contract and the receipt of the deposit from Party B.
10.6 If Party A terminates the Contract for no reason, it shall pay to Party B twice the amount of the deposit and shall indemnify the direct losses suffered by Party B, such as decoration expenses.
10.7 Upon the expiration of the Lease Term or 15 days after the termination of the Contract, any properties in the Leased Units that have not been moved out are regarded as being given up by Party B and Party B agrees to authorize Party A to dispose of these properties and charge Party B for any related costs. Party B warrants it will not interfere or intervene such disposal.
ARTICLE 11. FORCE MAJEURE
11.1 If one party cannot perform the Contract due to earthquake, typhoon, war, turbulence and other unexpected and inevitable factors, the party encountering the force majeure event shall immediately notify the other party and provide detailed information about the force majeure event and a certificate of non-performance, partial non-performance or delayed-performance within 15 days. The certificate shall be issued by a local notary public from the place having the force majeure event. The party encountering the force majeure event shall not be held liable for indemnification.
11.2 If Party B cannot properly use the Leased Units due to the force majeure event, both parties shall negotiate to agree on subtraction of the rent and property management fee. If Party B cannot use the Leased Units at all due to the force majeure event, the payment for the rent and property management fee shall not be made until the Leased Units can be used in good condition. If the Leased Units cannot be used in good condition continuously for 30 days or accumulated for 90 days, Party B has a right to notify Party A of termination of the Contract, Party B shall reimburse the deposit and the rent paid in advance (less the actual usage fee and normal wear and tear) to Party B within 30 days upon receipt of a notice.
ARTICLE 12. GOVERNING LAW AND DISPUTE SETTLEMENT
12.1 The Contract shall be governed by and construed in accordance with the laws of the People's Republic of China.
12.2 Any dispute arising out of or relating to the Contract shall be resolved through friendly consultation between both parties. If the dispute is not resolved through consultation, any party has a right to submit to the China International Economic and Trade Arbitration ("CIETAC") for arbitration in accordance with the Arbitration Rules of CIETAC. The award of the arbitration tribunal shall be final and binding upon the two parties.
ARTICLE 13. MISCELLANEOUS
13.1 Party B agrees that the Leased Units shall be managed by Party A (or the Property Management Company designated by Party A).
13.2 The property management services shall include the cleaning of toilets, elevators, public corridors and maintenance of the equipment of Corporate Square, excluding the equipment improved by Party B inside the Leased Units.
13.3 Party A and Party B both agree that they will conclude a separate contract with respect to the lease of underground parking spaces.
ARTICLE 14. ANNEX
14.1 Any notice under the Contract shall be sent by means of fax, registered mail, courier or sent by specific individual to the legal addresses of the parties.
14.2 If any provision of the Contract shall be held invalid, illegal or unenforceable, the validity and legality of the remaining provisions shall not be affected and shall not form a basis for both parties to refuse the performance of the Contract.
14.3 Any matters not covered by the Contract may be negotiated and included in a supplementary contract entered into by both parties. Any supplementary contract and appendices shall be integrated into the Contract and have the same legal effect as that of the Contract.
14.4 The Contract is made in four copies. Each party shall hold two. All copies have the same legal effect.
14.5 The Contract comes into effect upon the signing by legal representatives or authorized representatives with chopped seals and comes to an end upon expiration of the Lease Term.
APPENDIX
1. MAP OF LEASED UNITS
PARTY A: China Galaxy Securities Company Limited
/s/ [COMPANY SEAL] ------------------------------------- By: /s/ Zhu Li ------------------------------------- Legal Representative or authorized representative Date: |
PARTY B:
By: /s/ [COMPANY SEAL] ---------------------------------- /s/ Junling Cai ------------------------------------- Legal Representative or authorized representative Date: |
Place: 10/F, Tower C, Corporate Square
EXHIBIT 4.47
[Translated from Chinese original]
LEASE CONTRACT FOR HOUSING UNIT OF CORPORATE SQUARE
Numbers: [2007] Guo Zu No. H05
PARTY A (the Lessor): China Galaxy Securities Company Limited
Legal Representative: Xu Guoping
Title: chairman Address: Tower C, Corporate Square, 35 Financial Street, Xicheng District, Beijing Postal code: 100032 Phone: (8610) 66568629 Fax: (8610) 66568253 |
PARTY B (the Lessee): Beijing Fuhua Innovation Technology Development Co., Ltd.
Legal Representative:
Title:
Address:
Postal code:
Phone:
Fax:
Pursuant to the Contracts Law and related laws and regulations of the People's Republic of China, and for the purpose of defining their rights and obligations, the Parties hereby agree on the contract as follows (the "Contract") after friendly negotiations:
ARTICLE 1. QUALIFICATION, REPRESENTATIONS AND WARRANTIES
1.1 Party A is a company duly established and existing under the laws of the People's Republic of China and the legal owner of Tower C of Corporate Square located at 35 Financial Street in Xicheng District in Beijing.
1.2 Party B is a company duly established and existing under the law of the People's Republic of China and has the full qualification and power to sign and perform the Contract hereto.
1.3 Party A and Party B both represent that they have completely understood and agreed on each provision of the Contract and are clearly aware of the benefits, risks and liabilities under the Contract.
1.4 Party A and Party B both undertake to perform the Contract in a positive, careful and complete manner, following principles of fairness, justice and good faith and in compliance with requirements of relevant policies, laws and regulations.
ARTICLE 2. SCOPE, AREA, TERM AND PURPOSE OF THE LEASE
2.1 Per Party B's request, Party A agrees to lease to Party B the housing units of 938 to 941 of the ninth floor of Tower C of Corporate Square as indicated in Appendix 1 (the "Leased Units"), with a total area of 494.21 square meters (referring to the construction area measured by the Bureau of Land Resources and Housing Management of Beijing Municipality) for a lease term of 54 months (the "Lease Term"), commencing on August 9, 2007 (the "Commencement Date") and ending on February 8, 2012.
ARTICLE 3. DELIVERY OF LEASED UNITS AND CONDITIONS FOR DELIVERY
3.1 Party A shall deliver to Party B the Leased Units on the Commencement Date. Party A shall guarantee that the equipment for electricity, lighting, air conditioning, elevators and washing have been installed in the public areas of the Leased Units and are operating in good condition.
3.2 Party A provides Party B with equipment and facilities in the Leased Units including but not limited to air conditioning, temperature controllers, alarms and fire sprinkler system, which shall be examined and confirmed by Party B's signature if no objection.
ARTICLE 4. DECORATION AND PLACEMENT
4.1 In the case of decoration, placement and other changes to the Leased Units made by Party B, Party B shall give a prior notice to Party A and timely provide Party A or the Property Management Department of Corporate Square with various patterns, design plans, list of decoration materials and other documents with respect to decorating and placing internal equipment and auxiliary objects to facilitate the procedure for related approvals.
4.2 Party B shall conduct the decoration after receipt of examination and approvals. Party B shall strictly perform in compliance with the approved decoration plan and relevant regulations set forth in Appendix 1 by the Property Management Department of Corporate Square. Party B shall pay the price of decoration and other related expenses.
4.3 Party B shall undertake that decorations shall not have a negative impact either on the structure and framework of Corporate Square or on the interests of other lessees and users. Otherwise, Party B and not Party A shall exclusively bear all liabilities and losses arisen thereby.
4.4 Party B shall undertake to be responsible for the equipment and facilities altered and improved in the decoration and to never violate related laws, regulations, rules or connected rules of Corporate Square listed in Appendix 1.
ARTICLE 5. FREE LEASE PERIOD, PREEMPTED RIGHT OF RENEWAL AND SUBLEASE
5.1 Party B has a right to a free lease period for 0 days from the Commencement Date. The term of free lease period is included in the whole Lease Term. Within the term of the free lease period, Party B shall have free rent, but it shall pay for fees other than the rent specified in accordance with the Contract.
5.2 Upon the expiration of the Contract, Party B has a right to demand renewal of the lease, provided the conditions of Party B are the same as other parties have. Both parties shall negotiate and sign a new contract with respect to the rent and other fees during the renewal of the lease. Party B shall be deemed to waive the right of renewal in the event that Party B cannot notify Party A of the renewal request at least 3 months prior to the expiration of the Contract or both parties cannot reach a new contract at least 1 month prior to the expiration of the Contract.
ARTICLE 6. RENT, PROPERTY MANAGEMENT FEE, DEPOSIT AND PAYMENT
6.1 The rent and property management fee are calculated in accordance with construction area measured by the Bureau of Land Resources and Housing Management of Beijing Municipality.
6.2 The rent and property management fee shall be calculated in RMB and shall be collected monthly. The rent for each square meter per day is RMB4.62 yuan and the property management fee for each square meter per day is RMB0.98 yuan.
6.3 The property management fee shall be calculated on the basis of the property management fee charged by the Property Management Department in compliance with the rules of Corporate Square. Party A can adjust reasonably the property management fee pursuant to the conditions and procedures of Corporate Square.
6.4 Within 3 working days after the execution of the Contract, Party B shall pay to Party A rent and property management fees for a 3 month period, in the total amount of RMB 22541.31 yuan as the deposit, functioning as the security of Party B to make in time all payment of rent and property management fees to Party A.
6.5 Within 3 working days after the execution of the Contract, Party B shall pay to Party A the property management fee of the first month in the amount of RMB 84180.44 yuan. Party B shall pay for the rent and property management fee of every month after term of the free lease period. Subsequent payment for the rent and property management fee of each month shall be made by Party B within the first 3 working days of such month. If the Commencement Date is not the initial date of a month, payment for the rent and property management fee of the month shall be calculated upon the actual days for lease.
6.6 Party B shall remit the money for payment through bank transfer to the account designated by Party A as follows:
Account: China Galaxy Securities Company Limited Bank: China Construction Bank, Beijing Fuxing Branch Account Number: 11001046500053002517 |
6.7 If Party B makes the payment by RMB within the territory of People's Republic of China, the exchange rate between US dollars and RMB shall adopt the middle rate announced by Bank of People's China on the first day of the month it makes the payment.
ARTICLE 7. RIGHTS AND OBLIGATIONS OF PARTY A
7.1 Party A is entitled to the ownership and beneficial right of the Leased Units and any other property rights provided pursuant to the laws and regulations.
7.2 During the Lease Term, Party A has a right to transfer the ownership of the Leased Units in whole to third parties. Party A shall transfer its rights and obligations under the Contract to such third parties. The rights and obligations of Party B under the Contract shall not be affected by the ownership transfer. In the event Party A transfers separate parts of the Leased Units, Party B shall has the right of first refusal based on the same conditions.
7.3 During the Lease Term, Party A has a right to set up a mortgage, offer to compensate and exchange on the Leased Units, in whole or part, regardless of consent from Party B. The rights and obligations of Party B under the Contract shall not be affected by the Party A's activities as aforesaid.
7.4 During the Lease Term, Party A shall pay the taxes imposed upon it by relevant laws and regulations.
7.5 Party A has a right to dispatch its personnel to inspect the equipment and hardware of Corporate Square in the Leased Units, giving a prior notice to Party B except in emergency circumstances. Party A shall use its best endeavors to avoid any interruption to the ordinary working environment of Party B.
ARTICLE 8. RIGHTS AND OBLIGATIONS OF PARTY B
8.1 Party B is entitled to use the Leased Units in accordance with the Contract. Party B may set a notable mark on the exit of elevators of the floor of leasing pursuant to the relevant management regulations of the Corporate Squares. The detailed conditions shall be discussed by both Parties.
8.2 Party B shall carry out the business activities in the Leased Units in compliance with laws, regulations and rules of the People's Republic of China and is prohibited to harm Party A's reputation through its activities.
8.3 Party B shall duly make the payments with respect to the rent, property management fee, electricity usage fee and any other charges it shall be responsible for.
8.4 Starting from the Commencement Date, Party B shall purchase insurance for the properties in the Leased Units, including property insurance and third party liability insurance. Otherwise, Party B and not Party A shall be solely responsible for all liabilities and losses.
8.5 Party B shall not alter the purpose of use of the Leased Units without consent in writing from Party A.
8.6 Party B shall not re-lend, sublease, and exchange the Leased Units, in whole or part, to third parties or allow third parties to use the Leased Units by other means, without consent in writing from Party A.
8.7 Party B shall not alter the locking and security system on the gate of the Leased Units without consent in writing from Party A or approval from related departments.
8.8 Party B shall not alter or move the equipment for usage of water and electricity and shall not enlarge the capacities of central air conditioning, without consent in writing from Party A.
8.9 Party B shall take necessary actions to prevent the Leased Units from fires accident or man-made damage. Party B shall immediately notify to Party A with respect to any damage of the Leased Units. Party B shall restore the damaged parts of the Leased Units to their former condition within one month upon receipt of Party A's notice, provided that the damages resulted from negligence by Party B and its employees. If Party B fails to do so timely, Party A has the right to repair the damaged parts. All the expenses thus incurred shall be borne by Party B.
8.10 Party B is entitled to require Party A repairing the Leased Units, and the public facilities and equipment, and repair such based on the original standards by itself if Party A fails to perform the obligation of repairing timely and affects the normal use of such. All the expenses thus incurred shall be borne by Party A. The equipment newly added or improved by Party B shall be repaired by Party B.
ARTICLE 9. LIABILITIES FOR BREACH
9.1 The party in breach shall be responsible for the liabilities resulting from the breach. If both parties are deemed to be in breach of the Contract, liabilities shall be allocated between the two parties in accordance with corresponding facts and actual results of the breach.
9.2 The party in breach shall pay liquidated damages to the other party duly performing the Contract. The other party is entitled to claim all of its losses incurred but with a limit to all actual losses.
9.3 If Party A delays in delivering to Party B the Leased Units, it shall pay a late payment charge in the amount of 0.5% of the monthly rent for each day of delay.
9.4 If Party B delays in making payment of fees, it shall pay a late payment charge in the amount of 0.5% of unpaid fees for each day of delay.
9.5 If Party B delays in moving out of the Leased Units, it shall pay a late payment charge in amount of 1% of the monthly rent for each day of delay.
9.6 If Party B in breach cannot duly pay the liquidated damages, late payment charge or indemnity due upon receipt of a notice from Party A asking for payment, Party B agrees that all the properties in the Leased Units can be taken by Party A as a lien and Party A has a right to dispose the properties in accordance with the laws.
ARTICLE 10. EXPIRATION AND TERMINATION OF THE CONTRACT
10.1 The Contract shall be terminated automatically upon expiration of the Lease Term. Party A shall return the deposit of the rent and property management fee (less the amount ought to be paid by Party B and not including addition of interests or indemnity) to Party B within 10 days after Party B's completion of its performance.
10.2 Party B shall complete the obligations below upon the expiration of the Lease Term or 7 days before the termination of the Contract:
(1) Party B shall deliver to Party A the equipment and facilities in the Leased Units in good operating condition, except normal wear and tear, damages existing before the Lease Term or caused by force majeure events.
(2) Party B shall uninstall the decoration and equipment subsequently improved and restore the Leased Units to their former condition when moving out, except if given a written consent from Party A to maintain the decoration and improvement.
(3) Party B shall pay off the rent, property management fee and electricity usage fee and other fees required.
10.3 Party A has a right to unilaterally terminate the contract and keep the rent, provided that Party B has acted as follows. Party B shall be bound to pay the liquidated damages equal to 3 months' rent and other damages to any economic losses of Party A if:
(1) Party B conducts illegal business activities.
(2) Party B alters the purpose of use of the Leased Units without consent from Party A.
(3) The Leased Units are used by third parties other than Party B without consent from Party A.
(4) The Leased Units, in whole or part, are subleased, re-lent and exchanged to third parties or used in common by Party B and third parties, without consent from Party A.
(5) Party B delays for more than 30 days in making payment for the rent, property management fee and other fees set forth in Article 6 of the Contract.
(6) Party B is in a breach of Article 7 of the Contract and cannot efficiently redress within 30 days upon notice from Party A.
10.4 Party B has a right to terminate the Contract before the expiration of the Lease Term because of the business development, after giving notice to Party A 3 months in advance and obtaining mutual consent. This Contract may be terminated in advance through the mutual agreement of both Parties, the deposit of Party B will not be returned.
10.5 Party B has a right to terminate the contract and claim twice the amount of the deposit, provided that Party A cannot deliver the Leased Units within 30 days from execution of the Contract and the receipt of the deposit from Party B.
10.6 If Party A terminates the Contract for no reason, it shall pay to Party B twice the amount of the deposit and shall indemnify the direct losses suffered by Party B, such as decoration expenses.
10.7 Upon the expiration of the Lease Term or 15 days after the termination of the Contract, any properties in the Leased Units that have not been moved out are regarded as being given up by Party B and Party B agrees to authorize Party A to dispose of these properties and charge Party B for any related costs. Party B warrants it will not interfere or intervene such disposal.
ARTICLE 11. FORCE MAJEURE
11.1 If one party cannot perform the Contract due to earthquake, typhoon, war, turbulence and other unexpected and inevitable factors, the party encountering the force majeure event shall immediately notify the other party and provide detailed information about the force majeure event and a certificate of non-performance, partial non-performance or delayed-performance within 15 days. The certificate shall be issued by a local notary public from the place having the force majeure event. The party encountering the force majeure event shall not be held liable for indemnification.
11.2 If Party B cannot properly use the Leased Units due to the force majeure event, both parties shall negotiate to agree on subtraction of the rent and property management fee. If Party B cannot use the Leased Units at all due to the force majeure event, the payment for the rent and property management fee shall not be made until the Leased Units can be used in good condition. If the Leased Units cannot be used in good condition continuously for 30 days or accumulated for 90 days, Party B has a right to notify Party A of termination of the Contract, Party B shall reimburse the deposit and the rent paid in advance (less the actual usage fee and normal wear and tear) to Party B within 30 days upon receipt of a notice.
ARTICLE 12. GOVERNING LAW AND DISPUTE SETTLEMENT
12.1 The Contract shall be governed by and construed in accordance with the laws of the People's Republic of China.
12.2 Any dispute arising out of or relating to the Contract shall be resolved through friendly consultation between both parties. If the dispute is not resolved through consultation, any party has a right to submit to the China International Economic and Trade Arbitration ("CIETAC") for arbitration in accordance with the Arbitration Rules of
CIETAC. The award of the arbitration tribunal shall be final and binding upon the two parties.
ARTICLE 13. MISCELLANEOUS
13.1 Party B agrees that the Leased Units shall be managed by Party A (or the Property Management Company designated by Party A).
13.2 The property management services shall include the cleaning of toilets, elevators, public corridors and maintenance of the equipment of Corporate Square, excluding the equipment improved by Party B inside the Leased Units.
13.3 Party A and Party B both agree that they will conclude a separate contract with respect to the lease of underground parking spaces.
ARTICLE 14. ANNEX
14.1 Any notice under the Contract shall be sent by means of fax, registered mail, courier or sent by specific individual to the legal addresses of the parties.
14.2 If any provision of the Contract shall be held invalid, illegal or unenforceable, the validity and legality of the remaining provisions shall not be affected and shall not form a basis for both parties to refuse the performance of the Contract.
14.3 Any matters not covered by the Contract may be negotiated and included in a supplementary contract entered into by both parties. Any supplementary contract and appendices shall be integrated into the Contract and have the same legal effect as that of the Contract.
14.4 The Contract is made in four copies. Each party shall hold two. All copies have the same legal effect.
14.5 The Contract comes into effect upon the signing by legal representatives or authorized representatives with chopped seals and comes to an end upon expiration of the Lease Term.
APPENDIX
1. MAP OF LEASED UNITS
PARTY A: China Galaxy Securities Company Limited
/s/ [COMPANY SEAL] ------------------------------------- By: /s/ Zhu Li ------------------------------------- Legal Representative or authorized representative Date: |
PARTY B:
By: /s/ [COMPANY SEAL] --------------------------------- /s/ Junling Cai ------------------------------------- Legal Representative or authorized representative Date: |
Place: 10/F, Tower C, Corporate Square
EXHIBIT 4.48
[Translated from Chinese Original]
LEASE CONTRACT FOR HOUSING UNIT OF CORPORATE SQUARE
Numbers: [2007] Guo Zu No. H03
PARTY A (the Lessor): China Galaxy Securities Company Limited
Legal Representative: Xu Guoping
Title: chairman Address: Tower C, Corporate Square, 35 Financial Street, Xicheng District, Beijing Postal code: 100032 Phone: (8610) 66568629 Fax: (8610) 66568253 |
PARTY B (the Lessee): China Finance Online (Beijing) Co., Ltd.
Legal Representative:
Title:
Address:
Postal code:
Phone:
Fax:
Pursuant to the Contracts Law and related laws and regulations of the People's Republic of China, and for the purpose of defining their rights and obligations, the Parties hereby agree on the contract as follows (the "Contract") after friendly negotiations:
ARTICLE 1. QUALIFICATION, REPRESENTATIONS AND WARRANTIES
1.1 Party A is a company duly established and existing under the laws of the People's Republic of China and the legal owner of Tower C of Corporate Square located at 35 Financial Street in Xicheng District in Beijing.
1.2 Party B is a company duly established and existing under the law of the People's Republic of China and has the full qualification and power to sign and perform the Contract hereto.
1.3 Party A and Party B both represent that they have completely understood and agreed on each provision of the Contract and are clearly aware of the benefits, risks and liabilities under the Contract.
1.4 Party A and Party B both undertake to perform the Contract in a positive, careful and complete manner, following principles of fairness, justice and good faith and in compliance with requirements of relevant policies, laws and regulations.
ARTICLE 2. SCOPE, AREA, TERM AND PURPOSE OF THE LEASE
2.1 Per Party B's request, Party A agrees to lease to Party B the housing units of 946 to 949 of the ninth floor of Tower C of Corporate Square as indicated in Appendix 1 (the "Leased Units"), with a total area of 441 square meters (referring to the construction area measured by the Bureau of Land Resources and Housing Management of Beijing Municipality) for a lease term of 38 months (the "Lease Term"), commencing on August 1, 2007 (the "Commencement Date") and ending on February 28, 2011.
ARTICLE 3. DELIVERY OF LEASED UNITS AND CONDITIONS FOR DELIVERY
3.1 Party A shall deliver to Party B the Leased Units on the Commencement Date. Party A shall guarantee that the equipment for electricity, lighting, air conditioning, elevators and washing have been installed in the public areas of the Leased Units and are operating in good condition.
3.2 Party A provides Party B with equipment and facilities in the Leased Units including but not limited to air conditioning, temperature controllers, alarms and fire sprinkler system, which shall be examined and confirmed by Party B's signature if no objection.
ARTICLE 4. DECORATION AND PLACEMENT
4.1 In the case of decoration, placement and other changes to the Leased Units made by Party B, Party B shall give a prior notice to Party A and timely provide Party A or the Property Management Department of Corporate Square with various patterns, design plans, list of decoration materials and other documents with respect to decorating and placing internal equipment and auxiliary objects to facilitate the procedure for related approvals.
4.2 Party B shall conduct the decoration after receipt of examination and approvals. Party B shall strictly perform in compliance with the approved decoration plan and relevant regulations set forth in Appendix 1 by the Property Management Department of Corporate Square. Party B shall pay the price of decoration and other related expenses.
4.3 Party B shall undertake that decorations shall not have a negative impact either on the structure and framework of Corporate Square or on the interests of other lessees and users. Otherwise, Party B and not Party A shall exclusively bear all liabilities and losses arisen thereby.
4.4 Party B shall undertake to be responsible for the equipment and facilities altered and improved in the decoration and to never violate related laws, regulations, rules or connected rules of Corporate Square listed in Appendix 1.
ARTICLE 5. FREE LEASE PERIOD, PREEMPTED RIGHT OF RENEWAL AND SUBLEASE
5.1 Party B has a right to a free lease period for 0 days from the Commencement Date. The term of free lease period is included in the whole Lease Term. Within the term of the free lease period, Party B shall have free rent, but it shall pay for fees other than the rent specified in accordance with the Contract.
5.2 Upon the expiration of the Contract, Party B has a right to demand renewal of the lease, provided the conditions of Party B are the same as other parties have. Both parties shall negotiate and sign a new contract with respect to the rent and other fees during the renewal of the lease. Party B shall be deemed to waive the right of renewal in the event that Party B cannot notify Party A of the renewal request at least 3 months prior to the expiration of the Contract or both parties cannot reach a new contract at least 1 month prior to the expiration of the Contract.
ARTICLE 6. RENT, PROPERTY MANAGEMENT FEE, DEPOSIT AND PAYMENT
6.1 The rent and property management fee are calculated in accordance with construction area measured by the Bureau of Land Resources and Housing Management of Beijing Municipality.
6.2 The rent and property management fee shall be calculated in RMB and shall be collected monthly. The rent for each square meter per day is RMB4.62 yuan and the property management fee for each square meter per day is RMB0.98 yuan.
6.3 The property management fee shall be calculated on the basis of the property management fee charged by the Property Management Department in compliance with the rules of Corporate Square. Party A can adjust reasonably the property management fee pursuant to the conditions and procedures of Corporate Square.
6.4 Within 3 working days after the execution of the Contract, Party B shall pay to Party A rent and property management fees for a 3 month period, in the total amount of RMB 225,351 yuan as the deposit, functioning as the security of Party B to make in time all payment of rent and property management fees to Party A.
6.5 Within 3 working days after the execution of the Contract, Party B shall pay to Party A the property management fee of the first month in the amount of RMB 75117 yuan. Party B shall pay for the rent and property management fee of every month after
term of the free lease period. Subsequent payment for the rent and property management fee of each month shall be made by Party B within the first 3 working days of such month. If the Commencement Date is not the initial date of a month, payment for the rent and property management fee of the month shall be calculated upon the actual days for lease.
6.6 Party B shall remit the money for payment through bank transfer to the account designated by Party A as follows:
Account: China Galaxy Securities Company Limited Bank: China Construction Bank, Beijing Fuxing Branch Account Number: 11001046500053002517 |
6.7 If Party B makes the payment by RMB within the territory of People's Republic of China, the exchange rate between US dollars and RMB shall adopt the middle rate announced by Bank of People's China on the first day of the month it makes the payment.
ARTICLE 7. RIGHTS AND OBLIGATIONS OF PARTY A
7.1 Party A is entitled to the ownership and beneficial right of the Leased Units and any other property rights provided pursuant to the laws and regulations.
7.2 During the Lease Term, Party A has a right to transfer the ownership of the Leased Units in whole to third parties. Party A shall transfer its rights and obligations under the Contract to such third parties. The rights and obligations of Party B under the Contract shall not be affected by the ownership transfer. In the event Party A transfers separate parts of the Leased Units, Party B shall has the right of first refusal based on the same conditions.
7.3 During the Lease Term, Party A has a right to set up a mortgage, offer to compensate and exchange on the Leased Units, in whole or part, regardless of consent from Party B. The rights and obligations of Party B under the Contract shall not be affected by the Party A's activities as aforesaid.
7.4 During the Lease Term, Party A shall pay the taxes imposed upon it by relevant laws and regulations.
7.5 Party A has a right to dispatch its personnel to inspect the equipment and hardware of Corporate Square in the Leased Units, giving a prior notice to Party B except in emergency circumstances. Party A shall use its best endeavors to avoid any interruption to the ordinary working environment of Party B.
ARTICLE 8. RIGHTS AND OBLIGATIONS OF PARTY B
8.1 Party B is entitled to use the Leased Units in accordance with the Contract. Party B may set a notable mark on the exit of elevators of the floor of leasing pursuant to the relevant management regulations of the Corporate Squares. The detailed conditions shall be discussed by both Parties.
8.2 Party B shall carry out the business activities in the Leased Units in compliance with laws, regulations and rules of the People's Republic of China and is prohibited to harm Party A's reputation through its activities.
8.3 Party B shall duly make the payments with respect to the rent, property management fee, electricity usage fee and any other charges it shall be responsible for.
8.4 Starting from the Commencement Date, Party B shall purchase insurance for the properties in the Leased Units, including property insurance and third party liability insurance. Otherwise, Party B and not Party A shall be solely responsible for all liabilities and losses.
8.5 Party B shall not alter the purpose of use of the Leased Units without consent in writing from Party A.
8.6 Party B shall not re-lend, sublease, and exchange the Leased Units, in whole or part, to third parties or allow third parties to use the Leased Units by other means, without consent in writing from Party A.
8.7 Party B shall not alter the locking and security system on the gate of the Leased Units without consent in writing from Party A or approval from related departments.
8.8 Party B shall not alter or move the equipment for usage of water and electricity and shall not enlarge the capacities of central air conditioning, without consent in writing from Party A.
8.9 Party B shall take necessary actions to prevent the Leased Units from fires accident or man-made damage. Party B shall immediately notify to Party A with respect to any damage of the Leased Units. Party B shall restore the damaged parts of the Leased Units to their former condition within one month upon receipt of Party A's notice, provided that the damages resulted from negligence by Party B and its employees. If Party B fails to do so timely, Party A has the right to repair the damaged parts. All the expenses thus incurred shall be borne by Party B.
8.10 Party B is entitled to require Party A repairing the Leased Units, and the public facilities and equipment, and repair such based on the original standards by itself if Party A fails to perform the obligation of repairing timely and affects the normal use of such. All the expenses thus incurred shall be borne by Party A. The equipment newly added or improved by Party B shall be repaired by Party B.
ARTICLE 9. LIABILITIES FOR BREACH
9.1 The party in breach shall be responsible for the liabilities resulting from the breach. If both parties are deemed to be in breach of the Contract, liabilities shall be allocated between the two parties in accordance with corresponding facts and actual results of the breach.
9.2 The party in breach shall pay liquidated damages to the other party duly performing the Contract. The other party is entitled to claim all of its losses incurred but with a limit to all actual losses.
9.3 If Party A delays in delivering to Party B the Leased Units, it shall pay a late payment charge in the amount of 0.5% of the monthly rent for each day of delay.
9.4 If Party B delays in making payment of fees, it shall pay a late payment charge in the amount of 0.5% of unpaid fees for each day of delay.
9.5 If Party B delays in moving out of the Leased Units, it shall pay a late payment charge in amount of 1% of the monthly rent for each day of delay.
9.6 If Party B in breach cannot duly pay the liquidated damages, late payment charge or indemnity due upon receipt of a notice from Party A asking for payment, Party B agrees that all the properties in the Leased Units can be taken by Party A as a lien and Party A has a right to dispose the properties in accordance with the laws.
ARTICLE 10. EXPIRATION AND TERMINATION OF THE CONTRACT
10.1 The Contract shall be terminated automatically upon expiration of the Lease Term. Party A shall return the deposit of the rent and property management fee (less the amount ought to be paid by Party B and not including addition of interests or indemnity) to Party B within 10 days after Party B's completion of its performance.
10.2 Party B shall complete the obligations below upon the expiration of the Lease Term or 7 days before the termination of the Contract:
(1) Party B shall deliver to Party A the equipment and facilities in the Leased Units in good operating condition, except normal wear and tear, damages existing before the Lease Term or caused by force majeure events.
(2) Party B shall uninstall the decoration and equipment subsequently improved and restore the Leased Units to their former condition when moving out, except if given a written consent from Party A to maintain the decoration and improvement.
(3) Party B shall pay off the rent, property management fee and electricity usage fee and other fees required.
10.3 Party A has a right to unilaterally terminate the contract and keep the rent, provided that Party B has acted as follows. Party B shall be bound to pay the liquidated damages equal to 3 months' rent and other damages to any economic losses of Party A if:
(1) Party B conducts illegal business activities.
(2) Party B alters the purpose of use of the Leased Units without consent from Party A.
(3) The Leased Units are used by third parties other than Party B without consent from Party A.
(4) The Leased Units, in whole or part, are subleased, re-lent and exchanged to third parties or used in common by Party B and third parties, without consent from Party A.
(5) Party B delays for more than 30 days in making payment for the rent, property management fee and other fees set forth in Article 6 of the Contract.
(6) Party B is in a breach of Article 7 of the Contract and cannot efficiently redress within 30 days upon notice from Party A.
10.4 Party B has a right to terminate the Contract before the expiration of the Lease Term because of the business development, after giving notice to Party A 3 months in advance and obtaining mutual consent. This Contract may be terminated in advance through the mutual agreement of both Parties, the deposit of Party B will not be returned.
10.5 Party B has a right to terminate the contract and claim twice the amount of the deposit, provided that Party A cannot deliver the Leased Units within 30 days from execution of the Contract and the receipt of the deposit from Party B.
10.6 If Party A terminates the Contract for no reason, it shall pay to Party B twice the amount of the deposit and shall indemnify the direct losses suffered by Party B, such as decoration expenses.
10.7 Upon the expiration of the Lease Term or 15 days after the termination of the Contract, any properties in the Leased Units that have not been moved out are regarded as being given up by Party B and Party B agrees to authorize Party A to dispose of these properties and charge Party B for any related costs. Party B warrants it will not interfere or intervene such disposal.
ARTICLE 11. FORCE MAJEURE
11.1 If one party cannot perform the Contract due to earthquake, typhoon, war, turbulence and other unexpected and inevitable factors, the party encountering the force
majeure event shall immediately notify the other party and provide detailed information about the force majeure event and a certificate of non-performance, partial non-performance or delayed-performance within 15 days. The certificate shall be issued by a local notary public from the place having the force majeure event. The party encountering the force majeure event shall not be held liable for indemnification.
11.2 If Party B cannot properly use the Leased Units due to the force majeure event, both parties shall negotiate to agree on subtraction of the rent and property management fee. If Party B cannot use the Leased Units at all due to the force majeure event, the payment for the rent and property management fee shall not be made until the Leased Units can be used in good condition. If the Leased Units cannot be used in good condition continuously for 30 days or accumulated for 90 days, Party B has a right to notify Party A of termination of the Contract, Party B shall reimburse the deposit and the rent paid in advance (less the actual usage fee and normal wear and tear) to Party B within 30 days upon receipt of a notice.
ARTICLE 12. GOVERNING LAW AND DISPUTE SETTLEMENT
12.1 The Contract shall be governed by and construed in accordance with the laws of the People's Republic of China.
12.2 Any dispute arising out of or relating to the Contract shall be resolved through friendly consultation between both parties. If the dispute is not resolved through consultation, any party has a right to submit to the China International Economic and Trade Arbitration ("CIETAC") for arbitration in accordance with the Arbitration Rules of CIETAC. The award of the arbitration tribunal shall be final and binding upon the two parties.
ARTICLE 13. MISCELLANEOUS
13.1 Party B agrees that the Leased Units shall be managed by Party A (or the Property Management Company designated by Party A).
13.2 The property management services shall include the cleaning of toilets, elevators, public corridors and maintenance of the equipment of Corporate Square, excluding the equipment improved by Party B inside the Leased Units.
13.3 Party A and Party B both agree that they will conclude a separate contract with respect to the lease of underground parking spaces.
ARTICLE 14. ANNEX
14.1 Any notice under the Contract shall be sent by means of fax, registered mail, courier or sent by specific individual to the legal addresses of the parties.
14.2 If any provision of the Contract shall be held invalid, illegal or unenforceable, the validity and legality of the remaining provisions shall not be affected and shall not form a basis for both parties to refuse the performance of the Contract.
14.3 Any matters not covered by the Contract may be negotiated and included in a supplementary contract entered into by both parties. Any supplementary contract and appendices shall be integrated into the Contract and have the same legal effect as that of the Contract.
14.4 The Contract is made in four copies. Each party shall hold two. All copies have the same legal effect.
14.5 The Contract comes into effect upon the signing by legal representatives or authorized representatives with chopped seals and comes to an end upon expiration of the Lease Term.
APPENDIX
1. MAP OF LEASED UNITS
PARTY A: China Galaxy Securities Company Limited
/s/ [COMPANY SEAL] ------------------------------------- By: /s/ Zhu Li ------------------------------------- Legal Representative or authorized representative Date: |
PARTY B:
By: /s/ [COMPANY SEAL] --------------------------------- /s/ Junling Cai ------------------------------------- Legal Representative or authorized representative Date: |
Place: 10/F, Tower C, Corporate Square
EXHIBIT 4.49
[Translated from Chinese Original]
LEASE CONTRACT FOR HOUSING UNIT OF CORPORATE SQUARE
Numbers: [2007] Guo Zu No. H04
PARTY A (the Lessor): China Galaxy Securities Company Limited
Legal Representative: Xu Guoping
Title: chairman Address: Tower C, Corporate Square, 35 Financial Street, Xicheng District, Beijing Postal code: 100032 Phone: (8610) 66568629 Fax: (8610) 66568253 |
PARTY B (the Lessee): Beijing Fuhua Innovation Technology Development Co., Ltd.
Legal Representative:
Title:
Address:
Postal code:
Phone:
Fax:
Pursuant to the Contracts Law and related laws and regulations of the People's Republic of China, and for the purpose of defining their rights and obligations, the Parties hereby agree on the contract as follows (the "Contract") after friendly negotiations:
ARTICLE 1. QUALIFICATION, REPRESENTATIONS AND WARRANTIES
1.1 Party A is a company duly established and existing under the laws of the People's Republic of China and the legal owner of Tower C of Corporate Square located at 35 Financial Street in Xicheng District in Beijing.
1.2 Party B is a company duly established and existing under the law of the People's Republic of China and has the full qualification and power to sign and perform the Contract hereto.
1.3 Party A and Party B both represent that they have completely understood and agreed on each provision of the Contract and are clearly aware of the benefits, risks and liabilities under the Contract.
1.4 Party A and Party B both undertake to perform the Contract in a positive, careful and complete manner, following principles of fairness, justice and good faith and in compliance with requirements of relevant policies, laws and regulations.
ARTICLE 2. SCOPE, AREA, TERM AND PURPOSE OF THE LEASE
2.1 Per Party B's request, Party A agrees to lease to Party B the housing units of 925, 926, 933 and 950 of the ninth floor of Tower C of Corporate Square as indicated in Appendix 1 (the "Leased Units"), with a total area of 468.68 square meters (referring to the construction area measured by the Bureau of Land Resources and Housing Management of Beijing Municipality) for a lease term of 43 months (the "Lease Term"), commencing on August 1, 2007 (the "Commencement Date") and ending on February 28, 2011.
ARTICLE 3. DELIVERY OF LEASED UNITS AND CONDITIONS FOR DELIVERY
3.1 Party A shall deliver to Party B the Leased Units on the Commencement Date. Party A shall guarantee that the equipment for electricity, lighting, air conditioning, elevators and washing have been installed in the public areas of the Leased Units and are operating in good condition.
3.2 Party A provides Party B with equipment and facilities in the Leased Units including but not limited to air conditioning, temperature controllers, alarms and fire sprinkler system, which shall be examined and confirmed by Party B's signature if no objection.
ARTICLE 4. DECORATION AND PLACEMENT
4.1 In the case of decoration, placement and other changes to the Leased Units made by Party B, Party B shall give a prior notice to Party A and timely provide Party A or the Property Management Department of Corporate Square with various patterns, design plans, list of decoration materials and other documents with respect to decorating and placing internal equipment and auxiliary objects to facilitate the procedure for related approvals.
4.2 Party B shall conduct the decoration after receipt of examination and approvals. Party B shall strictly perform in compliance with the approved decoration plan and relevant regulations set forth in Appendix 1 by the Property Management Department of Corporate Square. Party B shall pay the price of decoration and other related expenses.
4.3 Party B shall undertake that decorations shall not have a negative impact either on the structure and framework of Corporate Square or on the interests of other lessees and users. Otherwise, Party B and not Party A shall exclusively bear all liabilities and losses arisen thereby.
4.4 Party B shall undertake to be responsible for the equipment and facilities altered and improved in the decoration and to never violate related laws, regulations, rules or connected rules of Corporate Square listed in Appendix 1.
ARTICLE 5. FREE LEASE PERIOD, PREEMPTED RIGHT OF RENEWAL AND SUBLEASE
5.1 Party B has a right to a free lease period for 0 days from the Commencement Date. The term of free lease period is included in the whole Lease Term. Within the term of the free lease period, Party B shall have free rent, but it shall pay for fees other than the rent specified in accordance with the Contract.
5.2 Upon the expiration of the Contract, Party B has a right to demand renewal of the lease, provided the conditions of Party B are the same as other parties have. Both parties shall negotiate and sign a new contract with respect to the rent and other fees during the renewal of the lease. Party B shall be deemed to waive the right of renewal in the event that Party B cannot notify Party A of the renewal request at least 3 months prior to the expiration of the Contract or both parties cannot reach a new contract at least 1 month prior to the expiration of the Contract.
ARTICLE 6. RENT, PROPERTY MANAGEMENT FEE, DEPOSIT AND PAYMENT
6.1 The rent and property management fee are calculated in accordance with construction area measured by the Bureau of Land Resources and Housing Management of Beijing Municipality.
6.2 The rent and property management fee shall be calculated in RMB and shall be collected monthly. The rent for each square meter per day is RMB 3.28 yuan and the property management fee for each square meter per day is RMB0.98 yuan.
6.3 The property management fee shall be calculated on the basis of the property management fee charged by the Property Management Department in compliance with the rules of Corporate Square. Party A can adjust reasonably the property management fee pursuant to the conditions and procedures of Corporate Square.
6.4 Within 3 working days after the execution of the Contract, Party B shall pay to Party A rent and property management fees for a 3 month period, in the total amount of RMB 180632.73 yuan as the deposit, functioning as the security of Party B to make in time all payment of rent and property management fees to Party A.
6.5 Within 3 working days after the execution of the Contract, Party B shall pay to Party A the property management fee of the first month in the amount of RMB 13851.34 yuan. Party B shall pay for the rent and property management fee of every month after term of the free lease period. Subsequent payment for the rent and property management fee of each month shall be made by Party B within the first 3 working days of such month. If the Commencement Date is not the initial date of a month, payment for the rent and property management fee of the month shall be calculated upon the actual days for lease.
6.6 Party B shall remit the money for payment through bank transfer to the account designated by Party A as follows:
Account: China Galaxy Securities Company Limited Bank: China Construction Bank, Beijing Fuxing Branch Account Number: 11001046500053002517
6.7 If Party B makes the payment by RMB within the territory of People's Republic of China, the exchange rate between US dollars and RMB shall adopt the middle rate announced by Bank of People's China on the first day of the month it makes the payment.
ARTICLE 7. RIGHTS AND OBLIGATIONS OF PARTY A
7.1 Party A is entitled to the ownership and beneficial right of the Leased Units and any other property rights provided pursuant to the laws and regulations.
7.2 During the Lease Term, Party A has a right to transfer the ownership of the Leased Units in whole to third parties. Party A shall transfer its rights and obligations under the Contract to such third parties. The rights and obligations of Party B under the Contract shall not be affected by the ownership transfer. In the event Party A transfers separate parts of the Leased Units, Party B shall has the right of first refusal based on the same conditions.
7.3 During the Lease Term, Party A has a right to set up a mortgage, offer to compensate and exchange on the Leased Units, in whole or part, regardless of consent from Party B. The rights and obligations of Party B under the Contract shall not be affected by the Party A's activities as aforesaid.
7.4 During the Lease Term, Party A shall pay the taxes imposed upon it by relevant laws and regulations.
7.5 Party A has a right to dispatch its personnel to inspect the equipment and hardware of Corporate Square in the Leased Units, giving a prior notice to Party B except in emergency circumstances. Party A shall use its best endeavors to avoid any interruption to the ordinary working environment of Party B.
ARTICLE 8. RIGHTS AND OBLIGATIONS OF PARTY B
8.1 Party B is entitled to use the Leased Units in accordance with the Contract. Party B may set a notable mark on the exit of elevators of the floor of leasing pursuant to the relevant management regulations of the Corporate Squares. The detailed conditions shall be discussed by both Parties.
8.2 Party B shall carry out the business activities in the Leased Units in compliance with laws, regulations and rules of the People's Republic of China and is prohibited to harm Party A's reputation through its activities.
8.3 Party B shall duly make the payments with respect to the rent, property management fee, electricity usage fee and any other charges it shall be responsible for.
8.4 Starting from the Commencement Date, Party B shall purchase insurance for the properties in the Leased Units, including property insurance and third party liability insurance. Otherwise, Party B and not Party A shall be solely responsible for all liabilities and losses.
8.5 Party B shall not alter the purpose of use of the Leased Units without consent in writing from Party A.
8.6 Party B shall not re-lend, sublease, and exchange the Leased Units, in whole or part, to third parties or allow third parties to use the Leased Units by other means, without consent in writing from Party A.
8.7 Party B shall not alter the locking and security system on the gate of the Leased Units without consent in writing from Party A or approval from related departments.
8.8 Party B shall not alter or move the equipment for usage of water and electricity and shall not enlarge the capacities of central air conditioning, without consent in writing from Party A.
8.9 Party B shall take necessary actions to prevent the Leased Units from fires accident or man-made damage. Party B shall immediately notify to Party A with respect to any damage of the Leased Units. Party B shall restore the damaged parts of the Leased Units to their former condition within one month upon receipt of Party A's notice, provided that the damages resulted from negligence by Party B and its employees. If Party B fails to do so timely, Party A has the right to repair the damaged parts. All the expenses thus incurred shall be borne by Party B.
8.10 Party B is entitled to require Party A repairing the Leased Units, and the public facilities and equipment, and repair such based on the original standards by itself if Party A fails to perform the obligation of repairing timely and affects the normal use of such. All the expenses thus incurred shall be borne by Party A. The equipment newly added or improved by Party B shall be repaired by Party B.
ARTICLE 9. LIABILITIES FOR BREACH
9.1 The party in breach shall be responsible for the liabilities resulting from the breach. If both parties are deemed to be in breach of the Contract, liabilities shall be allocated between the two parties in accordance with corresponding facts and actual results of the breach.
9.2 The party in breach shall pay liquidated damages to the other party duly performing the Contract. The other party is entitled to claim all of its losses incurred but with a limit to all actual losses.
9.3 If Party A delays in delivering to Party B the Leased Units, it shall pay a late payment charge in the amount of 0.5% of the monthly rent for each day of delay.
9.4 If Party B delays in making payment of fees, it shall pay a late payment charge in the amount of 0.5% of unpaid fees for each day of delay.
9.5 If Party B delays in moving out of the Leased Units, it shall pay a late payment charge in amount of 1% of the monthly rent for each day of delay.
9.6 If Party B in breach cannot duly pay the liquidated damages, late payment charge or indemnity due upon receipt of a notice from Party A asking for payment, Party B agrees that all the properties in the Leased Units can be taken by Party A as a lien and Party A has a right to dispose the properties in accordance with the laws.
ARTICLE 10. EXPIRATION AND TERMINATION OF THE CONTRACT
10.1 The Contract shall be terminated automatically upon expiration of the Lease Term. Party A shall return the deposit of the rent and property management fee (less the amount ought to be paid by Party B and not including addition of interests or indemnity) to Party B within 10 days after Party B's completion of its performance.
10.2 Party B shall complete the obligations below upon the expiration of the Lease Term or 7 days before the termination of the Contract:
(1) Party B shall deliver to Party A the equipment and facilities in the Leased Units in good operating condition, except normal wear and tear, damages existing before the Lease Term or caused by force majeure events.
(2) Party B shall uninstall the decoration and equipment subsequently improved and restore the Leased Units to their former condition when moving out, except if given a written consent from Party A to maintain the decoration and improvement.
(3) Party B shall pay off the rent, property management fee and electricity usage fee and other fees required.
10.3 Party A has a right to unilaterally terminate the contract and keep the rent, provided that Party B has acted as follows. Party B shall be bound to pay the liquidated damages equal to 3 months' rent and other damages to any economic losses of Party A if:
(1) Party B conducts illegal business activities.
(2) Party B alters the purpose of use of the Leased Units without consent from Party A.
(3) The Leased Units are used by third parties other than Party B without consent from Party A.
(4) The Leased Units, in whole or part, are subleased, re-lent and exchanged to third parties or used in common by Party B and third parties, without consent from Party A.
(5) Party B delays for more than 30 days in making payment for the rent, property management fee and other fees set forth in Article 6 of the Contract.
(6) Party B is in a breach of Article 7 of the Contract and cannot efficiently redress within 30 days upon notice from Party A.
10.4 Party B has a right to terminate the Contract before the expiration of the Lease Term because of the business development, after giving notice to Party A 3 months in advance and obtaining mutual consent. This Contract may be terminated in advance through the mutual agreement of both Parties, the deposit of Party B will not be returned.
10.5 Party B has a right to terminate the contract and claim twice the amount of the deposit, provided that Party A cannot deliver the Leased Units within 30 days from execution of the Contract and the receipt of the deposit from Party B.
10.6 If Party A terminates the Contract for no reason, it shall pay to Party B twice the amount of the deposit and shall indemnify the direct losses suffered by Party B, such as decoration expenses.
10.7 Upon the expiration of the Lease Term or 15 days after the termination of the Contract, any properties in the Leased Units that have not been moved out are regarded as being given up by Party B and Party B agrees to authorize Party A to dispose of these properties and charge Party B for any related costs. Party B warrants it will not interfere or intervene such disposal.
ARTICLE 11. FORCE MAJEURE
11.1 If one party cannot perform the Contract due to earthquake, typhoon, war, turbulence and other unexpected and inevitable factors, the party encountering the force majeure event shall immediately notify the other party and provide detailed information about the force majeure event and a certificate of non-performance, partial non-performance or delayed-performance within 15 days. The certificate shall be issued by a local notary public from the place having the force majeure event. The party encountering the force majeure event shall not be held liable for indemnification.
11.2 If Party B cannot properly use the Leased Units due to the force majeure event, both parties shall negotiate to agree on subtraction of the rent and property management fee. If Party B cannot use the Leased Units at all due to the force majeure event, the payment for the rent and property management fee shall not be made until the Leased Units can be used in good condition. If the Leased Units cannot be used in good condition continuously for 30 days or accumulated for 90 days, Party B has a right to notify Party A of termination of the Contract, Party B shall reimburse the deposit and the rent paid in advance (less the actual usage fee and normal wear and tear) to Party B within 30 days upon receipt of a notice.
ARTICLE 12. GOVERNING LAW AND DISPUTE SETTLEMENT
12.1 The Contract shall be governed by and construed in accordance with the laws of the People's Republic of China.
12.2 Any dispute arising out of or relating to the Contract shall be resolved through friendly consultation between both parties. If the dispute is not resolved through consultation, any party has a right to submit to the China International Economic and
Trade Arbitration ("CIETAC") for arbitration in accordance with the Arbitration Rules of CIETAC. The award of the arbitration tribunal shall be final and binding upon the two parties.
ARTICLE 13. MISCELLANEOUS
13.1 Party B agrees that the Leased Units shall be managed by Party A (or the Property Management Company designated by Party A).
13.2 The property management services shall include the cleaning of toilets, elevators, public corridors and maintenance of the equipment of Corporate Square, excluding the equipment improved by Party B inside the Leased Units.
13.3 Party A and Party B both agree that they will conclude a separate contract with respect to the lease of underground parking spaces.
ARTICLE 14. ANNEX
14.1 Any notice under the Contract shall be sent by means of fax, registered mail, courier or sent by specific individual to the legal addresses of the parties.
14.2 If any provision of the Contract shall be held invalid, illegal or unenforceable, the validity and legality of the remaining provisions shall not be affected and shall not form a basis for both parties to refuse the performance of the Contract.
14.3 Any matters not covered by the Contract may be negotiated and included in a supplementary contract entered into by both parties. Any supplementary contract and appendices shall be integrated into the Contract and have the same legal effect as that of the Contract.
14.4 The Contract is made in four copies. Each party shall hold two. All copies have the same legal effect.
14.5 The Contract comes into effect upon the signing by legal representatives or authorized representatives with chopped seals and comes to an end upon expiration of the Lease Term.
APPENDIX
1. MAP OF LEASED UNITS
PARTY A: China Galaxy Securities Company Limited
/s/ [COMPANY SEAL] ------------------------------------- By: /s/ Zhu Li ------------------------------------- Legal Representative or authorized representative Date: |
PARTY B:
By: /s/ [COMPANY SEAL] --------------------------------- /s/ Junling Cai ------------------------------------- Legal Representative or authorized representative Date: |
Place: 10/F, Tower C, Corporate Square
EXHIBIT 4.50
[Translated from Chinese original]
LEASE CONTRACT FOR HOUSING UNIT OF CORPORATE SQUARE
Numbers: [2007] Guo Zu No. H06
PARTY A (the Lessor): China Galaxy Securities Company Limited
Legal Representative: Xu Guoping
Title: chairman Address: Tower C, Corporate Square, 35 Financial Street, Xicheng District, Beijing Postal code: 100032 Phone: (8610) 66568629 Fax: (8610) 66568253 |
PARTY B (the Lessee): Fortune Software (Beijing) Co., Ltd.
Legal Representative: Zhao Zhiwei
Title: CEO Address: Room 610, Ping'an Plaza, 23 Financial Street, Xicheng District, Beijing |
Postal code:
Phone:
Fax:
Pursuant to the Contracts Law and related laws and regulations of the People's Republic of China, and for the purpose of defining their rights and obligations, the Parties hereby agree on the contract as follows (the "Contract") after friendly negotiations:
ARTICLE 1. QUALIFICATION, REPRESENTATIONS AND WARRANTIES
1.1 Party A is a company duly established and existing under the laws of the People's Republic of China and the legal owner of Tower C of Corporate Square located at 35 Financial Street in Xicheng District in Beijing.
1.2 Party B is a company duly established and existing under the law of the People's Republic of China and has the full qualification and power to sign and perform the Contract hereto.
1.3 Party A and Party B both represent that they have completely understood and agreed on each provision of the Contract and are clearly aware of the benefits, risks and liabilities under the Contract.
1.4 Party A and Party B both undertake to perform the Contract in a positive, careful and complete manner, following principles of fairness, justice and good faith and in compliance with requirements of relevant policies, laws and regulations.
ARTICLE 2. SCOPE, AREA, TERM AND PURPOSE OF THE LEASE
2.1 Per Party B's request, Party A agrees to lease to Party B the housing units of 934 to 937 of the ninth floor of Tower C of Corporate Square as indicated in Appendix 1 (the "Leased Units"), with a total area of 517.73 square meters (referring to the construction area measured by the Bureau of Land Resources and Housing Management of Beijing Municipality) for a lease term of 55 months (the "Lease Term"), commencing on August 1, 2007 (the "Commencement Date") and ending on February 28, 2011.
ARTICLE 3. DELIVERY OF LEASED UNITS AND CONDITIONS FOR DELIVERY
3.1 Party A shall deliver to Party B the Leased Units on the Commencement Date. Party A shall guarantee that the equipment for electricity, lighting, air conditioning, elevators and washing have been installed in the public areas of the Leased Units and are operating in good condition.
3.2 Party A provides Party B with equipment and facilities in the Leased Units including but not limited to air conditioning, temperature controllers, alarms and fire sprinkler system, which shall be examined and confirmed by Party B's signature if no objection.
ARTICLE 4. DECORATION AND PLACEMENT
4.1 In the case of decoration, placement and other changes to the Leased Units made by Party B, Party B shall give a prior notice to Party A and timely provide Party A or the Property Management Department of Corporate Square with various patterns, design plans, list of decoration materials and other documents with respect to decorating and placing internal equipment and auxiliary objects to facilitate the procedure for related approvals.
4.2 Party B shall conduct the decoration after receipt of examination and approvals. Party B shall strictly perform in compliance with the approved decoration plan and relevant regulations set forth in Appendix 1 by the Property Management Department of Corporate Square. Party B shall pay the price of decoration and other related expenses.
4.3 Party B shall undertake that decorations shall not have a negative impact either on the structure and framework of Corporate Square or on the interests of other lessees and users. Otherwise, Party B and not Party A shall exclusively bear all liabilities and losses arisen thereby.
4.4 Party B shall undertake to be responsible for the equipment and facilities altered and improved in the decoration and to never violate related laws, regulations, rules or connected rules of Corporate Square listed in Appendix 1.
ARTICLE 5. FREE LEASE PERIOD, PREEMPTED RIGHT OF RENEWAL AND SUBLEASE
5.1 Party B has a right to a free lease period for 0 days from the Commencement Date. The term of free lease period is included in the whole Lease Term. Within the term of the free lease period, Party B shall have free rent, but it shall pay for fees other than the rent specified in accordance with the Contract.
5.2 Upon the expiration of the Contract, Party B has a right to demand renewal of the lease, provided the conditions of Party B are the same as other parties have. Both parties shall negotiate and sign a new contract with respect to the rent and other fees during the renewal of the lease. Party B shall be deemed to waive the right of renewal in the event that Party B cannot notify Party A of the renewal request at least 3 months prior to the expiration of the Contract or both parties cannot reach a new contract at least 1 month prior to the expiration of the Contract.
ARTICLE 6. RENT, PROPERTY MANAGEMENT FEE, DEPOSIT AND PAYMENT
6.1 The rent and property management fee are calculated in accordance with construction area measured by the Bureau of Land Resources and Housing Management of Beijing Municipality.
6.2 The rent and property management fee shall be calculated in RMB and shall be collected monthly. The rent for each square meter per day is RMB4.62 yuan and the property management fee for each square meter per day is RMB0.98 yuan.
6.3 The property management fee shall be calculated on the basis of the property management fee charged by the Property Management Department in compliance with the rules of Corporate Square. Party A can adjust reasonably the property management fee pursuant to the conditions and procedures of Corporate Square.
6.4 Within 3 working days after the execution of the Contract, Party B shall pay to Party A rent and property management fees for a 3 month period, in the total amount of RMB 264,560.03 yuan as the deposit, functioning as the security of Party B to make in time all payment of rent and property management fees to Party A.
6.5 Within 3 working days after the execution of the Contract, Party B shall pay to Party A the property management fee of the first month in the amount of RMB 88186.68 yuan. Party B shall pay for the rent and property management fee of every month after term of the free lease period. Subsequent payment for the rent and property management fee of each month shall be made by Party B within the first 3 working days of such month. If the Commencement Date is not the initial date of a month, payment for the rent and property management fee of the month shall be calculated upon the actual days for lease.
6.6 Party B shall remit the money for payment through bank transfer to the account designated by Party A as follows:
Account: China Galaxy Securities Company Limited Bank: China Construction Bank, Beijing Fuxing Branch Account Number: 11001046500053002517 |
6.7 If Party B makes the payment by RMB within the territory of People's Republic of China, the exchange rate between US dollars and RMB shall adopt the middle rate announced by Bank of People's China on the first day of the month it makes the payment.
ARTICLE 7. RIGHTS AND OBLIGATIONS OF PARTY A
7.1 Party A is entitled to the ownership and beneficial right of the Leased Units and any other property rights provided pursuant to the laws and regulations.
7.2 During the Lease Term, Party A has a right to transfer the ownership of the Leased Units in whole to third parties. Party A shall transfer its rights and obligations under the Contract to such third parties. The rights and obligations of Party B under the Contract shall not be affected by the ownership transfer. In the event Party A transfers separate parts of the Leased Units, Party B shall has the right of first refusal based on the same conditions.
7.3 During the Lease Term, Party A has a right to set up a mortgage, offer to compensate and exchange on the Leased Units, in whole or part, regardless of consent from Party B. The rights and obligations of Party B under the Contract shall not be affected by the Party A's activities as aforesaid.
7.4 During the Lease Term, Party A shall pay the taxes imposed upon it by relevant laws and regulations.
7.5 Party A has a right to dispatch its personnel to inspect the equipment and hardware of Corporate Square in the Leased Units, giving a prior notice to Party B except in emergency circumstances. Party A shall use its best endeavors to avoid any interruption to the ordinary working environment of Party B.
ARTICLE 8. RIGHTS AND OBLIGATIONS OF PARTY B
8.1 Party B is entitled to use the Leased Units in accordance with the Contract. Party B may set a notable mark on the exit of elevators of the floor of leasing pursuant to the relevant management regulations of the Corporate Squares. The detailed conditions shall be discussed by both Parties.
8.2 Party B shall carry out the business activities in the Leased Units in compliance with laws, regulations and rules of the People's Republic of China and is prohibited to harm Party A's reputation through its activities.
8.3 Party B shall duly make the payments with respect to the rent, property management fee, electricity usage fee and any other charges it shall be responsible for.
8.4 Starting from the Commencement Date, Party B shall purchase insurance for the properties in the Leased Units, including property insurance and third party liability insurance. Otherwise, Party B and not Party A shall be solely responsible for all liabilities and losses.
8.5 Party B shall not alter the purpose of use of the Leased Units without consent in writing from Party A.
8.6 Party B shall not re-lend, sublease, and exchange the Leased Units, in whole or part, to third parties or allow third parties to use the Leased Units by other means, without consent in writing from Party A.
8.7 Party B shall not alter the locking and security system on the gate of the Leased Units without consent in writing from Party A or approval from related departments.
8.8 Party B shall not alter or move the equipment for usage of water and electricity and shall not enlarge the capacities of central air conditioning, without consent in writing from Party A.
8.9 Party B shall take necessary actions to prevent the Leased Units from fires accident or man-made damage. Party B shall immediately notify to Party A with respect to any damage of the Leased Units. Party B shall restore the damaged parts of the Leased Units to their former condition within one month upon receipt of Party A's notice, provided that the damages resulted from negligence by Party B and its employees. If Party B fails to do so timely, Party A has the right to repair the damaged parts. All the expenses thus incurred shall be borne by Party B.
8.10 Party B is entitled to require Party A repairing the Leased Units, and the public facilities and equipment, and repair such based on the original standards by itself if Party A fails to perform the obligation of repairing timely and affects the normal use of such. All the expenses thus incurred shall be borne by Party A. The equipment newly added or improved by Party B shall be repaired by Party B.
ARTICLE 9. LIABILITIES FOR BREACH
9.1 The party in breach shall be responsible for the liabilities resulting from the breach. If both parties are deemed to be in breach of the Contract, liabilities shall be allocated between the two parties in accordance with corresponding facts and actual results of the breach.
9.2 The party in breach shall pay liquidated damages to the other party duly performing the Contract. The other party is entitled to claim all of its losses incurred but with a limit to all actual losses.
9.3 If Party A delays in delivering to Party B the Leased Units, it shall pay a late payment charge in the amount of 0.5% of the monthly rent for each day of delay.
9.4 If Party B delays in making payment of fees, it shall pay a late payment charge in the amount of 0.5% of unpaid fees for each day of delay.
9.5 If Party B delays in moving out of the Leased Units, it shall pay a late payment charge in amount of 1% of the monthly rent for each day of delay.
9.6 If Party B in breach cannot duly pay the liquidated damages, late payment charge or indemnity due upon receipt of a notice from Party A asking for payment, Party B agrees that all the properties in the Leased Units can be taken by Party A as a lien and Party A has a right to dispose the properties in accordance with the laws.
ARTICLE 10. EXPIRATION AND TERMINATION OF THE CONTRACT
10.1 The Contract shall be terminated automatically upon expiration of the Lease Term. Party A shall return the deposit of the rent and property management fee (less the amount ought to be paid by Party B and not including addition of interests or indemnity) to Party B within 10 days after Party B's completion of its performance.
10.2 Party B shall complete the obligations below upon the expiration of the Lease Term or 7 days before the termination of the Contract:
(1) Party B shall deliver to Party A the equipment and facilities in the Leased Units in good operating condition, except normal wear and tear, damages existing before the Lease Term or caused by force majeure events.
(2) Party B shall uninstall the decoration and equipment subsequently improved and restore the Leased Units to their former condition when moving out, except if given a written consent from Party A to maintain the decoration and improvement.
(3) Party B shall pay off the rent, property management fee and electricity usage fee and other fees required.
10.3 Party A has a right to unilaterally terminate the contract and keep the rent, provided that Party B has acted as follows. Party B shall be bound to pay the liquidated damages equal to 3 months' rent and other damages to any economic losses of Party A if:
(1) Party B conducts illegal business activities.
(2) Party B alters the purpose of use of the Leased Units without consent from Party A.
(3) The Leased Units are used by third parties other than Party B without consent from Party A.
(4) The Leased Units, in whole or part, are subleased, re-lent and exchanged to third parties or used in common by Party B and third parties, without consent from Party A.
(5) Party B delays for more than 30 days in making payment for the rent, property management fee and other fees set forth in Article 6 of the Contract.
(6) Party B is in a breach of Article 7 of the Contract and cannot efficiently redress within 30 days upon notice from Party A.
10.4 Party B has a right to terminate the Contract before the expiration of the Lease Term because of the business development, after giving notice to Party A 3 months in advance and obtaining mutual consent. This Contract may be terminated in advance through the mutual agreement of both Parties, the deposit of Party B will not be returned.
10.5 Party B has a right to terminate the contract and claim twice the amount of the deposit, provided that Party A cannot deliver the Leased Units within 30 days from execution of the Contract and the receipt of the deposit from Party B.
10.6 If Party A terminates the Contract for no reason, it shall pay to Party B twice the amount of the deposit and shall indemnify the direct losses suffered by Party B, such as decoration expenses.
10.7 Upon the expiration of the Lease Term or 15 days after the termination of the Contract, any properties in the Leased Units that have not been moved out are regarded as being given up by Party B and Party B agrees to authorize Party A to dispose of these properties and charge Party B for any related costs. Party B warrants it will not interfere or intervene such disposal.
ARTICLE 11. FORCE MAJEURE
11.1 If one party cannot perform the Contract due to earthquake, typhoon, war, turbulence and other unexpected and inevitable factors, the party encountering the force majeure event shall immediately notify the other party and provide detailed information about the force majeure event and a certificate of non-performance, partial non-performance or delayed-performance within 15 days. The certificate shall be issued by a local notary public from the place having the force majeure event. The party encountering the force majeure event shall not be held liable for indemnification.
11.2 If Party B cannot properly use the Leased Units due to the force majeure event, both parties shall negotiate to agree on subtraction of the rent and property management fee. If Party B cannot use the Leased Units at all due to the force majeure event, the payment for the rent and property management fee shall not be made until the Leased Units can be used in good condition. If the Leased Units cannot be used in good condition continuously for 30 days or accumulated for 90 days, Party B has a right to notify Party A of termination of the Contract, Party B shall reimburse the deposit and the rent paid in advance (less the actual usage fee and normal wear and tear) to Party B within 30 days upon receipt of a notice.
ARTICLE 12. GOVERNING LAW AND DISPUTE SETTLEMENT
12.1 The Contract shall be governed by and construed in accordance with the laws of the People's Republic of China.
12.2 Any dispute arising out of or relating to the Contract shall be resolved through friendly consultation between both parties. If the dispute is not resolved through consultation, any party has a right to submit to the China International Economic and
Trade Arbitration ("CIETAC") for arbitration in accordance with the Arbitration Rules of CIETAC. The award of the arbitration tribunal shall be final and binding upon the two parties.
ARTICLE 13. MISCELLANEOUS
13.1 Party B agrees that the Leased Units shall be managed by Party A (or the Property Management Company designated by Party A).
13.2 The property management services shall include the cleaning of toilets, elevators, public corridors and maintenance of the equipment of Corporate Square, excluding the equipment improved by Party B inside the Leased Units.
13.3 Party A and Party B both agree that they will conclude a separate contract with respect to the lease of underground parking spaces.
ARTICLE 14. ANNEX
14.1 Any notice under the Contract shall be sent by means of fax, registered mail, courier or sent by specific individual to the legal addresses of the parties.
14.2 If any provision of the Contract shall be held invalid, illegal or unenforceable, the validity and legality of the remaining provisions shall not be affected and shall not form a basis for both parties to refuse the performance of the Contract.
14.3 Any matters not covered by the Contract may be negotiated and included in a supplementary contract entered into by both parties. Any supplementary contract and appendices shall be integrated into the Contract and have the same legal effect as that of the Contract.
14.4 The Contract is made in four copies. Each party shall hold two. All copies have the same legal effect.
14.5 The Contract comes into effect upon the signing by legal representatives or authorized representatives with chopped seals and comes to an end upon expiration of the Lease Term.
APPENDIX
1. MAP OF LEASED UNITS
PARTY A: China Galaxy Securities Company Limited
/s/ [COMPANY SEAL] ------------------------------------- By: /s/ Zhu Li ------------------------------------- Legal Representative or authorized representative Date: |
PARTY B:
By: /s/ [COMPANY SEAL] --------------------------------- /s/ Junling Cai ------------------------------------- Legal Representative or authorized representative Date: |
Place: 10/F, Tower C, Corporate Square
Exhibit 4.51
DATED THE ______ DAY OF _____, 2007
WANG WILLIAM
and
FNG INTERNATIONAL HOLDINGS LIMITED
and
CHINA FINANCE ONLINE CO. LIMITED
AGREEMENT
for the sale and purchase
of shares in
Daily Growth Investment Company Limited
(Chinese Characters)
F. ZIMMERN & CO.
Solicitors & Notaries
Suites 1501-1503, 15th Floor, Gloucester Tower, The Landmark, 15 Queen's Road Central, Hong Kong Tel: (852) 2526-4373 Fax: (852) 2801-4548 Ref: AN/PC/S14/2007
THIS AGREEMENT is made on the ______ day of ____________, 2007.
BETWEEN :-
1. WANG WILLIAM whose correspondence address is at Block D, 6th Floor, Dragon Industrial Building, 93-95 King Lam Street, Lai Chi Kok, Kowloon, Hong Kong (the "VENDOR");
2. FNG INTERNATIONAL HOLDINGS LIMITED, a company incorporated in the British Virgin Islands whose registered address is at Trident Chambers, P.O. Box 146, Road Town, Tortola, British Virgin Islands (the "PURCHASER"); and
3. CHINA FINANCE ONLINE CO. LIMITED, a company incorporated in Hong Kong whose registered office is situate at Room 908, 9th Floor, Hutchison House, 10 Harcourt Road, Central, Hong Kong (the "GUARANTOR").
(The Vendor and the Purchaser are collectively referred to as the "PARTIES" and each as a "PARTY")
WHEREAS :-
(A) Daily Growth Investment Company Limited (Chinese Characters) (the "COMPANY") is a private limited company incorporated under the laws of Hong Kong on 6 October 1971 and has an authorised share capital of HK$10,000,000 divided into 100,000 ordinary shares of HK$100 each, of which 100,000 ordinary shares have been issued and are fully paid up. The Company is a licensed corporation to engage in type 1 regulated activity (dealing in securities) under the Securities and Futures Ordinance, Chapter 571 of the laws of Hong Kong. Particulars of the Company are set out in Schedule 1.
(B) The Vendor is the legal and beneficial owner of 5,000 issued ordinary shares of the Company, representing 5 per cent. of the entire issued share capital of the Company (the "SALE SHARES").
(C) The Vendor has agreed to sell, and the Purchaser has agreed to purchase, the
Sale Shares on the terms and conditions hereinafter appearing.
(D) The Purchaser is a wholly owned subsidiary of the Guarantor.
(E) The Guarantor has agreed to guarantee as the primary obligor for the due performance of the Purchaser under this Agreement.
AND NOW IT IS HEREBY AGREED as follows
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, unless otherwise expressed or required by context, the following expressions shall have the respective meanings set opposite thereto :-
Expression Meaning ---------- ------- "Accounts" means the audited profit and loss accounts for the period ended on and the balance sheet as at the Accounts Date of the Company; "Accounts Date" means 31 December 2006; "Approval" have the meaning ascribed to it in Clause 2.1(b) hereof; "Business Day" means a day, other than a "general holiday" (as defined in the General Holidays Ordinance (Chapter 149 of the Laws of Hong Kong)), Saturday and any day on which a tropical cyclone warning No. 8 or above is hoisted or remains hoisted between 9:00 a.m. and 12:00 noon and is not lowered at or before 12:00 noon or on which a "black" rainstorm warning signal is hoisted or remains in effect between 9:00 a.m. and 12:00 noon and is not discontinued at or before 12:00 noon, on which commercial banks are generally |
open for banking business in Hong Kong; "Completion Accounts" means the profit and loss accounts for the period ended on and the balance sheet as at the Completion Date of the Company; "Completion Date" means the date on which completion of the sale and purchase of the Sale Shares takes place as mentioned in Clause 4 hereof; "Consideration" has the meaning ascribed to it in Clause 3 hereof; "Deposit" has the meaning ascribed to it in Clause 3.2(a) hereof; "Disclosure Letter" means the disclosure letter from the Vendor to the Purchaser to be delivered at Completion in the form identical to that attached hereto as Schedule 3 hereto or with lesser disclosures; "Hong Kong" means the Hong Kong Special Administrative Region of the People's Republic of China; "Liabilities" means the total liabilities of the Company whether actual or contingent as at Completion, and for the avoidance of doubt, including all provisions for taxation and bad debts; "NAV" means the Tangible Assets less the Liabilities; "Shares" means issued ordinary shares of HK$100 each in the capital of the Company, and "Shareholders" shall be construed accordingly; "SFC" means the Securities and Futures Commission; "SFO" means the Securities and Futures Ordinance (Chapter 571 of the laws of Hong Kong); |
"Stock Exchange" The Stock Exchange of Hong Kong Limited; "Tangible Assets" means the total tangible assets of the Company as at Completion, including an amount of HK$794,157.41 due from Mr. Cheung Wing Cheung as at 1 August 2007 to the Company to be accepted by the Parties as accounts receivable without any provision for non-recovery; "Vendor's Solicitors" means F. Zimmern & Co; and "HK$" and "Cent" means Hong Kong Dollars and Cents respectively. |
1.2 The headings to the Clauses of this Agreement are for ease of reference only and shall be ignored in interpreting this Agreement.
1.3 Reference to Clauses and Schedules are references to Clauses and Schedules of or to this Agreement.
1.4 Words and expressions in the singular include the plural and vice versa.
1.5 Reference to person include any public body and any body of persons, corporate or unincorporated.
1.6 Reference to ordinances, statutes, legislation or enactments shall be construed as a reference to such Ordinances, statutes, legislation or enactments as may be amended or re-enacted from time to time and for the time being in force.
2. CONDITIONS PRECEDENT
2.1 Completion of this Agreement shall be conditional upon :-
(a) the Company remains a licensed corporation to engage in type 1 regulated activity (dealing in securities) under the SFO up to Completion;
(b) the SFC giving its written approval to approve the Purchaser to become a substantial shareholder of the Company (the "APPROVAL"); and
(c) the Purchaser shall, in addition to the Sale Shares to be acquired pursuant hereto, acquire on the Completion Date Shares from other existing Shareholders which together with the Sale Shares, shall in aggregate represent not less than 75% of the entire issued share capital of the Company as at the Completion Date.
2.2 The Vendor will use his best endeavours to procure the fulfilment of the condition set out in Clauses 2.1 (a) and 2.1(c) hereof and the Purchaser will use its best endeavours to procure the fulfilment of the condition set out in Clause 2.1(b) hereof.
2.3 If (i) the condition as set out in Clause 2.1(a) hereof cannot be fulfilled on the Completion Date, the Vendor or the Purchaser may, or (ii) the condition as set out in Clause 2.1(c) hereof cannot be fulfilled on the Completion Date, the Purchaser may terminate this Agreement. In any of such event, the Deposit shall be returned to the Purchaser in full together with interest calculated at the rate of three (3) per cent. per annum from the date of payment of the Deposit by the Purchaser up to the date of refund. Upon the refund, this Agreement shall lapse and no Party shall have any claim against the other Party except in respect of any antecedent breach.
2.4 If the condition as set out in Clause 2.1(b) hereof cannot be fulfilled on or before 31 December 2007 (the "CONDITIONS DEADLINE"), the Vendor will allow the Purchaser to extend the Conditions Deadline for a period up to three (3) calendar months from 1 January 2008 (the "EXTENDED PERIOD") provided that the Purchaser shall pay compensation (the "COMPENSATION") to the Vendor, unless the delay is due to the proven default of the Vendor, to be arrived at by the following formula :-
C = [(HK$3 * S) * 3] * D/91
C = the total Compensation payable by the Purchaser to the Vendor
S = the number of the Sale Shares
D = the number of days from 1 January 2008 up to and including (i)
the Completion Date; or (ii) the day of the receipt of the Notice (as defined below) by the Vendor; or (iii) 31 March 2008, as the case may be, to be determined in the manner as provided in Clauses 2.5 (a) and (b)
The Purchaser may serve a written notice to the Vendor not to proceed with the Completion (the "NOTICE") during the Extended Period.
2.5 (a) In the event that Completion takes place before the expiry of the Extended Period, the Purchaser shall pay the Compensation calculated up to the Completion Date to the Vendor on the Completion Date. (b) In the event that the Purchaser shall fail to complete the purchase of the Sale Shares in accordance with the terms of this Agreement (including failure to complete by reason of the failure to obtain the Approval) other than due to the proven default of the Vendor, half of the Deposit shall be forfeited to the Vendor as liquidated damages (the "FORFEITURE") and in addition, if the Conditions Deadline is extended, the Vendor shall also be entitled to deduct the Compensation (calculated up to the day of the receipt of the Notice by the Vendor if the Notice is served by the Purchaser or calculated up to 31 March 2008 if no Notice is served by the Purchaser) from the balance of the Deposit (the "DEDUCTION"). The remaining balance of the Deposit (after the Forfeiture and any Deduction) shall be returned to the Purchaser without interest within seven (7) days from the date of the receipt of the Notice by the Vendor or 31 March 2008, as the case may be. After the Forfeiture and any Deduction, the Vendor shall have no claim whatsoever against the Purchaser under this Agreement. |
2.6 If the Vendor shall fail to complete the sale of the Sale Shares in accordance with the terms of this Agreement due to the proven default of the Vendor, the Deposit shall be returned to the Purchaser in full together with interest calculated at the rate of three (3) per cent. per annum from the date of payment of the Deposit by the Purchaser up to the date of refund. Subject to the aforesaid payment, the Purchaser shall have no claim whatsoever against the Vendor under this Agreement.
3. SALE AND PURCHASE OF THE SALE SHARES AND THE CONSIDERATION
3.1 Subject to the terms and conditions of this Agreement, the Vendor as beneficial owner hereby agrees to sell to the Purchaser and the Purchaser, relying on the representations and warranties made or given by the Vendor and subject to the terms and conditions contained in this Agreement, agree to purchase from the Vendor the Sale Shares free from all claims, charges, liens, encumbrances, equities and third party rights and together with all rights attached thereto and all dividends and distributions declared, paid or made in respect thereof after the Completion Date at a consideration (the "CONSIDERATION") to be arrived at by the following formula :-
C = P * S
C = the total consideration payable by the Purchaser to the Vendor for the Sale Shares
P = the price per Share based on the NAV as at the Completion Date plus a premium of HK$15 per Share (which is to reflect the value of the trading right held by the Company in the Stock Exchange)
S = the number of Sale Shares
3.2 Subject to Clause 3.3 hereof, the Consideration shall be paid by the Purchaser to the Vendor as follows:-
(a) a sum of HK$250,000 (i.e. HK$50 per Sale Share) as deposit and part payment of the Consideration (the "DEPOSIT") to be paid on the signing of this Agreement by way of delivering a solicitor's cheque to the Vendor's Solicitors as stakeholder to be held by it subject to the provisions of this Agreement and the sum of HK$1,000,000 being the earnest money already paid by the Purchaser to the Purchaser's Solicitors as stakeholder under the term sheet dated 25 July 2007 be released to the Purchaser after payment of the Deposit; and
(b) the balance of the Consideration to be paid on Completion by way of a solicitor's cheque to the Vendor.
3.3 (a) The Vendor shall procure that the draft pro-forma Completion Accounts (the "DRAFT PRO-FORMA COMPLETION ACCOUNTS") be drawn up and delivered to the Purchaser not less than six (6) days prior to the Completion Date. Completion shall take place on the basis of the draft pro-forma Completion Accounts. (b) After Completion, the Vendor shall procure the final Completion Accounts (the "FINAL COMPLETION ACCOUNTS") be drawn up and delivered to the Purchaser within fourteen (14) days after the Completion Date. Subject to Clause 3.3(d), if the final Completion Accounts shall show that the NAV per Share is less than the NAV per Share as shown in the draft pro-forma Completion Accounts, the Vendor shall pay the amount of the difference of the NAV per Share multiplied by the number of the Sale Shares to the Purchaser within ten (10) days from the date of delivery of the final Completion Accounts by way of solicitor's cheque. If the final Completion Accounts shall show that the NAV per Share is more than the NAV per Share as shown in the draft pro-forma Completion Accounts, the Purchaser shall pay the amount of the difference of the NAV per Share multiplied by the number of the Sale Shares to the Vendor within ten (10) days from the date of delivery of the final Completion Accounts by way of solicitor's cheque. The Purchaser shall provide with the Vendor full access to the books, records and resources of the Company so as to enable the Vendor to procure the final Completion Accounts to be drawn up. (c) The basis and policy of accounting adopted in preparing the pro-forma draft Completion Accounts and the final Completion Accounts shall be in accordance with the generally accepted accounting practices in Hong Kong. (d) In the event of a dispute between the Parties as to the amount of the NAV as shown in the final Completion Accounts, the Vendor or the Purchaser may procure that the final Completion Accounts be audited by the auditors of the Company within forty-five (45) days from the date of delivery of the final Completion Accounts provided that the procurement of the audited final Completion Accounts shall be made by the relevant Party within seven (7) days from the date of delivery of |
the final Completion Accounts.
(e) If the audited Completion Accounts shall show that the NAV per Share is less than the NAV per Share as shown in the draft pro-forma Completion Accounts, the Vendor shall pay the amount of the difference of the NAV per Share multiplied by the number of the Sale Shares to the Purchaser within seven (7) days from the date of delivery of the audited Completion Accounts by way of solicitor's cheque. If the audited Completion Accounts shall show that the NAV per Share is more than the NAV per Share as shown in the draft pro-forma Completion Accounts, the Purchaser shall pay the amount of the difference of the NAV per Share multiplied by the number of the Sale Shares to the Vendor within seven (7) days from the date of delivery of the audited Completion Accounts by way of solicitor's cheque. The Vendor together with the other vendors of the one part and the Purchaser of the other part shall each be responsible for payment of 50% of the cost and expenses for the preparation and completion of the audited Completion Accounts.
4. COMPLETION
4.1 Subject to the provisions in Clause 2 hereof, completion of the sale and purchase of the Sale Shares shall take place at the offices of Arculli Fong & Ng (the "PURCHASER'S SOLICITORS"), the Solicitors for the Purchaser, at 908 Hutchison House, Central, Hong Kong or any other place as the Parties may agree at 5:00 p.m. on a Friday of the week immediately following the week when the Approval is granted by the SFC, when the following business shall simultaneously be transacted :-
(a) the Purchaser shall deliver to the Vendor the following :-
(i) a solicitor's cheque for payment of the balance of the Consideration and the Vendor's Solicitors will release the Deposit to the Vendor; and
(ii) a certified copy of each of the minutes of the board of directors of the Purchaser and the Guarantor approving this
Agreement and authorizing/confirming the authorization of an authorised person for signing of this Agreement and (for the Purchaser) the bought note and the instrument of transfer and any other incidental documents hereof;
(b) the Vendor shall deliver to the Purchaser the following :-
(i) sold notes and instrument of transfer in favour of the Purchaser in respect of the Sale Shares all executed by the Vendor in accordance with the Stamp Duty Ordinance;
(ii) original share certificate(s) or re-issued share certificate(s) in respect of the Sale Shares;
(iii)such other documents as may be reasonably required to give a good and effective transfer of title to the Sale Shares to the Purchaser and to enable them to become the registered holders thereof;
(iv) a cheque drawn in favour of the Government of the Hong Kong Special Administrative Region for an amount equivalent to the stamp duty payable under the Stamp Duty Ordinance in respect of the sold notes in respect of the Sale Shares;
(v) a certified copy of the minutes of the board of directors of the Vendor (if the Vendor is a corporate) approving the sale of the Sale Shares and authorizing/confirming the authorization of an authorised person for signing of this Agreement and the sold note and the instrument of transfer and any other incidental documents hereof;
(vi) to the extent that the same are not already in the possession of the Company or its agents, the certificate of incorporation, business registration certificate, common seal of the Company, all copies of memorandum and articles of association of the Company, the statutory books of the Company duly made up to date, any unissued share
certificates, all current insurance policies, books and accounts and other records, cheque books, title deeds and evidence of ownership to all assets of the Company and all current contracts;
(vii) an original of the Disclosure Letter duly executed by the Vendor in the form identical to that attached as Schedule 3 hereto or with lesser disclosures;
(c) the Vendor shall cause a meeting of the board of directors of the Company to be held at which resolutions shall be passed to :-
(i) approve the transfer of the Sale Shares;
(ii) register (subject to stamping) the transfer of the Sale Shares referred to above and to issue new certificate(s) for the Sale Shares in the name(s) of the Purchaser;
(iii) appoint one person as the Purchaser may nominate as the Chairman of the Company and such person(s) as the Purchaser may nominate as director(s) of the Company and (subject to the approval of the SFC) one person as the Purchaser may nominate as the Responsible Officer of the Company all to take effect from the close of business of the said meeting if so required by the Purchaser; and
(iv) amend all banking authorisations, instructions and mandates of the Company in such manner as the Purchaser may direct; and
(d) the Purchaser shall :-
(i) produce for inspection by the Vendor the bought notes in respect of the Sale Shares executed by the Purchaser in compliance with the Stamp Duty Ordinance; and
(ii) procure the stamping of the bought and sold notes and the instrument of transfer in respect of the Sale Shares as soon
as practicable thereafter and present the said instrument of transfer together with the share certificate(s) in respect of the Sale Shares to the Company for registration of the transfer.
4.2 The transactions described in Clause 4.1 hereof shall take place at the same time, so that in default of the performance of any such transactions by a Party, the other Party shall not be obliged to complete the sale and purchase aforesaid.
5. REPRESENTATIONS AND WARRANTIES AND GUARANTEE
5.1 Save as disclosed in the Disclosure Letter and documents and information provided to the Purchaser and/or its advisors, the Vendor hereby represents and warrants to the Purchaser that each of the matters set out in Schedule 2 are as at the date hereof and will be for all times up to and including the Completion Date, true and correct in all material respects.
5.2 From the date of this Agreement until the Completion Date the Vendor shall use his best endeavours to procure that (save with the prior consent in writing or of the Purchaser, such consent not to be unreasonably withheld or delayed) the Company shall not :-
(a) issue or agree to issue any of its share or loan capital or grant or agree to grant any option over or right to acquire any of its share or loan capital;
(b) enter into any contract (otherwise than in the ordinary course of business) or any capital commitment;
(c) create or permit to arise any lien, charge, pledge, mortgage or other security interest on or in respect of any of its undertaking, property or assets;
(d) appoint any directors other than as provided in this Agreement; or
(e) increase the remuneration of its employees (save as payment of discretionary bonus and save that the increase is made pursuant to the
relevant employment contract)
and the Vendor shall use his best endeavours to procure that the Purchaser be kept regularly informed of the affairs of the Company until the Completion Date.
5.3 The liability of the Vendor in respect of any breach of the warranties or representations as set out in Schedule 2 shall be limited as follows:-
(a) the maximum liability of the Vendor, if any, under this Agreement shall be 25% of the Consideration;
(b) no claims may be brought against the Vendor in respect of any claim of damages for breach of warranty(ies) or representation(s) as set out in Schedule 2 after the expiry of six months from the Completion Date.
5.4 In consideration of the Vendor agreeing to enter into this Agreement, the Guarantor (as principal obligor and not merely as surety) unconditionally and irrevocably guarantees performance by the Purchaser of all its obligations and liabilities under or arising out of or in connection with this Agreement (referred to herein as the "GUARANTEED OBLIGATIONS") and undertakes to the Vendor that if and whenever the Purchaser is in default, the Guarantor shall duly and promptly perform or procure such performance of the Guaranteed Obligations and indemnify the Vendor against any loss, damage, costs, expenses and liabilities that he may suffer in connection with or arising out of any such failure on the part of the Purchaser.
6. SEVERABILITY
If at any time any one or more provisions hereof is or becomes invalid, illegal, unenforceable or incapable of performance in any respect, the validity, legality, enforceability or performance of the remaining provisions hereof shall not thereby in any way be affected or impaired.
7. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement and understanding between
the Parties in connection with the subject-matter of this Agreement and supersedes all previous proposals, representations, warranties, agreements or undertakings relating thereto whether oral, written or otherwise and none of the Parties has relied on any such proposals, representations, warranties, agreements or undertakings.
8. TIME
8.1 Time shall be of the essence of this Agreement.
8.2 No time or indulgence given by any Party to the other Party shall be deemed or in any way be construed as a waiver of any of his/its rights and remedies hereunder.
9. CONFIDENTIALITY
Other than such disclosure as may be required by law, the SFC, the Stock Exchange or other competent authority, neither of the parties hereto shall make any announcement or release or disclose any information concerning this Agreement or the transactions herein referred to or disclose the identity of the other party(ies) hereto (save disclosure to their respective professional advisers under a duty of confidentiality) without the written consent of the other parties hereto.
10. ASSIGNMENT
This Agreement shall be binding on and shall enure for the benefits of the successors and assigns of the Parties but shall not be assigned by any party hereto without the prior written consent of the other parties hereto.
11. NOTICES AND OTHER COMMUNICATION
11.1 Any notice or other communication to be given under this Agreement shall be in writing and may be given by hand, by post or facsimile to the following
address/number of the party hereto to be served or to such other address/number as shall be notified by such party to the other in writing:-
The Vendor Address : Block D, 6th Floor, Dragon Industrial Building, 93-95 King Lam Street, Lai Chi Kok, Kowloon, Hong Kong Facsimile no. : 852-2516 6596 The Purchaser Address : Room 908, 9th floor, Hutchison House, 10 Harcourt Road, Central, Hong Kong Attention : Mr. Jun Wang Facsimile no. : 8610-5832 5200 The Guarantor Address : Room 908, 9th floor, Hutchison House, 10 Harcourt Road, Central, Hong Kong Attention : Mr. Jun Wang Facsimile no. : 8610-5832 5200 |
11.2 Any such notice or communication shall be sent to the party hereto to whom it is addressed and must contain sufficient reference and/or particulars to render it readily identifiable with the subject-matter of this Agreement. If so given by hand or facsimile, such notice or communication shall be deemed received on the date of despatch and if so sent by post (or, if sent to an address outside of Hong Kong, so sent by first class air-mail) shall be deemed received two (2) Business Days after the date of despatch (in case to an address in Hong Kong) or five (5) Business Days after the date of despatch (in case to an address
outside of Hong Kong).
12. COSTS AND EXPENSES
Each party hereto shall bear his/its own legal and professional fees, costs and expenses incurred in the negotiation, preparation and execution of this Agreement. The stamp duty in respect of the Sale Shares shall be borne by the Vendor and the Purchaser in equal shares.
13. COUNTERPARTS
This Agreement may be executed in any number of counterparts each of which when executed and delivered is an original, but all the counterparts together constitute the same document.
14. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of Hong Kong and the parties hereto agree to submit to the non-exclusive jurisdiction of the courts of Hong Kong.
15. PROCESS AGENT
The Purchaser hereby irrevocably authorizes and appoints the Purchaser's Solicitors (or such other person(s), being resident in Hong Kong, as it may from time to time appoint as its agent(s) and notify to the Vendor) to accept service of all legal process arising out or in connection with this Agreement and service on the Purchaser's Solicitors (or such substitute(s)) shall be deemed to be service on the Purchaser.
[Remainder of this page intentionally left blank]
IN WITNESS whereof the Parties have executed this Agreement the day and year first above written.
SIGNED by Ms. Wang Zau, ) Chin Ngo, the lawful attorney ) of Mr. Wang William ) in the presence of :- ) ) SIGNED by Mr. Jun Wang ) (Chinese Characters), the lawful attorney ) for and on behalf of FNG ) International Holdings ) Limited in the presence of :- ) SIGNED by Mr. Jun Wang ) (Chinese Characters), the lawful attorney ) for and on behalf of China ) Finance Online Co. Limited ) in the presence of :- ) |
SCHEDULE 1
PARTICULARS OF THE COMPANY
1. Name : Daily Growth Investment Company Limited
(Chinese Characters)
2. Registered office : Room 603, Peter Building, 58-62 Queen's Road, Central, Hong Kong.
3. Company Number : 025436
4. Date of Incorporation : 6 October 1971
5. Place of Incorporation : Hong Kong
6. Authorised share capital : HK$10,000,000 divided into 100,000 ordinary shares of HK$100 each
7. Issued and paid up capital : HK$10,000,000 divided into 100,000 ordinary shares of HK$100 each
8. Directors : TING WANG Wan-sun, Nancy WAI CHAN Ye, Kannie WAI Heung-wah, Hayles YEH WANG Zung-sing, Helen WONG Long-sau, Ivis
9. Secretary : Hang Cheuk Secretaries Limited
10 Auditors : J Kong & Co.
11. Financial year end : 31 December
SCHEDULE 2
REPRESENTATIONS AND WARRANTIES
General; Corporate Status
1.1 All information regarding the Company provided by or on behalf of the Vendor and/or the Company to the Purchaser is complete, correct and true in a material respect.
1.2 The Company has been duly incorporated and constituted, and is legally subsisting under the laws of its place of incorporation, and there has been no resolution, petition or order for the winding-up of the Company and no receiver has been appointed in respect thereof, nor are any such resolutions, orders and appointments imminent or likely.
Shareholdings and Share Capital etc.
2.1 The Sale Shares comprise a percentage (as referred to in Recital (B)) of the issued share capital of the Company, and there are not in issue any other shares, debentures, warrants, options or securities.
2.2 The Company is not under any contract, options, warrants or any other obligations regarding any part of its capital, issued or unissued, or for the issue of any shares, debentures, warrants, options, or other similar securities.
2.3 Save as disclosed in the Disclosure Letter, the Vendor has acquired the Shares in compliance with the articles of association of the Company and the laws under the Companies Ordinance and is the beneficial owner of the Sale Shares free from all liens, charges, pledges, options, contracts, preemption rights, third party rights and equities, and incumbrances of whatever nature and the same are freely transferable by the Vendor without the consent, approval, permission, licence or concurrence of any third party.
2.4 The Vendor is fully capable of entering into this Agreement and to perform all
obligations and duties hereunder without the consent, approval, permission, licence or concurrence of any third party.
Business etc.
3.1 The principal business activity of the Company is security trading.
3.2 In respect of the said business being carried on, all qualifications, registrations, licences or other approvals necessary for the proper conduct of business have been obtained and maintained and to the knowledge of the Vendor, all the relevant rules and regulations of the SFC and the Stock Exchange applicable to the Company have been observed and complied with in a material respect and no event has occurred whereby any of the same or the renewal thereof is or likely to be thereby adversely affected, suspended or revoked.
Accounts
4.1 The Accounts have been prepared in accordance with generally accepted accounting practice in Hong Kong and comply with the Companies Ordinance, and show a true and fair view of the affairs and financial position of the Company as at, and the profits and loss of the Company for the period ended on, the Accounts Date.
4.2 All accounting records of the Company for the past seven (7) years are in the possession of the Company and have been properly written up, kept and maintained in accordance with generally accepted accounting practice and together shows a true and fair view of the affairs and financial position of the Company.
Taxation
5.1 The Company has paid all taxes, duties and levies as the same became due and payable and to the knowledge of the Vendor, the Company is not nor is likely to be subject to any tax penalties.
5.2 The Company has complied with the Inland Revenue Ordinance and has kept proper records for tax purposes for the past seven (7) years and have filed all tax returns, and to the knowledge of the Vendor, there is no pending dispute with the Inland Revenue Department.
Dispute, Claims and Litigation
6. There is no claim, arbitration or litigation to which the Company is a party or which, to the knowledge of the Vendor, is pending or threatened.
Repetition at Completion
7. All warranties and representations contained in the foregoing provisions of this Schedule shall be deemed to be repeated immediately before completion of this Agreement and to relate to the facts then existing.
SCHEDULE 3
FORM OF DISCLOSURE LETTER
[DATE]
FNG INTERNATIONAL HOLDINGS LIMITED
Trident Chambers, P.O. Box 146,
Road Town, Tortola, British Virgin Islands
Dear Sirs,
DISCLOSURE LETTER
This is the Disclosure Letter referred to in the Sale and Purchase Agreement dated [DATE] and entered into by and between Wang William, FNG International Holdings Limited and China Finance Online Co. Limited (the "Agreement"). Capitalized terms appearing in this letter shall adopt the same meaning as defined in the Agreement.
A. GENERAL DISCLOSURES
The following matters are deemed to be disclosed by this letter:
1. AGREEMENT: All matters set out or referred to in the Agreement, including, without limitation, all schedules and documents annexed thereto and any other agreements entered into pursuant to, or contemplated by, the Agreement.
2. COMPANIES REGISTRY: All matters registered against, or which would be disclosed by a search made in respect of the Company at the Companies Registry in Hong Kong.
3. ACCOUNTS: All matters disclosed, provided for, noted or referred to in the audited accounts of the Company which have been provided to the Purchaser.
4. INSPECTION: All matters which have or ought reasonably to have, been disclosed by inspection of the statutory books, books of account and business records of
the Company, all of which have been made available to the Purchaser and/or its advisers for inspection.
5. OTHERS MATTERS DISCLOSED: All matters set out or referred to in any letter, note, schedule or other document from or provided by the Vendor, the Company and/or their advisers and/or agents to the Purchaser and/or its advisers and/or agents in connection with the sale and purchase of the Sale Shares. Where any such letter, note, schedule or other document includes an expression of opinion, no representation or warranty is given as to its accuracy.
B. SPECIFIC DISCLOSURE
We write to disclose the following and the paragraph numbers used below correspond to the representations and warranties as set out in Schedule 2 to the Agreement:
Paragraphs 1.1 and 2.3
The following documents cannot be found in the company kit of the Company or located by the Vendor or are incomplete. As such, no representation and warranty will be made on these missing or incomplete documents :-
1. Original corporate documents from the date of incorporation to the year of 1987;
2. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 1 share from Helen Zung Sing Yeh to Shun Kin Enterprises Limited on 20th February 1987;
3. Original cancelled share certificate in the names of Helen Zung Sing Yeh and Shun Kin Enterprises Limited;
4. Original Application for 42,300 shares made on 24th February 1987 - 8 sets;
5. Original share certificates in respect of the allotment made on 24th February 1987;
6. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 5,000 shares from Mr. Basil D.C. Wood to Mrs. Nancy Ting on 26th April 1988;
7. Original share certificates in respect of the transfer made on 26th April 1988;
8. Original transfer documents (including instruments of transfer and bought and sold notes) in respect of the transfer of 20,525 shares in respect of the following transfer:
Mr. Basil D.C. Wood to Midopa Enterprises Limited - 7,610 shares on
21.7.1988
Mrs. Wendy Wood to Midopa Enterprises Limited - 1,694 shares on 21.7.1988
Mr. Hsu Zing Ping to Midopa Enterprises Limited - 3,196 shares on 21.7.1988
Mr. Hsu Zing Ping to Billion System Co., Limited - 2,500 shares on 21.7.1988
Mr. Hsu Zing Ping to Mrs. Wang Zau Chin Ngo - 240 shares on 21.7.1988
Mr. Hsu Zing Ping to Eternal Growth Investment Ltd. - 525 shares on 21.7.1988
Mr. Koo Kam Kang to Eternal Growth Investment Ltd. - 4,760 shares on 21.7.1988
9. Original share certificates in respect of the transfer made on 21.7.1988;
10. Original transfer documents (including instruments of transfer and bought and sold notes) in respect of the transfer of 7,715 shares in respect of the following transfer:
Ms. Nancy Ting to Ho Chi Kuen Bernard - 2,000 shares on 29.7.1988
Ms. Nancy Ting to Billion System Co., Ltd. - 2,500 shares on 29.7.1988
Ms. Nancy Ting to Stella Wong - 545 shares on 29.7.1988
Shun Kin Ent. Ltd. to Stella Wong - 195 shares on 29.7.1988
Eileen Hwa to Stella Wong - 260 shares on 29.7.1988
Ms. Nancy Ting to Eternal Growth Inv. Ltd. - 2,215 shares on 29.7.1988
11. Original share certificates in respect of the transfer made on 29.7.1988
12. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 2,000 shares in respect of the transfer from Eileen Hwa to Wong Oi Lun, Ellen on 17.3.1989;
13. Original share certificates in respect of the transfer made on 17.3.1989;
14. Form X(ii) or Form (IXA) showing the resignation of Ms. Stella Wong as the director of the Company made on 1.4.1989;
15. Original transfer documents (including instruments of transfer and bought and sold notes) in respect of the transfer of 2,000 shares in respect of the following transfer:
Wong Oi Lun Ellen to Stella Wong - 1,000 shares on 31.5.1990
Wong Oi Lun Ellen to Tsang Kin Woo - 500 shares on 31.5.1990
Wong Oi Lun Ellen to Chu Ping Im - 500 shares on 31.5.1990
16. Original share certificates in respect of the transfer made on 31.5.1990
17. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 2,000 shares in respect of the following transfer:
Bernard Ho to Zone Bo Ltd. - 2,000 shares on 19.7.1990
18. Original share certificates in respect of the transfer made on 19.7.1990
19. Copy of Consent to act as director of the Company by Mr. Yap E. Hock on
9.12.1992
20. A letter dated 10th October 1994, from King Cause Limited and Asian Capital Partners (HK) Limited reporting that 10 share certificates for 50,000 shares have been mislaid and requesting 2 share certificates be issued to them
21. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 50,000 shares in respect of the following transfer:
King Cause Ltd.to Billion System Co. Ltd.- 5,000 shares on 12.12.1994;
King Cause Ltd. to Eternal Growth Investment Ltd.- 7,500 shares on 12.12.1994;
King Cause Ltd. to Midpoa Enterprises Limited- 12,500 shares on 12.12.1994;
King Cause Ltd. to Shun Kin Ent. Limited- 17,500 shares on 12.12.1994;
King Cause Ltd. to Wang Zau Chin Ngo- 2,500 shares on 12.12.1994;
King Cause Ltd. to Tsang Kin Woo- 499 shares on 12.12.1994;
King Cause Ltd. to Chu Ping Im - 500 shares on 12.12.1994
King Cause Ltd. to Stella Wong- 2,000 shares on 12.12.1994;
King Cause Ltd. to Zone Bo Limited- 2,000 shares on 12.12.1994;
King Cause Ltd. and Asian Capital Partners (HK) Limited to Tsang Kin Woo- 1 share on 12.12.1994;
22. Original share certificates in respect of the transfer made on 12.12.1994;
23. Original Declaration of Trust given by King Cause Limited and Asian Capital Partners (HK) Limited on 9.12.1992;
24. Copy of Form D2 and Consent to act reporting the appointment of Mr. Ho Chi Kuen as the director of the company;
25. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 5,000 shares in respect of the following transfer:
Billion System Co. Ltd. to Zone Bo Ltd.- 500 shares on 15.12.2000;
Billion System Co. Ltd. to Eternal Growth Inv. Ltd.- 500 shares on 15.12.2000;
Billion System Co. Ltd. to Midopa Enterprises Ltd.- 1,250 shares on 15.12.2000;
Billion System Co. Ltd. to Shun Kin Enterprises Ltd.- 1,750 shares on 15.12.2000;
Billion System Co. Ltd. to Tsang Kin Woo- 500 shares on 15.12.2000;
Billion System Co. Ltd. to Chu Ping Im- 500 shares on 15.12.2000;
26. Original share certificates in respect of the transfer made on 15.12.2000;
27. Original Share Certificate of Wang William;
28. Original Board Minutes for approving the share transfer from Zone Bo Limited to Hung Yung made on 22.06.2007;
29. Share Certificate of Hung Yung in respect of 5,000 shares;
30. Original Consent to Short Notice dated 16.03.1987 - Elieen Hwa Wang Vung Sing (with the signature of Elieen missing); and
31. Original Consent to Short Notice for 2005 AGM dated 30.05.2005 (missing signatures from Midopa Enterprises Limited, Wong Chan Miu Wan Stella, Chu Ping Im, Tsang Kin Woo).
Yours sincerely,
Exhibit 4.52
DATED THE ___________ DAY OF _____, 2007
TSANG KIN-WOO
and
FNG INTERNATIONAL HOLDINGS LIMITED
and
CHINA FINANCE ONLINE CO. LIMITED
AGREEMENT
for the sale and purchase
of shares in
Daily Growth Investment Company Limited
(Chinese Characters)
F. ZIMMERN & CO.
Solicitors & Notaries
Suites 1501-1503, 15th Floor, Gloucester Tower, The Landmark, 15 Queen's Road Central, Hong Kong Tel: (852) 2526-4373 Fax: (852) 2801-4548 Ref: AN/PC/S14/2007
THIS AGREEMENT is made on the __________ day of _____, 2007.
BETWEEN :-
1. TSANG KIN-WOO whose correspondence address is at Flat A, 8th Floor, Harrison Court II, 90A Waterloo Road, Kowloon, Hong Kong (the "VENDOR");
2. FNG INTERNATIONAL HOLDINGS LIMITED, a company incorporated in the British Virgin Islands whose registered address is at Trident Chambers, P.O. Box 146, Road Town, Tortola, British Virgin Islands (the "PURCHASER"); and
3. CHINA FINANCE ONLINE CO. LIMITED, a company incorporated in Hong Kong whose registered office is situate at Room 908, 9th Floor, Hutchison House, 10 Harcourt Road, Central, Hong Kong (the "GUARANTOR").
(The Vendor and the Purchaser are collectively referred to as the "PARTIES" and each as a "PARTY")
WHEREAS :-
(A) Daily Growth Investment Company Limited (Chinese Characters) (the "COMPANY") is a private limited company incorporated under the laws of Hong Kong on 6 October 1971 and has an authorised share capital of HK$10,000,000 divided into 100,000 ordinary shares of HK$100 each, of which 100,000 ordinary shares have been issued and are fully paid up. The Company is a licensed corporation to engage in type 1 regulated activity (dealing in securities) under the Securities and Futures Ordinance, Chapter 571 of the laws of Hong Kong. Particulars of the Company are set out in Schedule 1.
(B) The Vendor is the legal and beneficial owner of 2,000 issued ordinary shares of the Company, representing 2 per cent. of the entire issued share capital of the Company (the "SALE SHARES").
(C) The Vendor has agreed to sell, and the Purchaser has agreed to purchase, the
Sale Shares on the terms and conditions hereinafter appearing.
(D) The Purchaser is a wholly owned subsidiary of the Guarantor.
(E) The Guarantor has agreed to guarantee as the primary obligor for the due performance of the Purchaser under this Agreement.
AND NOW IT IS HEREBY AGREED as follows
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, unless otherwise expressed or required by context, the following expressions shall have the respective meanings set opposite thereto :-
Expression Meaning ---------- ------- "Accounts" means the audited profit and loss accounts for the period ended on and the balance sheet as at the Accounts Date of the Company; "Accounts Date" means 31 December 2006; "Approval" have the meaning ascribed to it in Clause 2.1(b) hereof; "Business Day" means a day, other than a "general holiday" (as defined in the General Holidays Ordinance (Chapter 149 of the Laws of Hong Kong)), Saturday and any day on which a tropical cyclone warning No. 8 or above is hoisted or remains hoisted between 9:00 a.m. and 12:00 noon and is not lowered at or before 12:00 noon or on which a "black" rainstorm warning signal is hoisted or remains in effect between 9:00 a.m. and 12:00 noon and is not discontinued at or before 12:00 noon, on which commercial banks are generally |
open for banking business in Hong Kong; "Completion Accounts" means the profit and loss accounts for the period ended on and the balance sheet as at the Completion Date of the Company; "Completion Date" means the date on which completion of the sale and purchase of the Sale Shares takes place as mentioned in Clause 4 hereof; "Consideration" has the meaning ascribed to it in Clause 3 hereof; "Deposit" has the meaning ascribed to it in Clause 3.2(a) hereof; "Disclosure Letter" means the disclosure letter from the Vendor to the Purchaser to be delivered at Completion in the form identical to that attached hereto as Schedule 3 hereto or with lesser disclosures; "Hong Kong" means the Hong Kong Special Administrative Region of the People's Republic of China; "Liabilities" means the total liabilities of the Company whether actual or contingent as at Completion, and for the avoidance of doubt, including all provisions for taxation and bad debts; "NAV" means the Tangible Assets less the Liabilities; "Shares" means issued ordinary shares of HK$100 each in the capital of the Company, and "Shareholders" shall be construed accordingly; "SFC" means the Securities and Futures Commission; "SFO" means the Securities and Futures Ordinance (Chapter 571 of the laws of Hong Kong); |
"Stock Exchange" The Stock Exchange of Hong Kong Limited; "Tangible Assets" means the total tangible assets of the Company as at Completion, including an amount of HK$794,157.41 due from Mr. Cheung Wing Cheung as at 1 August 2007 to the Company to be accepted by the Parties as accounts receivable without any provision for non-recovery; "Vendor's Solicitors" means F. Zimmern & Co; and "HK$" and "Cent" means Hong Kong Dollars and Cents respectively. |
1.2 The headings to the Clauses of this Agreement are for ease of reference only and shall be ignored in interpreting this Agreement.
1.3 Reference to Clauses and Schedules are references to Clauses and Schedules of or to this Agreement.
1.4 Words and expressions in the singular include the plural and vice versa.
1.5 Reference to person include any public body and any body of persons, corporate or unincorporated.
1.6 Reference to ordinances, statutes, legislation or enactments shall be construed as a reference to such Ordinances, statutes, legislation or enactments as may be amended or re-enacted from time to time and for the time being in force.
2. CONDITIONS PRECEDENT
2.1 Completion of this Agreement shall be conditional upon :-
(a) the Company remains a licensed corporation to engage in type 1 regulated activity (dealing in securities) under the SFO up to Completion;
(b) the SFC giving its written approval to approve the Purchaser to become a substantial shareholder of the Company (the "APPROVAL"); and
(c) the Purchaser shall, in addition to the Sale Shares to be acquired pursuant hereto, acquire on the Completion Date Shares from other existing Shareholders which together with the Sale Shares, shall in aggregate represent not less than 75% of the entire issued share capital of the Company as at the Completion Date.
2.2 The Vendor will use his best endeavours to procure the fulfilment of the condition set out in Clauses 2.1 (a) and 2.1(c) hereof and the Purchaser will use its best endeavours to procure the fulfilment of the condition set out in Clause 2.1(b) hereof.
2.3 If (i) the condition as set out in Clause 2.1(a) hereof cannot be fulfilled on the Completion Date, the Vendor or the Purchaser may, or (ii) the condition as set out in Clause 2.1(c) hereof cannot be fulfilled on the Completion Date, the Purchaser may terminate this Agreement. In any of such event, the Deposit shall be returned to the Purchaser in full together with interest calculated at the rate of three (3) per cent. per annum from the date of payment of the Deposit by the Purchaser up to the date of refund. Upon the refund, this Agreement shall lapse and no Party shall have any claim against the other Party except in respect of any antecedent breach.
2.4 If the condition as set out in Clause 2.1(b) hereof cannot be fulfilled on or before 31 December 2007 (the "CONDITIONS DEADLINE"), the Vendor will allow the Purchaser to extend the Conditions Deadline for a period up to three (3) calendar months from 1 January 2008 (the "EXTENDED PERIOD") provided that the Purchaser shall pay compensation (the "COMPENSATION") to the Vendor, unless the delay is due to the proven default of the Vendor, to be arrived at by the following formula :-
C = [(HK$3 * S) * 3] * D/91
C = the total Compensation payable by the Purchaser to the Vendor
S = the number of the Sale Shares
D = the number of days from 1 January 2008 up to and including (i)
the Completion Date; or (ii) the day of the receipt of the Notice
(as defined below) by the Vendor; or (iii) 31 March 2008, as the
case may be, to be determined in the manner as provided in Clauses
2.5 (a) and (b)
The Purchaser may serve a written notice to the Vendor not to proceed with the Completion (the "NOTICE") during the Extended Period.
2.5 (a) In the event that Completion takes place before the expiry of the Extended Period, the Purchaser shall pay the Compensation calculated up to the Completion Date to the Vendor on the Completion Date. (b) In the event that the Purchaser shall fail to complete the purchase of the Sale Shares in accordance with the terms of this Agreement (including failure to complete by reason of the failure to obtain the Approval) other than due to the proven default of the Vendor, half of the Deposit shall be forfeited to the Vendor as liquidated damages (the "FORFEITURE") and in addition, if the Conditions Deadline is extended, the Vendor shall also be entitled to deduct the Compensation (calculated up to the day of the receipt of the Notice by the Vendor if the Notice is served by the Purchaser or calculated up to 31 March 2008 if no Notice is served by the Purchaser) from the balance of the Deposit (the "DEDUCTION"). The remaining balance of the Deposit (after the Forfeiture and any Deduction) shall be returned to the Purchaser without interest within seven (7) days from the date of the receipt of the Notice by the Vendor or 31 March 2008, as the case may be. After the Forfeiture and any Deduction, the Vendor shall have no claim whatsoever against the Purchaser under this Agreement. |
2.6 If the Vendor shall fail to complete the sale of the Sale Shares in accordance with the terms of this Agreement due to the proven default of the Vendor, the Deposit shall be returned to the Purchaser in full together with interest calculated at the rate of three (3) per cent. per annum from the date of payment of the Deposit by the Purchaser up to the date of refund. Subject to the aforesaid payment, the Purchaser shall have no claim whatsoever against the Vendor under this Agreement.
3. SALE AND PURCHASE OF THE SALE SHARES AND THE CONSIDERATION
3.1 Subject to the terms and conditions of this Agreement, the Vendor as beneficial owner hereby agrees to sell to the Purchaser and the Purchaser, relying on the representations and warranties made or given by the Vendor and subject to the terms and conditions contained in this Agreement, agree to purchase from the Vendor the Sale Shares free from all claims, charges, liens, encumbrances, equities and third party rights and together with all rights attached thereto and all dividends and distributions declared, paid or made in respect thereof after the Completion Date at a consideration (the "CONSIDERATION") to be arrived at by the following formula :-
C = P * S
C = the total consideration payable by the Purchaser to the Vendor for the Sale Shares
P = the price per Share based on the NAV as at the Completion Date plus a premium of HK$15 per Share (which is to reflect the value of the trading right held by the Company in the Stock Exchange)
S = the number of Sale Shares
3.2 Subject to Clause 3.3 hereof, the Consideration shall be paid by the Purchaser to the Vendor as follows:-
(a) a sum of HK$100,000 (i.e. HK$50 per Sale Share) as deposit and part payment of the Consideration (the "DEPOSIT") to be paid on the signing of this Agreement by way of delivering a solicitor's cheque to the Vendor's Solicitors as stakeholder to be held by it subject to the provisions of this Agreement and the sum of HK$1,000,000 being the earnest money already paid by the Purchaser to the Purchaser's Solicitors as stakeholder under the term sheet dated 25 July 2007 be released to the Purchaser after payment of the Deposit; and
(b) the balance of the Consideration to be paid on Completion by way of a solicitor's cheque to the Vendor.
3.3 (a) The Vendor shall procure that the draft pro-forma Completion Accounts (the "DRAFT PRO-FORMA COMPLETION ACCOUNTS") be drawn up and delivered to the Purchaser not less than six (6) days prior to the Completion Date. Completion shall take place on the basis of the draft pro-forma Completion Accounts. (b) After Completion, the Vendor shall procure the final Completion Accounts (the "FINAL COMPLETION ACCOUNTS") be drawn up and delivered to the Purchaser within fourteen (14) days after the Completion Date. Subject to Clause 3.3(d), if the final Completion Accounts shall show that the NAV per Share is less than the NAV per Share as shown in the draft pro-forma Completion Accounts, the Vendor shall pay the amount of the difference of the NAV per Share multiplied by the number of the Sale Shares to the Purchaser within ten (10) days from the date of delivery of the final Completion Accounts by way of solicitor's cheque. If the final Completion Accounts shall show that the NAV per Share is more than the NAV per Share as shown in the draft pro-forma Completion Accounts, the Purchaser shall pay the amount of the difference of the NAV per Share multiplied by the number of the Sale Shares to the Vendor within ten (10) days from the date of delivery of the final Completion Accounts by way of solicitor's cheque. The Purchaser shall provide with the Vendor full access to the books, records and resources of the Company so as to enable the Vendor to procure the final Completion Accounts to be drawn up. (c) The basis and policy of accounting adopted in preparing the pro-forma draft Completion Accounts and the final Completion Accounts shall be in accordance with the generally accepted accounting practices in Hong Kong. (d) In the event of a dispute between the Parties as to the amount of the NAV as shown in the final Completion Accounts, the Vendor or the Purchaser may procure that the final Completion Accounts be audited by the auditors of the Company within forty-five (45) days from the date of delivery of the final Completion Accounts provided that the procurement of the audited final Completion Accounts shall be made by the relevant Party within seven (7) days from the date of delivery of |
the final Completion Accounts.
(e) If the audited Completion Accounts shall show that the NAV per Share is less than the NAV per Share as shown in the draft pro-forma Completion Accounts, the Vendor shall pay the amount of the difference of the NAV per Share multiplied by the number of the Sale Shares to the Purchaser within seven (7) days from the date of delivery of the audited Completion Accounts by way of solicitor's cheque. If the audited Completion Accounts shall show that the NAV per Share is more than the NAV per Share as shown in the draft pro-forma Completion Accounts, the Purchaser shall pay the amount of the difference of the NAV per Share multiplied by the number of the Sale Shares to the Vendor within seven (7) days from the date of delivery of the audited Completion Accounts by way of solicitor's cheque. The Vendor together with the other vendors of the one part and the Purchaser of the other part shall each be responsible for payment of 50% of the cost and expenses for the preparation and completion of the audited Completion Accounts.
4. COMPLETION
4.1 Subject to the provisions in Clause 2 hereof, completion of the sale and purchase of the Sale Shares shall take place at the offices of Arculli Fong & Ng (the "PURCHASER'S SOLICITORS"), the Solicitors for the Purchaser, at 908 Hutchison House, Central, Hong Kong or any other place as the Parties may agree at 5:00 p.m. on a Friday of the week immediately following the week when the Approval is granted by the SFC, when the following business shall simultaneously be transacted :-
(a) the Purchaser shall deliver to the Vendor the following :-
(i) a solicitor's cheque for payment of the balance of the Consideration and the Vendor's Solicitors will release the Deposit to the Vendor; and
(ii) a certified copy of each of the minutes of the board of directors of the Purchaser and the Guarantor approving this
Agreement and authorizing/confirming the authorization of an authorised person for signing of this Agreement and (for the Purchaser) the bought note and the instrument of transfer and any other incidental documents hereof;
(b) the Vendor shall deliver to the Purchaser the following :-
(i) sold notes and instrument of transfer in favour of the Purchaser in respect of the Sale Shares all executed by the Vendor in accordance with the Stamp Duty Ordinance;
(ii) original share certificate(s) or re-issued share certificate(s) in respect of the Sale Shares;
(iii)such other documents as may be reasonably required to give a good and effective transfer of title to the Sale Shares to the Purchaser and to enable them to become the registered holders thereof;
(iv) a cheque drawn in favour of the Government of the Hong Kong Special Administrative Region for an amount equivalent to the stamp duty payable under the Stamp Duty Ordinance in respect of the sold notes in respect of the Sale Shares;
(v) a certified copy of the minutes of the board of directors of the Vendor (if the Vendor is a corporate) approving the sale of the Sale Shares and authorizing/confirming the authorization of an authorised person for signing of this Agreement and the sold note and the instrument of transfer and any other incidental documents hereof;
(vi) to the extent that the same are not already in the possession of the Company or its agents, the certificate of incorporation, business registration certificate, common seal of the Company, all copies of memorandum and articles of association of the Company, the statutory books of the Company duly made up to date, any unissued share
certificates, all current insurance policies, books and accounts and other records, cheque books, title deeds and evidence of ownership to all assets of the Company and all current contracts;
(vii) an original of the Disclosure Letter duly executed by the Vendor in the form identical to that attached as Schedule 3 hereto or with lesser disclosures;
(c) the Vendor shall cause a meeting of the board of directors of the Company to be held at which resolutions shall be passed to :-
(i) approve the transfer of the Sale Shares;
(ii) register (subject to stamping) the transfer of the Sale Shares referred to above and to issue new certificate(s) for the Sale Shares in the name(s) of the Purchaser;
(iii) appoint one person as the Purchaser may nominate as the Chairman of the Company and such person(s) as the Purchaser may nominate as director(s) of the Company and (subject to the approval of the SFC) one person as the Purchaser may nominate as the Responsible Officer of the Company all to take effect from the close of business of the said meeting if so required by the Purchaser; and
(iv) amend all banking authorisations, instructions and mandates of the Company in such manner as the Purchaser may direct; and
(d) the Purchaser shall :-
(i) produce for inspection by the Vendor the bought notes in respect of the Sale Shares executed by the Purchaser in compliance with the Stamp Duty Ordinance; and
(ii) procure the stamping of the bought and sold notes and the instrument of transfer in respect of the Sale Shares as soon
as practicable thereafter and present the said instrument of transfer together with the share certificate(s) in respect of the Sale Shares to the Company for registration of the transfer.
4.2 The transactions described in Clause 4.1 hereof shall take place at the same time, so that in default of the performance of any such transactions by a Party, the other Party shall not be obliged to complete the sale and purchase aforesaid.
5. REPRESENTATIONS AND WARRANTIES AND GUARANTEE
5.1 Save as disclosed in the Disclosure Letter and documents and information provided to the Purchaser and/or its advisors, the Vendor hereby represents and warrants to the Purchaser that each of the matters set out in Schedule 2 are as at the date hereof and will be for all times up to and including the Completion Date, true and correct in all material respects.
5.2 From the date of this Agreement until the Completion Date the Vendor shall use his best endeavours to procure that (save with the prior consent in writing or of the Purchaser, such consent not to be unreasonably withheld or delayed) the Company shall not :-
(a) issue or agree to issue any of its share or loan capital or grant or agree to grant any option over or right to acquire any of its share or loan capital;
(b) enter into any contract (otherwise than in the ordinary course of business) or any capital commitment;
(c) create or permit to arise any lien, charge, pledge, mortgage or other security interest on or in respect of any of its undertaking, property or assets;
(d) appoint any directors other than as provided in this Agreement; or
(e) increase the remuneration of its employees (save as payment of discretionary bonus and save that the increase is made pursuant to the
relevant employment contract)
and the Vendor shall use his best endeavours to procure that the Purchaser be kept regularly informed of the affairs of the Company until the Completion Date.
5.3 The liability of the Vendor in respect of any breach of the warranties or representations as set out in Schedule 2 shall be limited as follows:-
(a) the maximum liability of the Vendor, if any, under this Agreement shall be 25% of the Consideration;
(b) no claims may be brought against the Vendor in respect of any claim of damages for breach of warranty(ies) or representation(s) as set out in Schedule 2 after the expiry of six months from the Completion Date.
5.4 In consideration of the Vendor agreeing to enter into this Agreement, the Guarantor (as principal obligor and not merely as surety) unconditionally and irrevocably guarantees performance by the Purchaser of all its obligations and liabilities under or arising out of or in connection with this Agreement (referred to herein as the "GUARANTEED OBLIGATIONS") and undertakes to the Vendor that if and whenever the Purchaser is in default, the Guarantor shall duly and promptly perform or procure such performance of the Guaranteed Obligations and indemnify the Vendor against any loss, damage, costs, expenses and liabilities that he may suffer in connection with or arising out of any such failure on the part of the Purchaser.
6. SEVERABILITY
If at any time any one or more provisions hereof is or becomes invalid, illegal, unenforceable or incapable of performance in any respect, the validity, legality, enforceability or performance of the remaining provisions hereof shall not thereby in any way be affected or impaired.
7. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement and understanding between
the Parties in connection with the subject-matter of this Agreement and supersedes all previous proposals, representations, warranties, agreements or undertakings relating thereto whether oral, written or otherwise and none of the Parties has relied on any such proposals, representations, warranties, agreements or undertakings.
8. TIME
8.1 Time shall be of the essence of this Agreement.
8.2 No time or indulgence given by any Party to the other Party shall be deemed or in any way be construed as a waiver of any of his/its rights and remedies hereunder.
9. CONFIDENTIALITY
Other than such disclosure as may be required by law, the SFC, the Stock Exchange or other competent authority, neither of the parties hereto shall make any announcement or release or disclose any information concerning this Agreement or the transactions herein referred to or disclose the identity of the other party(ies) hereto (save disclosure to their respective professional advisers under a duty of confidentiality) without the written consent of the other parties hereto.
10. ASSIGNMENT
This Agreement shall be binding on and shall enure for the benefits of the successors and assigns of the Parties but shall not be assigned by any party hereto without the prior written consent of the other parties hereto.
11. NOTICES AND OTHER COMMUNICATION
11.1 Any notice or other communication to be given under this Agreement shall be in writing and may be given by hand, by post or facsimile to the following
address/number of the party hereto to be served or to such other address/number as shall be notified by such party to the other in writing:-
The Vendor Address : Flat A, 8th Floor, Harrison Court II, 90A Waterloo Road, Kowloon, Hong Kong Facsimile no. : 852-2760 1922 The Purchaser Address : Room 908, 9th floor, Hutchison House, 10 Harcourt Road, Central, Hong Kong Attention : Mr. Jun Wang Facsimile no. : 8610-5832 5200 The Guarantor Address : Room 908, 9th floor, Hutchison House, 10 Harcourt Road, Central, Hong Kong Attention : Mr. Jun Wang Facsimile no. : 8610-5832 5200 |
11.2 Any such notice or communication shall be sent to the party hereto to whom it is addressed and must contain sufficient reference and/or particulars to render it readily identifiable with the subject-matter of this Agreement. If so given by hand or facsimile, such notice or communication shall be deemed received on the date of despatch and if so sent by post (or, if sent to an address outside of Hong Kong, so sent by first class air-mail) shall be deemed received two (2) Business Days after the date of despatch (in case to an address in Hong Kong) or five (5) Business Days after the date of despatch (in case to an address outside of Hong Kong).
12. COSTS AND EXPENSES
Each party hereto shall bear his/its own legal and professional fees, costs and expenses incurred in the negotiation, preparation and execution of this Agreement. The stamp duty in respect of the Sale Shares shall be borne by the Vendor and the Purchaser in equal shares.
13. COUNTERPARTS
This Agreement may be executed in any number of counterparts each of which when executed and delivered is an original, but all the counterparts together constitute the same document.
14. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of Hong Kong and the parties hereto agree to submit to the non-exclusive jurisdiction of the courts of Hong Kong.
15. PROCESS AGENT
The Purchaser hereby irrevocably authorizes and appoints the Purchaser's Solicitors (or such other person(s), being resident in Hong Kong, as it may from time to time appoint as its agent(s) and notify to the Vendor) to accept service of all legal process arising out or in connection with this Agreement and service on the Purchaser's Solicitors (or such substitute(s)) shall be deemed to be service on the Purchaser.
[Remainder of this page intentionally left blank]
IN WITNESS whereof the Parties have executed this Agreement the day and year first above written.
SIGNED by Mr. Tsang ) Kin-woo in the presence of :- ) ) ) ) SIGNED by Mr. Jun Wang ) (Chinese Characters), the lawful attorney ) for and on behalf of FNG ) International Holdings ) Limited in the presence of :- ) SIGNED by Mr. Jun Wang ) (Chinese Characters), the lawful attorney ) for and on behalf of China ) Finance Online Co. Limited ) in the presence of :- ) |
SCHEDULE 1
PARTICULARS OF THE COMPANY
1. Name : Daily Growth Investment Company Limited (Chinese Characters) 2. Registered office : Room 603, Peter Building, 58-62 Queen's Road, Central, Hong Kong. 3. Company Number : 025436 4. Date of Incorporation : 6 October 1971 5. Place of Incorporation : Hong Kong 6. Authorised share capital : HK$10,000,000 divided into 100,000 ordinary shares of HK$100 each 7. Issued and paid up capital : HK$10,000,000 divided into 100,000 ordinary shares of HK$100 each 8. Directors : TING WANG Wan-sun, Nancy WAI CHAN Ye, Kannie WAI Heung-wah, Hayles YEH WANG Zung-sing, Helen WONG Long-sau, Ivis 9. Secretary : Hang Cheuk Secretaries Limited 10 Auditors : J Kong & Co. 11. Financial year end : 31 December |
SCHEDULE 2
REPRESENTATIONS AND WARRANTIES
General; Corporate Status
1.1 All information regarding the Company provided by or on behalf of the Vendor and/or the Company to the Purchaser is complete, correct and true in a material respect.
1.2 The Company has been duly incorporated and constituted, and is legally subsisting under the laws of its place of incorporation, and there has been no resolution, petition or order for the winding-up of the Company and no receiver has been appointed in respect thereof, nor are any such resolutions, orders and appointments imminent or likely.
Shareholdings and Share Capital etc.
2.1 The Sale Shares comprise a percentage (as referred to in Recital (B)) of the issued share capital of the Company, and there are not in issue any other shares, debentures, warrants, options or securities.
2.2 The Company is not under any contract, options, warrants or any other obligations regarding any part of its capital, issued or unissued, or for the issue of any shares, debentures, warrants, options, or other similar securities.
2.3 Save as disclosed in the Disclosure Letter, the Vendor has acquired the Shares in compliance with the articles of association of the Company and the laws under the Companies Ordinance and is the beneficial owner of the Sale Shares free from all liens, charges, pledges, options, contracts, preemption rights, third party rights and equities, and incumbrances of whatever nature and the same are freely transferable by the Vendor without the consent, approval, permission, licence or concurrence of any third party.
2.4 The Vendor is fully capable of entering into this Agreement and to perform all
obligations and duties hereunder without the consent, approval, permission, licence or concurrence of any third party.
Business etc.
3.1 The principal business activity of the Company is security trading.
3.2 In respect of the said business being carried on, all qualifications, registrations, licences or other approvals necessary for the proper conduct of business have been obtained and maintained and to the knowledge of the Vendor, all the relevant rules and regulations of the SFC and the Stock Exchange applicable to the Company have been observed and complied with in a material respect and no event has occurred whereby any of the same or the renewal thereof is or likely to be thereby adversely affected, suspended or revoked.
Accounts
4.1 The Accounts have been prepared in accordance with generally accepted accounting practice in Hong Kong and comply with the Companies Ordinance, and show a true and fair view of the affairs and financial position of the Company as at, and the profits and loss of the Company for the period ended on, the Accounts Date.
4.2 All accounting records of the Company for the past seven (7) years are in the possession of the Company and have been properly written up, kept and maintained in accordance with generally accepted accounting practice and together shows a true and fair view of the affairs and financial position of the Company.
Taxation
5.1 The Company has paid all taxes, duties and levies as the same became due and payable and to the knowledge of the Vendor, the Company is not nor is likely to be subject to any tax penalties.
5.2 The Company has complied with the Inland Revenue Ordinance and has kept proper records for tax purposes for the past seven (7) years and have filed all tax returns, and to the knowledge of the Vendor, there is no pending dispute with the Inland Revenue Department.
Dispute, Claims and Litigation
6. There is no claim, arbitration or litigation to which the Company is a party or which, to the knowledge of the Vendor, is pending or threatened.
Repetition at Completion
7. All warranties and representations contained in the foregoing provisions of this Schedule shall be deemed to be repeated immediately before completion of this Agreement and to relate to the facts then existing.
SCHEDULE 3
FORM OF DISCLOSURE LETTER
[DATE]
FNG INTERNATIONAL HOLDINGS LIMITED
Trident Chambers, P.O. Box 146,
Road Town, Tortola, British Virgin Islands
Dear Sirs,
DISCLOSURE LETTER
This is the Disclosure Letter referred to in the Sale and Purchase Agreement dated [DATE] and entered into by and between Tsang Kin-woo, FNG International Holdings Limited and China Finance Online Co. Limited (the "Agreement"). Capitalized terms appearing in this letter shall adopt the same meaning as defined in the Agreement.
A. GENERAL DISCLOSURES
The following matters are deemed to be disclosed by this letter:
1. AGREEMENT: All matters set out or referred to in the Agreement, including, without limitation, all schedules and documents annexed thereto and any other agreements entered into pursuant to, or contemplated by, the Agreement.
2. COMPANIES REGISTRY: All matters registered against, or which would be disclosed by a search made in respect of the Company at the Companies Registry in Hong Kong.
3. ACCOUNTS: All matters disclosed, provided for, noted or referred to in the audited accounts of the Company which have been provided to the Purchaser.
4. INSPECTION: All matters which have or ought reasonably to have, been disclosed by inspection of the statutory books, books of account and business records of
the Company, all of which have been made available to the Purchaser and/or its advisers for inspection.
5. OTHERS MATTERS DISCLOSED: All matters set out or referred to in any letter, note, schedule or other document from or provided by the Vendor, the Company and/or their advisers and/or agents to the Purchaser and/or its advisers and/or agents in connection with the sale and purchase of the Sale Shares. Where any such letter, note, schedule or other document includes an expression of opinion, no representation or warranty is given as to its accuracy.
B. SPECIFIC DISCLOSURE
We write to disclose the following and the paragraph numbers used below correspond to the representations and warranties as set out in Schedule 2 to the Agreement:
Paragraphs 1.1 and 2.3
The following documents cannot be found in the company kit of the Company or located by the Vendor or are incomplete. As such, no representation and warranty will be made on these missing or incomplete documents :-
1. Original corporate documents from the date of incorporation to the year of 1987;
2. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 1 share from Helen Zung Sing Yeh to Shun Kin Enterprises Limited on 20th February 1987;
3. Original cancelled share certificate in the names of Helen Zung Sing Yeh and Shun Kin Enterprises Limited;
4. Original Application for 42,300 shares made on 24th February 1987 - 8 sets;
5. Original share certificates in respect of the allotment made on 24th February 1987;
6. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 5,000 shares from Mr. Basil D.C. Wood to Mrs. Nancy Ting on 26th April 1988;
7. Original share certificates in respect of the transfer made on 26th April 1988;
8. Original transfer documents (including instruments of transfer and bought and sold notes) in respect of the transfer of 20,525 shares in respect of the following transfer:
Mr. Basil D.C. Wood to Midopa Enterprises Limited - 7,610 shares on
21.7.1988
Mrs. Wendy Wood to Midopa Enterprises Limited - 1,694 shares on 21.7.1988
Mr. Hsu Zing Ping to Midopa Enterprises Limited - 3,196 shares on 21.7.1988
Mr. Hsu Zing Ping to Billion System Co., Limited - 2,500 shares on 21.7.1988
Mr. Hsu Zing Ping to Mrs. Wang Zau Chin Ngo - 240 shares on 21.7.1988
Mr. Hsu Zing Ping to Eternal Growth Investment Ltd. - 525 shares on 21.7.1988
Mr. Koo Kam Kang to Eternal Growth Investment Ltd. - 4,760 shares on 21.7.1988
9. Original share certificates in respect of the transfer made on 21.7.1988;
10. Original transfer documents (including instruments of transfer and bought and sold notes) in respect of the transfer of 7,715 shares in respect of the following transfer:
Ms. Nancy Ting to Ho Chi Kuen Bernard - 2,000 shares on 29.7.1988
Ms. Nancy Ting to Billion System Co., Ltd. - 2,500 shares on 29.7.1988
Ms. Nancy Ting to Stella Wong - 545 shares on 29.7.1988
Shun Kin Ent. Ltd. to Stella Wong - 195 shares on 29.7.1988
Eileen Hwa to Stella Wong - 260 shares on 29.7.1988
Ms. Nancy Ting to Eternal Growth Inv. Ltd. - 2,215 shares on 29.7.1988
11. Original share certificates in respect of the transfer made on 29.7.1988
12. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 2,000 shares in respect of the transfer from Eileen Hwa to Wong Oi Lun, Ellen on 17.3.1989;
13. Original share certificates in respect of the transfer made on 17.3.1989;
14. Form X(ii) or Form (IXA) showing the resignation of Ms. Stella Wong as the director of the Company made on 1.4.1989;
15. Original transfer documents (including instruments of transfer and bought and sold notes) in respect of the transfer of 2,000 shares in respect of the following transfer:
Wong Oi Lun Ellen to Stella Wong - 1,000 shares on 31.5.1990
Wong Oi Lun Ellen to Tsang Kin Woo - 500 shares on 31.5.1990
Wong Oi Lun Ellen to Chu Ping Im - 500 shares on 31.5.1990
16. Original share certificates in respect of the transfer made on 31.5.1990
17. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 2,000 shares in respect of the following transfer:
Bernard Ho to Zone Bo Ltd. - 2,000 shares on 19.7.1990
18. Original share certificates in respect of the transfer made on 19.7.1990
19. Copy of Consent to act as director of the Company by Mr. Yap E. Hock on
9.12.1992
20. A letter dated 10th October 1994, from King Cause Limited and Asian Capital Partners (HK) Limited reporting that 10 share certificates for 50,000 shares have been mislaid and requesting 2 share certificates be issued to them
21. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 50,000 shares in respect of the following transfer:
King Cause Ltd.to Billion System Co. Ltd.- 5,000 shares on 12.12.1994;
King Cause Ltd. to Eternal Growth Investment Ltd.- 7,500 shares on 12.12.1994;
King Cause Ltd. to Midpoa Enterprises Limited- 12,500 shares on 12.12.1994;
King Cause Ltd. to Shun Kin Ent. Limited- 17,500 shares on 12.12.1994;
King Cause Ltd. to Wang Zau Chin Ngo- 2,500 shares on 12.12.1994;
King Cause Ltd. to Tsang Kin Woo- 499 shares on 12.12.1994;
King Cause Ltd. to Chu Ping Im - 500 shares on 12.12.1994
King Cause Ltd. to Stella Wong- 2,000 shares on 12.12.1994;
King Cause Ltd. to Zone Bo Limited- 2,000 shares on 12.12.1994;
King Cause Ltd. and Asian Capital Partners (HK) Limited to Tsang Kin Woo- 1 share on 12.12.1994;
22. Original share certificates in respect of the transfer made on 12.12.1994;
23. Original Declaration of Trust given by King Cause Limited and Asian Capital Partners (HK) Limited on 9.12.1992;
24. Copy of Form D2 and Consent to act reporting the appointment of Mr. Ho Chi Kuen as the director of the company;
25. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 5,000 shares in respect of the following transfer:
Billion System Co. Ltd. to Zone Bo Ltd.- 500 shares on 15.12.2000;
Billion System Co. Ltd. to Eternal Growth Inv. Ltd.- 500 shares on 15.12.2000;
Billion System Co. Ltd. to Midopa Enterprises Ltd.- 1,250 shares on 15.12.2000;
Billion System Co. Ltd. to Shun Kin Enterprises Ltd.- 1,750 shares on 15.12.2000;
Billion System Co. Ltd. to Tsang Kin Woo- 500 shares on 15.12.2000;
Billion System Co. Ltd. to Chu Ping Im- 500 shares on 15.12.2000;
26. Original share certificates in respect of the transfer made on 15.12.2000;
27. Original Share Certificate of Wang William;
28. Original Board Minutes for approving the share transfer from Zone Bo Limited to Hung Yung made on 22.06.2007;
29. Share Certificate of Hung Yung in respect of 5,000 shares;
30. Original Consent to Short Notice dated 16.03.1987 - Elieen Hwa Wang Vung Sing (with the signature of Elieen missing); and
31. Original Consent to Short Notice for 2005 AGM dated 30.05.2005 (missing signatures from Midopa Enterprises Limited, Wong Chan Miu Wan Stella, Chu Ping Im, Tsang Kin Woo).
Yours sincerely,
Exhibit 4.53
DATED THE __________ DAY OF __________, 2007
WONG CHAN MIU-WAN STELLA
and
FNG INTERNATIONAL HOLDINGS LIMITED
and
CHINA FINANCE ONLINE CO. LIMITED
AGREEMENT
for the sale and purchase
of shares in
Daily Growth Investment Company Limited
(Chinese Characters)
F. ZIMMERN & CO.
Solicitors & Notaries
Suites 1501-1503, 15th Floor, Gloucester Tower, The Landmark, 15 Queen's Road Central, Hong Kong Tel: (852) 2526-4373 Fax: (852) 2801-4548 Ref: AN/PC/S14/2007
THIS AGREEMENT is made on the __________ day of __________, 2007.
BETWEEN :-
1. WONG CHAN MIU-WAN STELLA whose correspondence address is at House 6, Capital Garden, Lot 253, DD223, Ta Ku Ling San Chuer, Clear Water Bay, Kowloon, Hong Kong (the "VENDOR");
2. FNG INTERNATIONAL HOLDINGS LIMITED, a company incorporated in the British Virgin Islands whose registered address is at Trident Chambers, P.O. Box 146, Road Town, Tortola, British Virgin Islands (the "PURCHASER"); and
3. CHINA FINANCE ONLINE CO. LIMITED, a company incorporated in Hong Kong whose registered office is situate at Room 908, 9th Floor, Hutchison House, 10 Harcourt Road, Central, Hong Kong (the "GUARANTOR").
(The Vendor and the Purchaser are collectively referred to as the "PARTIES" and each as a "PARTY")
WHEREAS :-
(A) Daily Growth Investment Company Limited (Chinese Characters) (the "COMPANY") is a private limited company incorporated under the laws of Hong Kong on 6 October 1971 and has an authorised share capital of HK$10,000,000 divided into 100,000 ordinary shares of HK$100 each, of which 100,000 ordinary shares have been issued and are fully paid up. The Company is a licensed corporation to engage in type 1 regulated activity (dealing in securities) under the Securities and Futures Ordinance, Chapter 571 of the laws of Hong Kong. Particulars of the Company are set out in Schedule 1.
(B) The Vendor is the legal and beneficial owner of 4,000 issued ordinary shares of the Company, representing 4 per cent. of the entire issued share capital of the Company (the "SALE SHARES").
(C) The Vendor has agreed to sell, and the Purchaser has agreed to purchase, the
Sale Shares on the terms and conditions hereinafter appearing.
(D) The Purchaser is a wholly owned subsidiary of the Guarantor.
(E) The Guarantor has agreed to guarantee as the primary obligor for the due performance of the Purchaser under this Agreement.
AND NOW IT IS HEREBY AGREED as follows
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, unless otherwise expressed or required by context, the following expressions shall have the respective meanings set opposite thereto :-
Expression Meaning ---------- ------- "Accounts" means the audited profit and loss accounts for the period ended on and the balance sheet as at the Accounts Date of the Company; "Accounts Date" means 31 December 2006; "Approval" have the meaning ascribed to it in Clause 2.1(b) hereof; "Business Day" means a day, other than a "general holiday" (as defined in the General Holidays Ordinance (Chapter 149 of the Laws of Hong Kong)), Saturday and any day on which a tropical cyclone warning No. 8 or above is hoisted or remains hoisted between 9:00 a.m. and 12:00 noon and is not lowered at or before 12:00 noon or on which a "black" rainstorm warning signal is hoisted or remains in effect between 9:00 a.m. and 12:00 noon and is not discontinued at or before 12:00 noon, on which commercial banks are generally |
open for banking business in Hong Kong; "Completion Accounts" means the profit and loss accounts for the period ended on and the balance sheet as at the Completion Date of the Company; "Completion Date" means the date on which completion of the sale and purchase of the Sale Shares takes place as mentioned in Clause 4 hereof; "Consideration" has the meaning ascribed to it in Clause 3 hereof; "Deposit" has the meaning ascribed to it in Clause 3.2(a) hereof; "Disclosure Letter" means the disclosure letter from the Vendor to the Purchaser to be delivered at Completion in the form identical to that attached hereto as Schedule 3 hereto or with lesser disclosures; "Hong Kong" means the Hong Kong Special Administrative Region of the People's Republic of China; "Liabilities" means the total liabilities of the Company whether actual or contingent as at Completion, and for the avoidance of doubt, including all provisions for taxation and bad debts; "NAV" means the Tangible Assets less the Liabilities; "Shares" means issued ordinary shares of HK$100 each in the capital of the Company, and "Shareholders" shall be construed accordingly; "SFC" means the Securities and Futures Commission; "SFO" means the Securities and Futures Ordinance (Chapter 571 of the laws of Hong Kong); |
"Stock Exchange" The Stock Exchange of Hong Kong Limited; "Tangible Assets" means the total tangible assets of the Company as at Completion, including an amount of HK$794,157.41 due from Mr. Cheung Wing Cheung as at 1 August 2007 to the Company to be accepted by the Parties as accounts receivable without any provision for non-recovery; "Vendor's Solicitors" means F. Zimmern & Co; and "HK$" and "Cent" means Hong Kong Dollars and Cents respectively. |
1.2 The headings to the Clauses of this Agreement are for ease of reference only and shall be ignored in interpreting this Agreement.
1.3 Reference to Clauses and Schedules are references to Clauses and Schedules of or to this Agreement.
1.4 Words and expressions in the singular include the plural and vice versa.
1.5 Reference to person include any public body and any body of persons, corporate or unincorporated.
1.6 Reference to ordinances, statutes, legislation or enactments shall be construed as a reference to such Ordinances, statutes, legislation or enactments as may be amended or re-enacted from time to time and for the time being in force.
2. CONDITIONS PRECEDENT
2.1 Completion of this Agreement shall be conditional upon :-
(a) the Company remains a licensed corporation to engage in type 1 regulated activity (dealing in securities) under the SFO up to Completion;
(b) the SFC giving its written approval to approve the Purchaser to become a substantial shareholder of the Company (the "APPROVAL"); and
(c) the Purchaser shall, in addition to the Sale Shares to be acquired pursuant hereto, acquire on the Completion Date Shares from other existing Shareholders which together with the Sale Shares, shall in aggregate represent not less than 75% of the entire issued share capital of the Company as at the Completion Date.
2.2 The Vendor will use her best endeavours to procure the fulfilment of the condition set out in Clauses 2.1 (a) and 2.1(c) hereof and the Purchaser will use its best endeavours to procure the fulfilment of the condition set out in Clause 2.1(b) hereof.
2.3 If (i) the condition as set out in Clause 2.1(a) hereof cannot be fulfilled on the Completion Date, the Vendor or the Purchaser may, or (ii) the condition as set out in Clause 2.1(c) hereof cannot be fulfilled on the Completion Date, the Purchaser may terminate this Agreement. In any of such event, the Deposit shall be returned to the Purchaser in full together with interest calculated at the rate of three (3) per cent. per annum from the date of payment of the Deposit by the Purchaser up to the date of refund. Upon the refund, this Agreement shall lapse and no Party shall have any claim against the other Party except in respect of any antecedent breach.
2.4 If the condition as set out in Clause 2.1(b) hereof cannot be fulfilled on or before 31 December 2007 (the "CONDITIONS DEADLINE"), the Vendor will allow the Purchaser to extend the Conditions Deadline for a period up to three (3) calendar months from 1 January 2008 (the "EXTENDED PERIOD") provided that the Purchaser shall pay compensation (the "COMPENSATION") to the Vendor, unless the delay is due to the proven default of the Vendor, to be arrived at by the following formula :-
C = [(HK$3 * S) * 3] * D/91
C = the total Compensation payable by the Purchaser to the Vendor S = the number of the Sale Shares D = the number of days from 1 January 2008 up to and including (i)
the Completion Date; or (ii) the day of the receipt of the Notice
(as defined below) by the Vendor; or (iii) 31 March 2008, as the
case may be, to be determined in the manner as provided in Clauses
2.5 (a) and (b)
The Purchaser may serve a written notice to the Vendor not to proceed with the Completion (the "NOTICE") during the Extended Period.
2.5 (a) In the event that Completion takes place before the expiry of the Extended Period, the Purchaser shall pay the Compensation calculated up to the Completion Date to the Vendor on the Completion Date. (b) In the event that the Purchaser shall fail to complete the purchase of the Sale Shares in accordance with the terms of this Agreement (including failure to complete by reason of the failure to obtain the Approval) other than due to the proven default of the Vendor, half of the Deposit shall be forfeited to the Vendor as liquidated damages (the "FORFEITURE") and in addition, if the Conditions Deadline is extended, the Vendor shall also be entitled to deduct the Compensation (calculated up to the day of the receipt of the Notice by the Vendor if the Notice is served by the Purchaser or calculated up to 31 March 2008 if no Notice is served by the Purchaser) from the balance of the Deposit (the "DEDUCTION"). The remaining balance of the Deposit (after the Forfeiture and any Deduction) shall be returned to the Purchaser without interest within seven (7) days from the date of the receipt of the Notice by the Vendor or 31 March 2008, as the case may be. After the Forfeiture and any Deduction, the Vendor shall have no claim whatsoever against the Purchaser under this Agreement. |
2.6 If the Vendor shall fail to complete the sale of the Sale Shares in accordance with the terms of this Agreement due to the proven default of the Vendor, the Deposit shall be returned to the Purchaser in full together with interest calculated at the rate of three (3) per cent. per annum from the date of payment of the Deposit by the Purchaser up to the date of refund. Subject to the aforesaid payment, the Purchaser shall have no claim whatsoever against the Vendor under this Agreement.
3. SALE AND PURCHASE OF THE SALE SHARES AND THE CONSIDERATION
3.1 Subject to the terms and conditions of this Agreement, the Vendor as beneficial owner hereby agrees to sell to the Purchaser and the Purchaser, relying on the representations and warranties made or given by the Vendor and subject to the terms and conditions contained in this Agreement, agree to purchase from the Vendor the Sale Shares free from all claims, charges, liens, encumbrances, equities and third party rights and together with all rights attached thereto and all dividends and distributions declared, paid or made in respect thereof after the Completion Date at a consideration (the "CONSIDERATION") to be arrived at by the following formula :-
C = P * S
C = the total consideration payable by the Purchaser to the Vendor for the Sale Shares
P = the price per Share based on the NAV as at the Completion Date plus a premium of HK$15 per Share (which is to reflect the value of the trading right held by the Company in the Stock Exchange)
S = the number of Sale Shares
3.2 Subject to Clause 3.3 hereof, the Consideration shall be paid by the Purchaser to the Vendor as follows:-
(a) a sum of HK$200,000 (i.e. HK$50 per Sale Share) as deposit and part payment of the Consideration (the "DEPOSIT") to be paid on the signing of this Agreement by way of delivering a solicitor's cheque to the Vendor's Solicitors as stakeholder to be held by it subject to the provisions of this Agreement and the sum of HK$1,000,000 being the earnest money already paid by the Purchaser to the Purchaser's Solicitors as stakeholder under the term sheet dated 25 July 2007 be released to the Purchaser after payment of the Deposit; and
(b) the balance of the Consideration to be paid on Completion by way of a solicitor's cheque to the Vendor.
3.3 (a) The Vendor shall procure that the draft pro-forma Completion Accounts (the "DRAFT PRO-FORMA COMPLETION ACCOUNTS") be drawn up and delivered to the Purchaser not less than six (6) days prior to the Completion Date. Completion shall take place on the basis of the draft pro-forma Completion Accounts. (b) After Completion, the Vendor shall procure the final Completion Accounts (the "FINAL COMPLETION ACCOUNTS") be drawn up and delivered to the Purchaser within fourteen (14) days after the Completion Date. Subject to Clause 3.3(d), if the final Completion Accounts shall show that the NAV per Share is less than the NAV per Share as shown in the draft pro-forma Completion Accounts, the Vendor shall pay the amount of the difference of the NAV per Share multiplied by the number of the Sale Shares to the Purchaser within ten (10) days from the date of delivery of the final Completion Accounts by way of solicitor's cheque. If the final Completion Accounts shall show that the NAV per Share is more than the NAV per Share as shown in the draft pro-forma Completion Accounts, the Purchaser shall pay the amount of the difference of the NAV per Share multiplied by the number of the Sale Shares to the Vendor within ten (10) days from the date of delivery of the final Completion Accounts by way of solicitor's cheque. The Purchaser shall provide with the Vendor full access to the books, records and resources of the Company so as to enable the Vendor to procure the final Completion Accounts to be drawn up. (c) The basis and policy of accounting adopted in preparing the pro-forma draft Completion Accounts and the final Completion Accounts shall be in accordance with the generally accepted accounting practices in Hong Kong. (d) In the event of a dispute between the Parties as to the amount of the NAV as shown in the final Completion Accounts, the Vendor or the Purchaser may procure that the final Completion Accounts be audited by the auditors of the Company within forty-five (45) days from the date of delivery of the final Completion Accounts provided that the procurement of the audited final Completion Accounts shall be made by the relevant Party within seven (7) days from the date of delivery of |
the final Completion Accounts.
(e) If the audited Completion Accounts shall show that the NAV per Share is less than the NAV per Share as shown in the draft pro-forma Completion Accounts, the Vendor shall pay the amount of the difference of the NAV per Share multiplied by the number of the Sale Shares to the Purchaser within seven (7) days from the date of delivery of the audited Completion Accounts by way of solicitor's cheque. If the audited Completion Accounts shall show that the NAV per Share is more than the NAV per Share as shown in the draft pro-forma Completion Accounts, the Purchaser shall pay the amount of the difference of the NAV per Share multiplied by the number of the Sale Shares to the Vendor within seven (7) days from the date of delivery of the audited Completion Accounts by way of solicitor's cheque. The Vendor together with the other vendors of the one part and the Purchaser of the other part shall each be responsible for payment of 50% of the cost and expenses for the preparation and completion of the audited Completion Accounts.
4. COMPLETION
4.1 Subject to the provisions in Clause 2 hereof, completion of the sale and purchase of the Sale Shares shall take place at the offices of Arculli Fong & Ng (the "PURCHASER'S SOLICITORS"), the Solicitors for the Purchaser, at 908 Hutchison House, Central, Hong Kong or any other place as the Parties may agree at 5:00 p.m. on a Friday of the week immediately following the week when the Approval is granted by the SFC, when the following business shall simultaneously be transacted :-
(a) the Purchaser shall deliver to the Vendor the following :-
(i) a solicitor's cheque for payment of the balance of the Consideration and the Vendor's Solicitors will release the Deposit to the Vendor; and
(ii) a certified copy of each of the minutes of the board of directors of the Purchaser and the Guarantor approving this
Agreement and authorizing/confirming the authorization of an authorised person for signing of this Agreement and (for the Purchaser) the bought note and the instrument of transfer and any other incidental documents hereof;
(b) the Vendor shall deliver to the Purchaser the following :-
(i) sold notes and instrument of transfer in favour of the Purchaser in respect of the Sale Shares all executed by the Vendor in accordance with the Stamp Duty Ordinance;
(ii) original share certificate(s) or re-issued share certificate(s) in respect of the Sale Shares;
(iii)such other documents as may be reasonably required to give a good and effective transfer of title to the Sale Shares to the Purchaser and to enable them to become the registered holders thereof;
(iv) a cheque drawn in favour of the Government of the Hong Kong Special Administrative Region for an amount equivalent to the stamp duty payable under the Stamp Duty Ordinance in respect of the sold notes in respect of the Sale Shares;
(v) a certified copy of the minutes of the board of directors of the Vendor (if the Vendor is a corporate) approving the sale of the Sale Shares and authorizing/confirming the authorization of an authorised person for signing of this Agreement and the sold note and the instrument of transfer and any other incidental documents hereof;
(vi) to the extent that the same are not already in the possession of the Company or its agents, the certificate of incorporation, business registration certificate, common seal of the Company, all copies of memorandum and articles of association of the Company, the statutory books of the Company duly made up to date, any unissued share
certificates, all current insurance policies, books and accounts and other records, cheque books, title deeds and evidence of ownership to all assets of the Company and all current contracts;
(vii) an original of the Disclosure Letter duly executed by the Vendor in the form identical to that attached as Schedule 3 hereto or with lesser disclosures;
(c) the Vendor shall cause a meeting of the board of directors of the Company to be held at which resolutions shall be passed to :-
(i) approve the transfer of the Sale Shares;
(ii) register (subject to stamping) the transfer of the Sale Shares referred to above and to issue new certificate(s) for the Sale Shares in the name(s) of the Purchaser;
(iii) appoint one person as the Purchaser may nominate as the Chairman of the Company and such person(s) as the Purchaser may nominate as director(s) of the Company and (subject to the approval of the SFC) one person as the Purchaser may nominate as the Responsible Officer of the Company all to take effect from the close of business of the said meeting if so required by the Purchaser; and
(iv) amend all banking authorisations, instructions and mandates of the Company in such manner as the Purchaser may direct; and
(d) the Purchaser shall :-
(i) produce for inspection by the Vendor the bought notes in respect of the Sale Shares executed by the Purchaser in compliance with the Stamp Duty Ordinance; and
(ii) procure the stamping of the bought and sold notes and the instrument of transfer in respect of the Sale Shares as soon
as practicable thereafter and present the said instrument of transfer together with the share certificate(s) in respect of the Sale Shares to the Company for registration of the transfer.
4.2 The transactions described in Clause 4.1 hereof shall take place at the same time, so that in default of the performance of any such transactions by a Party, the other Party shall not be obliged to complete the sale and purchase aforesaid.
5. REPRESENTATIONS AND WARRANTIES AND GUARANTEE
5.1 Save as disclosed in the Disclosure Letter and documents and information provided to the Purchaser and/or its advisors, the Vendor hereby represents and warrants to the Purchaser that each of the matters set out in Schedule 2 are as at the date hereof and will be for all times up to and including the Completion Date, true and correct in all material respects.
5.2 From the date of this Agreement until the Completion Date the Vendor shall use her best endeavours to procure that (save with the prior consent in writing or of the Purchaser, such consent not to be unreasonably withheld or delayed) the Company shall not :-
(a) issue or agree to issue any of its share or loan capital or grant or agree to grant any option over or right to acquire any of its share or loan capital;
(b) enter into any contract (otherwise than in the ordinary course of business) or any capital commitment;
(c) create or permit to arise any lien, charge, pledge, mortgage or other security interest on or in respect of any of its undertaking, property or assets;
(d) appoint any directors other than as provided in this Agreement; or
(e) increase the remuneration of its employees (save as payment of discretionary bonus and save that the increase is made pursuant to the
relevant employment contract)
and the Vendor shall use her best endeavours to procure that the Purchaser be kept regularly informed of the affairs of the Company until the Completion Date.
5.3 The liability of the Vendor in respect of any breach of the warranties or representations as set out in Schedule 2 shall be limited as follows:-
(a) the maximum liability of the Vendor, if any, under this Agreement shall be 25% of the Consideration;
(b) no claims may be brought against the Vendor in respect of any claim of damages for breach of warranty(ies) or representation(s) as set out in Schedule 2 after the expiry of six months from the Completion Date.
5.4 In consideration of the Vendor agreeing to enter into this Agreement, the Guarantor (as principal obligor and not merely as surety) unconditionally and irrevocably guarantees performance by the Purchaser of all its obligations and liabilities under or arising out of or in connection with this Agreement (referred to herein as the "GUARANTEED OBLIGATIONS") and undertakes to the Vendor that if and whenever the Purchaser is in default, the Guarantor shall duly and promptly perform or procure such performance of the Guaranteed Obligations and indemnify the Vendor against any loss, damage, costs, expenses and liabilities that she may suffer in connection with or arising out of any such failure on the part of the Purchaser.
6. SEVERABILITY
If at any time any one or more provisions hereof is or becomes invalid, illegal, unenforceable or incapable of performance in any respect, the validity, legality, enforceability or performance of the remaining provisions hereof shall not thereby in any way be affected or impaired.
7. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement and understanding between
the Parties in connection with the subject-matter of this Agreement and supersedes all previous proposals, representations, warranties, agreements or undertakings relating thereto whether oral, written or otherwise and none of the Parties has relied on any such proposals, representations, warranties, agreements or undertakings.
8. TIME
8.1 Time shall be of the essence of this Agreement.
8.2 No time or indulgence given by any Party to the other Party shall be deemed or in any way be construed as a waiver of any of her/its rights and remedies hereunder.
9. CONFIDENTIALITY
Other than such disclosure as may be required by law, the SFC, the Stock Exchange or other competent authority, neither of the parties hereto shall make any announcement or release or disclose any information concerning this Agreement or the transactions herein referred to or disclose the identity of the other party(ies) hereto (save disclosure to their respective professional advisers under a duty of confidentiality) without the written consent of the other parties hereto.
10. ASSIGNMENT
This Agreement shall be binding on and shall enure for the benefits of the successors and assigns of the Parties but shall not be assigned by any party hereto without the prior written consent of the other parties hereto.
11. NOTICES AND OTHER COMMUNICATION
11.1 Any notice or other communication to be given under this Agreement shall be in writing and may be given by hand, by post or facsimile to the following
address/number of the party hereto to be served or to such other address/number as shall be notified by such party to the other in writing
:- The Vendor Address : House 6, Capital Garden, Lot 253, DD223, Ta Ku Ling San Chuer, Clear Water Bay, Kowloon, Hong Kong Facsimile no. : 852-2724 0616 The Purchaser Address : Room 908, 9th floor, Hutchison House, 10 Harcourt Road, Central, Hong Kong Attention : Mr. Jun Wang Facsimile no. : 8610-5832 5200 The Guarantor Address : Room 908, 9th floor, Hutchison House, 10 Harcourt Road, Central, Hong Kong Attention : Mr. Jun Wang Facsimile no. : 8610-5832 5200 |
11.2 Any such notice or communication shall be sent to the party hereto to whom it is addressed and must contain sufficient reference and/or particulars to render it readily identifiable with the subject-matter of this Agreement. If so given by hand or facsimile, such notice or communication shall be deemed received on the date of despatch and if so sent by post (or, if sent to an address outside of Hong Kong, so sent by first class air-mail) shall be deemed received two (2) Business Days after the date of despatch (in case to an address in Hong Kong) or five (5) Business Days after the date of despatch (in case to an address outside of Hong Kong).
12. COSTS AND EXPENSES
Each party hereto shall bear her/its own legal and professional fees, costs and expenses incurred in the negotiation, preparation and execution of this Agreement. The stamp duty in respect of the Sale Shares shall be borne by the Vendor and the Purchaser in equal shares.
13. COUNTERPARTS
This Agreement may be executed in any number of counterparts each of which when executed and delivered is an original, but all the counterparts together constitute the same document.
14. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of Hong Kong and the parties hereto agree to submit to the non-exclusive jurisdiction of the courts of Hong Kong.
15. PROCESS AGENT
The Purchaser hereby irrevocably authorizes and appoints the Purchaser's Solicitors (or such other person(s), being resident in Hong Kong, as it may from time to time appoint as its agent(s) and notify to the Vendor) to accept service of all legal process arising out or in connection with this Agreement and service on the Purchaser's Solicitors (or such substitute(s)) shall be deemed to be service on the Purchaser.
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IN WITNESS whereof the Parties have executed this Agreement the day and year first above written.
SIGNED by Mrs. Wong ) Chan Miu-wan, Stella ) in the presence of :- ) ) ) SIGNED by Mr. Jun Wang ) (Chinese Characters), the lawful attorney ) for and on behalf of FNG ) International Holdings ) Limited in the presence of :- ) SIGNED by Mr. Jun Wang ) (Chinese Characters), the lawful attorney ) for and on behalf of China ) Finance Online Co. Limited ) in the presence of :- ) |
SCHEDULE 1
PARTICULARS OF THE COMPANY
1. Name : Daily Growth Investment Company Limited (Chinese Characters) 2. Registered office : Room 603, Peter Building, 58-62 Queen's Road, Central, Hong Kong. 3. Company Number : 025436 4. Date of Incorporation : 6 October 1971 5. Place of Incorporation : Hong Kong 6. Authorised share capital : HK$10,000,000 divided into 100,000 ordinary shares of HK$100 each 7. Issued and paid up capital : HK$10,000,000 divided into 100,000 ordinary shares of HK$100 each 8. Directors : TING WANG Wan-sun, Nancy WAI CHAN Ye, Kannie WAI Heung-wah, Hayles YEH WANG Zung-sing, Helen WONG Long-sau, Ivis 9. Secretary : Hang Cheuk Secretaries Limited 10 Auditors : J Kong & Co. 11. Financial year end : 31 December |
SCHEDULE 2
REPRESENTATIONS AND WARRANTIES
General; Corporate Status
1.1 All information regarding the Company provided by or on behalf of the Vendor and/or the Company to the Purchaser is complete, correct and true in a material respect.
1.2 The Company has been duly incorporated and constituted, and is legally subsisting under the laws of its place of incorporation, and there has been no resolution, petition or order for the winding-up of the Company and no receiver has been appointed in respect thereof, nor are any such resolutions, orders and appointments imminent or likely.
Shareholdings and Share Capital etc.
2.1 The Sale Shares comprise a percentage (as referred to in Recital (B)) of the issued share capital of the Company, and there are not in issue any other shares, debentures, warrants, options or securities.
2.2 The Company is not under any contract, options, warrants or any other obligations regarding any part of its capital, issued or unissued, or for the issue of any shares, debentures, warrants, options, or other similar securities.
2.3 Save as disclosed in the Disclosure Letter, the Vendor has acquired the Shares in compliance with the articles of association of the Company and the laws under the Companies Ordinance and is the beneficial owner of the Sale Shares free from all liens, charges, pledges, options, contracts, preemption rights, third party rights and equities, and incumbrances of whatever nature and the same are freely transferable by the Vendor without the consent, approval, permission, licence or concurrence of any third party.
2.4 The Vendor is fully capable of entering into this Agreement and to perform all
obligations and duties hereunder without the consent, approval, permission, licence or concurrence of any third party.
Business etc.
3.1 The principal business activity of the Company is security trading.
3.2 In respect of the said business being carried on, all qualifications, registrations, licences or other approvals necessary for the proper conduct of business have been obtained and maintained and to the knowledge of the Vendor, all the relevant rules and regulations of the SFC and the Stock Exchange applicable to the Company have been observed and complied with in a material respect and no event has occurred whereby any of the same or the renewal thereof is or likely to be thereby adversely affected, suspended or revoked.
Accounts
4.1 The Accounts have been prepared in accordance with generally accepted accounting practice in Hong Kong and comply with the Companies Ordinance, and show a true and fair view of the affairs and financial position of the Company as at, and the profits and loss of the Company for the period ended on, the Accounts Date.
4.2 All accounting records of the Company for the past seven (7) years are in the possession of the Company and have been properly written up, kept and maintained in accordance with generally accepted accounting practice and together shows a true and fair view of the affairs and financial position of the Company.
Taxation
5.1 The Company has paid all taxes, duties and levies as the same became due and payable and to the knowledge of the Vendor, the Company is not nor is likely to be subject to any tax penalties.
5.2 The Company has complied with the Inland Revenue Ordinance and has kept proper records for tax purposes for the past seven (7) years and have filed all tax returns, and to the knowledge of the Vendor, there is no pending dispute with the Inland Revenue Department.
Dispute, Claims and Litigation
6. There is no claim, arbitration or litigation to which the Company is a party or which, to the knowledge of the Vendor, is pending or threatened.
Repetition at Completion
7. All warranties and representations contained in the foregoing provisions of this Schedule shall be deemed to be repeated immediately before completion of this Agreement and to relate to the facts then existing.
SCHEDULE 3
FORM OF DISCLOSURE LETTER
[DATE]
FNG INTERNATIONAL HOLDINGS LIMITED
Trident Chambers, P.O. Box 146,
Road Town, Tortola, British Virgin Islands
Dear Sirs,
DISCLOSURE LETTER
This is the Disclosure Letter referred to in the Sale and Purchase Agreement dated [DATE] and entered into by and between Wong Chan Miu-wan, Stella, FNG International Holdings Limited and China Finance Online Co. Limited (the "Agreement"). Capitalized terms appearing in this letter shall adopt the same meaning as defined in the Agreement.
A. GENERAL DISCLOSURES
The following matters are deemed to be disclosed by this letter:
1. AGREEMENT: All matters set out or referred to in the Agreement, including, without limitation, all schedules and documents annexed thereto and any other agreements entered into pursuant to, or contemplated by, the Agreement.
2. COMPANIES REGISTRY: All matters registered against, or which would be disclosed by a search made in respect of the Company at the Companies Registry in Hong Kong.
3. ACCOUNTS: All matters disclosed, provided for, noted or referred to in the audited accounts of the Company which have been provided to the Purchaser.
4. INSPECTION: All matters which have or ought reasonably to have, been disclosed by inspection of the statutory books, books of account and business records of
the Company, all of which have been made available to the Purchaser and/or its advisers for inspection.
5. OTHERS MATTERS DISCLOSED: All matters set out or referred to in any letter, note, schedule or other document from or provided by the Vendor, the Company and/or their advisers and/or agents to the Purchaser and/or its advisers and/or agents in connection with the sale and purchase of the Sale Shares. Where any such letter, note, schedule or other document includes an expression of opinion, no representation or warranty is given as to its accuracy.
B. SPECIFIC DISCLOSURE
We write to disclose the following and the paragraph numbers used below correspond to the representations and warranties as set out in Schedule 2 to the Agreement:
Paragraphs 1.1 and 2.3
The following documents cannot be found in the company kit of the Company or located by the Vendor or are incomplete. As such, no representation and warranty will be made on these missing or incomplete documents :-
1. Original corporate documents from the date of incorporation to the year of 1987;
2. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 1 share from Helen Zung Sing Yeh to Shun Kin Enterprises Limited on 20th February 1987;
3. Original cancelled share certificate in the names of Helen Zung Sing Yeh and Shun Kin Enterprises Limited;
4. Original Application for 42,300 shares made on 24th February 1987 - 8 sets;
5. Original share certificates in respect of the allotment made on 24th February 1987;
6. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 5,000 shares from Mr. Basil D.C. Wood to Mrs. Nancy Ting on 26th April 1988;
7. Original share certificates in respect of the transfer made on 26th April 1988;
8. Original transfer documents (including instruments of transfer and bought and sold notes) in respect of the transfer of 20,525 shares in respect of the following transfer:
Mr. Basil D.C. Wood to Midopa Enterprises Limited - 7,610 shares on
21.7.1988
Mrs. Wendy Wood to Midopa Enterprises Limited - 1,694 shares on 21.7.1988
Mr. Hsu Zing Ping to Midopa Enterprises Limited - 3,196 shares on 21.7.1988
Mr. Hsu Zing Ping to Billion System Co., Limited - 2,500 shares on 21.7.1988
Mr. Hsu Zing Ping to Mrs. Wang Zau Chin Ngo - 240 shares on 21.7.1988
Mr. Hsu Zing Ping to Eternal Growth Investment Ltd. - 525 shares on 21.7.1988
Mr. Koo Kam Kang to Eternal Growth Investment Ltd. - 4,760 shares on 21.7.1988
9. Original share certificates in respect of the transfer made on 21.7.1988;
10. Original transfer documents (including instruments of transfer and bought and sold notes) in respect of the transfer of 7,715 shares in respect of the following transfer:
Ms. Nancy Ting to Ho Chi Kuen Bernard - 2,000 shares on 29.7.1988
Ms. Nancy Ting to Billion System Co., Ltd. - 2,500 shares on 29.7.1988
Ms. Nancy Ting to Stella Wong - 545 shares on 29.7.1988
Shun Kin Ent. Ltd. to Stella Wong - 195 shares on 29.7.1988
Eileen Hwa to Stella Wong - 260 shares on 29.7.1988
Ms. Nancy Ting to Eternal Growth Inv. Ltd. - 2,215 shares on 29.7.1988
11. Original share certificates in respect of the transfer made on 29.7.1988
12. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 2,000 shares in respect of the transfer from Eileen Hwa to Wong Oi Lun, Ellen on 17.3.1989;
13. Original share certificates in respect of the transfer made on 17.3.1989;
14. Form X(ii) or Form (IXA) showing the resignation of Ms. Stella Wong as the director of the Company made on 1.4.1989;
15. Original transfer documents (including instruments of transfer and bought and sold notes) in respect of the transfer of 2,000 shares in respect of the following transfer:
Wong Oi Lun Ellen to Stella Wong - 1,000 shares on 31.5.1990
Wong Oi Lun Ellen to Tsang Kin Woo - 500 shares on 31.5.1990
Wong Oi Lun Ellen to Chu Ping Im - 500 shares on 31.5.1990
16. Original share certificates in respect of the transfer made on 31.5.1990
17. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 2,000 shares in respect of the following transfer:
Bernard Ho to Zone Bo Ltd. - 2,000 shares on 19.7.1990
18. Original share certificates in respect of the transfer made on 19.7.1990
19. Copy of Consent to act as director of the Company by Mr. Yap E. Hock on
9.12.1992
20. A letter dated 10th October 1994, from King Cause Limited and Asian Capital Partners (HK) Limited reporting that 10 share certificates for 50,000 shares have been mislaid and requesting 2 share certificates be issued to them
21. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 50,000 shares in respect of the following transfer:
King Cause Ltd.to Billion System Co. Ltd.- 5,000 shares on 12.12.1994;
King Cause Ltd. to Eternal Growth Investment Ltd.- 7,500 shares on 12.12.1994;
King Cause Ltd. to Midpoa Enterprises Limited- 12,500 shares on 12.12.1994;
King Cause Ltd. to Shun Kin Ent. Limited- 17,500 shares on 12.12.1994;
King Cause Ltd. to Wang Zau Chin Ngo- 2,500 shares on 12.12.1994;
King Cause Ltd. to Tsang Kin Woo- 499 shares on 12.12.1994;
King Cause Ltd. to Chu Ping Im - 500 shares on 12.12.1994
King Cause Ltd. to Stella Wong- 2,000 shares on 12.12.1994;
King Cause Ltd. to Zone Bo Limited- 2,000 shares on 12.12.1994;
King Cause Ltd. and Asian Capital Partners (HK) Limited to Tsang Kin Woo- 1 share on 12.12.1994;
22. Original share certificates in respect of the transfer made on 12.12.1994;
23. Original Declaration of Trust given by King Cause Limited and Asian Capital Partners (HK) Limited on 9.12.1992;
24. Copy of Form D2 and Consent to act reporting the appointment of Mr. Ho Chi Kuen as the director of the company;
25. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 5,000 shares in respect of the following transfer:
Billion System Co. Ltd. to Zone Bo Ltd.- 500 shares on 15.12.2000;
Billion System Co. Ltd. to Eternal Growth Inv. Ltd.- 500 shares on 15.12.2000;
Billion System Co. Ltd. to Midopa Enterprises Ltd.- 1,250 shares on 15.12.2000;
Billion System Co. Ltd. to Shun Kin Enterprises Ltd.- 1,750 shares on 15.12.2000;
Billion System Co. Ltd. to Tsang Kin Woo- 500 shares on 15.12.2000;
Billion System Co. Ltd. to Chu Ping Im- 500 shares on 15.12.2000;
26. Original share certificates in respect of the transfer made on 15.12.2000;
27. Original Share Certificate of Wang William;
28. Original Board Minutes for approving the share transfer from Zone Bo Limited to Hung Yung made on 22.06.2007;
29. Share Certificate of Hung Yung in respect of 5,000 shares;
30. Original Consent to Short Notice dated 16.03.1987 - Elieen Hwa Wang Vung Sing (with the signature of Elieen missing); and
31. Original Consent to Short Notice for 2005 AGM dated 30.05.2005 (missing signatures from Midopa Enterprises Limited, Wong Chan Miu Wan Stella, Chu Ping Im, Tsang Kin Woo).
Yours sincerely,
Exhibit 4.54
DATED THE _____ DAY OF ____, 2007
SHUN KIN ENTERPRISES LIMITED
and
FNG INTERNATIONAL HOLDINGS LIMITED
and
CHINA FINANCE ONLINE CO. LIMITED
AGREEMENT
for the sale and purchase
of shares in
Daily Growth Investment Company Limited
(Chinese Characters)
F. ZIMMERN & CO.
Solicitors & Notaries
Suites 1501-1503, 15th Floor, Gloucester Tower, The Landmark, 15 Queen's Road Central, Hong Kong Tel: (852) 2526-4373 Fax: (852) 2801-4548 Ref: AN/PC/S14/2007
THIS AGREEMENT is made on the _____________ day of __, 2007.
BETWEEN :-
1. SHUN KIN ENTERPRISES LIMITED, a company incorporated in Hong Kong whose registered office is at Hsin Chong Center, 107-109 Wai Yip Street, Kwun Tong, Kowloon, Hong Kong (the "VENDOR");
2. FNG INTERNATIONAL HOLDINGS LIMITED, a company incorporated in the British Virgin Islands whose registered address is at Trident Chambers, P.O. Box 146, Road Town, Tortola, British Virgin Islands (the "PURCHASER"); and
3. CHINA FINANCE ONLINE CO. LIMITED, a company incorporated in Hong Kong whose registered office is situate at Room 908, 9th Floor, Hutchison House, 10 Harcourt Road, Central, Hong Kong (the "GUARANTOR").
(The Vendor and the Purchaser are collectively referred to as the "PARTIES" and each as a "PARTY")
WHEREAS :-
(A) Daily Growth Investment Company Limited (Chinese Characters) (the "COMPANY") is a private limited company incorporated under the laws of Hong Kong on 6 October 1971 and has an authorised share capital of HK$10,000,000 divided into 100,000 ordinary shares of HK$100 each, of which 100,000 ordinary shares have been issued and are fully paid up. The Company is a licensed corporation to engage in type 1 regulated activity (dealing in securities) under the Securities and Futures Ordinance, Chapter 571 of the laws of Hong Kong. Particulars of the Company are set out in Schedule 1.
(B) The Vendor is the legal and beneficial owner of 29,000 issued ordinary shares of the Company, representing 29 per cent. of the entire issued share capital of the Company (the "SALE SHARES").
(C) The Vendor has agreed to sell, and the Purchaser has agreed to purchase, the
Sale Shares on the terms and conditions hereinafter appearing.
(D) The Purchaser is a wholly owned subsidiary of the Guarantor.
(E) The Guarantor has agreed to guarantee as the primary obligor for the due performance of the Purchaser under this Agreement.
AND NOW IT IS HEREBY AGREED as follows
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, unless otherwise expressed or required by context, the following expressions shall have the respective meanings set opposite thereto :-
Expression Meaning ---------- ------- "Accounts" means the audited profit and loss accounts for the period ended on and the balance sheet as at the Accounts Date of the Company; "Accounts Date" means 31 December 2006; "Approval" have the meaning ascribed to it in Clause 2.1(b) hereof; "Business Day" means a day, other than a "general holiday" (as defined in the General Holidays Ordinance (Chapter 149 of the Laws of Hong Kong)), Saturday and any day on which a tropical cyclone warning No. 8 or above is hoisted or remains hoisted between 9:00 a.m. and 12:00 noon and is not lowered at or before 12:00 noon or on which a "black" rainstorm warning signal is hoisted or remains in effect between 9:00 a.m. and 12:00 noon and is not discontinued at or before 12:00 noon, on which commercial banks are generally |
open for banking business in Hong Kong; "Completion Accounts" means the profit and loss accounts for the period ended on and the balance sheet as at the Completion Date of the Company; "Completion Date" means the date on which completion of the sale and purchase of the Sale Shares takes place as mentioned in Clause 4 hereof; "Consideration" has the meaning ascribed to it in Clause 3 hereof; "Deposit" has the meaning ascribed to it in Clause 3.2(a) hereof; "Disclosure Letter" means the disclosure letter from the Vendor to the Purchaser to be delivered at Completion in the form identical to that attached hereto as Schedule 3 hereto or with lesser disclosures; "Hong Kong" means the Hong Kong Special Administrative Region of the People's Republic of China; "Liabilities" means the total liabilities of the Company whether actual or contingent as at Completion, and for the avoidance of doubt, including all provisions for taxation and bad debts; "NAV" means the Tangible Assets less the Liabilities; "Shares" means issued ordinary shares of HK$100 each in the capital of the Company, and "Shareholders" shall be construed accordingly; "SFC" means the Securities and Futures Commission; "SFO" means the Securities and Futures Ordinance (Chapter 571 of the laws of Hong Kong); |
"Stock Exchange" The Stock Exchange of Hong Kong Limited; "Tangible Assets" means the total tangible assets of the Company as at Completion, including an amount of HK$794,157.41 due from Mr. Cheung Wing Cheung as at 1 August 2007 to the Company to be accepted by the Parties as accounts receivable without any provision for non-recovery; "Vendor's Solicitors" means F. Zimmern & Co; and "HK$" and "Cent" means Hong Kong Dollars and Cents respectively. |
1.2 The headings to the Clauses of this Agreement are for ease of reference only and shall be ignored in interpreting this Agreement.
1.3 Reference to Clauses and Schedules are references to Clauses and Schedules of or to this Agreement.
1.4 Words and expressions in the singular include the plural and vice versa.
1.5 Reference to person include any public body and any body of persons, corporate or unincorporated.
1.6 Reference to ordinances, statutes, legislation or enactments shall be construed as a reference to such Ordinances, statutes, legislation or enactments as may be amended or re-enacted from time to time and for the time being in force.
2. CONDITIONS PRECEDENT
2.1 Completion of this Agreement shall be conditional upon :-
(a) the Company remains a licensed corporation to engage in type 1 regulated activity (dealing in securities) under the SFO up to Completion;
(b) the SFC giving its written approval to approve the Purchaser to
become a substantial shareholder of the Company (the "APPROVAL"); and
(c) the Purchaser shall, in addition to the Sale Shares to be acquired pursuant hereto, acquire on the Completion Date Shares from other existing Shareholders which together with the Sale Shares, shall in aggregate represent not less than 75% of the entire issued share capital of the Company as at the Completion Date.
2.2 The Vendor will use its best endeavours to procure the fulfilment of the condition set out in Clauses 2.1 (a) and 2.1(c) hereof and the Purchaser will use its best endeavours to procure the fulfilment of the condition set out in Clause 2.1(b) hereof.
2.3 If (i) the condition as set out in Clause 2.1(a) hereof cannot be fulfilled on the Completion Date, the Vendor or the Purchaser may, or (ii) the condition as set out in Clause 2.1(c) hereof cannot be fulfilled on the Completion Date, the Purchaser may terminate this Agreement. In any of such event, the Deposit shall be returned to the Purchaser in full together with interest calculated at the rate of three (3) per cent. per annum from the date of payment of the Deposit by the Purchaser up to the date of refund. Upon the refund, this Agreement shall lapse and no Party shall have any claim against the other Party except in respect of any antecedent breach.
2.4 If the condition as set out in Clause 2.1(b) hereof cannot be fulfilled on or before 31 December 2007 (the "CONDITIONS DEADLINE"), the Vendor will allow the Purchaser to extend the Conditions Deadline for a period up to three (3) calendar months from 1 January 2008 (the "EXTENDED PERIOD") provided that the Purchaser shall pay compensation (the "COMPENSATION") to the Vendor, unless the delay is due to the proven default of the Vendor, to be arrived at by the following formula :-
C = [(HK$3 * S) * 3] * D/91
C = the total Compensation payable by the Purchaser to the Vendor
S = the number of the Sale Shares
D = the number of days from 1 January 2008 up to and including (i) the Completion Date; or (ii) the day of the receipt of the Notice
(as defined below) by the Vendor; or (iii) 31 March 2008, as the case may be, to be determined in the manner as provided in Clauses 2.5 (a) and (b)
The Purchaser may serve a written notice to the Vendor not to proceed with the Completion (the "NOTICE") during the Extended Period.
2.5 (a) In the event that Completion takes place before the expiry of the Extended Period, the Purchaser shall pay the Compensation calculated up to the Completion Date to the Vendor on the Completion Date. (b) In the event that the Purchaser shall fail to complete the purchase of the Sale Shares in accordance with the terms of this Agreement (including failure to complete by reason of the failure to obtain the Approval) other than due to the proven default of the Vendor, half of the Deposit shall be forfeited to the Vendor as liquidated damages (the "FORFEITURE") and in addition, if the Conditions Deadline is extended, the Vendor shall also be entitled to deduct the Compensation (calculated up to the day of the receipt of the Notice by the Vendor if the Notice is served by the Purchaser or calculated up to 31 March 2008 if no Notice is served by the Purchaser) from the balance of the Deposit (the "DEDUCTION"). The remaining balance of the Deposit (after the Forfeiture and any Deduction) shall be returned to the Purchaser without interest within seven (7) days from the date of the receipt of the Notice by the Vendor or 31 March 2008, as the case may be. After the Forfeiture and any Deduction, the Vendor shall have no claim whatsoever against the Purchaser under this Agreement. |
2.6 If the Vendor shall fail to complete the sale of the Sale Shares in accordance with the terms of this Agreement due to the proven default of the Vendor, the Deposit shall be returned to the Purchaser in full together with interest calculated at the rate of three (3) per cent. per annum from the date of payment of the Deposit by the Purchaser up to the date of refund. Subject to the aforesaid payment, the Purchaser shall have no claim whatsoever against the Vendor under this Agreement.
3. SALE AND PURCHASE OF THE SALE SHARES AND THE CONSIDERATION
3.1 Subject to the terms and conditions of this Agreement, the Vendor as beneficial owner hereby agrees to sell to the Purchaser and the Purchaser, relying on the representations and warranties made or given by the Vendor and subject to the terms and conditions contained in this Agreement, agree to purchase from the Vendor the Sale Shares free from all claims, charges, liens, encumbrances, equities and third party rights and together with all rights attached thereto and all dividends and distributions declared, paid or made in respect thereof after the Completion Date at a consideration (the "CONSIDERATION") to be arrived at by the following formula :-
C = P * S
C = the total consideration payable by the Purchaser to the Vendor for the Sale Shares
P = the price per Share based on the NAV as at the Completion Date plus a premium of HK$15 per Share (which is to reflect the value of the trading right held by the Company in the Stock Exchange)
S = the number of Sale Shares
3.2 Subject to Clause 3.3 hereof, the Consideration shall be paid by the Purchaser to the Vendor as follows:-
(a) a sum of HK$1,450,000 (i.e. HK$50 per Sale Share) as deposit and part payment of the Consideration (the "DEPOSIT") to be paid on the signing of this Agreement by way of delivering a solicitor's cheque to the Vendor's Solicitors as stakeholder to be held by it subject to the provisions of this Agreement and the sum of HK$1,000,000 being the earnest money already paid by the Purchaser to the Purchaser's Solicitors as stakeholder under the term sheet dated 25 July 2007 be released to the Purchaser after payment of the Deposit; and
(b) the balance of the Consideration to be paid on Completion by way of a solicitor's cheque to the Vendor.
3.3 (a) The Vendor shall procure that the draft pro-forma Completion Accounts (the "DRAFT PRO-FORMA COMPLETION ACCOUNTS") be drawn up and delivered to the Purchaser not less than six (6) days prior to the Completion Date. Completion shall take place on the basis of the draft pro-forma Completion Accounts. (b) After Completion, the Vendor shall procure the final Completion Accounts (the "FINAL COMPLETION ACCOUNTS") be drawn up and delivered to the Purchaser within fourteen (14) days after the Completion Date. Subject to Clause 3.3(d), if the final Completion Accounts shall show that the NAV per Share is less than the NAV per Share as shown in the draft pro-forma Completion Accounts, the Vendor shall pay the amount of the difference of the NAV per Share multiplied by the number of the Sale Shares to the Purchaser within ten (10) days from the date of delivery of the final Completion Accounts by way of solicitor's cheque. If the final Completion Accounts shall show that the NAV per Share is more than the NAV per Share as shown in the draft pro-forma Completion Accounts, the Purchaser shall pay the amount of the difference of the NAV per Share multiplied by the number of the Sale Shares to the Vendor within ten (10) days from the date of delivery of the final Completion Accounts by way of solicitor's cheque. The Purchaser shall provide with the Vendor full access to the books, records and resources of the Company so as to enable the Vendor to procure the final Completion Accounts to be drawn up. (c) The basis and policy of accounting adopted in preparing the pro-forma draft Completion Accounts and the final Completion Accounts shall be in accordance with the generally accepted accounting practices in Hong Kong. (d) In the event of a dispute between the Parties as to the amount of the NAV as shown in the final Completion Accounts, the Vendor or the Purchaser may procure that the final Completion Accounts be audited by the auditors of the Company within forty-five (45) days from the date of delivery of the final Completion Accounts provided that the procurement of the audited final Completion Accounts shall be made by the relevant Party within seven (7) days from the date of delivery of |
the final Completion Accounts.
(e) If the audited Completion Accounts shall show that the NAV per Share is less than the NAV per Share as shown in the draft pro-forma Completion Accounts, the Vendor shall pay the amount of the difference of the NAV per Share multiplied by the number of the Sale Shares to the Purchaser within seven (7) days from the date of delivery of the audited Completion Accounts by way of solicitor's cheque. If the audited Completion Accounts shall show that the NAV per Share is more than the NAV per Share as shown in the draft pro-forma Completion Accounts, the Purchaser shall pay the amount of the difference of the NAV per Share multiplied by the number of the Sale Shares to the Vendor within seven (7) days from the date of delivery of the audited Completion Accounts by way of solicitor's cheque. The Vendor together with the other vendors of the one part and the Purchaser of the other part shall each be responsible for payment of 50% of the cost and expenses for the preparation and completion of the audited Completion Accounts.
4. COMPLETION
4.1 Subject to the provisions in Clause 2 hereof, completion of the sale and purchase of the Sale Shares shall take place at the offices of Arculli Fong & Ng (the "PURCHASER'S SOLICITORS"), the Solicitors for the Purchaser, at 908 Hutchison House, Central, Hong Kong or any other place as the Parties may agree at 5:00 p.m. on a Friday of the week immediately following the week when the Approval is granted by the SFC, when the following business shall simultaneously be transacted :-
(a) the Purchaser shall deliver to the Vendor the following :-
(i) a solicitor's cheque for payment of the balance of the Consideration and the Vendor's Solicitors will release the Deposit to the Vendor; and
(ii) a certified copy of each of the minutes of the board of directors of the Purchaser and the Guarantor approving this Agreement and authorizing/confirming the authorization of
an authorised person for signing of this Agreement and (for the Purchaser) the bought note and the instrument of transfer and any other incidental documents hereof;
(b) the Vendor shall deliver to the Purchaser the following :-
(i) sold notes and instrument of transfer in favour of the Purchaser in respect of the Sale Shares all executed by the Vendor in accordance with the Stamp Duty Ordinance;
(ii) original share certificate(s) or re-issued share certificate(s) in respect of the Sale Shares;
(iii) such other documents as may be reasonably required to give a good and effective transfer of title to the Sale Shares to the Purchaser and to enable them to become the registered holders thereof;
(iv) a cheque drawn in favour of the Government of the Hong Kong Special Administrative Region for an amount equivalent to the stamp duty payable under the Stamp Duty Ordinance in respect of the sold notes in respect of the Sale Shares;
(v) a certified copy of the minutes of the board of directors of the Vendor (if the Vendor is a corporate) approving the sale of the Sale Shares and authorizing/confirming the authorization of an authorised person for signing of this Agreement and the sold note and the instrument of transfer and any other incidental documents hereof;
(vi) to the extent that the same are not already in the possession of the Company or its agents, the certificate of incorporation, business registration certificate, common seal of the Company, all copies of memorandum and articles of association of the Company, the statutory books of the Company duly made up to date, any unissued share certificates, all current insurance policies, books and accounts
and other records, cheque books, title deeds and evidence of ownership to all assets of the Company and all current contracts;
(vii) an original of the Disclosure Letter duly executed by the Vendor in the form identical to that attached as Schedule 3 hereto or with lesser disclosures;
(c) the Vendor shall cause a meeting of the board of directors of the Company to be held at which resolutions shall be passed to :-
(i) approve the transfer of the Sale Shares;
(ii) register (subject to stamping) the transfer of the Sale Shares referred to above and to issue new certificate(s) for the Sale Shares in the name(s) of the Purchaser;
(iii) appoint one person as the Purchaser may nominate as the Chairman of the Company and such person(s) as the Purchaser may nominate as director(s) of the Company and (subject to the approval of the SFC) one person as the Purchaser may nominate as the Responsible Officer of the Company all to take effect from the close of business of the said meeting if so required by the Purchaser; and
(iv) amend all banking authorisations, instructions and mandates of the Company in such manner as the Purchaser may direct; and
(d) the Purchaser shall :-
(i) produce for inspection by the Vendor the bought notes in respect of the Sale Shares executed by the Purchaser in compliance with the Stamp Duty Ordinance; and
(ii) procure the stamping of the bought and sold notes and the instrument of transfer in respect of the Sale Shares as soon as practicable thereafter and present the said instrument of
transfer together with the share certificate(s) in respect of the Sale Shares to the Company for registration of the transfer.
4.2 The transactions described in Clause 4.1 hereof shall take place at the same time, so that in default of the performance of any such transactions by a Party, the other Party shall not be obliged to complete the sale and purchase aforesaid.
4.3 Immediately after Completion, the Purchaser and the Vendor shall enter into an option agreement in the form and substance as set out in Schedule 4 hereto.
5. REPRESENTATIONS AND WARRANTIES AND GUARANTEE
5.1 Save as disclosed in the Disclosure Letter and documents and information provided to the Purchaser and/or its advisors, the Vendor hereby represents and warrants to the Purchaser that each of the matters set out in Schedule 2 are as at the date hereof and will be for all times up to and including the Completion Date, true and correct in all material respects.
5.2 From the date of this Agreement until the Completion Date the Vendor shall use its best endeavours to procure that (save with the prior consent in writing or of the Purchaser, such consent not to be unreasonably withheld or delayed) the Company shall not :-
(a) issue or agree to issue any of its share or loan capital or grant or agree to grant any option over or right to acquire any of its share or loan capital;
(b) enter into any contract (otherwise than in the ordinary course of business) or any capital commitment;
(c) create or permit to arise any lien, charge, pledge, mortgage or other security interest on or in respect of any of its undertaking, property or assets;
(d) appoint any directors other than as provided in this Agreement; or
(e) increase the remuneration of its employees (save as payment of
discretionary bonus and save that the increase is made pursuant to the relevant employment contract)
and the Vendor shall use its best endeavours to procure that the Purchaser be kept regularly informed of the affairs of the Company until the Completion Date.
5.3 The liability of the Vendor in respect of any breach of the warranties or representations as set out in Schedule 2 shall be limited as follows:-
(a) the maximum liability of the Vendor, if any, under this Agreement shall be the amount of the Consideration;
(b) no claims may be brought against the Vendor in respect of any claim of damages for breach of warranty(ies) or representation(s) as set out in Schedule 2 after the expiry of six months from the Completion Date.
5.4 In consideration of the Vendor agreeing to enter into this Agreement, the Guarantor (as principal obligor and not merely as surety) unconditionally and irrevocably guarantees performance by the Purchaser of all its obligations and liabilities under or arising out of or in connection with this Agreement (referred to herein as the "GUARANTEED OBLIGATIONS") and undertakes to the Vendor that if and whenever the Purchaser is in default, the Guarantor shall duly and promptly perform or procure such performance of the Guaranteed Obligations and indemnify the Vendor against any loss, damage, costs, expenses and liabilities that it may suffer in connection with or arising out of any such failure on the part of the Purchaser.
6. SEVERABILITY
If at any time any one or more provisions hereof is or becomes invalid, illegal, unenforceable or incapable of performance in any respect, the validity, legality, enforceability or performance of the remaining provisions hereof shall not thereby in any way be affected or impaired.
7. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement and understanding between the Parties in connection with the subject-matter of this Agreement and
supersedes all previous proposals, representations, warranties, agreements or undertakings relating thereto whether oral, written or otherwise and none of the Parties has relied on any such proposals, representations, warranties, agreements or undertakings.
8. TIME
8.1 Time shall be of the essence of this Agreement.
8.2 No time or indulgence given by any Party to the other Party shall be deemed or in any way be construed as a waiver of any of its rights and remedies hereunder.
9. CONFIDENTIALITY
Other than such disclosure as may be required by law, the SFC, the Stock Exchange or other competent authority, neither of the parties hereto shall make any announcement or release or disclose any information concerning this Agreement or the transactions herein referred to or disclose the identity of the other party(ies) hereto (save disclosure to their respective professional advisers under a duty of confidentiality) without the written consent of the other parties hereto.
10. ASSIGNMENT
This Agreement shall be binding on and shall enure for the benefits of the successors and assigns of the Parties but shall not be assigned by any party hereto without the prior written consent of the other parties hereto.
11. NOTICES AND OTHER COMMUNICATION
11.1 Any notice or other communication to be given under this Agreement shall be in writing and may be given by hand, by post or facsimile to the following address/number of the party hereto to be served or to such other address/number as shall be notified by such party to the other in writing :-
The Vendor Address : Hsin Chong Center, 107-109 Wai Yip Street, Kwun Tong, Kowloon, Hong Kong Attention : YEH WANG Zung-sing, Helen Facsimile no. : 852-2516 6596 The Purchaser Address : Room 908, 9th floor, Hutchison House, 10 Harcourt Road, Central, Hong Kong Attention : Mr. Jun Wang Facsimile no. : 8610-5832 5200 The Guarantor Address : Room 908, 9th floor, Hutchison House, 10 Harcourt Road, Central, Hong Kong Attention : Mr. Jun Wang Facsimile no. : 8610-5832 5200 |
11.2 Any such notice or communication shall be sent to the party hereto to whom it is addressed and must contain sufficient reference and/or particulars to render it readily identifiable with the subject-matter of this Agreement. If so given by hand or facsimile, such notice or communication shall be deemed received on the date of despatch and if so sent by post (or, if sent to an address outside of Hong Kong, so sent by first class air-mail) shall be deemed received two (2) Business Days after the date of despatch (in case to an address in Hong Kong) or five (5) Business Days after the date of despatch (in case to an address outside of Hong Kong).
12. COSTS AND EXPENSES
Each party hereto shall bear its own legal and professional fees, costs and expenses incurred in the negotiation, preparation and execution of this Agreement. The stamp duty in respect of the Sale Shares shall be borne by the Vendor and the Purchaser in equal shares.
13. COUNTERPARTS
This Agreement may be executed in any number of counterparts each of which when executed and delivered is an original, but all the counterparts together constitute the same document.
14. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of Hong Kong and the parties hereto agree to submit to the non-exclusive jurisdiction of the courts of Hong Kong.
15. PROCESS AGENT
The Purchaser hereby irrevocably authorizes and appoints the Purchaser's Solicitors (or such other person(s), being resident in Hong Kong, as it may from time to time appoint as its agent(s) and notify to the Vendor) to accept service of all legal process arising out or in connection with this Agreement and service on the Purchaser's Solicitors (or such substitute(s)) shall be deemed to be service on the Purchaser.
[Remainder of this page intentionally left blank]
IN WITNESS whereof the Parties have executed this Agreement the day and year first above written.
SIGNED by ) ) a director, for and on ) behalf of Shun Kin ) Enterprises Limited ) in the presence of :- ) SIGNED by Mr. Jun Wang ) (Chinese Characters), the lawful attorney ) for and on behalf of FNG ) International Holdings ) Limited in the presence of :- ) SIGNED by Mr. Jun Wang ) (Chinese Characters), the lawful attorney ) for and on behalf of China ) Finance Online Co. Limited ) in the presence of :- ) |
SCHEDULE 1
PARTICULARS OF THE COMPANY
1. Name : Daily Growth Investment Company Limited
(Chinese Characters)
2. Registered office : Room 603, Peter Building, 58-62 Queen's Road, Central, Hong Kong.
3. Company Number : 025436
4. Date of Incorporation : 6 October 1971
5. Place of Incorporation : Hong Kong
6. Authorised share capital : HK$10,000,000 divided into 100,000 ordinary shares of HK$100 each
7. Issued and paid up capital : HK$10,000,000 divided into 100,000 ordinary shares of HK$100 each
8. Directors : TING WANG Wan-sun, Nancy WAI CHAN Ye, Kannie WAI Heung-wah, Hayles YEH WANG Zung-sing, Helen WONG Long-sau, Ivis
9. Secretary : Hang Cheuk Secretaries Limited
10 Auditors : J Kong & Co.
11. Financial year end : 31 December
SCHEDULE 2
REPRESENTATIONS AND WARRANTIES
General; Corporate Status
1.1 All information regarding the Company provided by or on behalf of the Vendor and/or the Company to the Purchaser is complete, correct and true in a material respect.
1.2 The Company has been duly incorporated and constituted, and is legally subsisting under the laws of its place of incorporation, and there has been no resolution, petition or order for the winding-up of the Company and no receiver has been appointed in respect thereof, nor are any such resolutions, orders and appointments imminent or likely.
Shareholdings and Share Capital etc.
2.1 The Sale Shares comprise a percentage (as referred to in Recital (B)) of the issued share capital of the Company, and there are not in issue any other shares, debentures, warrants, options or securities.
2.2 The Company is not under any contract, options, warrants or any other obligations regarding any part of its capital, issued or unissued, or for the issue of any shares, debentures, warrants, options, or other similar securities.
2.3 Save as disclosed in the Disclosure Letter, the Vendor has acquired the Shares in compliance with the articles of association of the Company and the laws under the Companies Ordinance and is the beneficial owner of the Sale Shares free from all liens, charges, pledges, options, contracts, preemption rights, third party rights and equities, and incumbrances of whatever nature and the same are freely transferable by the Vendor without the consent, approval, permission, licence or concurrence of any third party.
2.4 The Vendor is fully capable of entering into this Agreement and to perform all
obligations and duties hereunder without the consent, approval, permission, licence or concurrence of any third party.
Business etc.
3.1 The principal business activity of the Company is security trading.
3.2 In respect of the said business being carried on, all qualifications, registrations, licences or other approvals necessary for the proper conduct of business have been obtained and maintained and to the knowledge of the Vendor, all the relevant rules and regulations of the SFC and the Stock Exchange applicable to the Company have been observed and complied with in a material respect and no event has occurred whereby any of the same or the renewal thereof is or likely to be thereby adversely affected, suspended or revoked.
Accounts
4.1 The Accounts have been prepared in accordance with generally accepted accounting practice in Hong Kong and comply with the Companies Ordinance, and show a true and fair view of the affairs and financial position of the Company as at, and the profits and loss of the Company for the period ended on, the Accounts Date.
4.2 All accounting records of the Company for the past seven (7) years are in the possession of the Company and have been properly written up, kept and maintained in accordance with generally accepted accounting practice and together shows a true and fair view of the affairs and financial position of the Company.
Taxation
5.1 The Company has paid all taxes, duties and levies as the same became due and payable and to the knowledge of the Vendor, the Company is not nor is likely to be subject to any tax penalties.
5.2 The Company has complied with the Inland Revenue Ordinance and has kept proper records for tax purposes for the past seven (7) years and have filed all tax returns, and to the knowledge of the Vendor, there is no pending dispute with the Inland Revenue Department.
Dispute, Claims and Litigation
6. There is no claim, arbitration or litigation to which the Company is a party or which, to the knowledge of the Vendor, is pending or threatened.
Repetition at Completion
7. All warranties and representations contained in the foregoing provisions of this Schedule shall be deemed to be repeated immediately before completion of this Agreement and to relate to the facts then existing.
SCHEDULE 3
FORM OF DISCLOSURE LETTER
[DATE]
FNG INTERNATIONAL HOLDINGS LIMITED
Trident Chambers, P.O. Box 146,
Road Town, Tortola, British Virgin Islands
Dear Sirs,
DISCLOSURE LETTER
This is the Disclosure Letter referred to in the Sale and Purchase Agreement dated [DATE] and entered into by and between Shun Kin Enterprises Limited, FNG International Holdings Limited and China Finance Online Co. Limited (the "Agreement"). Capitalized terms appearing in this letter shall adopt the same meaning as defined in the Agreement.
A. GENERAL DISCLOSURES
The following matters are deemed to be disclosed by this letter:
1. AGREEMENT: All matters set out or referred to in the Agreement, including, without limitation, all schedules and documents annexed thereto and any other agreements entered into pursuant to, or contemplated by, the Agreement.
2. COMPANIES REGISTRY: All matters registered against, or which would be disclosed by a search made in respect of the Company at the Companies Registry in Hong Kong.
3. ACCOUNTS: All matters disclosed, provided for, noted or referred to in the audited accounts of the Company which have been provided to the Purchaser.
4. INSPECTION: All matters which have or ought reasonably to have, been disclosed by inspection of the statutory books, books of account and business records of
the Company, all of which have been made available to the Purchaser and/or its advisers for inspection.
5. OTHERS MATTERS DISCLOSED: All matters set out or referred to in any letter, note, schedule or other document from or provided by the Vendor, the Company and/or their advisers and/or agents to the Purchaser and/or its advisers and/or agents in connection with the sale and purchase of the Sale Shares. Where any such letter, note, schedule or other document includes an expression of opinion, no representation or warranty is given as to its accuracy.
B. SPECIFIC DISCLOSURE
We write to disclose the following and the paragraph numbers used below correspond to the representations and warranties as set out in Schedule 2 to the Agreement:
Paragraphs 1.1 and 2.3
The following documents cannot be found in the company kit of the Company or located by the Vendor or are incomplete. As such, no representation and warranty will be made on these missing or incomplete documents :-
1. Original corporate documents from the date of incorporation to the year of 1987;
2. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 1 share from Helen Zung Sing Yeh to Shun Kin Enterprises Limited on 20th February 1987;
3. Original cancelled share certificate in the names of Helen Zung Sing Yeh and Shun Kin Enterprises Limited;
4. Original Application for 42,300 shares made on 24th February 1987 - 8 sets;
5. Original share certificates in respect of the allotment made on 24th February 1987;
6. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 5,000 shares from Mr. Basil D.C. Wood to Mrs. Nancy Ting on 26th April 1988;
7. Original share certificates in respect of the transfer made on 26th April 1988;
8. Original transfer documents (including instruments of transfer and bought and sold notes) in respect of the transfer of 20,525 shares in respect of the following transfer:
Mr. Basil D.C. Wood to Midopa Enterprises Limited - 7,610 shares on
21.7.1988
Mrs. Wendy Wood to Midopa Enterprises Limited - 1,694 shares on 21.7.1988
Mr. Hsu Zing Ping to Midopa Enterprises Limited - 3,196 shares on 21.7.1988
Mr. Hsu Zing Ping to Billion System Co., Limited - 2,500 shares on 21.7.1988
Mr. Hsu Zing Ping to Mrs. Wang Zau Chin Ngo - 240 shares on 21.7.1988
Mr. Hsu Zing Ping to Eternal Growth Investment Ltd. - 525 shares on 21.7.1988
Mr. Koo Kam Kang to Eternal Growth Investment Ltd. - 4,760 shares on 21.7.1988
9. Original share certificates in respect of the transfer made on 21.7.1988;
10. Original transfer documents (including instruments of transfer and bought and sold notes) in respect of the transfer of 7,715 shares in respect of the following transfer:
Ms. Nancy Ting to Ho Chi Kuen Bernard - 2,000 shares on 29.7.1988
Ms. Nancy Ting to Billion System Co., Ltd. - 2,500 shares on 29.7.1988
Ms. Nancy Ting to Stella Wong - 545 shares on 29.7.1988
Shun Kin Ent. Ltd. to Stella Wong - 195 shares on 29.7.1988
Eileen Hwa to Stella Wong - 260 shares on 29.7.1988
Ms. Nancy Ting to Eternal Growth Inv. Ltd. - 2,215 shares on 29.7.1988
11. Original share certificates in respect of the transfer made on 29.7.1988
12. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 2,000 shares in respect of the transfer from Eileen Hwa to Wong Oi Lun, Ellen on 17.3.1989;
13. Original share certificates in respect of the transfer made on 17.3.1989;
14. Form X(ii) or Form (IXA) showing the resignation of Ms. Stella Wong as the director of the Company made on 1.4.1989;
15. Original transfer documents (including instruments of transfer and bought and sold notes) in respect of the transfer of 2,000 shares in respect of the following transfer:
Wong Oi Lun Ellen to Stella Wong - 1,000 shares on 31.5.1990
Wong Oi Lun Ellen to Tsang Kin Woo - 500 shares on 31.5.1990
Wong Oi Lun Ellen to Chu Ping Im - 500 shares on 31.5.1990
16. Original share certificates in respect of the transfer made on 31.5.1990
17. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 2,000 shares in respect of the following transfer:
Bernard Ho to Zone Bo Ltd. - 2,000 shares on 19.7.1990
18. Original share certificates in respect of the transfer made on 19.7.1990
19. Copy of Consent to act as director of the Company by Mr. Yap E. Hock on
9.12.1992
20. A letter dated 10th October 1994, from King Cause Limited and Asian Capital Partners (HK) Limited reporting that 10 share certificates for 50,000 shares have been mislaid and requesting 2 share certificates be issued to them
21. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 50,000 shares in respect of the following transfer:
King Cause Ltd.to Billion System Co. Ltd.- 5,000 shares on 12.12.1994;
King Cause Ltd. to Eternal Growth Investment Ltd.- 7,500 shares on 12.12.1994;
King Cause Ltd. to Midpoa Enterprises Limited- 12,500 shares on 12.12.1994;
King Cause Ltd. to Shun Kin Ent. Limited- 17,500 shares on 12.12.1994;
King Cause Ltd. to Wang Zau Chin Ngo- 2,500 shares on 12.12.1994;
King Cause Ltd. to Tsang Kin Woo- 499 shares on 12.12.1994;
King Cause Ltd. to Chu Ping Im - 500 shares on 12.12.1994
King Cause Ltd. to Stella Wong- 2,000 shares on 12.12.1994;
King Cause Ltd. to Zone Bo Limited- 2,000 shares on 12.12.1994;
King Cause Ltd. and Asian Capital Partners (HK) Limited to Tsang Kin Woo- 1 share on 12.12.1994;
22. Original share certificates in respect of the transfer made on 12.12.1994;
23. Original Declaration of Trust given by King Cause Limited and Asian Capital Partners (HK) Limited on 9.12.1992;
24. Copy of Form D2 and Consent to act reporting the appointment of Mr. Ho Chi Kuen as the director of the company;
25. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 5,000 shares in respect of the following transfer:
Billion System Co. Ltd. to Zone Bo Ltd.- 500 shares on 15.12.2000;
Billion System Co. Ltd. to Eternal Growth Inv. Ltd.- 500 shares on 15.12.2000;
Billion System Co. Ltd. to Midopa Enterprises Ltd.- 1,250 shares on 15.12.2000;
Billion System Co. Ltd. to Shun Kin Enterprises Ltd.- 1,750 shares on 15.12.2000;
Billion System Co. Ltd. to Tsang Kin Woo- 500 shares on 15.12.2000;
Billion System Co. Ltd. to Chu Ping Im- 500 shares on 15.12.2000;
26. Original share certificates in respect of the transfer made on 15.12.2000;
27. Original Share Certificate of Wang William;
28. Original Board Minutes for approving the share transfer from Zone Bo Limited to Hung Yung made on 22.06.2007;
29. Share Certificate of Hung Yung in respect of 5,000 shares;
30. Original Consent to Short Notice dated 16.03.1987 - Elieen Hwa Wang Vung Sing (with the signature of Elieen missing); and
31. Original Consent to Short Notice for 2005 AGM dated 30.05.2005 (missing signatures from Midopa Enterprises Limited, Wong Chan Miu Wan Stella, Chu Ping Im, Tsang Kin Woo).
Yours sincerely,
SCHEDULE 4
FORM OF OPTION AGREEMENT
THIS AGREEMENT is made the ___________ day of __, 2007
BETWEEN :-
1. SHUN KIN ENTERPRISES LIMITED, a company incorporated in Hong Kong whose registered office is at Hsin Chong Center, 107-109 Wai Yip Street, Kwun Tong, Kowloon, Hong Kong ("SHUN KIN");
2. FNG INTERNATIONAL HOLDINGS LIMITED, a company incorporated in the British Virgin Islands whose registered address is at Trident Chambers, P.O. Box 146, Road Town, Tortola, British Virgin Islands (the "PURCHASER"); and
3. CHINA FINANCE ONLINE CO. LIMITED, a company incorporated in Hong Kong whose registered office is situate at Room 908, 9th Floor, Hutchison House, 10 Harcourt Road, Central, Hong Kong (the "GUARANTOR").
(Shun Kin and the Purchaser are collectively referred to as the "PARTIES" and each as a "PARTY")
WHEREAS :-
(A) Daily Growth Investment Company Limited (Chinese Characters) (the "COMPANY") is a private limited company incorporated under the laws of Hong Kong on 6 October 1971 and has an authorised share capital of HK$10,000,000 divided into 100,000 ordinary shares of HK$100 each (the "SHARES"), of which 100,000 Shares have been issued and are fully paid up. The Company is a licensed corporation to engage in type 1 regulated activity (dealing in securities) under the Securities and Futures Ordinance, Chapter 571 of the laws of Hong Kong.
(B) By a sale and purchase agreement dated [*] 2007 entered into between Shun Kin and the Purchaser pursuant to which Shun Kin agreed to sell and the Purchaser agreed to purchase 29,000 Shares, representing 29% of the issued share capital of the Company upon and subject to the terms and conditions thereof (the "S&P AGREEMENT"). Completion of the S&P Agreement took place immediately before the signing of this Agreement.
(C) Shun Kin is now the legal and beneficial owner of 9,500 Shares, representing 9.5 per cent. of the issued share capital of the Company.
(D) The Purchaser has agreed to grant to Shun Kin a put option to require the Purchaser to purchase the Option Shares at the Put Option Price on the terms and conditions hereinafter appearing.
(E) Shun Kin has also agreed to grant to the Purchaser a call option to require Shun Kin to sell the Option Shares to the Purchaser at the Call Option Price on the terms and conditions hereinafter appearing.
NOW IT IS HEREBY AGREED as follows :-
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, unless otherwise expressed or required by context, the following words or expressions shall have the respective meanings set opposite thereto :-
"Auditors" the auditors for the time being of the Company; "Business Day" a day, other than a "general holiday" (as defined in the General Holidays Ordinance (Chapter 149 of the Laws of Hong Kong)), Saturday and any day on which a tropical cyclone warning No. 8 or above is hoisted or remains hoisted between 9:00 a.m. and 12:00 noon and is not lowered at or before 12:00 noon or on which a "black" rainstorm warning signal is hoisted or remains in effect between 9:00 a.m. and 12:00 noon and is not discontinued at or before 12:00 noon, on |
which commercial banks are generally open for banking business in Hong Kong; "Call Option" the call option to require Shun Kin to sell all the Option Shares to the Purchaser at the Call Option Price upon and subject to the terms and conditions contained herein; "Call Option Notice" the notice in the form set out in Schedule A hereto; "Call Option Price" a price equal to 20% above the Put Option Price; "Hong Kong" the Hong Kong Special Administrative Region of the People's Republic of China; "Net Asset Value" subject to Clause 3.4, has the meaning ascribed to it in Clause 3.3; "Option Completion Date" the date when completion of the sale and purchase of the Option Shares shall take place pursuant to Clause 4; "Option Period" the period of five (5) years commencing on the date hereof; "Option Shares" 9,500 Shares now beneficially owned by Shun Kin, and all other shares (if any) in the issued share capital of the Company resulting from any sub-division, consolidation or re-classification of such shares in the Company and further or additional shares in the Company hereinafter acquired by Shun Kin pursuant to a capitalisation issue; "Original Price" the price per Share based on the NAV as at the Completion Date (both as defined in the S&P Agreement) plus a premium of HK$15 per Share; |
"Put Option" the put option to require the purchase by the Purchaser of all the Option Shares from Shun Kin at the Put Option Price upon and subject to the terms and conditions contained herein; "Put Option Notice" the notice in the form set out in Schedule B hereto; "Put Option Price" a price equal to the higher of (i) the Original Price or (ii) the price per Share based on the Net Asset Value of the Company (subject to any adjustment provided in Clause 3.4), plus a premium of HK$15 per Share; "Relevant Event" (i) Any variation in the share capital of the Company arising from any reduction, sub-division or consolidation of share capital or the issue of any share capital (including any securities convertible into share capital or warrants or options to subscribe for any share capital) by way of capitalisation of profits or reserves or in connection with an offer made pro rata to shareholders of the Company; or (ii) Any distribution of the Company's capital assets to shareholders of the Company pro rata, whether in cash or specie, except dividend paid out of the net profits attributable to shareholders of the Company for each financial year of the Company; and "HK$" or "Cents" Hong Kong Dollars and cents respectively. |
1.2 The headings to the Clauses of this Agreement are for ease of reference only and shall be ignored in interpreting this Agreement.
1.3 References to Clauses and Schedules are references to Clauses and Schedules of or to this Agreement.
1.4 Words and expressions in the singular include the plural and vice versa.
1.5 Reference to person includes any public body and any body of persons, corporate or unincorporated.
1.6 Reference to ordinances, statutes, legislation or enactments shall be construed as a reference to such ordinances, statutes, legislation or enactments as may be amended or re-enacted from time to time and for the time being in force.
2. GRANT OF PUT OPTION AND CALL OPTION
2.1 In consideration of Shun Kin agreeing to enter into this Agreement, the Purchaser hereby grants to Shun Kin the Put Option subject to the terms and conditions herein contained.
2.2 In consideration of the Purchaser agreeing to enter into this Agreement, Shun Kin hereby grants to the Purchaser the Call Option subject to the terms and conditions herein contained.
2.3 Upon exercise of the Put Option or the Call Option (as the case may be) as hereinafter provided, Shun Kin shall sell as beneficial owner of the Option Shares to the Purchaser free from all liens, charges, encumbrances and third party rights of any kind and together with all rights attaching thereto as at and all dividends and distributions declared, paid or made in respect thereof after the date of exercise of the Put Option or the Call Option (as the case may be). To avoid any doubt, it is hereby expressly agreed that until exercise of the Put Option or the Call Option (as the case may be) as hereinafter provided Shun Kin shall have absolute control of the Option Shares, including the voting rights attaching thereto.
3. EXERCISE OF PUT OPTION OR CALL OPTION
3.1 The Put Option may be exercised by Shun Kin at any time during the Option Period by serving a Put Option Notice on the Purchaser. The date of exercise
of the Put Option shall be the date that the Put Option Notice is received by the Purchaser. The Purchaser shall, within fourteen (14) days after the receipt of the Put Option Notice, provide Shun Kin with the latest audited accounts of the Company (the "AUDITED ACCOUNTS") and the latest management accounts of the Company as at the last day of the precedent month immediately before the exercise of the Put Option (the "MANAGEMENT ACCOUNTS").
3.2 The Call Option may be exercised by the Purchaser at any time during the Option Period by serving a Call Option Notice, accompanied by the Audited Accounts and the Management Accounts, on Shun Kin. The date of exercise of the Call Option shall be the date that the Call Option Notice, the Audited Accounts and the Management Accounts are received by Shun Kin.
3.3 In the event of the exercise of the Put Option or the Call Option, as the case may be, and in the event that Clause 3.4 does not apply, Shun Kin shall have the sole right to elect either (i) the net asset value of the Company as shown in the Management Accounts; or (ii) the average of the net asset values of the Company as shown in the Management Accounts and the Audited Accounts respectively to be the net asset value of the Company for the purpose of the calculation of the Put Option Price and the Call Option Price. Such net asset value of the Company to be elected by Shun Kin (the "NET ASSET VALUE") shall be conclusive and binding on the Purchaser. Shun Kin shall give written notice (the "NOTICE") to the Purchaser informing it the amount of the Net Asset Value within (seven 7) days from the date of receipt of the Management Accounts and the Audited Accounts by Shun Kin from the Purchaser.
For the purpose of this Agreement, the net asset value of the Company shall be the total tangible assets of the Company less the total liabilities of the Company whether actual or contingent, including all provisions for taxation but excluding provision for bad or doubtful debts.
3.4 In the event that any Relevant Event has occurred before the exercise of the Put Option or the Call Option and no adjustment to the Put Option Price and the Call Option Price has been made in the Audited Accounts, the Parties shall procure the Put Option Price to be adjusted in such manner as shall be certified by the Auditors as fair and reasonable in the circumstances. For the
avoidance of doubt and notwithstanding anything herein to the contrary, no
premium comprising the Put Option Price shall be subject to adjustment and
the net asset value of the Company as at the date of the exercise of the
Put Option or the Call Option shall be deemed to be the Net Asset Value for
the purpose of the calculation of the Put Option Price and the Call Option
Price. A copy of the certificate of the Auditors relating to any such
adjustment shall be given to Shun Kin and the Purchaser within fourteen
(14) days of the exercise of the Put Option or the Call Option. The
certificate of the Auditors shall, in the absence of fraud or manifest
error, be final and binding on each of the Parties. The cost of the
Auditors relating to any such adjustment shall be borne by the Company.
3.5 The Put Option Notice or the Call Option Notice (as the case may be), once issued, is binding on both Parties and may not be withdrawn. The Put Option or the Call Option (as the case may be) must be exercised in full.
4. COMPLETION
4.1 Completion of the sale and purchase of the Option Shares shall take place on a Business Date falling the expiry of one month, and in any event not more than forty-five (45) days, after (a) the date of giving of the Notice by Shun Kin to the Purchaser (when Clause 3.3 applies) or (b) the date of receipt of the certificate of the Auditors by Shun Kin and the Purchaser as referred to in Clause 3.4 (when Clause 3.4 applies) at the registered office of the Company when the following business will be simultaneously transacted :-
(i) the Purchaser shall deliver to Shun Kin a cashier order for the total Put Option Price of the Option Shares (in case the exercise of the Put Option) or total Call Option Price of the Option Shares (in case the exercise of the Call Option); and
(ii) Shun Kin shall deliver to the Purchaser the following:-
(a) sold notes and instrument of transfer in favour of the Purchaser and/or its nominee(s) in respect of the Option Shares all executed by Shun Kin in accordance with the Stamp Duty Ordinance;
(b) original share certificate(s) in respect of the Option Shares; and
(c) in the event of the exercise of the Put Option, a sum in favour of the Government of the Hong Kong Special Administrative Region for an amount equivalent to the stamp duty payable under the Stamp Duty Ordinance in respect of the bought and sold notes of the Option Shares.
5. WARRANTIES, REPRESENTATIONS, UNDERTAKINGS AND GUARANTEE
5.1 Shun Kin hereby warrants and represents to the Purchaser that :-
(i) during the Option Period, Shin Kin shall not dispose, or authorise or permit any party to dispose the Option Shares;
(ii) Shun Kin is and shall on the Option Completion Date be legally and beneficially entitled to sell the Option Shares to the Purchaser; and
(iii) on the Option Completion Date, the Option Shares will be sold to the Purchaser free from all liens, charges, encumbrances and third party rights of any kind, and together with all rights attaching thereto as at and all dividends and distributions declared, paid or made in respect thereof after the date of exercise of the Put Option or the Call Option (as the case may be).
5.2 The Purchaser undertakes to notify Shun Kin in writing within fourteen (14) days from the date when (a) it agrees to sell 50% or more of the shareholding of the Company during the Option Period or (b) any of the Relevant Events has occurred.
5.3 In consideration of Shun Kin agreeing to enter into this Agreement, the Guarantor (as principal obligor and not merely as surety) unconditionally and irrevocably guarantees performance by the Purchaser of all its obligations and liabilities under or arising out of or in connection with this Agreement (referred to herein as the "GUARANTEED OBLIGATIONS") and undertakes to Shun Kin that if and whenever the Purchaser is in default, the Guarantor shall duly and promptly perform or procure such performance of the Guaranteed
Obligations and indemnify Shun Kin against any loss, damage, costs, expenses and liabilities that it may suffer in connection with or arising out of any such failure on the part of the Purchaser.
6. CONFIDENTIALITY
Other than such disclosure as may be required by law, The Stock Exchange of Hong Kong Limited, the Securities & Futures Commission or any competent authority, neither of the parties hereto shall make any announcement or release or disclose any information concerning this Agreement or the transactions herein referred to or disclose the identity of the other party(ies) hereto (save disclosure to their respective professional advisers under a duty of confidentiality) without the written consent of the other parties hereto.
7. ASSIGNMENT
This Agreement shall be binding on and shall enure for the benefits of the successors and assigns of the parties hereto but shall not be assigned by any party hereto without the prior written consent of the other parties hereto.
8. NOTICES AND OTHER COMMUNICATION
8.1 Any notice or other communication to be given under this Agreement shall be in writing and may be given by hand, by post or facsimile to the following address/number of the party hereto to be served or to such other address/number as shall be notified by such party to the other in writing
:- Shun Kin Address : Hsin Chong Center, 107-109 Wai Yip Street, Kwun Tong, Kowloon, Hong Kong Attention : YEH WANG Zung-sing, Helen Facsimile no. : 852-2516 6596 |
The Purchaser Address : Room 908, 9th floor, Hutchison House, 10 Harcourt Road, Central, Hong Kong Attention : Mr. Jun Wang Facsimile no. : 8610-5832 5200 The Guarantor Address : Room 908, 9th floor, Hutchison House, 10 Harcourt Road, Central, Hong Kong Attention : Mr. Jun Wang Facsimile no. : 8610-5832 5200 |
8.2 Any such notice or communication shall be sent to the party hereto to whom it is addressed and must contain sufficient reference and/or particulars to render it readily identifiable with the subject-matter of this Agreement. If so given by hand or facsimile, such notice or communication shall be deemed received on the date of despatch and if so sent by post (or, if sent to an address outside of Hong Kong, so sent by first class air-mail) shall be deemed received two (2) Business Days after the date of despatch (in case to an address in Hong Kong) or five (5) Business Days after the date of despatch (in case to an address outside of Hong Kong).
9. COSTS AND EXPENSES
Each party hereto shall bear its own legal costs and expenses incurred in the negotiation, preparation and execution of this Agreement. Stamp duty payable in respect of the sale and purchase of the Option Shares shall be borne by Shun Kin if Shun Kin exercises the Put Option or by the Purchaser if the Purchaser exercises the Call Option, as the case may be.
10. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the Laws of Hong Kong and the parties hereto agree to submit to the non-exclusive jurisdiction of its courts.
11. PROCESS AGENT
The Purchaser hereby irrevocably authorizes and appoints Arculli Fong & Ng (the "PURCHASER'S SOLICITORS") at 908 Hutchison House, Central, Hong Kong (or such other person(s), being resident in Hong Kong, as it may from time to time appoint as its agent(s) and notify to Shun Kin) to accept service of all legal process arising out or in connection with this Agreement and service on the Purchaser's Solicitors (or such substitute(s)) shall be deemed to be service on the Purchaser.
[Remainder of this page intentionally left blank]
IN WITNESS whereof the parties hereto have signed this Agreement the day and year first above written.
SIGNED by ) ) a director, for and on ) behalf of Shun Kin ) Enterprises Limited ) in the presence of :- ) SIGNED by ) ) a director, for and on ) behalf of FNG International ) Holdings Limited ) in the presence of :- ) SIGNED by ) ) a director, for and on ) behalf of China Finance ) Online Co. Limited ) in the presence of :- ) |
SCHEDULE A
CALL OPTION NOTICE
[Date]
[Name and address of Shun Kin]
Dear Sirs,
We refer to the option agreement dated *, 2007 (the "Agreement") entered into between you and us relating to shares in Daily Growth Investment Company Limited (Chinese Characters) and hereby exercise the Call Option in accordance with the terms and conditions contained in the Agreement by giving you this Call Option Notice and that completion of the sale and purchase of the Option Shares shall take place on [date] at * a.m./p.m. at [address].
Terms defined in the Agreement have the same meanings herein.
Yours faithfully,
for and on behalf of FNG International Holdings Limited
SCHEDULE B
PUT OPTION NOTICE
[Date]
[Name and address of the Purchaser]
Dear Sirs,
We refer to the option agreement dated *, 2007 (the "Agreement") entered into between you and us relating to shares in Daily Growth Investment Company Limited (Chinese Characters) and hereby exercise the Put Option in accordance with the terms and conditions contained in the Agreement by giving you this Put Option Notice and that completion of the sale and purchase of the Option Shares shall take place on [date] at * a.m./p.m. at [address].
Terms defined in the Agreement have the same meanings herein.
Yours faithfully,
for and on behalf of Shun Kin Enterprises Limited
Exhibit 4.55
DATED THE __________ DAY OF _____, 2007
MIDOPA ENTERPRISES LIMITED
and
FNG INTERNATIONAL HOLDINGS LIMITED
and
CHINA FINANCE ONLINE CO. LIMITED
AGREEMENT
for the sale and purchase
of shares in
Daily Growth Investment Company Limited
(Chinese Characters)
F. ZIMMERN & CO.
Solicitors & Notaries
Suites 1501-1503, 15th Floor, Gloucester Tower, The Landmark, 15 Queen's Road Central, Hong Kong Tel: (852) 2526-4373 Fax: (852) 2801-4548 Ref: AN/PC/S14/2007
THIS AGREEMENT is made on the __________ day of _____, 2007.
BETWEEN :-
1. MIDOPA ENTERPRISES LIMITED, a company incorporated in Hong Kong whose registered office is at 1, Sheung Hong Street, Flat C-1, Everwell Garden, Homantin, Kowloon, Hong Kong (the "VENDOR");
2. FNG INTERNATIONAL HOLDINGS LIMITED, a company incorporated in the British Virgin Islands whose registered address is at Trident Chambers, P.O. Box 146, Road Town, Tortola, British Virgin Islands (the "PURCHASER"); and
3. CHINA FINANCE ONLINE CO. LIMITED, a company incorporated in Hong Kong whose registered office is situate at Room 908, 9th Floor, Hutchison House, 10 Harcourt Road, Central, Hong Kong (the "GUARANTOR").
(The Vendor and the Purchaser are collectively referred to as the "PARTIES" and each as a "PARTY")
WHEREAS :-
(A) Daily Growth Investment Company Limited (Chinese Characters) (the "COMPANY") is a private limited company incorporated under the laws of Hong Kong on 6 October 1971 and has an authorised share capital of HK$10,000,000 divided into 100,000 ordinary shares of HK$100 each, of which 100,000 ordinary shares have been issued and are fully paid up. The Company is a licensed corporation to engage in type 1 regulated activity (dealing in securities) under the Securities and Futures Ordinance, Chapter 571 of the laws of Hong Kong. Particulars of the Company are set out in Schedule 1.
(B) The Vendor is the legal and beneficial owner of 27,500 issued ordinary shares of the Company, representing 27.50 per cent. of the issued share capital of the Company.
(C) The Vendor has agreed to sell, and the Purchaser has agreed to purchase, 22,000 issued ordinary shares of the Company, representing 22 per cent. of the issued share capital of the Company (the "SALE SHARES") on the terms and conditions hereinafter appearing.
(D) By another conditional sale and purchase agreement entered into between the Vendor as vendor and Yayeka Enterprises Limited ("YAYEKA") as purchaser of even date, the Vendor has agreed to sell, and Yayeka has agreed to purchase, its remaining 5,500 issued ordinary shares of the Company, representing 5.5 per cent. of the issued share capital of the Company. Yayeka is a company incorporated in Hong Kong whose registered office is at Flat A, 8th Floor, 360 Ma Tau Wai Road, Kowloon, Hong Kong and whose director is Mr. Wai Heung Wah Hayles, also a director of the Company and the Vendor."
(E) The Purchaser is a wholly owned subsidiary of the Guarantor.
(F) The Guarantor has agreed to guarantee as the primary obligor for the due performance of the Purchaser under this Agreement.
AND NOW IT IS HEREBY AGREED as follows
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, unless otherwise expressed or required by context, the following expressions shall have the respective meanings set opposite thereto :-
Expression Meaning "Accounts" means the audited profit and loss accounts for the period ended on and the balance sheet as at the Accounts Date of the Company; "Accounts Date" means 31 December 2006; "Approval" have the meaning ascribed to it in Clause 2.1(b) hereof; |
"Business Day" means a day, other than a "general holiday" (as defined in the General Holidays Ordinance (Chapter 149 of the Laws of Hong Kong)), Saturday and any day on which a tropical cyclone warning No. 8 or above is hoisted or remains hoisted between 9:00 a.m. and 12:00 noon and is not lowered at or before 12:00 noon or on which a "black" rainstorm warning signal is hoisted or remains in effect between 9:00 a.m. and 12:00 noon and is not discontinued at or before 12:00 noon, on which commercial banks are generally open for banking business in Hong Kong; "Completion Accounts" means the profit and loss accounts for the period ended on and the balance sheet as at the Completion Date of the Company; "Completion Date" means the date on which completion of the sale and purchase of the Sale Shares takes place as mentioned in Clause 4 hereof; "Consideration" has the meaning ascribed to it in Clause 3 hereof; "Deposit" has the meaning ascribed to it in Clause 3.2(a) hereof; "Disclosure Letter" means the disclosure letter from the Vendor to the Purchaser to be delivered at Completion in the form identical to that attached hereto as Schedule 3 hereto or with lesser disclosures; "Hong Kong" means the Hong Kong Special Administrative Region of the People's Republic of China; "Liabilities" means the total liabilities of the Company whether actual or contingent as at Completion, and for the avoidance of doubt, including all provisions for |
taxation and bad debts; "NAV" means the Tangible Assets less the Liabilities; "Shares" means issued ordinary shares of HK$100 each in the capital of the Company, and "Shareholders" shall be construed accordingly; "SFC" means the Securities and Futures Commission; "SFO" means the Securities and Futures Ordinance (Chapter 571 of the laws of Hong Kong); "Stock Exchange" The Stock Exchange of Hong Kong Limited; "Tangible Assets" means the total tangible assets of the Company as at Completion, including an amount of HK$794,157.41 due from Mr. Cheung Wing Cheung as at 1 August 2007 to the Company to be accepted by the Parties as accounts receivable without any provision for non-recovery; "Vendor's Solicitors" means F. Zimmern & Co; and "HK$" and "Cent" means Hong Kong Dollars and Cents respectively. |
1.2 The headings to the Clauses of this Agreement are for ease of reference only and shall be ignored in interpreting this Agreement.
1.3 Reference to Clauses and Schedules are references to Clauses and Schedules of or to this Agreement.
1.4 Words and expressions in the singular include the plural and vice versa.
1.5 Reference to person include any public body and any body of persons, corporate or unincorporated.
1.6 Reference to ordinances, statutes, legislation or enactments shall be construed
as a reference to such Ordinances, statutes, legislation or enactments as may be amended or re-enacted from time to time and for the time being in force.
2. CONDITIONS PRECEDENT
2.1 Completion of this Agreement shall be conditional upon :-
(a) the Company remains a licensed corporation to engage in type 1 regulated activity (dealing in securities) under the SFO up to Completion;
(b) the SFC giving its written approval to approve the Purchaser to become a substantial shareholder of the Company (the "APPROVAL"); and
(c) the Purchaser shall, in addition to the Sale Shares to be acquired pursuant hereto, acquire on the Completion Date Shares from other existing Shareholders which together with the Sale Shares, shall in aggregate represent not less than 75% of the entire issued share capital of the Company as at the Completion Date.
2.2 The Vendor will use its best endeavours to procure the fulfilment of the condition set out in Clauses 2.1 (a) and 2.1(c) hereof and the Purchaser will use its best endeavours to procure the fulfilment of the condition set out in Clause 2.1(b) hereof.
2.3 If (i) the condition as set out in Clause 2.1(a) hereof cannot be fulfilled on the Completion Date, the Vendor or the Purchaser may, or (ii) the condition as set out in Clause 2.1(c) hereof cannot be fulfilled on the Completion Date, the Purchaser may terminate this Agreement. In any of such event, the Deposit shall be returned to the Purchaser in full together with interest calculated at the rate of three (3) per cent. per annum from the date of payment of the Deposit by the Purchaser up to the date of refund. Upon the refund, this Agreement shall lapse and no Party shall have any claim against the other Party except in respect of any antecedent breach.
2.4 If the condition as set out in Clause 2.1(b) hereof cannot be fulfilled on or
before 31 December 2007 (the "CONDITIONS DEADLINE"), the Vendor will allow
the Purchaser to extend the Conditions Deadline for a period up to three
(3) calendar months from 1 January 2008 (the "EXTENDED PERIOD") provided
that the Purchaser shall pay compensation (the "COMPENSATION") to the
Vendor, unless the delay is due to the proven default of the Vendor, to be
arrived at by the following formula :-
C = [(HK$3 * S) * 3] * D/91
C = the total Compensation payable by the Purchaser to the Vendor
S = the number of the Sale Shares
D = the number of days from 1 January 2008 up to and including (i) the
Completion Date; or (ii) the day of the receipt of the Notice (as
defined below) by the Vendor; or (iii) 31 March 2008, as the case
may be, to be determined in the manner as provided in Clauses 2.5
(a) and (b)
The Purchaser may serve a written notice to the Vendor not to proceed with the Completion (the "NOTICE") during the Extended Period.
2.5 (a) In the event that Completion takes place before the expiry of the Extended Period, the Purchaser shall pay the Compensation calculated up to the Completion Date to the Vendor on the Completion Date. (b) In the event that the Purchaser shall fail to complete the purchase of the Sale Shares in accordance with the terms of this Agreement (including failure to complete by reason of the failure to obtain the Approval) other than due to the proven default of the Vendor, half of the Deposit shall be forfeited to the Vendor as liquidated damages (the "FORFEITURE") and in addition, if the Conditions Deadline is extended, the Vendor shall also be entitled to deduct the Compensation (calculated up to the day of the receipt of the Notice by the Vendor if the Notice is served by the Purchaser or calculated up to 31 March 2008 if no Notice is -- served by the Purchaser) from the balance of the Deposit (the "DEDUCTION"). The remaining balance of the Deposit (after the Forfeiture and any Deduction) shall be returned to the Purchaser without interest within seven (7) days from the date of the receipt of the Notice by the Vendor or 31 March 2008, as the case may |
be. After the Forfeiture and any Deduction, the Vendor shall have no claim whatsoever against the Purchaser under this Agreement.
2.6 If the Vendor shall fail to complete the sale of the Sale Shares in accordance with the terms of this Agreement due to the proven default of the Vendor, the Deposit shall be returned to the Purchaser in full together with interest calculated at the rate of three (3) per cent. per annum from the date of payment of the Deposit by the Purchaser up to the date of refund. Subject to the aforesaid payment, the Purchaser shall have no claim whatsoever against the Vendor under this Agreement.
3. SALE AND PURCHASE OF THE SALE SHARES AND THE CONSIDERATION
3.1 Subject to the terms and conditions of this Agreement, the Vendor as beneficial owner hereby agrees to sell to the Purchaser and the Purchaser, relying on the representations and warranties made or given by the Vendor and subject to the terms and conditions contained in this Agreement, agree to purchase from the Vendor the Sale Shares free from all claims, charges, liens, encumbrances, equities and third party rights and together with all rights attached thereto and all dividends and distributions declared, paid or made in respect thereof after the Completion Date at a consideration (the "CONSIDERATION") to be arrived at by the following formula :-
C = P * S
C = the total consideration payable by the Purchaser to the Vendor for the Sale Shares
P = the price per Share based on the NAV as at the Completion Date plus a premium of HK$15 per Share (which is to reflect the value of the trading right held by the Company in the Stock Exchange)
S = the number of Sale Shares
3.2 Subject to Clause 3.3 hereof, the Consideration shall be paid by the Purchaser to the Vendor as follows:-
(a) a sum of HK$1,100,000 (i.e. HK$50 per Sale Share) as deposit and part payment of the Consideration (the "DEPOSIT") to be paid on the
signing of this Agreement by way of delivering a solicitor's cheque to the Vendor's Solicitors as stakeholder to be held by it subject to the provisions of this Agreement and the sum of HK$1,000,000 being the earnest money already paid by the Purchaser to the Purchaser's Solicitors as stakeholder under the term sheet dated 25 July 2007 be released to the Purchaser after payment of the Deposit; and (b) the balance of the Consideration to be paid on Completion by way of a solicitor's cheque to the Vendor. 3.3 (a) The Vendor shall procure that the draft pro-forma Completion Accounts (the "DRAFT PRO-FORMA COMPLETION ACCOUNTS") be drawn up and delivered to the Purchaser not less than six (6) days prior to the Completion Date. Completion shall take place on the basis of the draft pro-forma Completion Accounts. (b) After Completion, the Vendor shall procure the final Completion Accounts (the "FINAL COMPLETION ACCOUNTS") be drawn up and delivered to the Purchaser within fourteen (14) days after the Completion Date. Subject to Clause 3.3(d), if the final Completion Accounts shall show that the NAV per Share is less than the NAV per Share as shown in the draft pro-forma Completion Accounts, the Vendor shall pay the amount of the difference of the NAV per Share multiplied by the number of the Sale Shares to the Purchaser within ten (10) days from the date of delivery of the final Completion Accounts by way of solicitor's cheque. If the final Completion Accounts shall show that the NAV per Share is more than the NAV per Share as shown in the draft pro-forma Completion Accounts, the Purchaser shall pay the amount of the difference of the NAV per Share multiplied by the number of the Sale Shares to the Vendor within ten (10) days from the date of delivery of the final Completion Accounts by way of solicitor's cheque. The Purchaser shall provide with the Vendor full access to the books, records and resources of the Company so as to enable the Vendor to procure the final Completion Accounts to be drawn up. (c) The basis and policy of accounting adopted in preparing the pro-forma draft Completion Accounts and the final Completion Accounts shall be |
in accordance with the generally accepted accounting practices in Hong Kong.
(d) In the event of a dispute between the Parties as to the amount of the NAV as shown in the final Completion Accounts, the Vendor or the Purchaser may procure that the final Completion Accounts be audited by the auditors of the Company within forty-five (45) days from the date of delivery of the final Completion Accounts provided that the procurement of the audited final Completion Accounts shall be made by the relevant Party within seven (7) days from the date of delivery of the final Completion Accounts.
(e) If the audited Completion Accounts shall show that the NAV per Share is less than the NAV per Share as shown in the draft pro-forma Completion Accounts , the Vendor shall pay the amount of the difference of the NAV per Share multiplied by the number of the Sale Shares to the Purchaser within seven (7) days from the date of delivery of the audited Completion Accounts by way of solicitor's cheque. If the audited Completion Accounts shall show that the NAV per Share is more than the NAV per Share as shown in the draft pro-forma Completion Accounts, the Purchaser shall pay the amount of the difference of the NAV per Share multiplied by the number of the Sale Shares to the Vendor within seven (7) days from the date of delivery of the audited Completion Accounts by way of solicitor's cheque. The Vendor together with the other vendors of the one part and the Purchaser of the other part shall each be responsible for payment of 50% of the cost and expenses for the preparation and completion of the audited Completion Accounts.
4. COMPLETION
4.1 Subject to the provisions in Clause 2 hereof, completion of the sale and purchase of the Sale Shares shall take place at the offices of Arculli Fong & Ng (the "PURCHASER'S SOLICITORS"), the Solicitors for the Purchaser, at 908 Hutchison House, Central, Hong Kong or any other place as the Parties may agree at 5:00 p.m. on a Friday of the week immediately following the week when the Approval is granted by the SFC, when the following business shall
simultaneously be transacted :-
(a) the Purchaser shall deliver to the Vendor the following :-
(i) a solicitor's cheque for payment of the balance of the Consideration and the Vendor's Solicitors will release the Deposit to the Vendor; and
(ii) a certified copy of each of the minutes of the board of directors of the Purchaser and the Guarantor approving this Agreement and authorizing/confirming the authorization of an authorised person for signing of this Agreement and (for the Purchaser) the bought note and the instrument of transfer and any other incidental documents hereof;
(b) the Vendor shall deliver to the Purchaser the following :-
(i) sold notes and instrument of transfer in favour of the Purchaser in respect of the Sale Shares all executed by the Vendor in accordance with the Stamp Duty Ordinance;
(ii) original share certificate(s) or re-issued share certificate(s) in respect of the Sale Shares;
(iii) such other documents as may be reasonably required to give a good and effective transfer of title to the Sale Shares to the Purchaser and to enable them to become the registered holders thereof;
(iv) a cheque drawn in favour of the Government of the Hong Kong Special Administrative Region for an amount equivalent to the stamp duty payable under the Stamp Duty Ordinance in respect of the sold notes in respect of the Sale Shares;
(v) a certified copy of the minutes of the board of directors of the Vendor (if the Vendor is a corporate) approving the sale of the Sale Shares and authorizing/confirming the authorization
of an authorised person for signing of this Agreement and the sold note and the instrument of transfer and any other incidental documents hereof;
(vi) to the extent that the same are not already in the possession of the Company or its agents, the certificate of incorporation, business registration certificate, common seal of the Company, all copies of memorandum and articles of association of the Company, the statutory books of the Company duly made up to date, any unissued share certificates, all current insurance policies, books and accounts and other records, cheque books, title deeds and evidence of ownership to all assets of the Company and all current contracts;
(vii) an original of the Disclosure Letter duly executed by the Vendor in the form identical to that attached as Schedule 3 hereto or with lesser disclosures;
(c) the Vendor shall cause a meeting of the board of directors of the Company to be held at which resolutions shall be passed to :-
(i) approve the transfer of the Sale Shares;
(ii) register (subject to stamping) the transfer of the Sale Shares referred to above and to issue new certificate(s) for the Sale Shares in the name(s) of the Purchaser;
(iii) appoint one person as the Purchaser may nominate as the Chairman of the Company and such person(s) as the Purchaser may nominate as director(s) of the Company and (subject to the approval of the SFC) one person as the Purchaser may nominate as the Responsible Officer of the Company all to take effect from the close of business of the said meeting if so required by the Purchaser; and
(iv) amend all banking authorisations, instructions and mandates of the Company in such manner as the Purchaser may direct;
and
(d) the Purchaser shall :-
(i) produce for inspection by the Vendor the bought notes in respect of the Sale Shares executed by the Purchaser in compliance with the Stamp Duty Ordinance; and
(ii) procure the stamping of the bought and sold notes and the instrument of transfer in respect of the Sale Shares as soon as practicable thereafter and present the said instrument of transfer together with the share certificate(s) in respect of the Sale Shares to the Company for registration of the transfer.
4.2 The transactions described in Clause 4.1 hereof shall take place at the same time, so that in default of the performance of any such transactions by a Party, the other Party shall not be obliged to complete the sale and purchase aforesaid.
4.3 Immediately after Completion, the Purchaser and Yayeka shall enter into an option agreement in the form and substance as set out in Schedule 4 hereto.
5. REPRESENTATIONS AND WARRANTIES AND GUARANTEE
5.1 Save as disclosed in the Disclosure Letter and documents and information provided to the Purchaser and/or its advisors, the Vendor hereby represents and warrants to the Purchaser that each of the matters set out in Schedule 2 are as at the date hereof and will be for all times up to and including the Completion Date, true and correct in all material respects.
5.2 From the date of this Agreement until the Completion Date the Vendor shall use its best endeavours to procure that (save with the prior consent in writing or of the Purchaser, such consent not to be unreasonably withheld or delayed) the Company shall not :-
(a) issue or agree to issue any of its share or loan capital or grant or agree to grant any option over or right to acquire any of its share or loan
capital;
(b) enter into any contract (otherwise than in the ordinary course of business) or any capital commitment;
(c) create or permit to arise any lien, charge, pledge, mortgage or other security interest on or in respect of any of its undertaking, property or assets;
(d) appoint any directors other than as provided in this Agreement; or
(e) increase the remuneration of its employees (save as payment of discretionary bonus and save that the increase is made pursuant to the relevant employment contract)
and the Vendor shall use its best endeavours to procure that the Purchaser be kept regularly informed of the affairs of the Company until the Completion Date.
5.3 The liability of the Vendor in respect of any breach of the warranties or representations as set out in Schedule 2 shall be limited as follows:-
(a) the maximum liability of the Vendor, if any, under this Agreement shall be the amount of the Consideration;
(b) no claims may be brought against the Vendor in respect of any claim of damages for breach of warranty(ies) or representation(s) as set out in Schedule 2 after the expiry of six months from the Completion Date.
5.4 In consideration of the Vendor agreeing to enter into this Agreement, the Guarantor (as principal obligor and not merely as surety) unconditionally and irrevocably guarantees performance by the Purchaser of all its obligations and liabilities under or arising out of or in connection with this Agreement (referred to herein as the "GUARANTEED OBLIGATIONS") and undertakes to the Vendor that if and whenever the Purchaser is in default, the Guarantor shall duly and promptly perform or procure such performance of the Guaranteed Obligations and indemnify the Vendor against any loss, damage, costs, expenses and liabilities that it may suffer in connection with or arising out of any such failure on the part of the Purchaser.
6. SEVERABILITY
If at any time any one or more provisions hereof is or becomes invalid, illegal, unenforceable or incapable of performance in any respect, the validity, legality, enforceability or performance of the remaining provisions hereof shall not thereby in any way be affected or impaired.
7. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement and understanding between the Parties in connection with the subject-matter of this Agreement and supersedes all previous proposals, representations, warranties, agreements or undertakings relating thereto whether oral, written or otherwise and none of the Parties has relied on any such proposals, representations, warranties, agreements or undertakings.
8. TIME
8.1 Time shall be of the essence of this Agreement.
8.2 No time or indulgence given by any Party to the other Party shall be deemed or in any way be construed as a waiver of any of its rights and remedies hereunder.
9. CONFIDENTIALITY
Other than such disclosure as may be required by law, the SFC, the Stock Exchange or other competent authority, neither of the parties hereto shall make any announcement or release or disclose any information concerning this Agreement or the transactions herein referred to or disclose the identity of the other party(ies) hereto (save disclosure to their respective professional advisers under a duty of confidentiality) without the written consent of the other parties hereto.
10. ASSIGNMENT
This Agreement shall be binding on and shall enure for the benefits of the successors and assigns of the Parties but shall not be assigned by any party hereto without the prior written consent of the other parties hereto.
11. NOTICES AND OTHER COMMUNICATION
11.1 Any notice or other communication to be given under this Agreement shall be in writing and may be given by hand, by post or facsimile to the following address/number of the party hereto to be served or to such other address/number as shall be notified by such party to the other in writing:-
The Vendor Address : 1, Sheung Hong Street, Flat C-1, Everwell Garden, Homantin, Kowloon, Hong Kong Attention : WAI Heung-wah, Hayles Facsimile no. : 852-2716 2668 The Purchaser Address : Room 908, 9th floor, Hutchison House, 10 Harcourt Road, Central, Hong Kong Attention : Mr. Jun Wang Facsimile no. : 8610-5832 5200 The Guarantor Address : Room 908, 9th floor, Hutchison House, |
10 Harcourt Road, Central, Hong Kong Attention : Mr. Jun Wang Facsimile no. : 8610-5832 5200 |
11.2 Any such notice or communication shall be sent to the party hereto to whom it is addressed and must contain sufficient reference and/or particulars to render it readily identifiable with the subject-matter of this Agreement. If so given by hand or facsimile, such notice or communication shall be deemed received on the date of despatch and if so sent by post (or, if sent to an address outside of Hong Kong, so sent by first class air-mail) shall be deemed received two (2) Business Days after the date of despatch (in case to an address in Hong Kong) or five (5) Business Days after the date of despatch (in case to an address outside of Hong Kong).
12. COSTS AND EXPENSES
Each party hereto shall bear its own legal and professional fees, costs and expenses incurred in the negotiation, preparation and execution of this Agreement. The stamp duty in respect of the Sale Shares shall be borne by the Vendor and the Purchaser in equal shares.
13. COUNTERPARTS
This Agreement may be executed in any number of counterparts each of which when executed and delivered is an original, but all the counterparts together constitute the same document.
14. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of Hong Kong and the parties hereto agree to submit to the non-exclusive jurisdiction of the courts of Hong Kong.
15. PROCESS AGENT
The Purchaser hereby irrevocably authorizes and appoints the Purchaser's Solicitors (or such other person(s), being resident in Hong Kong, as it may from time to time appoint as its agent(s) and notify to the Vendor) to accept service of all legal process arising out or in connection with this Agreement and service on the Purchaser's Solicitors (or such substitute(s)) shall be deemed to be service on the Purchaser.
[Remainder of this page intentionally left blank]
IN WITNESS whereof the Parties have executed this Agreement the day and year first above written.
SIGNED by ) ) a director, for and on ) behalf of Midopa ) Enterprises Limited ) in the presence of:- ) SIGNED by Mr. Jun Wang ) (Chinese Characters), the lawful attorney ) for and on behalf of FNG ) International Holdings ) Limited in the presence of:- ) SIGNED by Mr. Jun Wang ) (Chinese Characters), the lawful attorney ) for and on behalf of China ) Finance Online Co. Limited ) in the presence of:- ) |
SCHEDULE 1
PARTICULARS OF THE COMPANY
1. Name : Daily Growth Investment Company Limited
(Chinese Characters)
2. Registered office : Room 603, Peter Building, 58-62 Queen's Road, Central, Hong Kong.
3. Company Number : 025436
4. Date of Incorporation : 6 October 1971
5. Place of Incorporation : Hong Kong
6. Authorised share capital : HK$10,000,000 divided into 100,000 ordinary shares of HK$100 each
7. Issued and paid up capital : HK$10,000,000 divided into 100,000 ordinary shares of HK$100 each
8. Directors : TING WANG Wan-sun, Nancy WAI CHAN Ye, Kannie WAI Heung-wah, Hayles YEH WANG Zung-sing, Helen WONG Long-sau, Ivis
9. Secretary : Hang Cheuk Secretaries Limited
10 Auditors : J Kong & Co.
11. Financial year end : 31 December
SCHEDULE 2
REPRESENTATIONS AND WARRANTIES
General; Corporate Status
1.1 All information regarding the Company provided by or on behalf of the Vendor and/or the Company to the Purchaser is complete, correct and true in a material respect.
1.2 The Company has been duly incorporated and constituted, and is legally subsisting under the laws of its place of incorporation, and there has been no resolution, petition or order for the winding-up of the Company and no receiver has been appointed in respect thereof, nor are any such resolutions, orders and appointments imminent or likely.
Shareholdings and Share Capital etc.
2.1 The Sale Shares comprise a percentage (as referred to in Recital (B)) of the issued share capital of the Company, and there are not in issue any other shares, debentures, warrants, options or securities.
2.2 The Company is not under any contract, options, warrants or any other obligations regarding any part of its capital, issued or unissued, or for the issue of any shares, debentures, warrants, options, or other similar securities.
2.3 Save as disclosed in the Disclosure Letter, the Vendor has acquired the Shares in compliance with the articles of association of the Company and the laws under the Companies Ordinance and is the beneficial owner of the Sale Shares free from all liens, charges, pledges, options, contracts, preemption rights, third party rights and equities, and incumbrances of whatever nature and the same are freely transferable by the Vendor without the consent, approval, permission, licence or concurrence of any third party.
2.4 The Vendor is fully capable of entering into this Agreement and to perform all
obligations and duties hereunder without the consent, approval, permission, licence or concurrence of any third party.
Business etc.
3.1 The principal business activity of the Company is security trading.
3.2 In respect of the said business being carried on, all qualifications, registrations, licences or other approvals necessary for the proper conduct of business have been obtained and maintained and to the knowledge of the Vendor, all the relevant rules and regulations of the SFC and the Stock Exchange applicable to the Company have been observed and complied with in a material respect and no event has occurred whereby any of the same or the renewal thereof is or likely to be thereby adversely affected, suspended or revoked.
Accounts
4.1 The Accounts have been prepared in accordance with generally accepted accounting practice in Hong Kong and comply with the Companies Ordinance, and show a true and fair view of the affairs and financial position of the Company as at, and the profits and loss of the Company for the period ended on, the Accounts Date.
4.2 All accounting records of the Company for the past seven (7) years are in the possession of the Company and have been properly written up, kept and maintained in accordance with generally accepted accounting practice and together shows a true and fair view of the affairs and financial position of the Company.
Taxation
5.1 The Company has paid all taxes, duties and levies as the same became due and payable and to the knowledge of the Vendor, the Company is not nor is likely to be subject to any tax penalties.
5.2 The Company has complied with the Inland Revenue Ordinance and has kept proper records for tax purposes for the past seven (7) years and have filed all tax returns, and to the knowledge of the Vendor, there is no pending dispute with the Inland Revenue Department.
Dispute, Claims and Litigation
6. There is no claim, arbitration or litigation to which the Company is a party or which, to the knowledge of the Vendor, is pending or threatened.
Repetition at Completion
7. All warranties and representations contained in the foregoing provisions of this Schedule shall be deemed to be repeated immediately before completion of this Agreement and to relate to the facts then existing.
SCHEDULE 3
FORM OF DISCLOSURE LETTER
[DATE]
FNG INTERNATIONAL HOLDINGS LIMITED
Trident Chambers, P.O. Box 146,
Road Town, Tortola, British Virgin Islands
Dear Sirs,
DISCLOSURE LETTER
This is the Disclosure Letter referred to in the Sale and Purchase Agreement dated [DATE] and entered into by and between Midopa Enterprises Limited, FNG International Holdings Limited and China Finance Online Co. Limited (the "Agreement"). Capitalized terms appearing in this letter shall adopt the same meaning as defined in the Agreement.
A. GENERAL DISCLOSURES
The following matters are deemed to be disclosed by this letter:
1. AGREEMENT: All matters set out or referred to in the Agreement, including, without limitation, all schedules and documents annexed thereto and any other agreements entered into pursuant to, or contemplated by, the Agreement.
2. COMPANIES REGISTRY: All matters registered against, or which would be disclosed by a search made in respect of the Company at the Companies Registry in Hong Kong.
3. ACCOUNTS: All matters disclosed, provided for, noted or referred to in the audited accounts of the Company which have been provided to the Purchaser.
4. INSPECTION: All matters which have or ought reasonably to have, been disclosed by inspection of the statutory books, books of account and business records of
the Company, all of which have been made available to the Purchaser and/or its advisers for inspection.
5. OTHERS MATTERS DISCLOSED: All matters set out or referred to in any letter, note, schedule or other document from or provided by the Vendor, the Company and/or their advisers and/or agents to the Purchaser and/or its advisers and/or agents in connection with the sale and purchase of the Sale Shares. Where any such letter, note, schedule or other document includes an expression of opinion, no representation or warranty is given as to its accuracy.
B. SPECIFIC DISCLOSURE
We write to disclose the following and the paragraph numbers used below correspond to the representations and warranties as set out in Schedule 2 to the Agreement:
Paragraphs 1.1 and 2.3
The following documents cannot be found in the company kit of the Company or located by the Vendor or are incomplete. As such, no representation and warranty will be made on these missing or incomplete documents :-
1. Original corporate documents from the date of incorporation to the year of 1987;
2. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 1 share from Helen Zung Sing Yeh to Shun Kin Enterprises Limited on 20th February 1987;
3. Original cancelled share certificate in the names of Helen Zung Sing Yeh and Shun Kin Enterprises Limited;
4. Original Application for 42,300 shares made on 24th February 1987 - 8 sets;
5. Original share certificates in respect of the allotment made on 24th February 1987;
6. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 5,000 shares from Mr. Basil D.C. Wood to Mrs. Nancy Ting on 26th April 1988;
7. Original share certificates in respect of the transfer made on 26th April 1988;
8. Original transfer documents (including instruments of transfer and bought and sold notes) in respect of the transfer of 20,525 shares in respect of the following transfer:
Mr. Basil D.C. Wood to Midopa Enterprises Limited - 7,610 shares on
21.7.1988
Mrs. Wendy Wood to Midopa Enterprises Limited - 1,694 shares on 21.7.1988
Mr. Hsu Zing Ping to Midopa Enterprises Limited - 3,196 shares on 21.7.1988
Mr. Hsu Zing Ping to Billion System Co., Limited - 2,500 shares on 21.7.1988
Mr. Hsu Zing Ping to Mrs. Wang Zau Chin Ngo - 240 shares on 21.7.1988
Mr. Hsu Zing Ping to Eternal Growth Investment Ltd. - 525 shares on 21.7.1988
Mr. Koo Kam Kang to Eternal Growth Investment Ltd. - 4,760 shares on 21.7.1988
9. Original share certificates in respect of the transfer made on 21.7.1988;
10. Original transfer documents (including instruments of transfer and bought and sold notes) in respect of the transfer of 7,715 shares in respect of the following transfer:
Ms. Nancy Ting to Ho Chi Kuen Bernard - 2,000 shares on 29.7.1988
Ms. Nancy Ting to Billion System Co., Ltd. - 2,500 shares on 29.7.1988
Ms. Nancy Ting to Stella Wong - 545 shares on 29.7.1988
Shun Kin Ent. Ltd. to Stella Wong - 195 shares on 29.7.1988
Eileen Hwa to Stella Wong - 260 shares on 29.7.1988
Ms. Nancy Ting to Eternal Growth Inv. Ltd. - 2,215 shares on 29.7.1988
11. Original share certificates in respect of the transfer made on 29.7.1988
12. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 2,000 shares in respect of the transfer from Eileen Hwa to Wong Oi Lun, Ellen on 17.3.1989;
13. Original share certificates in respect of the transfer made on 17.3.1989;
14. Form X(ii) or Form (IXA) showing the resignation of Ms. Stella Wong as the director of the Company made on 1.4.1989;
15. Original transfer documents (including instruments of transfer and bought and sold notes) in respect of the transfer of 2,000 shares in respect of the following transfer:
Wong Oi Lun Ellen to Stella Wong - 1,000 shares on 31.5.1990
Wong Oi Lun Ellen to Tsang Kin Woo - 500 shares on 31.5.1990
Wong Oi Lun Ellen to Chu Ping Im - 500 shares on 31.5.1990
16. Original share certificates in respect of the transfer made on 31.5.1990
17. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 2,000 shares in respect of the following transfer:
Bernard Ho to Zone Bo Ltd. - 2,000 shares on 19.7.1990
18. Original share certificates in respect of the transfer made on 19.7.1990
19. Copy of Consent to act as director of the Company by Mr. Yap E. Hock on
9.12.1992
20. A letter dated 10th October 1994, from King Cause Limited and Asian Capital Partners (HK) Limited reporting that 10 share certificates for 50,000 shares have been mislaid and requesting 2 share certificates be issued to them
21. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 50,000 shares in respect of the following transfer:
King Cause Ltd.to Billion System Co. Ltd.- 5,000 shares on 12.12.1994;
King Cause Ltd. to Eternal Growth Investment Ltd.- 7,500 shares on 12.12.1994;
King Cause Ltd. to Midpoa Enterprises Limited- 12,500 shares on 12.12.1994;
King Cause Ltd. to Shun Kin Ent. Limited- 17,500 shares on 12.12.1994;
King Cause Ltd. to Wang Zau Chin Ngo- 2,500 shares on 12.12.1994;
King Cause Ltd. to Tsang Kin Woo- 499 shares on 12.12.1994;
King Cause Ltd. to Chu Ping Im - 500 shares on 12.12.1994
King Cause Ltd. to Stella Wong- 2,000 shares on 12.12.1994;
King Cause Ltd. to Zone Bo Limited- 2,000 shares on 12.12.1994;
King Cause Ltd. and Asian Capital Partners (HK) Limited to Tsang Kin Woo- 1 share on 12.12.1994;
22. Original share certificates in respect of the transfer made on 12.12.1994;
23. Original Declaration of Trust given by King Cause Limited and Asian Capital Partners (HK) Limited on 9.12.1992;
24. Copy of Form D2 and Consent to act reporting the appointment of Mr. Ho Chi Kuen as the director of the company;
25. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 5,000 shares in respect of the following transfer:
Billion System Co. Ltd. to Zone Bo Ltd.- 500 shares on 15.12.2000;
Billion System Co. Ltd. to Eternal Growth Inv. Ltd.- 500 shares on 15.12.2000;
Billion System Co. Ltd. to Midopa Enterprises Ltd.- 1,250 shares on 15.12.2000;
Billion System Co. Ltd. to Shun Kin Enterprises Ltd.- 1,750 shares on 15.12.2000;
Billion System Co. Ltd. to Tsang Kin Woo- 500 shares on 15.12.2000;
Billion System Co. Ltd. to Chu Ping Im- 500 shares on 15.12.2000;
26. Original share certificates in respect of the transfer made on 15.12.2000;
27. Original Share Certificate of Wang William;
28. Original Board Minutes for approving the share transfer from Zone Bo Limited to Hung Yung made on 22.06.2007;
29. Share Certificate of Hung Yung in respect of 5,000 shares;
30. Original Consent to Short Notice dated 16.03.1987 - Elieen Hwa Wang Vung Sing (with the signature of Elieen missing); and
31. Original Consent to Short Notice for 2005 AGM dated 30.05.2005 (missing signatures from Midopa Enterprises Limited, Wong Chan Miu Wan Stella, Chu Ping Im, Tsang Kin Woo).
Yours sincerely,
SCHEDULE 4
FORM OF OPTION AGREEMENT
THIS AGREEMENT is made the __________ day of _____, 2007
BETWEEN :-
1. YAYEKA ENTERPRISES LIMITED, a company incorporated in Hong Kong whose registered office is at Flat A, 8th Floor, 360 Ma Tau Wai Road, Kowloon, Hong Kong ("YAKEKA");
2. FNG INTERNATIONAL HOLDINGS LIMITED, a company incorporated in the British Virgin Islands whose registered address is at Trident Chambers, P.O. Box 146, Road Town, Tortola, British Virgin Islands (the "PURCHASER"); and
3. CHINA FINANCE ONLINE CO. LIMITED, a company incorporated in Hong Kong whose registered office is situate at Room 908, 9th Floor, Hutchison House, 10 Harcourt Road, Central, Hong Kong (the "GUARANTOR").
(Yakeka and the Purchaser are collectively referred to as the "PARTIES" and each as a "PARTY")
WHEREAS :-
(A) Daily Growth Investment Company Limited (Chinese Characters) (the "COMPANY") is a private limited company incorporated under the laws of Hong Kong on 6 October 1971 and has an authorised share capital of HK$10,000,000 divided into 100,000 ordinary shares of HK$100 each (the "SHARES"), of which 100,000 Shares have been issued and are fully paid up. The Company is a licensed corporation to engage in type 1 regulated activity (dealing in securities) under the Securities and Futures Ordinance, Chapter 571 of the laws of Hong Kong.
(B) By a sale and purchase agreement dated [*] 2007 entered into between Midopa Enterprises Limited ("Midopa") and the Purchaser pursuant to which Midopa agreed to sell and the Purchaser agreed to purchase 22,000 Shares, representing 22% of the issued share capital of the Company upon and subject to the terms and conditions thereof (the "S&P AGREEMENT"). By another sale and purchase agreement dated [*] 2007 entered into between Midopa and Yayeka pursuant to which Midopa agreed to sell and Yayeka agreed to purchase 5,500 Shares (the "YAYEKA S&P AGREEMENT"). Completion of the S&P Agreement and Yayeka S&P Agreement took place simultaneously and immediately before the signing of this Agreement.
(C) Yayeka is now the legal and beneficial owner of 5,500 Shares, representing 5.5 per cent. of the issued share capital of the Company.
(D) The Purchaser has agreed to grant to Yayeka a put option to require the Purchaser to purchase the Option Shares at the Put Option Price on the terms and conditions hereinafter appearing.
(E) Yayeka has also agreed to grant to the Purchaser a call option to require Yayeka to sell the Option Shares to the Purchaser at the Call Option Price on the terms and conditions hereinafter appearing.
NOW IT IS HEREBY AGREED as follows :-
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, unless otherwise expressed or required by context, the following words or expressions shall have the respective meanings set opposite thereto:-
"Auditors" the auditors for the time being of the Company; "Business Day" a day, other than a "general holiday" (as defined in the General Holidays Ordinance (Chapter 149 of the Laws of Hong Kong)), Saturday and any day on which a tropical cyclone warning No. 8 or above is hoisted or remains hoisted between 9:00 a.m. and 12:00 noon and is not lowered at or |
before 12:00 noon or on which a "black" rainstorm warning signal is hoisted or remains in effect between 9:00 a.m. and 12:00 noon and is not discontinued at or before 12:00 noon, on which commercial banks are generally open for banking business in Hong Kong; "Call Option" the call option to require Yayeka to sell all the Option Shares to the Purchaser at the Call Option Price upon and subject to the terms and conditions contained herein; "Call Option Notice" the notice in the form set out in Schedule A hereto; "Call Option Price" a price equal to 20% above the Put Option Price; "Hong Kong" the Hong Kong Special Administrative Region of the People's Republic of China; "Net Asset Value" subject to Clause 3.4, has the meaning ascribed to it in Clause 3.3; "Option Completion Date" the date when completion of the sale and purchase of the Option Shares shall take place pursuant to Clause 4; "Option Period" the period of five (5) years commencing on the date hereof; "Option Shares" 5,500 Shares now beneficially owned by Yayeka, and all other shares (if any) in the issued share capital of the Company resulting from any sub-division, consolidation or re-classification of such shares in the Company and further or additional shares in the Company hereinafter acquired by Yayeka pursuant to a capitalisation issue; |
"Original Price" the price per Share based on the NAV as at the Completion Date (both as defined in the S&P Agreement) plus a premium of HK$15 per Share; "Put Option" the put option to require the purchase by the Purchaser of all the Option Shares from Yayeka at the Put Option Price upon and subject to the terms and conditions contained herein; "Put Option Notice" the notice in the form set out in Schedule B hereto; "Put Option Price" a price equal to the higher of (i) the Original Price or (ii) the price per Share based on the Net Asset Value of the Company (subject to any adjustment provided in Clause 3.4), plus a premium of HK$15 per Share; "Relevant Event" (i) Any variation in the share capital of the Company arising from any reduction, sub-division or consolidation of share capital or the issue of any share capital (including any securities convertible into share capital or warrants or options to subscribe for any share capital) by way of capitalisation of profits or reserves or in connection with an offer made pro rata to shareholders of the Company; or (ii) Any distribution of the Company's capital assets to shareholders of the Company pro rata, whether in cash or specie, except dividend paid out of the net profits attributable to shareholders of the Company for each financial year of the Company; and |
"HK$" or "Cents" Hong Kong Dollars and cents respectively. |
1.2 The headings to the Clauses of this Agreement are for ease of reference only and shall be ignored in interpreting this Agreement.
1.3 References to Clauses and Schedules are references to Clauses and Schedules of or to this Agreement.
1.4 Words and expressions in the singular include the plural and vice versa.
1.5 Reference to person includes any public body and any body of persons, corporate or unincorporated.
1.6 Reference to ordinances, statutes, legislation or enactments shall be construed as a reference to such ordinances, statutes, legislation or enactments as may be amended or re-enacted from time to time and for the time being in force.
2. GRANT OF PUT OPTION AND CALL OPTION
2.1 In consideration of Yayeka agreeing to enter into this Agreement, the Purchaser hereby grants to Yayeka the Put Option subject to the terms and conditions herein contained.
2.2 In consideration of the Purchaser agreeing to enter into this Agreement, Yayeka hereby grants to the Purchaser the Call Option subject to the terms and conditions herein contained.
2.3 Upon exercise of the Put Option or the Call Option (as the case may be) as hereinafter provided, Yayeka shall sell as beneficial owner of the Option Shares to the Purchaser free from all liens, charges, encumbrances and third party rights of any kind and together with all rights attaching thereto as at and all dividends and distributions declared, paid or made in respect thereof after the date of exercise of the Put Option or the Call Option (as the case may be). To avoid any doubt, it is hereby expressly agreed that until exercise of the Put Option or the Call Option (as the case may be) as hereinafter provided Yayeka shall have absolute control of the Option Shares, including the voting rights attaching thereto.
3. EXERCISE OF PUT OPTION OR CALL OPTION
3.1 The Put Option may be exercised by Yayeka at any time during the Option Period by serving a Put Option Notice on the Purchaser. The date of exercise of the Put Option shall be the date that the Put Option Notice is received by the Purchaser. The Purchaser shall, within fourteen (14) days after the receipt of the Put Option Notice, provide Yayeka with the latest audited accounts of the Company (the "AUDITED ACCOUNTS") and the latest management accounts of the Company as at the last day of the precedent month immediately before the exercise of the Put Option (the "MANAGEMENT ACCOUNTS").
3.2 The Call Option may be exercised by the Purchaser at any time during the Option Period by serving a Call Option Notice, accompanied by the Audited Accounts and the Management Accounts, on Yayeka. The date of exercise of the Call Option shall be the date that the Call Option Notice, the Audited Accounts and the Management Accounts are received by Yayeka.
3.3 In the event of the exercise of the Put Option or the Call Option, as the case may be, and in the event that Clause 3.4 does not apply, Yayeka shall have the sole right to elect either (i) the net asset value of the Company as shown in the Management Accounts; or (ii) the average of the net asset values of the Company as shown in the Management Accounts and the Audited Accounts respectively to be the net asset value of the Company for the purpose of the calculation of the Put Option Price and the Call Option Price. Such net asset value of the Company to be elected by Yayeka (the "NET ASSET VALUE") shall be conclusive and binding on the Purchaser. Yayeka shall give written notice (the "NOTICE") to the Purchaser informing it the amount of the Net Asset Value within (seven 7) days from the date of receipt of the Management Accounts and the Audited Accounts by Yayeka from the Purchaser.
For the purpose of this Agreement, the net asset value of the Company shall be the total tangible assets of the Company less the total liabilities of the Company whether actual or contingent, including all provisions for taxation but excluding provision for bad or doubtful debts.
3.4 In the event that any Relevant Event has occurred before the exercise of the Put Option or the Call Option and no adjustment to the Put Option Price and
the Call Option Price has been made in the Audited Accounts, the Parties shall procure the Put Option Price to be adjusted in such manner as shall be certified by the Auditors as fair and reasonable in the circumstances. For the avoidance of doubt and notwithstanding anything herein to the contrary, no premium comprising the Put Option Price shall be subject to adjustment and the net asset value of the Company as at the date of the exercise of the Put Option or the Call Option shall be deemed to be the Net Asset Value for the purpose of the calculation of the Put Option Price and the Call Option Price. A copy of the certificate of the Auditors relating to any such adjustment shall be given to Yayeka and the Purchaser within fourteen (14) days of the exercise of the Put Option or the Call Option. The certificate of the Auditors shall, in the absence of fraud or manifest error, be final and binding on each of the Parties. The cost of the Auditors relating to any such adjustment shall be borne by the Company.
3.5 The Put Option Notice or the Call Option Notice (as the case may be), once issued, is binding on both Parties and may not be withdrawn. The Put Option or the Call Option (as the case may be) must be exercised in full.
4. COMPLETION
4.1 Completion of the sale and purchase of the Option Shares shall take place on a Business Date falling the expiry of one month, and in any event not more than forty-five (45) days, after (a) the date of giving of the Notice by Yayeka to the Purchaser (when Clause 3.3 applies) or (b) the date of receipt of the certificate of the Auditors by Yayeka and the Purchaser as referred to in Clause 3.4 (when Clause 3.4 applies) at the registered office of the Company when the following business will be simultaneously transacted :-
(i) the Purchaser shall deliver to Yayeka a cashier order for the total Put Option Price of the Option Shares (in case the exercise of the Put Option) or total Call Option Price of the Option Shares (in case the exercise of the Call Option); and
(ii) Yayeka shall deliver to the Purchaser the following:-
(a) sold notes and instrument of transfer in favour of the Purchaser and/or its nominee(s) in respect of the Option Shares all
executed by Yayeka in accordance with the Stamp Duty Ordinance;
(b) original share certificate(s) in respect of the Option Shares; and
(c) in the event of the exercise of the Put Option, a sum in favour of the Government of the Hong Kong Special Administrative Region for an amount equivalent to the stamp duty payable under the Stamp Duty Ordinance in respect of the bought and sold notes of the Option Shares.
5. WARRANTIES, REPRESENTATIONS, UNDERTAKINGS AND GUARANTEE
5.1 Yayeka hereby warrants and represents to the Purchaser that :-
(i) during the Option Period, Shin Kin shall not dispose, or authorise or permit any party to dispose the Option Shares;
(ii) Yayeka is and shall on the Option Completion Date be legally and beneficially entitled to sell the Option Shares to the Purchaser; and
(iii) on the Option Completion Date, the Option Shares will be sold to the Purchaser free from all liens, charges, encumbrances and third party rights of any kind, and together with all rights attaching thereto as at and all dividends and distributions declared, paid or made in respect thereof after the date of exercise of the Put Option or the Call Option (as the case may be).
5.2 The Purchaser undertakes to notify Yayeka in writing within fourteen (14) days from the date when (a) it agrees to sell 50% or more of the shareholding of the Company during the Option Period or (b) any of the Relevant Events has occurred.
5.3 In consideration of Yayeka agreeing to enter into this Agreement, the Guarantor (as principal obligor and not merely as surety) unconditionally and irrevocably guarantees performance by the Purchaser of all its obligations and liabilities under or arising out of or in connection with this Agreement
(referred to herein as the "GUARANTEED OBLIGATIONS") and undertakes to Yayeka that if and whenever the Purchaser is in default, the Guarantor shall duly and promptly perform or procure such performance of the Guaranteed Obligations and indemnify Yayeka against any loss, damage, costs, expenses and liabilities that it may suffer in connection with or arising out of any such failure on the part of the Purchaser.
6. CONFIDENTIALITY
Other than such disclosure as may be required by law, The Stock Exchange of Hong Kong Limited, the Securities & Futures Commission or any competent authority, neither of the parties hereto shall make any announcement or release or disclose any information concerning this Agreement or the transactions herein referred to or disclose the identity of the other party(ies) hereto (save disclosure to their respective professional advisers under a duty of confidentiality) without the written consent of the other parties hereto.
7. ASSIGNMENT
This Agreement shall be binding on and shall enure for the benefits of the successors and assigns of the parties hereto but shall not be assigned by any party hereto without the prior written consent of the other parties hereto.
8. NOTICES AND OTHER COMMUNICATION
8.1 Any notice or other communication to be given under this Agreement shall be in writing and may be given by hand, by post or facsimile to the following address/number of the party hereto to be served or to such other address/number as shall be notified by such party to the other in writing
:- Yayeka Address : Flat A, 8th Floor, 360 Ma Tau Wai Road, Kowloon, Hong Kong Attention : WAI Heung-wah, Hayles Facsimile no. : 852-2716 2668 |
The Purchaser Address : Room 908, 9th floor, Hutchison House, 10 Harcourt Road, Central, Hong Kong Attention : Mr. Jun Wang Facsimile no. : 8610-5832 5200 The Guarantor Address : Room 908, 9th floor, Hutchison House, 10 Harcourt Road, Central, Hong Kong Attention : Mr. Jun Wang Facsimile no. : 8610-5832 5200 |
8.2 Any such notice or communication shall be sent to the party hereto to whom it is addressed and must contain sufficient reference and/or particulars to render it readily identifiable with the subject-matter of this Agreement. If so given by hand or facsimile, such notice or communication shall be deemed received on the date of despatch and if so sent by post (or, if sent to an address outside of Hong Kong, so sent by first class air-mail) shall be deemed received two (2) Business Days after the date of despatch (in case to an address in Hong Kong) or five (5) Business Days after the date of despatch (in case to an address outside of Hong Kong).
9. COSTS AND EXPENSES
Each party hereto shall bear its own legal costs and expenses incurred in the negotiation, preparation and execution of this Agreement. Stamp duty payable in respect of the sale and purchase of the Option Shares shall be borne by Yayeka if Yayeka exercises the Put Option or by the Purchaser if the Purchaser exercises the Call Option, as the case may be.
10. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the Laws of Hong Kong and the parties hereto agree to submit to the non-exclusive jurisdiction of its courts.
11. PROCESS AGENT
[PLEASE NOTE THAT FULL NAME AND ADDRESS OF THE PURCHASER'S SOLICITORS HAVE
BEEN STATED]
The Purchaser hereby irrevocably authorizes and appoints Arculli Fong & Ng (the "PURCHASER'S SOLICITORS") at 908 Hutchison House, Central, Hong Kong (or such other person(s), being resident in Hong Kong, as it may from time to time appoint as its agent(s) and notify to Yayeka) to accept service of all legal process arising out or in connection with this Agreement and service on the Purchaser's Solicitors (or such substitute(s)) shall be deemed to be service on the Purchaser.
[Remainder of this page intentionally left blank]
IN WITNESS whereof the parties hereto have signed this Agreement the day and year first above written.
SIGNED by ) ) a director, for and on ) behalf of Yayeka ) Enterprises Limited ) in the presence of :- ) SIGNED by ) ) a director, for and on ) behalf of FNG International ) Holdings Limited ) in the presence of :- ) SIGNED by ) ) a director, for and on ) behalf of China Finance ) Online Co. Limited ) in the presence of :- ) |
SCHEDULE A
CALL OPTION NOTICE
[Date]
[Name and address of Yayeka]
Dear Sirs,
We refer to the option agreement dated * , 2007 (the "Agreement") entered into between you and us relating to shares in Daily Growth Investment Company Limited (Chinese Characters) and hereby exercise the Call Option in accordance with the terms and conditions contained in the Agreement by giving you this Call Option Notice and that completion of the sale and purchase of the Option Shares shall take place on [date] at * a.m./p.m. at [address].
Terms defined in the Agreement have the same meanings herein.
Yours faithfully,
for and on behalf of FNG International Holdings Limited
SCHEDULE B
PUT OPTION NOTICE
[Date]
[Name and address of the Purchaser]
Dear Sirs,
We refer to the option agreement dated *, 2007 (the "Agreement") entered into between you and us relating to shares in Daily Growth Investment Company Limited (Chinese Characters) and hereby exercise the Put Option in accordance with the terms and conditions contained in the Agreement by giving you this Put Option Notice and that completion of the sale and purchase of the Option Shares shall take place on [date] at * a.m./p.m. at [address].
Terms defined in the Agreement have the same meanings herein.
Yours faithfully,
for and on behalf of Yayeka Enterprises Limited
Exhibit 4.56
DATED THE _____ DAY OF __________, 2007
HUNG YUNG
and
FNG INTERNATIONAL HOLDINGS LIMITED
and
CHINA FINANCE ONLINE CO. LIMITED
AGREEMENT
for the sale and purchase
of shares in
Daily Growth Investment Company Limited
(Chinese Characters)
F. ZIMMERN & CO.
Solicitors & Notaries
Suites 1501-1503, 15th Floor, Gloucester Tower, The Landmark, 15 Queen's Road Central, Hong Kong Tel: (852) 2526-4373 Fax: (852) 2801-4548 Ref: AN/PC/S14/2007
THIS AGREEMENT is made on the ____________ day of ____________, 2007.
BETWEEN:-
1. HUNG YUNG whose correspondence address is at Flat F, 13th Floor, On Ping Mansion, Lei King Wan, Sai Wan Ho, Hong Kong (the "VENDOR");
2. FNG INTERNATIONAL HOLDINGS LIMITED, a company incorporated in the British Virgin Islands whose registered address is at Trident Chambers, P.O. Box 146, Road Town, Tortola, British Virgin Islands (the "PURCHASER"); and
3. CHINA FINANCE ONLINE CO. LIMITED, a company incorporated in Hong Kong whose registered office is situate at Room 908, 9th Floor, Hutchison House, 10 Harcourt Road, Central, Hong Kong (the "GUARANTOR").
(The Vendor and the Purchaser are collectively referred to as the "PARTIES" and each as a "PARTY")
WHEREAS:-
(A) Daily Growth Investment Company Limited (Chinese Characters) (the "COMPANY") is a private limited company incorporated under the laws of Hong Kong on 6 October 1971 and has an authorised share capital of HK$10,000,000 divided into 100,000 ordinary shares of HK$100 each, of which 100,000 ordinary shares have been issued and are fully paid up. The Company is a licensed corporation to engage in type 1 regulated activity (dealing in securities) under the Securities and Futures Ordinance, Chapter 571 of the laws of Hong Kong. Particulars of the Company are set out in Schedule 1.
(B) The Vendor is the legal and beneficial owner of 5,000 issued ordinary shares of the Company, representing 5 per cent. of the entire issued share capital of the Company (the "SALE SHARES").
(C) The Vendor has agreed to sell, and the Purchaser has agreed to purchase, the Sale Shares on the terms and conditions hereinafter appearing.
(D) The Purchaser is a wholly owned subsidiary of the Guarantor.
(E) The Guarantor has agreed to guarantee as the primary obligor for the due performance of the Purchaser under this Agreement.
AND NOW IT IS HEREBY AGREED as follows
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, unless otherwise expressed or required by context, the following expressions shall have the respective meanings set opposite thereto :-
Expression Meaning ---------- ------- "Accounts" means the audited profit and loss accounts for the period ended on and the balance sheet as at the Accounts Date of the Company; "Accounts Date" means 31 December 2006; "Approval" have the meaning ascribed to it in Clause 2.1(b) hereof; "Business Day" means a day, other than a "general holiday" (as defined in the General Holidays Ordinance (Chapter 149 of the Laws of Hong Kong)), Saturday and any day on which a tropical cyclone warning No. 8 or above is hoisted or remains hoisted between 9:00 a.m. and 12:00 noon and is not lowered at or before 12:00 noon or on which a "black" rainstorm warning signal is hoisted or remains in effect between 9:00 a.m. and 12:00 noon and is not discontinued at or before 12:00 noon, on which commercial banks are generally open for banking business in Hong Kong; |
"Completion Accounts" means the profit and loss accounts for the period ended on and the balance sheet as at the Completion Date of the Company; "Completion Date" means the date on which completion of the sale and purchase of the Sale Shares takes place as mentioned in Clause 4 hereof; "Consideration" has the meaning ascribed to it in Clause 3 hereof; "Deposit" has the meaning ascribed to it in Clause 3.2(a) hereof; "Disclosure Letter" means the disclosure letter from the Vendor to the Purchaser to be delivered at Completion in the form identical to that attached hereto as Schedule 3 hereto or with lesser disclosures; "Hong Kong" means the Hong Kong Special Administrative Region of the People's Republic of China; "Liabilities" means the total liabilities of the Company whether actual or contingent as at Completion, and for the avoidance of doubt, including all provisions for taxation and bad debts; "NAV" means the Tangible Assets less the Liabilities; "Shares" means issued ordinary shares of HK$100 each in the capital of the Company, and "Shareholders" shall be construed accordingly; "SFC" means the Securities and Futures Commission; "SFO" means the Securities and Futures Ordinance (Chapter 571 of the laws of Hong Kong); |
"Stock Exchange" The Stock Exchange of Hong Kong Limited; "Tangible Assets" means the total tangible assets of the Company as at Completion, including an amount of HK$794,157.41 due from Mr. Cheung Wing Cheung as at 1 August 2007 to the Company to be accepted by the Parties as accounts receivable without any provision for non-recovery; "Vendor's Solicitors" means F. Zimmern & Co; and "HK$" and "Cent" means Hong Kong Dollars and Cents respectively. |
1.2 The headings to the Clauses of this Agreement are for ease of reference only and shall be ignored in interpreting this Agreement.
1.3 Reference to Clauses and Schedules are references to Clauses and Schedules of or to this Agreement.
1.4 Words and expressions in the singular include the plural and vice versa.
1.5 Reference to person include any public body and any body of persons, corporate or unincorporated.
1.6 Reference to ordinances, statutes, legislation or enactments shall be construed as a reference to such Ordinances, statutes, legislation or enactments as may be amended or re-enacted from time to time and for the time being in force.
2. CONDITIONS PRECEDENT
2.1 Completion of this Agreement shall be conditional upon :-
(a) the Company remains a licensed corporation to engage in type 1 regulated activity (dealing in securities) under the SFO up to Completion;
(b) the SFC giving its written approval to approve the Purchaser to
become a substantial shareholder of the Company (the "APPROVAL"); and
(c) the Purchaser shall, in addition to the Sale Shares to be acquired pursuant hereto, acquire on the Completion Date Shares from other existing Shareholders which together with the Sale Shares, shall in aggregate represent not less than 75% of the entire issued share capital of the Company as at the Completion Date.
2.2 The Vendor will use her best endeavours to procure the fulfilment of the condition set out in Clauses 2.1 (a) and 2.1(c) hereof and the Purchaser will use its best endeavours to procure the fulfilment of the condition set out in Clause 2.1(b) hereof.
2.3 If (i) the condition as set out in Clause 2.1(a) hereof cannot be fulfilled on the Completion Date, the Vendor or the Purchaser may, or (ii) the condition as set out in Clause 2.1(c) hereof cannot be fulfilled on the Completion Date, the Purchaser may terminate this Agreement. In any of such event, the Deposit shall be returned to the Purchaser in full together with interest calculated at the rate of three (3) per cent. per annum from the date of payment of the Deposit by the Purchaser up to the date of refund. Upon the refund, this Agreement shall lapse and no Party shall have any claim against the other Party except in respect of any antecedent breach.
2.4 If the condition as set out in Clause 2.1(b) hereof cannot be fulfilled on or before 31 December 2007 (the "CONDITIONS DEADLINE"), the Vendor will allow the Purchaser to extend the Conditions Deadline for a period up to three (3) calendar months from 1 January 2008 (the "EXTENDED PERIOD") provided that the Purchaser shall pay compensation (the "COMPENSATION") to the Vendor, unless the delay is due to the proven default of the Vendor, to be arrived at by the following formula :-
C = [(HK$3 * S) * 3] * D/91
C = the total Compensation payable by the Purchaser to the Vendor
S = the number of the Sale Shares
D = the number of days from 1 January 2008 up to and including (i) the Completion Date; or (ii) the day of the receipt of the Notice
(as defined below) by the Vendor; or (iii) 31 March 2008, as the case may be, to be determined in the manner as provided in Clauses 2.5 (a) and (b)
The Purchaser may serve a written notice to the Vendor not to proceed with the Completion (the "NOTICE") during the Extended Period.
2.5 (a) In the event that Completion takes place before the expiry of the Extended Period, the Purchaser shall pay the Compensation calculated up to the Completion Date to the Vendor on the Completion Date. (b) In the event that the Purchaser shall fail to complete the purchase of the Sale Shares in accordance with the terms of this Agreement (including failure to complete by reason of the failure to obtain the Approval) other than due to the proven default of the Vendor, half of the Deposit shall be forfeited to the Vendor as liquidated damages (the "FORFEITURE") and in addition, if the Conditions Deadline is extended, the Vendor shall also be entitled to deduct the Compensation (calculated up to the day of the receipt of the Notice by the Vendor if the Notice is served by the Purchaser or calculated up to 31 March 2008 if no Notice is served by the Purchaser) from the balance of the Deposit (the "DEDUCTION"). The remaining balance of the Deposit (after the Forfeiture and any Deduction) shall be returned to the Purchaser without interest within seven (7) days from the date of the receipt of the Notice by the Vendor or 31 March 2008, as the case may be. After the Forfeiture and any Deduction, the Vendor shall have no claim whatsoever against the Purchaser under this Agreement. |
2.6 If the Vendor shall fail to complete the sale of the Sale Shares in accordance with the terms of this Agreement due to the proven default of the Vendor, the Deposit shall be returned to the Purchaser in full together with interest calculated at the rate of three (3) per cent. per annum from the date of payment of the Deposit by the Purchaser up to the date of refund. Subject to the aforesaid payment, the Purchaser shall have no claim whatsoever against the Vendor under this Agreement.
3. SALE AND PURCHASE OF THE SALE SHARES AND THE CONSIDERATION
3.1 Subject to the terms and conditions of this Agreement, the Vendor as beneficial owner hereby agrees to sell to the Purchaser and the Purchaser, relying on the representations and warranties made or given by the Vendor and subject to the terms and conditions contained in this Agreement, agree to purchase from the Vendor the Sale Shares free from all claims, charges, liens, encumbrances, equities and third party rights and together with all rights attached thereto and all dividends and distributions declared, paid or made in respect thereof after the Completion Date at a consideration (the "CONSIDERATION") to be arrived at by the following formula :-
C = P * S
C = the total consideration payable by the Purchaser to the Vendor for the Sale Shares
P = the price per Share based on the NAV as at the Completion Date plus a premium of HK$15 per Share (which is to reflect the value of the trading right held by the Company in the Stock Exchange)
S = the number of Sale Shares
3.2 Subject to Clause 3.3 hereof, the Consideration shall be paid by the Purchaser to the Vendor as follows:-
(a) a sum of HK$250,000 (i.e. HK$50 per Sale Share) as deposit and part payment of the Consideration (the "DEPOSIT") to be paid on the signing of this Agreement by way of delivering a solicitor's cheque to the Vendor's Solicitors as stakeholder to be held by it subject to the provisions of this Agreement and the sum of HK$1,000,000 being the earnest money already paid by the Purchaser to the Purchaser's Solicitors as stakeholder under the term sheet dated 25 July 2007 be released to the Purchaser after payment of the Deposit; and
(b) the balance of the Consideration to be paid on Completion by way of a solicitor's cheque to the Vendor.
3.3 (a) The Vendor shall procure that the draft pro-forma Completion Accounts (the "DRAFT PRO-FORMA COMPLETION ACCOUNTS") be drawn up and delivered to the Purchaser not less than six (6) days prior to the Completion Date. Completion shall take place on the basis of the draft pro-forma Completion Accounts. (b) After Completion, the Vendor shall procure the final Completion Accounts (the "FINAL COMPLETION ACCOUNTS") be drawn up and delivered to the Purchaser within fourteen (14) days after the Completion Date. Subject to Clause 3.3(d), if the final Completion Accounts shall show that the NAV per Share is less than the NAV per Share as shown in the draft pro-forma Completion Accounts, the Vendor shall pay the amount of the difference of the NAV per Share multiplied by the number of the Sale Shares to the Purchaser within ten (10) days from the date of delivery of the final Completion Accounts by way of solicitor's cheque. If the final Completion Accounts shall show that the NAV per Share is more than the NAV per Share as shown in the draft pro-forma Completion Accounts, the Purchaser shall pay the amount of the difference of the NAV per Share multiplied by the number of the Sale Shares to the Vendor within ten (10) days from the date of delivery of the final Completion Accounts by way of solicitor's cheque. The Purchaser shall provide with the Vendor full access to the books, records and resources of the Company so as to enable the Vendor to procure the final Completion Accounts to be drawn up. (c) The basis and policy of accounting adopted in preparing the pro-forma draft Completion Accounts and the final Completion Accounts shall be in accordance with the generally accepted accounting practices in Hong Kong. (d) In the event of a dispute between the Parties as to the amount of the NAV as shown in the final Completion Accounts, the Vendor or the Purchaser may procure that the final Completion Accounts be audited by the auditors of the Company within forty-five (45) days from the date of delivery of the final Completion Accounts provided that the procurement of the audited final Completion Accounts shall be made by the relevant Party within seven (7) days from the date of delivery of |
the final Completion Accounts.
(e) If the audited Completion Accounts shall show that the NAV per Share is less than the NAV per Share as shown in the draft pro-forma Completion Accounts, the Vendor shall pay the amount of the difference of the NAV per Share multiplied by the number of the Sale Shares to the Purchaser within seven (7) days from the date of delivery of the audited Completion Accounts by way of solicitor's cheque. If the audited Completion Accounts shall show that the NAV per Share is more than the NAV per Share as shown in the draft pro-forma Completion Accounts, the Purchaser shall pay the amount of the difference of the NAV per Share multiplied by the number of the Sale Shares to the Vendor within seven (7) days from the date of delivery of the audited Completion Accounts by way of solicitor's cheque. The Vendor together with the other vendors of the one part and the Purchaser of the other part shall each be responsible for payment of 50% of the cost and expenses for the preparation and completion of the audited Completion Accounts.
4. COMPLETION
4.1 Subject to the provisions in Clause 2 hereof, completion of the sale and purchase of the Sale Shares shall take place at the offices of Arculli Fong & Ng (the "PURCHASER'S SOLICITORS"), the Solicitors for the Purchaser, at 908 Hutchison House, Central, Hong Kong or any other place as the Parties may agree at 5:00 p.m. on a Friday of the week immediately following the week when the Approval is granted by the SFC, when the following business shall simultaneously be transacted :-
(a) the Purchaser shall deliver to the Vendor the following :-
(i) a solicitor's cheque for payment of the balance of the Consideration and the Vendor's Solicitors will release the Deposit to the Vendor; and
(ii) a certified copy of each of the minutes of the board of directors of the Purchaser and the Guarantor approving this
Agreement and authorizing/confirming the authorization of an authorised person for signing of this Agreement and (for the Purchaser) the bought note and the instrument of transfer and any other incidental documents hereof;
(b) the Vendor shall deliver to the Purchaser the following :-
(i) sold notes and instrument of transfer in favour of the Purchaser in respect of the Sale Shares all executed by the Vendor in accordance with the Stamp Duty Ordinance;
(ii) original share certificate(s) or re-issued share certificate(s) in respect of the Sale Shares;
(iii) such other documents as may be reasonably required to give a good and effective transfer of title to the Sale Shares to the Purchaser and to enable them to become the registered holders thereof;
(iv) a cheque drawn in favour of the Government of the Hong Kong Special Administrative Region for an amount equivalent to the stamp duty payable under the Stamp Duty Ordinance in respect of the sold notes in respect of the Sale Shares;
(v) a certified copy of the minutes of the board of directors of the Vendor (if the Vendor is a corporate) approving the sale of the Sale Shares and authorizing/confirming the authorization of an authorised person for signing of this Agreement and the sold note and the instrument of transfer and any other incidental documents hereof;
(vi) to the extent that the same are not already in the possession of the Company or its agents, the certificate of incorporation, business registration certificate, common seal of the Company, all copies of memorandum and articles of association of the Company, the statutory books of the Company duly made up to date, any unissued share
certificates, all current insurance policies, books and accounts and other records, cheque books, title deeds and evidence of ownership to all assets of the Company and all current contracts;
(vii) an original of the Disclosure Letter duly executed by the Vendor in the form identical to that attached as Schedule 3 hereto or with lesser disclosures;
(c) the Vendor shall cause a meeting of the board of directors of the Company to be held at which resolutions shall be passed to :-
(i) approve the transfer of the Sale Shares;
(ii) register (subject to stamping) the transfer of the Sale Shares referred to above and to issue new certificate(s) for the Sale Shares in the name(s) of the Purchaser;
(iii) appoint one person as the Purchaser may nominate as the Chairman of the Company and such person(s) as the Purchaser may nominate as director(s) of the Company and (subject to the approval of the SFC) one person as the Purchaser may nominate as the Responsible Officer of the Company all to take effect from the close of business of the said meeting if so required by the Purchaser; and
(iv) amend all banking authorisations, instructions and mandates of the Company in such manner as the Purchaser may direct; and
(d) the Purchaser shall :-
(i) produce for inspection by the Vendor the bought notes in respect of the Sale Shares executed by the Purchaser in compliance with the Stamp Duty Ordinance; and
(ii) procure the stamping of the bought and sold notes and the instrument of transfer in respect of the Sale Shares as soon
as practicable thereafter and present the said instrument of transfer together with the share certificate(s) in respect of the Sale Shares to the Company for registration of the transfer.
4.2 The transactions described in Clause 4.1 hereof shall take place at the same time, so that in default of the performance of any such transactions by a Party, the other Party shall not be obliged to complete the sale and purchase aforesaid.
5. REPRESENTATIONS AND WARRANTIES AND GUARANTEE
5.1 Save as disclosed in the Disclosure Letter and documents and information provided to the Purchaser and/or its advisors, the Vendor hereby represents and warrants to the Purchaser that each of the matters set out in Schedule 2 are as at the date hereof and will be for all times up to and including the Completion Date, true and correct in all material respects.
5.2 From the date of this Agreement until the Completion Date the Vendor shall use her best endeavours to procure that (save with the prior consent in writing or of the Purchaser, such consent not to be unreasonably withheld or delayed) the Company shall not :-
(a) issue or agree to issue any of its share or loan capital or grant or agree to grant any option over or right to acquire any of its share or loan capital;
(b) enter into any contract (otherwise than in the ordinary course of business) or any capital commitment;
(c) create or permit to arise any lien, charge, pledge, mortgage or other security interest on or in respect of any of its undertaking, property or assets;
(d) appoint any directors other than as provided in this Agreement; or
(e) increase the remuneration of its employees (save as payment of discretionary bonus and save that the increase is made pursuant to the
relevant employment contract)
and the Vendor shall use her best endeavours to procure that the Purchaser be kept regularly informed of the affairs of the Company until the Completion Date.
5.3 The liability of the Vendor in respect of any breach of the warranties or representations as set out in Schedule 2 shall be limited as follows:-
(a) the maximum liability of the Vendor, if any, under this Agreement shall be 25% of the Consideration;
(b) no claims may be brought against the Vendor in respect of any claim of damages for breach of warranty(ies) or representation(s) as set out in Schedule 2 after the expiry of six months from the Completion Date.
5.4 In consideration of the Vendor agreeing to enter into this Agreement, the Guarantor (as principal obligor and not merely as surety) unconditionally and irrevocably guarantees performance by the Purchaser of all its obligations and liabilities under or arising out of or in connection with this Agreement (referred to herein as the "GUARANTEED OBLIGATIONS") and undertakes to the Vendor that if and whenever the Purchaser is in default, the Guarantor shall duly and promptly perform or procure such performance of the Guaranteed Obligations and indemnify the Vendor against any loss, damage, costs, expenses and liabilities that she may suffer in connection with or arising out of any such failure on the part of the Purchaser.
6. SEVERABILITY
If at any time any one or more provisions hereof is or becomes invalid, illegal, unenforceable or incapable of performance in any respect, the validity, legality, enforceability or performance of the remaining provisions hereof shall not thereby in any way be affected or impaired.
7. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement and understanding between
the Parties in connection with the subject-matter of this Agreement and supersedes all previous proposals, representations, warranties, agreements or undertakings relating thereto whether oral, written or otherwise and none of the Parties has relied on any such proposals, representations, warranties, agreements or undertakings.
8. TIME
8.1 Time shall be of the essence of this Agreement.
8.2 No time or indulgence given by any Party to the other Party shall be deemed or in any way be construed as a waiver of any of her/its rights and remedies hereunder.
9. CONFIDENTIALITY
Other than such disclosure as may be required by law, the SFC, the Stock Exchange or other competent authority, neither of the parties hereto shall make any announcement or release or disclose any information concerning this Agreement or the transactions herein referred to or disclose the identity of the other party(ies) hereto (save disclosure to their respective professional advisers under a duty of confidentiality) without the written consent of the other parties hereto.
10. ASSIGNMENT
This Agreement shall be binding on and shall enure for the benefits of the successors and assigns of the Parties but shall not be assigned by any party hereto without the prior written consent of the other parties hereto.
11. NOTICES AND OTHER COMMUNICATION
11.1 Any notice or other communication to be given under this Agreement shall be in writing and may be given by hand, by post or facsimile to the following
address/number of the party hereto to be served or to such other address/number as shall be notified by such party to the other in writing
:- The Vendor Address : Flat F, 13th Floor, On Ping Mansion, Lei King Wan, Sai Wan Ho, Hong Kong |
Facsimile no. : 852-2362 3655
The Purchaser
Address : Room 908, 9th floor, Hutchison House, 10 Harcourt Road, Central, Hong Kong Attention : Mr. Jun Wang |
Facsimile no. : 8610-5832 5200
The Guarantor
Address : Room 908, 9th floor, Hutchison House, 10 Harcourt Road, Central, Hong Kong Attention : Mr. Jun Wang |
Facsimile no. : 8610-5832 5200
11.2 Any such notice or communication shall be sent to the party hereto to whom it is addressed and must contain sufficient reference and/or particulars to render it readily identifiable with the subject-matter of this Agreement. If so given by hand or facsimile, such notice or communication shall be deemed received on the date of despatch and if so sent by post (or, if sent to an address outside of Hong Kong, so sent by first class air-mail) shall be deemed received two (2) Business Days after the date of despatch (in case to an address in Hong Kong) or five (5) Business Days after the date of despatch (in case to an address outside of Hong Kong).
12. COSTS AND EXPENSES
Each party hereto shall bear her/its own legal and professional fees, costs and expenses incurred in the negotiation, preparation and execution of this Agreement. The stamp duty in respect of the Sale Shares shall be borne by the Vendor and the Purchaser in equal shares.
13. COUNTERPARTS
This Agreement may be executed in any number of counterparts each of which when executed and delivered is an original, but all the counterparts together constitute the same document.
14. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of Hong Kong and the parties hereto agree to submit to the non-exclusive jurisdiction of the courts of Hong Kong.
15. PROCESS AGENT
The Purchaser hereby irrevocably authorizes and appoints the Purchaser's Solicitors (or such other person(s), being resident in Hong Kong, as it may from time to time appoint as its agent(s) and notify to the Vendor) to accept service of all legal process arising out or in connection with this Agreement and service on the Purchaser's Solicitors (or such substitute(s)) shall be deemed to be service on the Purchaser.
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IN WITNESS whereof the Parties have executed this Agreement the day and year first above written.
SIGNED by Ms. Hung Yung ) in the presence of :- ) ) ) ) SIGNED by Mr. Jun Wang ) (Chinese Characters), the lawful attorney ) for and on behalf of FNG ) International Holdings ) Limited in the presence of :- ) SIGNED by Mr. Jun Wang ) (Chinese Characters), the lawful attorney ) for and on behalf of China ) Finance Online Co. Limited ) in the presence of :- ) |
SCHEDULE 1
PARTICULARS OF THE COMPANY
1. Name : Daily Growth Investment Company Limited (Chinese Characters) 2. Registered office : Room 603, Peter Building, 58-62 Queen's Road, Central, Hong Kong. 3. Company Number : 025436 4. Date of Incorporation : 6 October 1971 5. Place of Incorporation : Hong Kong 6. Authorised share capital : HK$10,000,000 divided into 100,000 ordinary shares of HK$100 each 7. Issued and paid up capital : HK$10,000,000 divided into 100,000 ordinary shares of HK$100 each 8. Directors : TING WANG Wan-sun, Nancy WAI CHAN Ye, Kannie WAI Heung-wah, Hayles YEH WANG Zung-sing, Helen WONG Long-sau, Ivis 9. Secretary : Hang Cheuk Secretaries Limited 10 Auditors : J Kong & Co. 11. Financial year end : 31 December |
SCHEDULE 2
REPRESENTATIONS AND WARRANTIES
General; Corporate Status
1.1 All information regarding the Company provided by or on behalf of the Vendor and/or the Company to the Purchaser is complete, correct and true in a material respect.
1.2 The Company has been duly incorporated and constituted, and is legally subsisting under the laws of its place of incorporation, and there has been no resolution, petition or order for the winding-up of the Company and no receiver has been appointed in respect thereof, nor are any such resolutions, orders and appointments imminent or likely.
Shareholdings and Share Capital etc.
2.1 The Sale Shares comprise a percentage (as referred to in Recital (B)) of the issued share capital of the Company, and there are not in issue any other shares, debentures, warrants, options or securities.
2.2 The Company is not under any contract, options, warrants or any other obligations regarding any part of its capital, issued or unissued, or for the issue of any shares, debentures, warrants, options, or other similar securities.
2.3 Save as disclosed in the Disclosure Letter, the Vendor has acquired the Shares in compliance with the articles of association of the Company and the laws under the Companies Ordinance and is the beneficial owner of the Sale Shares free from all liens, charges, pledges, options, contracts, preemption rights, third party rights and equities, and incumbrances of whatever nature and the same are freely transferable by the Vendor without the consent, approval, permission, licence or concurrence of any third party.
2.4 The Vendor is fully capable of entering into this Agreement and to perform all
obligations and duties hereunder without the consent, approval, permission, licence or concurrence of any third party.
Business etc.
3.1 The principal business activity of the Company is security trading.
3.2 In respect of the said business being carried on, all qualifications, registrations, licences or other approvals necessary for the proper conduct of business have been obtained and maintained and to the knowledge of the Vendor, all the relevant rules and regulations of the SFC and the Stock Exchange applicable to the Company have been observed and complied with in a material respect and no event has occurred whereby any of the same or the renewal thereof is or likely to be thereby adversely affected, suspended or revoked.
Accounts
4.1 The Accounts have been prepared in accordance with generally accepted accounting practice in Hong Kong and comply with the Companies Ordinance, and show a true and fair view of the affairs and financial position of the Company as at, and the profits and loss of the Company for the period ended on, the Accounts Date.
4.2 All accounting records of the Company for the past seven (7) years are in the possession of the Company and have been properly written up, kept and maintained in accordance with generally accepted accounting practice and together shows a true and fair view of the affairs and financial position of the Company.
Taxation
5.1 The Company has paid all taxes, duties and levies as the same became due and payable and to the knowledge of the Vendor, the Company is not nor is likely to be subject to any tax penalties.
5.2 The Company has complied with the Inland Revenue Ordinance and has kept proper records for tax purposes for the past seven (7) years and have filed all tax returns, and to the knowledge of the Vendor, there is no pending dispute with the Inland Revenue Department.
Dispute, Claims and Litigation
6. There is no claim, arbitration or litigation to which the Company is a party or which, to the knowledge of the Vendor, is pending or threatened.
Repetition at Completion
7. All warranties and representations contained in the foregoing provisions of this Schedule shall be deemed to be repeated immediately before completion of this Agreement and to relate to the facts then existing.
SCHEDULE 3
FORM OF DISCLOSURE LETTER
[DATE]
FNG INTERNATIONAL HOLDINGS LIMITED
Trident Chambers, P.O. Box 146,
Road Town, Tortola, British Virgin Islands
Dear Sirs,
DISCLOSURE LETTER
This is the Disclosure Letter referred to in the Sale and Purchase Agreement dated [DATE] and entered into by and between Hung Yung, FNG International Holdings Limited and China Finance Online Co. Limited (the "Agreement"). Capitalized terms appearing in this letter shall adopt the same meaning as defined in the Agreement.
A. GENERAL DISCLOSURES
The following matters are deemed to be disclosed by this letter:
1. AGREEMENT: All matters set out or referred to in the Agreement, including, without limitation, all schedules and documents annexed thereto and any other agreements entered into pursuant to, or contemplated by, the Agreement.
2. COMPANIES REGISTRY: All matters registered against, or which would be disclosed by a search made in respect of the Company at the Companies Registry in Hong Kong.
3. ACCOUNTS: All matters disclosed, provided for, noted or referred to in the audited accounts of the Company which have been provided to the Purchaser.
4. INSPECTION: All matters which have or ought reasonably to have, been disclosed by inspection of the statutory books, books of account and business records of
the Company, all of which have been made available to the Purchaser and/or its advisers for inspection.
5. OTHERS MATTERS DISCLOSED: All matters set out or referred to in any letter, note, schedule or other document from or provided by the Vendor, the Company and/or their advisers and/or agents to the Purchaser and/or its advisers and/or agents in connection with the sale and purchase of the Sale Shares. Where any such letter, note, schedule or other document includes an expression of opinion, no representation or warranty is given as to its accuracy.
B. SPECIFIC DISCLOSURE
We write to disclose the following and the paragraph numbers used below correspond to the representations and warranties as set out in Schedule 2 to the Agreement:
Paragraphs 1.1 and 2.3
The following documents cannot be found in the company kit of the Company or located by the Vendor or are incomplete. As such, no representation and warranty will be made on these missing or incomplete documents :-
1. Original corporate documents from the date of incorporation to the year of 1987;
2. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 1 share from Helen Zung Sing Yeh to Shun Kin Enterprises Limited on 20th February 1987;
3. Original cancelled share certificate in the names of Helen Zung Sing Yeh and Shun Kin Enterprises Limited;
4. Original Application for 42,300 shares made on 24th February 1987 - 8 sets;
5. Original share certificates in respect of the allotment made on 24th February 1987;
6. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 5,000 shares from Mr. Basil D.C. Wood to Mrs. Nancy Ting on 26th April 1988;
7. Original share certificates in respect of the transfer made on 26th April 1988;
8. Original transfer documents (including instruments of transfer and bought and sold notes) in respect of the transfer of 20,525 shares in respect of the following transfer:
Mr. Basil D.C. Wood to Midopa Enterprises Limited - 7,610 shares on
21.7.1988
Mrs. Wendy Wood to Midopa Enterprises Limited - 1,694 shares on 21.7.1988
Mr. Hsu Zing Ping to Midopa Enterprises Limited - 3,196 shares on 21.7.1988
Mr. Hsu Zing Ping to Billion System Co., Limited - 2,500 shares on 21.7.1988
Mr. Hsu Zing Ping to Mrs. Wang Zau Chin Ngo - 240 shares on 21.7.1988
Mr. Hsu Zing Ping to Eternal Growth Investment Ltd. - 525 shares on 21.7.1988
Mr. Koo Kam Kang to Eternal Growth Investment Ltd. - 4,760 shares on 21.7.1988
9. Original share certificates in respect of the transfer made on 21.7.1988;
10. Original transfer documents (including instruments of transfer and bought and sold notes) in respect of the transfer of 7,715 shares in respect of the following transfer:
Ms. Nancy Ting to Ho Chi Kuen Bernard - 2,000 shares on 29.7.1988
Ms. Nancy Ting to Billion System Co., Ltd. - 2,500 shares on 29.7.1988
Ms. Nancy Ting to Stella Wong - 545 shares on 29.7.1988
Shun Kin Ent. Ltd. to Stella Wong - 195 shares on 29.7.1988
Eileen Hwa to Stella Wong - 260 shares on 29.7.1988
Ms. Nancy Ting to Eternal Growth Inv. Ltd. - 2,215 shares on 29.7.1988
11. Original share certificates in respect of the transfer made on 29.7.1988
12. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 2,000 shares in respect of the transfer from Eileen Hwa to Wong Oi Lun, Ellen on 17.3.1989;
13. Original share certificates in respect of the transfer made on 17.3.1989;
14. Form X(ii) or Form (IXA) showing the resignation of Ms. Stella Wong as the director of the Company made on 1.4.1989;
15. Original transfer documents (including instruments of transfer and bought and sold notes) in respect of the transfer of 2,000 shares in respect of the following transfer:
Wong Oi Lun Ellen to Stella Wong - 1,000 shares on 31.5.1990
Wong Oi Lun Ellen to Tsang Kin Woo - 500 shares on 31.5.1990
Wong Oi Lun Ellen to Chu Ping Im - 500 shares on 31.5.1990
16. Original share certificates in respect of the transfer made on 31.5.1990
17. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 2,000 shares in respect of the following transfer:
Bernard Ho to Zone Bo Ltd. - 2,000 shares on 19.7.1990
18. Original share certificates in respect of the transfer made on 19.7.1990
19. Copy of Consent to act as director of the Company by Mr. Yap E. Hock on
9.12.1992
20. A letter dated 10th October 1994, from King Cause Limited and Asian Capital Partners (HK) Limited reporting that 10 share certificates for 50,000 shares have been mislaid and requesting 2 share certificates be issued to them
21. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 50,000 shares in respect of the following transfer:
King Cause Ltd.to Billion System Co. Ltd.- 5,000 shares on 12.12.1994;
King Cause Ltd. to Eternal Growth Investment Ltd.- 7,500 shares on 12.12.1994;
King Cause Ltd. to Midpoa Enterprises Limited- 12,500 shares on 12.12.1994;
King Cause Ltd. to Shun Kin Ent. Limited- 17,500 shares on 12.12.1994;
King Cause Ltd. to Wang Zau Chin Ngo- 2,500 shares on 12.12.1994;
King Cause Ltd. to Tsang Kin Woo- 499 shares on 12.12.1994;
King Cause Ltd. to Chu Ping Im - 500 shares on 12.12.1994
King Cause Ltd. to Stella Wong- 2,000 shares on 12.12.1994;
King Cause Ltd. to Zone Bo Limited- 2,000 shares on 12.12.1994;
King Cause Ltd. and Asian Capital Partners (HK) Limited to Tsang Kin Woo- 1 share on 12.12.1994;
22. Original share certificates in respect of the transfer made on 12.12.1994;
23. Original Declaration of Trust given by King Cause Limited and Asian Capital Partners (HK) Limited on 9.12.1992;
24. Copy of Form D2 and Consent to act reporting the appointment of Mr. Ho Chi Kuen as the director of the company;
25. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 5,000 shares in respect of the following transfer:
Billion System Co. Ltd. to Zone Bo Ltd.- 500 shares on 15.12.2000;
Billion System Co. Ltd. to Eternal Growth Inv. Ltd.- 500 shares on 15.12.2000;
Billion System Co. Ltd. to Midopa Enterprises Ltd.- 1,250 shares on 15.12.2000;
Billion System Co. Ltd. to Shun Kin Enterprises Ltd.- 1,750 shares on 15.12.2000;
Billion System Co. Ltd. to Tsang Kin Woo- 500 shares on 15.12.2000;
Billion System Co. Ltd. to Chu Ping Im- 500 shares on 15.12.2000;
26. Original share certificates in respect of the transfer made on 15.12.2000;
27. Original Share Certificate of Wang William;
28. Original Board Minutes for approving the share transfer from Zone Bo Limited to Hung Yung made on 22.06.2007;
29. Share Certificate of Hung Yung in respect of 5,000 shares;
30. Original Consent to Short Notice dated 16.03.1987 - Elieen Hwa Wang Vung Sing (with the signature of Elieen missing); and
31. Original Consent to Short Notice for 2005 AGM dated 30.05.2005 (missing signatures from Midopa Enterprises Limited, Wong Chan Miu Wan Stella, Chu Ping Im, Tsang Kin Woo).
Yours sincerely,
Exhibit 4.57
DATED THE ________ DAY OF _____________, 2007
CHU PING-IM
and
FNG INTERNATIONAL HOLDINGS LIMITED
and
CHINA FINANCE ONLINE CO. LIMITED
AGREEMENT
for the sale and purchase
of shares in
Daily Growth Investment Company Limited
(Chinese Characters)
F. ZIMMERN & CO.
Solicitors & Notaries
Suites 1501-1503, 15th Floor, Gloucester Tower, The Landmark, 15 Queen's Road Central, Hong Kong Tel: (852) 2526-4373 Fax: (852) 2801-4548 Ref: AN/PC/S14/2007
THIS AGREEMENT is made on the ___________ day of _______________, 2007.
BETWEEN :-
1. CHU PING-IM whose correspondence address is at Flat H, 17th Floor, Tung Ting Mansion, 4 Taikoo Shing Road, Taikoo Shing, Hong Kong (the "VENDOR");
2. FNG INTERNATIONAL HOLDINGS LIMITED, a company incorporated in the British Virgin Islands whose registered address is at Trident Chambers, P.O. Box 146, Road Town, Tortola, British Virgin Islands (the "PURCHASER"); and
3. CHINA FINANCE ONLINE CO. LIMITED, a company incorporated in Hong Kong whose registered office is situate at Room 908, 9th Floor, Hutchison House, 10 Harcourt Road, Central, Hong Kong (the "GUARANTOR").
(The Vendor and the Purchaser are collectively referred to as the "PARTIES" and each as a "PARTY")
WHEREAS :-
(A) Daily Growth Investment Company Limited (Chinese Characters) (the "COMPANY") is a private limited company incorporated under the laws of Hong Kong on 6 October 1971 and has an authorised share capital of HK$10,000,000 divided into 100,000 ordinary shares of HK$100 each, of which 100,000 ordinary shares have been issued and are fully paid up. The Company is a licensed corporation to engage in type 1 regulated activity (dealing in securities) under the Securities and Futures Ordinance, Chapter 571 of the laws of Hong Kong. Particulars of the Company are set out in Schedule 1.
(B) The Vendor is the legal and beneficial owner of 2,000 issued ordinary shares of the Company, representing 2 per cent. of the entire issued share capital of the Company (the "SALE SHARES").
(C) The Vendor has agreed to sell, and the Purchaser has agreed to purchase, the
Sale Shares on the terms and conditions hereinafter appearing.
(D) The Purchaser is a wholly owned subsidiary of the Guarantor.
(E) The Guarantor has agreed to guarantee as the primary obligor for the due performance of the Purchaser under this Agreement.
AND NOW IT IS HEREBY AGREED as follows
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, unless otherwise expressed or required by context, the following expressions shall have the respective meanings set opposite thereto :-
Expression Meaning ---------- ------- "Accounts" means the audited profit and loss accounts for the period ended on and the balance sheet as at the Accounts Date of the Company; "Accounts Date" means 31 December 2006; "Approval" have the meaning ascribed to it in Clause 2.1(b) hereof; "Business Day" means a day, other than a "general holiday" (as defined in the General Holidays Ordinance (Chapter 149 of the Laws of Hong Kong)), Saturday and any day on which a tropical cyclone warning No. 8 or above is hoisted or remains hoisted between 9:00 a.m. and 12:00 noon and is not lowered at or before 12:00 noon or on which a "black" rainstorm warning signal is hoisted or remains in effect between 9:00 a.m. and 12:00 noon and is not discontinued at or before 12:00 noon, on which commercial banks are generally |
open for banking business in Hong Kong; "Completion Accounts" means the profit and loss accounts for the period ended on and the balance sheet as at the Completion Date of the Company; "Completion Date" means the date on which completion of the sale and purchase of the Sale Shares takes place as mentioned in Clause 4 hereof; "Consideration" has the meaning ascribed to it in Clause 3 hereof; "Deposit" has the meaning ascribed to it in Clause 3.2(a) hereof; "Disclosure Letter" means the disclosure letter from the Vendor to the Purchaser to be delivered at Completion in the form identical to that attached hereto as Schedule 3 hereto or with lesser disclosures; "Hong Kong" means the Hong Kong Special Administrative Region of the People's Republic of China; "Liabilities" means the total liabilities of the Company whether actual or contingent as at Completion, and for the avoidance of doubt, including all provisions for taxation and bad debts; "NAV" means the Tangible Assets less the Liabilities; "Shares" means issued ordinary shares of HK$100 each in the capital of the Company, and "Shareholders" shall be construed accordingly; "SFC" means the Securities and Futures Commission; "SFO" means the Securities and Futures Ordinance (Chapter 571 of the laws of Hong Kong); |
"Stock Exchange" The Stock Exchange of Hong Kong Limited; "Tangible Assets" means the total tangible assets of the Company as at Completion, including an amount of HK$794,157.41 due from Mr. Cheung Wing Cheung as at 1 August 2007 to the Company to be accepted by the Parties as accounts receivable without any provision for non-recovery; "Vendor's Solicitors" means F. Zimmern & Co; and "HK$" and "Cent" means Hong Kong Dollars and Cents respectively. |
1.2 The headings to the Clauses of this Agreement are for ease of reference only and shall be ignored in interpreting this Agreement.
1.3 Reference to Clauses and Schedules are references to Clauses and Schedules of or to this Agreement.
1.4 Words and expressions in the singular include the plural and vice versa.
1.5 Reference to person include any public body and any body of persons, corporate or unincorporated.
1.6 Reference to ordinances, statutes, legislation or enactments shall be construed as a reference to such Ordinances, statutes, legislation or enactments as may be amended or re-enacted from time to time and for the time being in force.
2. CONDITIONS PRECEDENT
2.1 Completion of this Agreement shall be conditional upon :-
(a) the Company remains a licensed corporation to engage in type 1 regulated activity (dealing in securities) under the SFO up to Completion;
(b) the SFC giving its written approval to approve the Purchaser to become a substantial shareholder of the Company (the "APPROVAL"); and
(c) the Purchaser shall, in addition to the Sale Shares to be acquired pursuant hereto, acquire on the Completion Date Shares from other existing Shareholders which together with the Sale Shares, shall in aggregate represent not less than 75% of the entire issued share capital of the Company as at the Completion Date.
2.2 The Vendor will use his best endeavours to procure the fulfilment of the condition set out in Clauses 2.1 (a) and 2.1(c) hereof and the Purchaser will use its best endeavours to procure the fulfilment of the condition set out in Clause 2.1(b) hereof.
2.3 If (i) the condition as set out in Clause 2.1(a) hereof cannot be fulfilled on the Completion Date, the Vendor or the Purchaser may, or (ii) the condition as set out in Clause 2.1(c) hereof cannot be fulfilled on the Completion Date, the Purchaser may terminate this Agreement. In any of such event, the Deposit shall be returned to the Purchaser in full together with interest calculated at the rate of three (3) per cent. per annum from the date of payment of the Deposit by the Purchaser up to the date of refund. Upon the refund, this Agreement shall lapse and no Party shall have any claim against the other Party except in respect of any antecedent breach.
2.4 If the condition as set out in Clause 2.1(b) hereof cannot be fulfilled on or before 31 December 2007 (the "CONDITIONS DEADLINE"), the Vendor will allow the Purchaser to extend the Conditions Deadline for a period up to three (3) calendar months from 1 January 2008 (the "EXTENDED PERIOD") provided that the Purchaser shall pay compensation (the "COMPENSATION") to the Vendor, unless the delay is due to the proven default of the Vendor, to be arrived at by the following formula :-
C = [(HK$3 * S) * 3] * D/91
C = the total Compensation payable by the Purchaser to the Vendor
S = the number of the Sale Shares
D = the number of days from 1 January 2008 up to and including (i)
the Completion Date; or (ii) the day of the receipt of the Notice (as defined below) by the Vendor; or (iii) 31 March 2008, as the case may be, to be determined in the manner as provided in Clauses 2.5 (a) and (b)
The Purchaser may serve a written notice to the Vendor not to proceed with the Completion (the "NOTICE") during the Extended Period.
2.5 (a) In the event that Completion takes place before the expiry of the Extended Period, the Purchaser shall pay the Compensation calculated up to the Completion Date to the Vendor on the Completion Date. (b) In the event that the Purchaser shall fail to complete the purchase of the Sale Shares in accordance with the terms of this Agreement (including failure to complete by reason of the failure to obtain the Approval) other than due to the proven default of the Vendor, half of the Deposit shall be forfeited to the Vendor as liquidated damages (the "FORFEITURE") and in addition, if the Conditions Deadline is extended, the Vendor shall also be entitled to deduct the Compensation (calculated up to the day of the receipt of the Notice by the Vendor if the Notice is served by the Purchaser or calculated up to 31 March 2008 if no Notice is served by the Purchaser) from the balance of the Deposit (the "DEDUCTION"). The remaining balance of the Deposit (after the Forfeiture and any Deduction) shall be returned to the Purchaser without interest within seven (7) days from the date of the receipt of the Notice by the Vendor or 31 March 2008, as the case may be. After the Forfeiture and any Deduction, the Vendor shall have no claim whatsoever against the Purchaser under this Agreement. |
2.6 If the Vendor shall fail to complete the sale of the Sale Shares in accordance with the terms of this Agreement due to the proven default of the Vendor, the Deposit shall be returned to the Purchaser in full together with interest calculated at the rate of three (3) per cent. per annum from the date of payment of the Deposit by the Purchaser up to the date of refund. Subject to the aforesaid payment, the Purchaser shall have no claim whatsoever against the Vendor under this Agreement.
3. SALE AND PURCHASE OF THE SALE SHARES AND THE CONSIDERATION
3.1 Subject to the terms and conditions of this Agreement, the Vendor as beneficial owner hereby agrees to sell to the Purchaser and the Purchaser, relying on the representations and warranties made or given by the Vendor and subject to the terms and conditions contained in this Agreement, agree to purchase from the Vendor the Sale Shares free from all claims, charges, liens, encumbrances, equities and third party rights and together with all rights attached thereto and all dividends and distributions declared, paid or made in respect thereof after the Completion Date at a consideration (the "CONSIDERATION") to be arrived at by the following formula :-
C = P * S
C = the total consideration payable by the Purchaser to the Vendor for the Sale Shares
P = the price per Share based on the NAV as at the Completion Date plus a premium of HK$15 per Share (which is to reflect the value of the trading right held by the Company in the Stock Exchange)
S = the number of Sale Shares
3.2 Subject to Clause 3.3 hereof, the Consideration shall be paid by the Purchaser to the Vendor as follows:-
(a) a sum of HK$100,000 (i.e. HK$50 per Sale Share) as deposit and part payment of the Consideration (the "DEPOSIT") to be paid on the signing of this Agreement by way of delivering a solicitor's cheque to the Vendor's Solicitors as stakeholder to be held by it subject to the provisions of this Agreement and the sum of HK$1,000,000 being the earnest money already paid by the Purchaser to the Purchaser's Solicitors as stakeholder under the term sheet dated 25 July 2007 be released to the Purchaser after payment of the Deposit; and
(b) the balance of the Consideration to be paid on Completion by way of a solicitor's cheque to the Vendor.
3.3 (a) The Vendor shall procure that the draft pro-forma Completion Accounts (the "DRAFT PRO-FORMA COMPLETION ACCOUNTS") be drawn up and delivered to the Purchaser not less than six (6) days prior to the Completion Date. Completion shall take place on the basis of the draft pro-forma Completion Accounts. (b) After Completion, the Vendor shall procure the final Completion Accounts (the "FINAL COMPLETION ACCOUNTS") be drawn up and delivered to the Purchaser within fourteen (14) days after the Completion Date. Subject to Clause 3.3(d), if the final Completion Accounts shall show that the NAV per Share is less than the NAV per Share as shown in the draft pro-forma Completion Accounts, the Vendor shall pay the amount of the difference of the NAV per Share multiplied by the number of the Sale Shares to the Purchaser within ten (10) days from the date of delivery of the final Completion Accounts by way of solicitor's cheque. If the final Completion Accounts shall show that the NAV per Share is more than the NAV per Share as shown in the draft pro-forma Completion Accounts, the Purchaser shall pay the amount of the difference of the NAV per Share multiplied by the number of the Sale Shares to the Vendor within ten (10) days from the date of delivery of the final Completion Accounts by way of solicitor's cheque. The Purchaser shall provide with the Vendor full access to the books, records and resources of the Company so as to enable the Vendor to procure the final Completion Accounts to be drawn up. (c) The basis and policy of accounting adopted in preparing the pro-forma draft Completion Accounts and the final Completion Accounts shall be in accordance with the generally accepted accounting practices in Hong Kong. (d) In the event of a dispute between the Parties as to the amount of the NAV as shown in the final Completion Accounts, the Vendor or the Purchaser may procure that the final Completion Accounts be audited by the auditors of the Company within forty-five (45) days from the date of delivery of the final Completion Accounts provided that the procurement of the audited final Completion Accounts shall be made by the relevant Party within seven (7) days from the date of delivery of |
the final Completion Accounts.
(e) If the audited Completion Accounts shall show that the NAV per Share is less than the NAV per Share as shown in the draft pro-forma Completion Accounts, the Vendor shall pay the amount of the difference of the NAV per Share multiplied by the number of the Sale Shares to the Purchaser within seven (7) days from the date of delivery of the audited Completion Accounts by way of solicitor's cheque. If the audited Completion Accounts shall show that the NAV per Share is more than the NAV per Share as shown in the draft pro-forma Completion Accounts, the Purchaser shall pay the amount of the difference of the NAV per Share multiplied by the number of the Sale Shares to the Vendor within seven (7) days from the date of delivery of the audited Completion Accounts by way of solicitor's cheque. The Vendor together with the other vendors of the one part and the Purchaser of the other part shall each be responsible for payment of 50% of the cost and expenses for the preparation and completion of the audited Completion Accounts.
4. COMPLETION
4.1 Subject to the provisions in Clause 2 hereof, completion of the sale and purchase of the Sale Shares shall take place at the offices of Arculli Fong & Ng (the "PURCHASER'S SOLICITORS"), the Solicitors for the Purchaser, at 908 Hutchison House, Central, Hong Kong or any other place as the Parties may agree at 5:00 p.m. on a Friday of the week immediately following the week when the Approval is granted by the SFC, when the following business shall simultaneously be transacted :-
(a) the Purchaser shall deliver to the Vendor the following :-
(i) a solicitor's cheque for payment of the balance of the Consideration and the Vendor's Solicitors will release the Deposit to the Vendor; and
(ii) a certified copy of each of the minutes of the board of directors of the Purchaser and the Guarantor approving this
Agreement and authorizing/confirming the authorization of an authorised person for signing of this Agreement and (for the Purchaser) the bought note and the instrument of transfer and any other incidental documents hereof;
(b) the Vendor shall deliver to the Purchaser the following :-
(i) sold notes and instrument of transfer in favour of the Purchaser in respect of the Sale Shares all executed by the Vendor in accordance with the Stamp Duty Ordinance;
(ii) original share certificate(s) or re-issued share certificate(s) in respect of the Sale Shares;
(iii) such other documents as may be reasonably required to give a good and effective transfer of title to the Sale Shares to the Purchaser and to enable them to become the registered holders thereof;
(iv) a cheque drawn in favour of the Government of the Hong Kong Special Administrative Region for an amount equivalent to the stamp duty payable under the Stamp Duty Ordinance in respect of the sold notes in respect of the Sale Shares;
(v) a certified copy of the minutes of the board of directors of the Vendor (if the Vendor is a corporate) approving the sale of the Sale Shares and authorizing/confirming the authorization of an authorised person for signing of this Agreement and the sold note and the instrument of transfer and any other incidental documents hereof;
(vi) to the extent that the same are not already in the possession of the Company or its agents, the certificate of incorporation, business registration certificate, common seal of the Company, all copies of memorandum and articles of association of the Company, the statutory books of the Company duly made up to date, any unissued share
certificates, all current insurance policies, books and accounts and other records, cheque books, title deeds and evidence of ownership to all assets of the Company and all current contracts;
(vii) an original of the Disclosure Letter duly executed by the Vendor in the form identical to that attached as Schedule 3 hereto or with lesser disclosures;
(c) the Vendor shall cause a meeting of the board of directors of the Company to be held at which resolutions shall be passed to :-
(i) approve the transfer of the Sale Shares;
(ii) register (subject to stamping) the transfer of the Sale Shares referred to above and to issue new certificate(s) for the Sale Shares in the name(s) of the Purchaser;
(iii) appoint one person as the Purchaser may nominate as the Chairman of the Company and such person(s) as the Purchaser may nominate as director(s) of the Company and (subject to the approval of the SFC) one person as the Purchaser may nominate as the Responsible Officer of the Company all to take effect from the close of business of the said meeting if so required by the Purchaser; and
(iv) amend all banking authorisations, instructions and mandates of the Company in such manner as the Purchaser may direct; and
(d) the Purchaser shall :-
(i) produce for inspection by the Vendor the bought notes in respect of the Sale Shares executed by the Purchaser in compliance with the Stamp Duty Ordinance; and
(ii) procure the stamping of the bought and sold notes and the instrument of transfer in respect of the Sale Shares as soon
as practicable thereafter and present the said instrument of transfer together with the share certificate(s) in respect of the Sale Shares to the Company for registration of the transfer.
4.2 The transactions described in Clause 4.1 hereof shall take place at the same time, so that in default of the performance of any such transactions by a Party, the other Party shall not be obliged to complete the sale and purchase aforesaid.
5. REPRESENTATIONS AND WARRANTIES AND GUARANTEE
5.1 Save as disclosed in the Disclosure Letter and documents and information provided to the Purchaser and/or its advisors, the Vendor hereby represents and warrants to the Purchaser that each of the matters set out in Schedule 2 are as at the date hereof and will be for all times up to and including the Completion Date, true and correct in all material respects.
5.2 From the date of this Agreement until the Completion Date the Vendor shall use his best endeavours to procure that (save with the prior consent in writing or of the Purchaser, such consent not to be unreasonably withheld or delayed) the Company shall not :-
(a) issue or agree to issue any of its share or loan capital or grant or agree to grant any option over or right to acquire any of its share or loan capital;
(b) enter into any contract (otherwise than in the ordinary course of business) or any capital commitment;
(c) create or permit to arise any lien, charge, pledge, mortgage or other security interest on or in respect of any of its undertaking, property or assets;
(d) appoint any directors other than as provided in this Agreement; or
(e) increase the remuneration of its employees (save as payment of discretionary bonus and save that the increase is made pursuant to the
relevant employment contract)
and the Vendor shall use his best endeavours to procure that the Purchaser be kept regularly informed of the affairs of the Company until the Completion Date.
5.3 The liability of the Vendor in respect of any breach of the warranties or representations as set out in Schedule 2 shall be limited as follows:-
(a) the maximum liability of the Vendor, if any, under this Agreement shall be 25% of the Consideration;
(b) no claims may be brought against the Vendor in respect of any claim of damages for breach of warranty(ies) or representation(s) as set out in Schedule 2 after the expiry of six months from the Completion Date.
5.4 In consideration of the Vendor agreeing to enter into this Agreement, the Guarantor (as principal obligor and not merely as surety) unconditionally and irrevocably guarantees performance by the Purchaser of all its obligations and liabilities under or arising out of or in connection with this Agreement (referred to herein as the "GUARANTEED OBLIGATIONS") and undertakes to the Vendor that if and whenever the Purchaser is in default, the Guarantor shall duly and promptly perform or procure such performance of the Guaranteed Obligations and indemnify the Vendor against any loss, damage, costs, expenses and liabilities that he may suffer in connection with or arising out of any such failure on the part of the Purchaser.
6. SEVERABILITY
If at any time any one or more provisions hereof is or becomes invalid, illegal, unenforceable or incapable of performance in any respect, the validity, legality, enforceability or performance of the remaining provisions hereof shall not thereby in any way be affected or impaired.
7. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement and understanding between
the Parties in connection with the subject-matter of this Agreement and supersedes all previous proposals, representations, warranties, agreements or undertakings relating thereto whether oral, written or otherwise and none of the Parties has relied on any such proposals, representations, warranties, agreements or undertakings.
8. TIME
8.1 Time shall be of the essence of this Agreement.
8.2 No time or indulgence given by any Party to the other Party shall be deemed or in any way be construed as a waiver of any of his/its rights and remedies hereunder.
9. CONFIDENTIALITY
Other than such disclosure as may be required by law, the SFC, the Stock Exchange or other competent authority, neither of the parties hereto shall make any announcement or release or disclose any information concerning this Agreement or the transactions herein referred to or disclose the identity of the other party(ies) hereto (save disclosure to their respective professional advisers under a duty of confidentiality) without the written consent of the other parties hereto.
10. ASSIGNMENT
This Agreement shall be binding on and shall enure for the benefits of the successors and assigns of the Parties but shall not be assigned by any party hereto without the prior written consent of the other parties hereto.
11. NOTICES AND OTHER COMMUNICATION
11.1 Any notice or other communication to be given under this Agreement shall be in writing and may be given by hand, by post or facsimile to the following
address/number of the party hereto to be served or to such other address/number as shall be notified by such party to the other in writing
:- The Vendor Address : Flat H, 17th Floor, Tung Ting Mansion, 4 Taikoo Shing Road, Taikoo Shing, Hong Kong |
Facsimile no. : 612-9869 3445
The Purchaser
Address : Room 908, 9th floor, Hutchison House, 10 Harcourt Road, Central, Hong Kong Attention : Mr. Jun Wang |
Facsimile no. : 8610-5832 5200
The Guarantor
Address : Room 908, 9th floor, Hutchison House, 10 Harcourt Road, Central, Hong Kong Attention : Mr. Jun Wang |
Facsimile no. : 8610-5832 5200
11.2 Any such notice or communication shall be sent to the party hereto to whom it is addressed and must contain sufficient reference and/or particulars to render it readily identifiable with the subject-matter of this Agreement. If so given by hand or facsimile, such notice or communication shall be deemed received on the date of despatch and if so sent by post (or, if sent to an address outside of Hong Kong, so sent by first class air-mail) shall be deemed received two (2) Business Days after the date of despatch (in case to an address in Hong Kong) or five (5) Business Days after the date of despatch (in case to an address outside of Hong Kong).
12. COSTS AND EXPENSES
Each party hereto shall bear his/its own legal and professional fees, costs and expenses incurred in the negotiation, preparation and execution of this Agreement. The stamp duty in respect of the Sale Shares shall be borne by the Vendor and the Purchaser in equal shares.
13. COUNTERPARTS
This Agreement may be executed in any number of counterparts each of which when executed and delivered is an original, but all the counterparts together constitute the same document.
14. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of Hong Kong and the parties hereto agree to submit to the non-exclusive jurisdiction of the courts of Hong Kong.
15. PROCESS AGENT
The Purchaser hereby irrevocably authorizes and appoints the Purchaser's Solicitors (or such other person(s), being resident in Hong Kong, as it may from time to time appoint as its agent(s) and notify to the Vendor) to accept service of all legal process arising out or in connection with this Agreement and service on the Purchaser's Solicitors (or such substitute(s)) shall be deemed to be service on the Purchaser.
[Remainder of this page intentionally left blank]
IN WITNESS whereof the Parties have executed this Agreement the day and year first above written.
SIGNED by Mr. Chu Ping-im ) in the presence of :- ) ) ) ) SIGNED by Mr. Jun Wang ) (Chinese Characters), the lawful attorney ) for and on behalf of FNG ) International Holdings ) Limited in the presence of :- ) SIGNED by Mr. Jun Wang ) (Chinese Characters), the lawful attorney ) for and on behalf of China ) Finance Online Co. Limited ) in the presence of :- ) |
SCHEDULE 1
PARTICULARS OF THE COMPANY
1. Name : Daily Growth Investment Company Limited
(Chinese Characters)
2. Registered office : Room 603, Peter Building, 58-62 Queen's Road, Central, Hong Kong.
3. Company Number : 025436
4. Date of Incorporation : 6 October 1971
5. Place of Incorporation : Hong Kong
6. Authorised share capital : HK$10,000,000 divided into 100,000 ordinary shares of HK$100 each
7. Issued and paid up capital : HK$10,000,000 divided into 100,000 ordinary shares of HK$100 each
8. Directors : TING WANG Wan-sun, Nancy WAI CHAN Ye, Kannie WAI Heung-wah, Hayles YEH WANG Zung-sing, Helen WONG Long-sau, Ivis
9. Secretary : Hang Cheuk Secretaries Limited
10 Auditors : J Kong & Co.
11. Financial year end : 31 December
SCHEDULE 2
REPRESENTATIONS AND WARRANTIES
General; Corporate Status
1.1 All information regarding the Company provided by or on behalf of the Vendor and/or the Company to the Purchaser is complete, correct and true in a material respect.
1.2 The Company has been duly incorporated and constituted, and is legally subsisting under the laws of its place of incorporation, and there has been no resolution, petition or order for the winding-up of the Company and no receiver has been appointed in respect thereof, nor are any such resolutions, orders and appointments imminent or likely.
Shareholdings and Share Capital etc.
2.1 The Sale Shares comprise a percentage (as referred to in Recital (B)) of the issued share capital of the Company, and there are not in issue any other shares, debentures, warrants, options or securities.
2.2 The Company is not under any contract, options, warrants or any other obligations regarding any part of its capital, issued or unissued, or for the issue of any shares, debentures, warrants, options, or other similar securities.
2.3 Save as disclosed in the Disclosure Letter, the Vendor has acquired the Shares in compliance with the articles of association of the Company and the laws under the Companies Ordinance and is the beneficial owner of the Sale Shares free from all liens, charges, pledges, options, contracts, preemption rights, third party rights and equities, and incumbrances of whatever nature and the same are freely transferable by the Vendor without the consent, approval, permission, licence or concurrence of any third party.
2.4 The Vendor is fully capable of entering into this Agreement and to perform all
obligations and duties hereunder without the consent, approval, permission, licence or concurrence of any third party.
Business etc.
3.1 The principal business activity of the Company is security trading.
3.2 In respect of the said business being carried on, all qualifications, registrations, licences or other approvals necessary for the proper conduct of business have been obtained and maintained and to the knowledge of the Vendor, all the relevant rules and regulations of the SFC and the Stock Exchange applicable to the Company have been observed and complied with in a material respect and no event has occurred whereby any of the same or the renewal thereof is or likely to be thereby adversely affected, suspended or revoked.
Accounts
4.1 The Accounts have been prepared in accordance with generally accepted accounting practice in Hong Kong and comply with the Companies Ordinance, and show a true and fair view of the affairs and financial position of the Company as at, and the profits and loss of the Company for the period ended on, the Accounts Date.
4.2 All accounting records of the Company for the past seven (7) years are in the possession of the Company and have been properly written up, kept and maintained in accordance with generally accepted accounting practice and together shows a true and fair view of the affairs and financial position of the Company.
Taxation
5.1 The Company has paid all taxes, duties and levies as the same became due and payable and to the knowledge of the Vendor, the Company is not nor is likely to be subject to any tax penalties.
5.2 The Company has complied with the Inland Revenue Ordinance and has kept proper records for tax purposes for the past seven (7) years and have filed all tax returns, and to the knowledge of the Vendor, there is no pending dispute with the Inland Revenue Department.
Dispute, Claims and Litigation
6. There is no claim, arbitration or litigation to which the Company is a party or which, to the knowledge of the Vendor, is pending or threatened.
Repetition at Completion
7. All warranties and representations contained in the foregoing provisions of this Schedule shall be deemed to be repeated immediately before completion of this Agreement and to relate to the facts then existing.
SCHEDULE 3
FORM OF DISCLOSURE LETTER
[DATE]
FNG INTERNATIONAL HOLDINGS LIMITED
Trident Chambers, P.O. Box 146,
Road Town, Tortola, British Virgin Islands
Dear Sirs,
DISCLOSURE LETTER
This is the Disclosure Letter referred to in the Sale and Purchase Agreement dated [DATE] and entered into by and between Chu Ping-im, FNG International Holdings Limited and China Finance Online Co. Limited (the "Agreement"). Capitalized terms appearing in this letter shall adopt the same meaning as defined in the Agreement.
A. GENERAL DISCLOSURES
The following matters are deemed to be disclosed by this letter:
1. AGREEMENT: All matters set out or referred to in the Agreement, including, without limitation, all schedules and documents annexed thereto and any other agreements entered into pursuant to, or contemplated by, the Agreement.
2. COMPANIES REGISTRY: All matters registered against, or which would be disclosed by a search made in respect of the Company at the Companies Registry in Hong Kong.
3. ACCOUNTS: All matters disclosed, provided for, noted or referred to in the audited accounts of the Company which have been provided to the Purchaser.
4. INSPECTION: All matters which have or ought reasonably to have, been disclosed by inspection of the statutory books, books of account and business records of
the Company, all of which have been made available to the Purchaser and/or its advisers for inspection.
5. OTHERS MATTERS DISCLOSED: All matters set out or referred to in any letter, note, schedule or other document from or provided by the Vendor, the Company and/or their advisers and/or agents to the Purchaser and/or its advisers and/or agents in connection with the sale and purchase of the Sale Shares. Where any such letter, note, schedule or other document includes an expression of opinion, no representation or warranty is given as to its accuracy.
B. SPECIFIC DISCLOSURE
We write to disclose the following and the paragraph numbers used below correspond to the representations and warranties as set out in Schedule 2 to the Agreement:
Paragraphs 1.1 and 2.3
The following documents cannot be found in the company kit of the Company or located by the Vendor or are incomplete. As such, no representation and warranty will be made on these missing or incomplete documents :-
1. Original corporate documents from the date of incorporation to the year of 1987;
2. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 1 share from Helen Zung Sing Yeh to Shun Kin Enterprises Limited on 20th February 1987;
3. Original cancelled share certificate in the names of Helen Zung Sing Yeh and Shun Kin Enterprises Limited;
4. Original Application for 42,300 shares made on 24th February 1987 - 8 sets;
5. Original share certificates in respect of the allotment made on 24th February 1987;
6. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 5,000 shares from Mr. Basil D.C. Wood to Mrs. Nancy Ting on 26th April 1988;
7. Original share certificates in respect of the transfer made on 26th April 1988;
8. Original transfer documents (including instruments of transfer and bought and sold notes) in respect of the transfer of 20,525 shares in respect of the following transfer:
Mr. Basil D.C. Wood to Midopa Enterprises Limited - 7,610 shares on
21.7.1988
Mrs. Wendy Wood to Midopa Enterprises Limited - 1,694 shares on 21.7.1988
Mr. Hsu Zing Ping to Midopa Enterprises Limited - 3,196 shares on 21.7.1988
Mr. Hsu Zing Ping to Billion System Co., Limited - 2,500 shares on 21.7.1988
Mr. Hsu Zing Ping to Mrs. Wang Zau Chin Ngo - 240 shares on 21.7.1988
Mr. Hsu Zing Ping to Eternal Growth Investment Ltd. - 525 shares on 21.7.1988
Mr. Koo Kam Kang to Eternal Growth Investment Ltd. - 4,760 shares on 21.7.1988
9. Original share certificates in respect of the transfer made on 21.7.1988;
10. Original transfer documents (including instruments of transfer and bought and sold notes) in respect of the transfer of 7,715 shares in respect of the following transfer:
Ms. Nancy Ting to Ho Chi Kuen Bernard - 2,000 shares on 29.7.1988
Ms. Nancy Ting to Billion System Co., Ltd. - 2,500 shares on 29.7.1988
Ms. Nancy Ting to Stella Wong - 545 shares on 29.7.1988
Shun Kin Ent. Ltd. to Stella Wong - 195 shares on 29.7.1988
Eileen Hwa to Stella Wong - 260 shares on 29.7.1988
Ms. Nancy Ting to Eternal Growth Inv. Ltd. - 2,215 shares on 29.7.1988
11. Original share certificates in respect of the transfer made on 29.7.1988
12. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 2,000 shares in respect of the transfer from Eileen Hwa to Wong Oi Lun, Ellen on 17.3.1989;
13. Original share certificates in respect of the transfer made on 17.3.1989;
14. Form X(ii) or Form (IXA) showing the resignation of Ms. Stella Wong as the director of the Company made on 1.4.1989;
15. Original transfer documents (including instruments of transfer and bought and sold notes) in respect of the transfer of 2,000 shares in respect of the following transfer:
Wong Oi Lun Ellen to Stella Wong - 1,000 shares on 31.5.1990
Wong Oi Lun Ellen to Tsang Kin Woo - 500 shares on 31.5.1990
Wong Oi Lun Ellen to Chu Ping Im - 500 shares on 31.5.1990
16. Original share certificates in respect of the transfer made on 31.5.1990
17. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 2,000 shares in respect of the following transfer:
Bernard Ho to Zone Bo Ltd. - 2,000 shares on 19.7.1990
18. Original share certificates in respect of the transfer made on 19.7.1990
19. Copy of Consent to act as director of the Company by Mr. Yap E. Hock on
9.12.1992
20. A letter dated 10th October 1994, from King Cause Limited and Asian Capital Partners (HK) Limited reporting that 10 share certificates for 50,000 shares have been mislaid and requesting 2 share certificates be issued to them
21. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 50,000 shares in respect of the following transfer:
King Cause Ltd.to Billion System Co. Ltd.- 5,000 shares on 12.12.1994;
King Cause Ltd. to Eternal Growth Investment Ltd.- 7,500 shares on 12.12.1994;
King Cause Ltd. to Midpoa Enterprises Limited- 12,500 shares on 12.12.1994;
King Cause Ltd. to Shun Kin Ent. Limited- 17,500 shares on 12.12.1994;
King Cause Ltd. to Wang Zau Chin Ngo- 2,500 shares on 12.12.1994;
King Cause Ltd. to Tsang Kin Woo- 499 shares on 12.12.1994;
King Cause Ltd. to Chu Ping Im - 500 shares on 12.12.1994
King Cause Ltd. to Stella Wong- 2,000 shares on 12.12.1994;
King Cause Ltd. to Zone Bo Limited- 2,000 shares on 12.12.1994;
King Cause Ltd. and Asian Capital Partners (HK) Limited to Tsang Kin Woo- 1 share on 12.12.1994;
22. Original share certificates in respect of the transfer made on 12.12.1994;
23. Original Declaration of Trust given by King Cause Limited and Asian Capital Partners (HK) Limited on 9.12.1992;
24. Copy of Form D2 and Consent to act reporting the appointment of Mr. Ho Chi Kuen as the director of the company;
25. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 5,000 shares in respect of the following transfer:
Billion System Co. Ltd. to Zone Bo Ltd.- 500 shares on 15.12.2000;
Billion System Co. Ltd. to Eternal Growth Inv. Ltd.- 500 shares on 15.12.2000;
Billion System Co. Ltd. to Midopa Enterprises Ltd.- 1,250 shares on 15.12.2000;
Billion System Co. Ltd. to Shun Kin Enterprises Ltd.- 1,750 shares on 15.12.2000;
Billion System Co. Ltd. to Tsang Kin Woo- 500 shares on 15.12.2000;
Billion System Co. Ltd. to Chu Ping Im- 500 shares on 15.12.2000;
26. Original share certificates in respect of the transfer made on 15.12.2000;
27. Original Share Certificate of Wang William;
28. Original Board Minutes for approving the share transfer from Zone Bo Limited to Hung Yung made on 22.06.2007;
29. Share Certificate of Hung Yung in respect of 5,000 shares;
30. Original Consent to Short Notice dated 16.03.1987 - Elieen Hwa Wang Vung Sing (with the signature of Elieen missing); and
31. Original Consent to Short Notice for 2005 AGM dated 30.05.2005 (missing signatures from Midopa Enterprises Limited, Wong Chan Miu Wan Stella, Chu Ping Im, Tsang Kin Woo).
Yours sincerely,
Exhibit 4.58
DATED THE ________ DAY OF ______________, 2007
ETERNAL GROWTH INVESTMENT LIMITED
and
FNG INTERNATIONAL HOLDINGS LIMITED
and
CHINA FINANCE ONLINE CO. LIMITED
AGREEMENT
for the sale and purchase
of shares in
Daily Growth Investment Company Limited
(Chinese Characters)
F. ZIMMERN & CO.
Solicitors & Notaries
Suites 1501-1503, 15th Floor, Gloucester Tower, The Landmark, 15 Queen's Road Central, Hong Kong Tel: (852) 2526-4373 Fax: (852) 2801-4548 Ref: AN/PC/S14/2007
THIS AGREEMENT is made on the ___________ day of _______________, 2007.
BETWEEN :-
1. ETERNAL GROWTH INVESTMENT LIMITED, a company incorporated in Hong Kong whose registered office is at 11th Floor, 22 Kai Cheung Road, Kowloon Bay, Kowloon, Hong Kong (the "VENDOR");
2. FNG INTERNATIONAL HOLDINGS LIMITED, a company incorporated in the British Virgin Islands whose registered address is at Trident Chambers, P.O. Box 146, Road Town, Tortola, British Virgin Islands (the "PURCHASER"); and
3. CHINA FINANCE ONLINE CO. LIMITED, a company incorporated in Hong Kong whose registered office is situate at Room 908, 9th Floor, Hutchison House, 10 Harcourt Road, Central, Hong Kong (the "GUARANTOR").
(The Vendor and the Purchaser are collectively referred to as the "PARTIES" and each as a "PARTY")
WHEREAS :-
(A) Daily Growth Investment Company Limited (Chinese Characters) (the "COMPANY") is a private limited company incorporated under the laws of Hong Kong on 6 October 1971 and has an authorised share capital of HK$10,000,000 divided into 100,000 ordinary shares of HK$100 each, of which 100,000 ordinary shares have been issued and are fully paid up. The Company is a licensed corporation to engage in type 1 regulated activity (dealing in securities) under the Securities and Futures Ordinance, Chapter 571 of the laws of Hong Kong. Particulars of the Company are set out in Schedule 1.
(B) The Vendor is the legal and beneficial owner of 16,000 issued ordinary shares of the Company, representing 16 per cent. of the entire issued share capital of the Company (the "SALE SHARES").
(C) The Vendor has agreed to sell, and the Purchaser has agreed to purchase, the
Sale Shares on the terms and conditions hereinafter appearing.
(D) The Purchaser is a wholly owned subsidiary of the Guarantor.
(E) The Guarantor has agreed to guarantee as the primary obligor for the due performance of the Purchaser under this Agreement.
AND NOW IT IS HEREBY AGREED as follows
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, unless otherwise expressed or required by context, the following expressions shall have the respective meanings set opposite thereto :-
Expression Meaning ---------- ------- "Accounts" means the audited profit and loss accounts for the period ended on and the balance sheet as at the Accounts Date of the Company; "Accounts Date" means 31 December 2006; "Approval" have the meaning ascribed to it in Clause 2.1(b) hereof; "Business Day" means a day, other than a "general holiday" (as defined in the General Holidays Ordinance (Chapter 149 of the Laws of Hong Kong)), Saturday and any day on which a tropical cyclone warning No. 8 or above is hoisted or remains hoisted between 9:00 a.m. and 12:00 noon and is not lowered at or before 12:00 noon or on which a "black" rainstorm warning signal is hoisted or remains in effect between 9:00 a.m. and 12:00 noon and is not discontinued at or before 12:00 noon, on which commercial banks are generally |
open for banking business in Hong Kong; "Completion Accounts" means the profit and loss accounts for the period ended on and the balance sheet as at the Completion Date of the Company; "Completion Date" means the date on which completion of the sale and purchase of the Sale Shares takes place as mentioned in Clause 4 hereof; "Consideration" has the meaning ascribed to it in Clause 3 hereof; "Deposit" has the meaning ascribed to it in Clause 3.2(a) hereof; "Disclosure Letter" means the disclosure letter from the Vendor to the Purchaser to be delivered at Completion in the form identical to that attached hereto as Schedule 3 hereto or with lesser disclosures; "Hong Kong" means the Hong Kong Special Administrative Region of the People's Republic of China; "Liabilities" means the total liabilities of the Company whether actual or contingent as at Completion, and for the avoidance of doubt, including all provisions for taxation and bad debts; "NAV" means the Tangible Assets less the Liabilities; "Shares" means issued ordinary shares of HK$100 each in the capital of the Company, and "Shareholders" shall be construed accordingly; "SFC" means the Securities and Futures Commission; "SFO" means the Securities and Futures Ordinance (Chapter 571 of the laws of Hong Kong); |
"Stock Exchange" The Stock Exchange of Hong Kong Limited; "Tangible Assets" means the total tangible assets of the Company as at Completion, including an amount of HK$794,157.41 due from Mr. Cheung Wing Cheung as at 1 August 2007 to the Company to be accepted by the Parties as accounts receivable without any provision for non-recovery; "Vendor's Solicitors" means F. Zimmern & Co; and "HK$" and "Cent" means Hong Kong Dollars and Cents respectively. |
1.2 The headings to the Clauses of this Agreement are for ease of reference only and shall be ignored in interpreting this Agreement.
1.3 Reference to Clauses and Schedules are references to Clauses and Schedules of or to this Agreement.
1.4 Words and expressions in the singular include the plural and vice versa.
1.5 Reference to person include any public body and any body of persons, corporate or unincorporated.
1.6 Reference to ordinances, statutes, legislation or enactments shall be construed as a reference to such Ordinances, statutes, legislation or enactments as may be amended or re-enacted from time to time and for the time being in force.
2. CONDITIONS PRECEDENT
2.1 Completion of this Agreement shall be conditional upon :-
(a) the Company remains a licensed corporation to engage in type 1 regulated activity (dealing in securities) under the SFO up to Completion;
(b) the SFC giving its written approval to approve the Purchaser to become a substantial shareholder of the Company (the "APPROVAL"); and
(c) the Purchaser shall, in addition to the Sale Shares to be acquired pursuant hereto, acquire on the Completion Date Shares from other existing Shareholders which together with the Sale Shares, shall in aggregate represent not less than 75% of the entire issued share capital of the Company as at the Completion Date.
2.2 The Vendor will use its best endeavours to procure the fulfilment of the condition set out in Clauses 2.1 (a) and 2.1(c) hereof and the Purchaser will use its best endeavours to procure the fulfilment of the condition set out in Clause 2.1(b) hereof.
2.3 If (i) the condition as set out in Clause 2.1(a) hereof cannot be fulfilled on the Completion Date, the Vendor or the Purchaser may, or (ii) the condition as set out in Clause 2.1(c) hereof cannot be fulfilled on the Completion Date, the Purchaser may terminate this Agreement. In any of such event, the Deposit shall be returned to the Purchaser in full together with interest calculated at the rate of three (3) per cent. per annum from the date of payment of the Deposit by the Purchaser up to the date of refund. Upon the refund, this Agreement shall lapse and no Party shall have any claim against the other Party except in respect of any antecedent breach.
2.4 If the condition as set out in Clause 2.1(b) hereof cannot be fulfilled on or before 31 December 2007 (the "CONDITIONS DEADLINE"), the Vendor will allow the Purchaser to extend the Conditions Deadline for a period up to three (3) calendar months from 1 January 2008 (the "EXTENDED PERIOD") provided that the Purchaser shall pay compensation (the "COMPENSATION") to the Vendor, unless the delay is due to the proven default of the Vendor, to be arrived at by the following formula :-
C = [(HK$3 * S) * 3] * D/91
C = the total Compensation payable by the Purchaser to the Vendor
S = the number of the Sale Shares
D = the number of days from 1 January 2008 up to and including (i)
the Completion Date; or (ii) the day of the receipt of the Notice
(as defined below) by the Vendor; or (iii) 31 March 2008, as the
case may be, to be determined in the manner as provided in Clauses
2.5 (a) and (b)
The Purchaser may serve a written notice to the Vendor not to proceed with the Completion (the "NOTICE") during the Extended Period.
2.5 (a) In the event that Completion takes place before the expiry of the Extended Period, the Purchaser shall pay the Compensation calculated up to the Completion Date to the Vendor on the Completion Date. (b) In the event that the Purchaser shall fail to complete the purchase of the Sale Shares in accordance with the terms of this Agreement (including failure to complete by reason of the failure to obtain the Approval) other than due to the proven default of the Vendor, half of the Deposit shall be forfeited to the Vendor as liquidated damages (the "FORFEITURE") and in addition, if the Conditions Deadline is extended, the Vendor shall also be entitled to deduct the Compensation (calculated up to the day of the receipt of the Notice by the Vendor if the Notice is served by the Purchaser or calculated up to 31 March 2008 if no Notice is served by the Purchaser) from the balance of the Deposit (the "DEDUCTION"). The remaining balance of the Deposit (after the Forfeiture and any Deduction) shall be returned to the Purchaser without interest within seven (7) days from the date of the receipt of the Notice by the Vendor or 31 March 2008, as the case may be. After the Forfeiture and any Deduction, the Vendor shall have no claim whatsoever against the Purchaser under this Agreement. |
2.6 If the Vendor shall fail to complete the sale of the Sale Shares in accordance with the terms of this Agreement due to the proven default of the Vendor, the Deposit shall be returned to the Purchaser in full together with interest calculated at the rate of three (3) per cent. per annum from the date of payment of the Deposit by the Purchaser up to the date of refund. Subject to the aforesaid payment, the Purchaser shall have no claim whatsoever against the Vendor under this Agreement.
3. SALE AND PURCHASE OF THE SALE SHARES AND THE CONSIDERATION
3.1 Subject to the terms and conditions of this Agreement, the Vendor as beneficial owner hereby agrees to sell to the Purchaser and the Purchaser, relying on the representations and warranties made or given by the Vendor and subject to the terms and conditions contained in this Agreement, agree to purchase from the Vendor the Sale Shares free from all claims, charges, liens, encumbrances, equities and third party rights and together with all rights attached thereto and all dividends and distributions declared, paid or made in respect thereof after the Completion Date at a consideration (the "CONSIDERATION") to be arrived at by the following formula :-
C = P * S
C = the total consideration payable by the Purchaser to the Vendor for the Sale Shares
P = the price per Share based on the NAV as at the Completion Date plus a premium of HK$15 per Share (which is to reflect the value of the trading right held by the Company in the Stock Exchange)
S = the number of Sale Shares
3.2 Subject to Clause 3.3 hereof, the Consideration shall be paid by the Purchaser to the Vendor as follows:-
(a) a sum of HK$800,000 (i.e. HK$50 per Sale Share) as deposit and part payment of the Consideration (the "DEPOSIT") to be paid on the signing of this Agreement by way of delivering a solicitor's cheque to the Vendor's Solicitors as stakeholder to be held by it subject to the provisions of this Agreement and the sum of HK$1,000,000 being the earnest money already paid by the Purchaser to the Purchaser's Solicitors as stakeholder under the term sheet dated 25 July 2007 be released to the Purchaser after payment of the Deposit; and
(b) the balance of the Consideration to be paid on Completion by way of a solicitor's cheque to the Vendor.
3.3 (a) The Vendor shall procure that the draft pro-forma Completion Accounts (the "DRAFT PRO-FORMA COMPLETION ACCOUNTS") be drawn up and delivered to the Purchaser not less than six (6) days prior to the Completion Date. Completion shall take place on the basis of the draft pro-forma Completion Accounts. (b) After Completion, the Vendor shall procure the final Completion Accounts (the "FINAL COMPLETION ACCOUNTS") be drawn up and delivered to the Purchaser within fourteen (14) days after the Completion Date. Subject to Clause 3.3(d), if the final Completion Accounts shall show that the NAV per Share is less than the NAV per Share as shown in the draft pro-forma Completion Accounts, the Vendor shall pay the amount of the difference of the NAV per Share multiplied by the number of the Sale Shares to the Purchaser within ten (10) days from the date of delivery of the final Completion Accounts by way of solicitor's cheque. If the final Completion Accounts shall show that the NAV per Share is more than the NAV per Share as shown in the draft pro-forma Completion Accounts, the Purchaser shall pay the amount of the difference of the NAV per Share multiplied by the number of the Sale Shares to the Vendor within ten (10) days from the date of delivery of the final Completion Accounts by way of solicitor's cheque. The Purchaser shall provide with the Vendor full access to the books, records and resources of the Company so as to enable the Vendor to procure the final Completion Accounts to be drawn up. (c) The basis and policy of accounting adopted in preparing the pro-forma draft Completion Accounts and the final Completion Accounts shall be in accordance with the generally accepted accounting practices in Hong Kong. (d) In the event of a dispute between the Parties as to the amount of the NAV as shown in the final Completion Accounts, the Vendor or the Purchaser may procure that the final Completion Accounts be audited by the auditors of the Company within forty-five (45) days from the date of delivery of the final Completion Accounts provided that the procurement of the audited final Completion Accounts shall be made by the relevant Party within seven (7) days from the date of delivery of |
the final Completion Accounts.
(e) If the audited Completion Accounts shall show that the NAV per Share is less than the NAV per Share as shown in the draft pro-forma Completion Accounts, the Vendor shall pay the amount of the difference of the NAV per Share multiplied by the number of the Sale Shares to the Purchaser within seven (7) days from the date of delivery of the audited Completion Accounts by way of solicitor's cheque. If the audited Completion Accounts shall show that the NAV per Share is more than the NAV per Share as shown in the draft pro-forma Completion Accounts, the Purchaser shall pay the amount of the difference of the NAV per Share multiplied by the number of the Sale Shares to the Vendor within seven (7) days from the date of delivery of the audited Completion Accounts by way of solicitor's cheque. The Vendor together with the other vendors of the one part and the Purchaser of the other part shall each be responsible for payment of 50% of the cost and expenses for the preparation and completion of the audited Completion Accounts.
4. COMPLETION
4.1 Subject to the provisions in Clause 2 hereof, completion of the sale and purchase of the Sale Shares shall take place at the offices of Arculli Fong & Ng (the "PURCHASER'S SOLICITORS"), the Solicitors for the Purchaser, at 908 Hutchison House, Central, Hong Kong or any other place as the Parties may agree at 5:00 p.m. on a Friday of the week immediately following the week when the Approval is granted by the SFC, when the following business shall simultaneously be transacted :-
(a) the Purchaser shall deliver to the Vendor the following :-
(i) a solicitor's cheque for payment of the balance of the Consideration and the Vendor's Solicitors will release the Deposit to the Vendor; and
(ii) a certified copy of each of the minutes of the board of directors of the Purchaser and the Guarantor approving this
Agreement and authorizing/confirming the authorization of an authorised person for signing of this Agreement and (for the Purchaser) the bought note and the instrument of transfer and any other incidental documents hereof;
(b) the Vendor shall deliver to the Purchaser the following :-
(i) sold notes and instrument of transfer in favour of the Purchaser in respect of the Sale Shares all executed by the Vendor in accordance with the Stamp Duty Ordinance;
(ii) original share certificate(s) or re-issued share certificate(s) in respect of the Sale Shares;
(iii)such other documents as may be reasonably required to give a good and effective transfer of title to the Sale Shares to the Purchaser and to enable them to become the registered holders thereof;
(iv) a cheque drawn in favour of the Government of the Hong Kong Special Administrative Region for an amount equivalent to the stamp duty payable under the Stamp Duty Ordinance in respect of the sold notes in respect of the Sale Shares;
(v) a certified copy of the minutes of the board of directors of the Vendor (if the Vendor is a corporate) approving the sale of the Sale Shares and authorizing/confirming the authorization of an authorised person for signing of this Agreement and the sold note and the instrument of transfer and any other incidental documents hereof;
(vi) to the extent that the same are not already in the possession of the Company or its agents, the certificate of incorporation, business registration certificate, common seal of the Company, all copies of memorandum and articles of association of the Company, the statutory books of the Company duly made up to date, any unissued share
certificates, all current insurance policies, books and accounts and other records, cheque books, title deeds and evidence of ownership to all assets of the Company and all current contracts;
(vii) an original of the Disclosure Letter duly executed by the Vendor in the form identical to that attached as Schedule 3 hereto or with lesser disclosures;
(c) the Vendor shall cause a meeting of the board of directors of the Company to be held at which resolutions shall be passed to :-
(i) approve the transfer of the Sale Shares;
(ii) register (subject to stamping) the transfer of the Sale Shares referred to above and to issue new certificate(s) for the Sale Shares in the name(s) of the Purchaser;
(iii) appoint one person as the Purchaser may nominate as the Chairman of the Company and such person(s) as the Purchaser may nominate as director(s) of the Company and (subject to the approval of the SFC) one person as the Purchaser may nominate as the Responsible Officer of the Company all to take effect from the close of business of the said meeting if so required by the Purchaser; and
(iv) amend all banking authorisations, instructions and mandates of the Company in such manner as the Purchaser may direct; and
(d) the Purchaser shall :-
(i) produce for inspection by the Vendor the bought notes in respect of the Sale Shares executed by the Purchaser in compliance with the Stamp Duty Ordinance; and
(ii) procure the stamping of the bought and sold notes and the instrument of transfer in respect of the Sale Shares as soon
as practicable thereafter and present the said instrument of transfer together with the share certificate(s) in respect of the Sale Shares to the Company for registration of the transfer.
4.2 The transactions described in Clause 4.1 hereof shall take place at the same time, so that in default of the performance of any such transactions by a Party, the other Party shall not be obliged to complete the sale and purchase aforesaid.
5. REPRESENTATIONS AND WARRANTIES AND GUARANTEE
5.1 Save as disclosed in the Disclosure Letter and documents and information provided to the Purchaser and/or its advisors, the Vendor hereby represents and warrants to the Purchaser that each of the matters set out in Schedule 2 are as at the date hereof and will be for all times up to and including the Completion Date, true and correct in all material respects.
5.2 From the date of this Agreement until the Completion Date the Vendor shall use its best endeavours to procure that (save with the prior consent in writing or of the Purchaser, such consent not to be unreasonably withheld or delayed) the Company shall not :-
(a) issue or agree to issue any of its share or loan capital or grant or agree to grant any option over or right to acquire any of its share or loan capital;
(b) enter into any contract (otherwise than in the ordinary course of business) or any capital commitment;
(c) create or permit to arise any lien, charge, pledge, mortgage or other security interest on or in respect of any of its undertaking, property or assets;
(d) appoint any directors other than as provided in this Agreement; or
(e) increase the remuneration of its employees (save as payment of discretionary bonus and save that the increase is made pursuant to the
relevant employment contract)
and the Vendor shall use its best endeavours to procure that the Purchaser be kept regularly informed of the affairs of the Company until the Completion Date.
5.3 The liability of the Vendor in respect of any breach of the warranties or representations as set out in Schedule 2 shall be limited as follows:-
(a) the maximum liability of the Vendor, if any, under this Agreement shall be 25% of the Consideration;
(b) no claims may be brought against the Vendor in respect of any claim of damages for breach of warranty(ies) or representation(s) as set out in Schedule 2 after the expiry of six months from the Completion Date.
5.4 In consideration of the Vendor agreeing to enter into this Agreement, the Guarantor (as principal obligor and not merely as surety) unconditionally and irrevocably guarantees performance by the Purchaser of all its obligations and liabilities under or arising out of or in connection with this Agreement (referred to herein as the "GUARANTEED OBLIGATIONS") and undertakes to the Vendor that if and whenever the Purchaser is in default, the Guarantor shall duly and promptly perform or procure such performance of the Guaranteed Obligations and indemnify the Vendor against any loss, damage, costs, expenses and liabilities that it may suffer in connection with or arising out of any such failure on the part of the Purchaser.
6. SEVERABILITY
If at any time any one or more provisions hereof is or becomes invalid, illegal, unenforceable or incapable of performance in any respect, the validity, legality, enforceability or performance of the remaining provisions hereof shall not thereby in any way be affected or impaired.
7. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement and understanding between
the Parties in connection with the subject-matter of this Agreement and supersedes all previous proposals, representations, warranties, agreements or undertakings relating thereto whether oral, written or otherwise and none of the Parties has relied on any such proposals, representations, warranties, agreements or undertakings.
8. TIME
8.1 Time shall be of the essence of this Agreement.
8.2 No time or indulgence given by any Party to the other Party shall be deemed or in any way be construed as a waiver of any of its rights and remedies hereunder.
9. CONFIDENTIALITY
Other than such disclosure as may be required by law, the SFC, the Stock Exchange or other competent authority, neither of the parties hereto shall make any announcement or release or disclose any information concerning this Agreement or the transactions herein referred to or disclose the identity of the other party(ies) hereto (save disclosure to their respective professional advisers under a duty of confidentiality) without the written consent of the other parties hereto.
10. ASSIGNMENT
This Agreement shall be binding on and shall enure for the benefits of the successors and assigns of the Parties but shall not be assigned by any party hereto without the prior written consent of the other parties hereto.
11. NOTICES AND OTHER COMMUNICATION
11.1 Any notice or other communication to be given under this Agreement shall be in writing and may be given by hand, by post or facsimile to the following
address/number of the party hereto to be served or to such other address/number as shall be notified by such party to the other in writing:-
The Vendor Address : 11th Floor, 22 Kai Cheung Road, Kowloon Bay, Kowloon, Hong Kong Attention : TING WANG Wan-sun, Nancy Facsimile no. : 852-2111 9470 The Purchaser Address : Room 908, 9th floor, Hutchison House, 10 Harcourt Road, Central, Hong Kong Attention : Mr. Jun Wang Facsimile no. : 8610-5832 5200 The Guarantor Address : Room 908, 9th floor, Hutchison House, 10 Harcourt Road, Central, Hong Kong Attention : Mr. Jun Wang Facsimile no. : 8610-5832 5200 |
11.2 Any such notice or communication shall be sent to the party hereto to whom it is addressed and must contain sufficient reference and/or particulars to render it readily identifiable with the subject-matter of this Agreement. If so given by hand or facsimile, such notice or communication shall be deemed received on the date of despatch and if so sent by post (or, if sent to an address outside of Hong Kong, so sent by first class air-mail) shall be deemed received two (2) Business Days after the date of despatch (in case to an address in Hong Kong) or five (5) Business Days after the date of despatch (in case to an address
outside of Hong Kong).
12. COSTS AND EXPENSES
Each party hereto shall bear its own legal and professional fees, costs and expenses incurred in the negotiation, preparation and execution of this Agreement. The stamp duty in respect of the Sale Shares shall be borne by the Vendor and the Purchaser in equal shares.
13. COUNTERPARTS
This Agreement may be executed in any number of counterparts each of which when executed and delivered is an original, but all the counterparts together constitute the same document.
14. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of Hong Kong and the parties hereto agree to submit to the non-exclusive jurisdiction of the courts of Hong Kong.
15. PROCESS AGENT
The Purchaser hereby irrevocably authorizes and appoints the Purchaser's Solicitors (or such other person(s), being resident in Hong Kong, as it may from time to time appoint as its agent(s) and notify to the Vendor) to accept service of all legal process arising out or in connection with this Agreement and service on the Purchaser's Solicitors (or such substitute(s)) shall be deemed to be service on the Purchaser.
[Remainder of this page intentionally left blank]
IN WITNESS whereof the Parties have executed this Agreement the day and year first above written.
SIGNED by ) ) a director, for and on ) behalf of Eternal Growth ) Investment Limited ) in the presence of :- ) SIGNED by Mr. Jun Wang ) (Chinese Characters), the lawful attorney ) for and on behalf of FNG ) International Holdings ) Limited in the presence of :- ) SIGNED by Mr. Jun Wang ) (Chinese Characters), the lawful attorney ) for and on behalf of China ) Finance Online Co. Limited ) in the presence of :- ) |
SCHEDULE 1
PARTICULARS OF THE COMPANY
1. Name : Daily Growth Investment Company Limited (Chinese Characters) 2. Registered office : Room 603, Peter Building, 58-62 Queen's Road, Central, Hong Kong. 3. Company Number : 025436 4. Date of Incorporation : 6 October 1971 5. Place of Incorporation : Hong Kong 6. Authorised share capital : HK$10,000,000 divided into 100,000 ordinary shares of HK$100 each 7. Issued and paid up capital : HK$10,000,000 divided into 100,000 ordinary shares of HK$100 each 8. Directors : TING WANG Wan-sun, Nancy WAI CHAN Ye, Kannie WAI Heung-wah, Hayles YEH WANG Zung-sing, Helen WONG Long-sau, Ivis 9. Secretary : Hang Cheuk Secretaries Limited 10 Auditors : J Kong & Co. 11. Financial year end : 31 December |
SCHEDULE 2
REPRESENTATIONS AND WARRANTIES
General; Corporate Status
1.1 All information regarding the Company provided by or on behalf of the Vendor and/or the Company to the Purchaser is complete, correct and true in a material respect.
1.2 The Company has been duly incorporated and constituted, and is legally subsisting under the laws of its place of incorporation, and there has been no resolution, petition or order for the winding-up of the Company and no receiver has been appointed in respect thereof, nor are any such resolutions, orders and appointments imminent or likely.
Shareholdings and Share Capital etc.
2.1 The Sale Shares comprise a percentage (as referred to in Recital (B)) of the issued share capital of the Company, and there are not in issue any other shares, debentures, warrants, options or securities.
2.2 The Company is not under any contract, options, warrants or any other obligations regarding any part of its capital, issued or unissued, or for the issue of any shares, debentures, warrants, options, or other similar securities.
2.3 Save as disclosed in the Disclosure Letter, the Vendor has acquired the Shares in compliance with the articles of association of the Company and the laws under the Companies Ordinance and is the beneficial owner of the Sale Shares free from all liens, charges, pledges, options, contracts, preemption rights, third party rights and equities, and incumbrances of whatever nature and the same are freely transferable by the Vendor without the consent, approval, permission, licence or concurrence of any third party.
2.4 The Vendor is fully capable of entering into this Agreement and to perform all
obligations and duties hereunder without the consent, approval, permission, licence or concurrence of any third party.
Business etc.
3.1 The principal business activity of the Company is security trading.
3.2 In respect of the said business being carried on, all qualifications, registrations, licences or other approvals necessary for the proper conduct of business have been obtained and maintained and to the knowledge of the Vendor, all the relevant rules and regulations of the SFC and the Stock Exchange applicable to the Company have been observed and complied with in a material respect and no event has occurred whereby any of the same or the renewal thereof is or likely to be thereby adversely affected, suspended or revoked.
Accounts
4.1 The Accounts have been prepared in accordance with generally accepted accounting practice in Hong Kong and comply with the Companies Ordinance, and show a true and fair view of the affairs and financial position of the Company as at, and the profits and loss of the Company for the period ended on, the Accounts Date.
4.2 All accounting records of the Company for the past seven (7) years are in the possession of the Company and have been properly written up, kept and maintained in accordance with generally accepted accounting practice and together shows a true and fair view of the affairs and financial position of the Company.
Taxation
5.1 The Company has paid all taxes, duties and levies as the same became due and payable and to the knowledge of the Vendor, the Company is not nor is likely to be subject to any tax penalties.
5.2 The Company has complied with the Inland Revenue Ordinance and has kept proper records for tax purposes for the past seven (7) years and have filed all tax returns, and to the knowledge of the Vendor, there is no pending dispute with the Inland Revenue Department.
Dispute, Claims and Litigation
6. There is no claim, arbitration or litigation to which the Company is a party or which, to the knowledge of the Vendor, is pending or threatened.
Repetition at Completion
7. All warranties and representations contained in the foregoing provisions of this Schedule shall be deemed to be repeated immediately before completion of this Agreement and to relate to the facts then existing.
SCHEDULE 3
FORM OF DISCLOSURE LETTER
[DATE]
FNG INTERNATIONAL HOLDINGS LIMITED
Trident Chambers, P.O. Box 146,
Road Town, Tortola, British Virgin Islands
Dear Sirs,
DISCLOSURE LETTER
This is the Disclosure Letter referred to in the Sale and Purchase Agreement dated [DATE] and entered into by and between Eternal Growth Investment Limited, FNG International Holdings Limited and China Finance Online Co. Limited (the "Agreement"). Capitalized terms appearing in this letter shall adopt the same meaning as defined in the Agreement.
A. GENERAL DISCLOSURES
The following matters are deemed to be disclosed by this letter:
1. AGREEMENT: All matters set out or referred to in the Agreement, including, without limitation, all schedules and documents annexed thereto and any other agreements entered into pursuant to, or contemplated by, the Agreement.
2. COMPANIES REGISTRY: All matters registered against, or which would be disclosed by a search made in respect of the Company at the Companies Registry in Hong Kong.
3. ACCOUNTS: All matters disclosed, provided for, noted or referred to in the audited accounts of the Company which have been provided to the Purchaser.
4. INSPECTION: All matters which have or ought reasonably to have, been disclosed by inspection of the statutory books, books of account and business records of
the Company, all of which have been made available to the Purchaser and/or its advisers for inspection.
5. OTHERS MATTERS DISCLOSED: All matters set out or referred to in any letter, note, schedule or other document from or provided by the Vendor, the Company and/or their advisers and/or agents to the Purchaser and/or its advisers and/or agents in connection with the sale and purchase of the Sale Shares. Where any such letter, note, schedule or other document includes an expression of opinion, no representation or warranty is given as to its accuracy.
B. SPECIFIC DISCLOSURE
We write to disclose the following and the paragraph numbers used below correspond to the representations and warranties as set out in Schedule 2 to the Agreement:
Paragraphs 1.1 and 2.3
The following documents cannot be found in the company kit of the Company or located by the Vendor or are incomplete. As such, no representation and warranty will be made on these missing or incomplete documents :-
1. Original corporate documents from the date of incorporation to the year of 1987;
2. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 1 share from Helen Zung Sing Yeh to Shun Kin Enterprises Limited on 20th February 1987;
3. Original cancelled share certificate in the names of Helen Zung Sing Yeh and Shun Kin Enterprises Limited;
4. Original Application for 42,300 shares made on 24th February 1987 - 8 sets;
5. Original share certificates in respect of the allotment made on 24th February 1987;
6. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 5,000 shares from Mr. Basil D.C. Wood to Mrs. Nancy Ting on 26th April 1988;
7. Original share certificates in respect of the transfer made on 26th April 1988;
8. Original transfer documents (including instruments of transfer and bought and sold notes) in respect of the transfer of 20,525 shares in respect of the following transfer:
Mr. Basil D.C. Wood to Midopa Enterprises Limited - 7,610 shares on
21.7.1988
Mrs. Wendy Wood to Midopa Enterprises Limited - 1,694 shares on 21.7.1988
Mr. Hsu Zing Ping to Midopa Enterprises Limited - 3,196 shares on 21.7.1988
Mr. Hsu Zing Ping to Billion System Co., Limited - 2,500 shares on 21.7.1988
Mr. Hsu Zing Ping to Mrs. Wang Zau Chin Ngo - 240 shares on 21.7.1988
Mr. Hsu Zing Ping to Eternal Growth Investment Ltd. - 525 shares on 21.7.1988
Mr. Koo Kam Kang to Eternal Growth Investment Ltd. - 4,760 shares on 21.7.1988
9. Original share certificates in respect of the transfer made on 21.7.1988;
10. Original transfer documents (including instruments of transfer and bought and sold notes) in respect of the transfer of 7,715 shares in respect of the following transfer:
Ms. Nancy Ting to Ho Chi Kuen Bernard - 2,000 shares on 29.7.1988
Ms. Nancy Ting to Billion System Co., Ltd. - 2,500 shares on 29.7.1988
Ms. Nancy Ting to Stella Wong - 545 shares on 29.7.1988
Shun Kin Ent. Ltd. to Stella Wong - 195 shares on 29.7.1988
Eileen Hwa to Stella Wong - 260 shares on 29.7.1988
Ms. Nancy Ting to Eternal Growth Inv. Ltd. - 2,215 shares on 29.7.1988
11. Original share certificates in respect of the transfer made on 29.7.1988
12. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 2,000 shares in respect of the transfer from Eileen Hwa to Wong Oi Lun, Ellen on 17.3.1989;
13. Original share certificates in respect of the transfer made on 17.3.1989;
14. Form X(ii) or Form (IXA) showing the resignation of Ms. Stella Wong as the director of the Company made on 1.4.1989;
15. Original transfer documents (including instruments of transfer and bought and sold notes) in respect of the transfer of 2,000 shares in respect of the following transfer:
Wong Oi Lun Ellen to Stella Wong - 1,000 shares on 31.5.1990
Wong Oi Lun Ellen to Tsang Kin Woo - 500 shares on 31.5.1990
Wong Oi Lun Ellen to Chu Ping Im - 500 shares on 31.5.1990
16. Original share certificates in respect of the transfer made on 31.5.1990
17. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 2,000 shares in respect of the following transfer:
Bernard Ho to Zone Bo Ltd. - 2,000 shares on 19.7.1990
18. Original share certificates in respect of the transfer made on 19.7.1990
19. Copy of Consent to act as director of the Company by Mr. Yap E. Hock on
9.12.1992
20. A letter dated 10th October 1994, from King Cause Limited and Asian Capital Partners (HK) Limited reporting that 10 share certificates for 50,000 shares have been mislaid and requesting 2 share certificates be issued to them
21. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 50,000 shares in respect of the following transfer: King Cause Ltd.to Billion System Co. Ltd.- 5,000 shares on 12.12.1994;
King Cause Ltd. to Eternal Growth Investment Ltd.- 7,500 shares on 12.12.1994;
King Cause Ltd. to Midpoa Enterprises Limited- 12,500 shares on 12.12.1994;
King Cause Ltd. to Shun Kin Ent. Limited- 17,500 shares on 12.12.1994;
King Cause Ltd. to Wang Zau Chin Ngo- 2,500 shares on 12.12.1994;
King Cause Ltd. to Tsang Kin Woo- 499 shares on 12.12.1994;
King Cause Ltd. to Chu Ping Im - 500 shares on 12.12.1994
King Cause Ltd. to Stella Wong- 2,000 shares on 12.12.1994;
King Cause Ltd. to Zone Bo Limited- 2,000 shares on 12.12.1994;
King Cause Ltd. and Asian Capital Partners (HK) Limited to Tsang Kin Woo- 1 share on 12.12.1994;
22. Original share certificates in respect of the transfer made on 12.12.1994;
23. Original Declaration of Trust given by King Cause Limited and Asian Capital Partners (HK) Limited on 9.12.1992;
24. Copy of Form D2 and Consent to act reporting the appointment of Mr. Ho Chi Kuen as the director of the company;
25. Original transfer documents (including instrument of transfer and bought and sold notes) in respect of the transfer of 5,000 shares in respect of the following transfer:
Billion System Co. Ltd. to Zone Bo Ltd.- 500 shares on 15.12.2000;
Billion System Co. Ltd. to Eternal Growth Inv. Ltd.- 500 shares on 15.12.2000;
Billion System Co. Ltd. to Midopa Enterprises Ltd.- 1,250 shares on 15.12.2000;
Billion System Co. Ltd. to Shun Kin Enterprises Ltd.- 1,750 shares on 15.12.2000;
Billion System Co. Ltd. to Tsang Kin Woo- 500 shares on 15.12.2000;
Billion System Co. Ltd. to Chu Ping Im- 500 shares on 15.12.2000;
26. Original share certificates in respect of the transfer made on 15.12.2000;
27. Original Share Certificate of Wang William;
28. Original Board Minutes for approving the share transfer from Zone Bo Limited to Hung Yung made on 22.06.2007;
29. Share Certificate of Hung Yung in respect of 5,000 shares;
30. Original Consent to Short Notice dated 16.03.1987 - Elieen Hwa Wang Vung Sing (with the signature of Elieen missing); and
31. Original Consent to Short Notice for 2005 AGM dated 30.05.2005 (missing signatures from Midopa Enterprises Limited, Wong Chan Miu Wan Stella, Chu Ping Im, Tsang Kin Woo).
Yours sincerely,
Exhibit 4.67
February 26, 2008
Mr. Lee Kheng Nam, Chairman of the Audit Committee The Audit Committee of China Finance Online Co. Limited
Mr. Zhao Zhiwei
Chief Executive Officer
China Finance Online Co. Limited
9th Floor of Tower C, Corporate Square
No. 35 Financial Street, Xicheng Street
Beijing, 100032
The People's Republic of China
Dear Sirs,
This letter is to confirm various matters relating to the engagement of Deloitte Touche Tohmatsu CPA Ltd. ("DTTC") to serve as the independent registered public accounting firm of China Finance Online Co., Ltd.(the "Company"). This engagement letter will replace any previous oral or written agreements (other than any waiver given to us by the Company) which may have existed between the Company and us relating to the engagement, and governs the totality of our relationship with the Company in respect of the work to be done as described herein.
In addition to the audit and review services we are engaged to provide under this engagement letter, we would also be pleased to assist the Company on issues as they arise throughout the year. Hence, we hope that you will call Mr. Taylor Lam or Ms. Elsie Zhou whenever you believe DTTC can be of assistance. This assistance will require approval by the Company's audit committee (the "Audit Committee") in accordance with its preapproval policies and procedures.
We will perform this engagement subject to the terms and conditions set forth herein and in the accompanying appendices.
February 26, 2008
China Finance Online Co. Limited
This letter sets out the terms of our engagement under the following main headings:
1. audit of consolidated financial statements and the effectiveness of the Company's internal control over financial reporting;
2. reviews of interim financial information and performance of quarterly procedures;
3. management's responsibilities;
4. Audit Committee's responsibility and auditor communications;
5. our service team;
6. fees;
7. inclusion of DTTC reports or references to DTTC in other documents or electronic sites;
8. termination;
9. law and jurisdiction;
10. limitation on actions;
and governs the totality of our relationship with you in respect of the work to be done as described herein.
1. AUDIT OF CONSOLIDATED FINANCIAL STATEMENTS AND THE EFFECTIVENESS OF THE COMPANY'S INTERNAL CONTROL OVER FINANCIAL REPORTING
Our engagement is to perform an integrated audit in accordance with the standards of the Public Company Accounting Oversight Board (United States) (the "PCAOB Standards"). The objectives of an integrated audit conducted in accordance with the PCAOB Standards are:
- To express an opinion on the fairness of the presentation of the Company's consolidated financial statements for the year ended December 31, 2007 in conformity with accounting principles generally accepted in the United States of America ("generally accepted accounting principles"), in all material respects
- To express an opinion on the effectiveness of the Company's internal control over financial reporting as of December 31, 2007 based on the criteria established in Internal Control--Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (the "COSO Framework").
Appendix A contains a description of an integrated audit under the PCAOB Standards.
Our ability to express such opinions and the wording thereof will, of course, be dependent on the facts and circumstances at the date of our reports. If, for any reason, we are unable to complete the integrated audit or are unable to form or have not formed such opinions, we may decline to express any opinion or decline to issue any report as a result of this engagement. If we are unable to complete our integrated audit or if any report to be issued by DTTC as a result of this engagement requires modification, the reasons therefore will be discussed with the Audit Committee and the Company's management.
February 26, 2008
China Finance Online Co. Limited
2. REVIEWS OF INTERIM FINANCIAL INFORMATION
We will also perform reviews of the Company's interim financial information in accordance with the PCAOB Standards for the quarter ending December 31, 2007 and each of the three quarters in the period ending September 30, 2008, prepared for the Company's earnings release to be filed on Form 6-K for submission to the Securities and Exchange Commission (the "SEC"). The objective of reviews of interim financial information performed in accordance with the PCAOB Standards is to provide us with a basis for communicating whether we are aware of any material modifications that should be made to the interim financial information for it to conform with generally accepted accounting principles.
Appendix B contains a description of an interim review under the PCAOB Standards.
If we become aware of material modifications that should be made to the interim financial information for it to conform with generally accepted accounting principles or if we become aware of deficiencies in internal control over financial reporting so significant that they would preclude management's preparation of interim financial information in conformity with generally accepted accounting principles, we may be precluded from completing our review. However, should such circumstance arise, we would advise the Audit Committee and the Company's management that we are unable to complete the review and identify the deficiencies that preclude the completion of our review.
3. MANAGEMENT'S RESPONSIBILITIES
Appendix C describes management's responsibilities for (1) the financial statements and the effectiveness of internal control over financial reporting, (2) representation letters, (3) the process for obtaining preapproval of services, (4) independence matters relating to financial interests and providing certain services, and (5) independence matters relating to hiring.
4. AUDIT COMMITTEE'S RESPONSIBILITY AND AUDITOR COMMUNICATIONS
As the independent registered public accounting firm of the Company, we acknowledge that the Audit Committee is directly responsible for the appointment, compensation, and oversight of our work and, accordingly, except as otherwise specifically noted, we will report directly to the Audit Committee. You have advised us that the services to be performed under this engagement letter, including, where applicable, the use by DTTC of affiliates or related entities as subcontractors in connection with this engagement, have been approved by the Audit Committee in accordance with the Audit Committee's established preapproval policies and procedures.
Under the PCAOB Standards and Rule 2-07 of SEC Regulation S-X, we are required to communicate with the Audit Committee about various matters in connection with our integrated audit and reviews of the related interim financial information. Appendix D describes such communications.
February 26, 2008
China Finance Online Co. Limited
5. OUR SERVICE TEAM
5.1 Mr. Taylor Lam and Ms. Elsie Zhou, Partners of DTTC will be in charge of this engagement, while Lili Shan and Xiaogang Tong, managers of DTTC will be responsible for controlling the engagement on a day to day basis. A team of professionals from DTTC, and/or other member firms of Deloitte Touche Tohmatsu, their subsidiaries or affiliates may support the engagement as we see fit. We reserve the right to change personnel responsible for the engagement with others of similar competence.
5.2 Deloitte Touche Tohmatsu is a worldwide organisation of separate individual partnerships and companies. Deloitte and/or "(Chinese Characters)" refer to one or more of Deloitte Touche Tohmatsu, a Swiss Verein, its member firm, and their respective subsidiaries and affiliates. As a Swiss Verein (association), neither Deloitte Touche Tohmatsu nor any of its member firms has any liability for each other's acts or omissions. Each of the member firms is a separate and independent legal entity operating under the names "Deloitte", "Deloitte & Touche", "Deloitte Touche Tohmatsu", "(Chinese Characters)" or other related name. The services described herein are provided by the member firms and not by the Deloitte Touche Tohmatsu Verein.
5.3 This engagement letter is between you and DTTC only. In the course of providing the services DTTC may, at its discretion, draw on the resources of other Deloitte Touche Tohmatsu member firms, partnerships, companies or their subsidiaries and affiliates ("other Deloitte Firms"). Any partner, director or employee of any other Deloitte Firms who deal with you in connection with our services does so on behalf of DTTC alone. DTTC accepts responsibility for the actions of any partner, director or employee of any other Deloitte Firms assisting in the provision of our services as set out herein.
5.4 The provisions of Section 6.3 above have been stipulated by DTTC expressly for the benefit of other Deloitte Firms, their partners, directors and employees (together "the Beneficiaries"). You agree that each of the Beneficiaries shall have the right to rely on this Section 6 as if they were parties to this engagement letter. Each other Deloitte Firms which agree to assist in the provision of our services does so in reliance on the protections afforded to it by Sections 6.3 and 6.4, the benefit of which we formally accept on their behalf.
February 26, 2008
China Finance Online Co. Limited
6. FEES
We estimate that our fees for the integrated audit and the reviews of the related interim financial information for the year ended December 31, 2007 will be the amounts in US$ equivalent to RMB4,760,000, plus business tax, at the prevailing exchange rate announced by the people's bank of China on the dates when fee note is billed. Based on the anticipated timing of the work, our fees for the integrated audit and the reviews of the related interim financial information will be billed approximately as follows:
INVOICE DATE AMOUNT ------------ --------- Upon signing of the engagement letter 4,140,000 June 6 260,000 August 15, 2008 250,000 November 15, 2008 250,000 |
We anticipate sending invoices for the integrated audit according to the schedule above, and payments are due on receipt.
We will notify you promptly of any circumstances we encounter that could significantly affect our estimates and discuss with you any additional fees, as necessary. Additional services provided beyond the scope of services described herein will be billed separately.
7. INCLUSION OF DTTC REPORTS OR REFERENCES TO DTTC IN OTHER DOCUMENTS OR ELECTRONIC SITES
If the Company intends to publish or otherwise reproduce in any document any report issued as a result of this engagement, or otherwise make reference to DTTC in a document that contains other information in addition to the audited financial statements (e.g., in a periodic filing with the SEC or other regulator, in a debt or equity offering circular, or in a private placement memorandum), thereby associating DTTC with such document, the Company agrees that its management will provide DTTC with a draft of the document to read and obtain our approval for the inclusion or incorporation by reference of any of our reports, or the reference to DTTC, in such document before the document is printed and distributed. The inclusion or incorporation by reference of any of our reports in any such document would constitute the reissuance of such reports. The Company also agrees that its management will notify us and obtain our approval prior to including any of our reports on an electronic site.
February 26, 2008
China Finance Online Co. Limited
Our engagement to perform the services described herein does not constitute our agreement to be associated with any such documents published or reproduced by or on behalf of the Company. Any request by the Company to reissue any report issued as a result of this engagement, to consent to any such report's inclusion or incorporation by reference in an offering or other document, or to agree to any such report's inclusion on an electronic site will be considered based on the facts and circumstances existing at the time of such request. The estimated fees outlined herein do not include any services that would need to be performed in connection with any such request; fees for such services (and their scope) would be subject to the mutual agreement of the Company and DTTC at such time as DTTC is engaged to perform the services and would be described in a separate engagement letter.
8. TERMINATION
DTTC reserves the right to resign from this engagement by giving you reasonable notice (taking account of the circumstances of the case) in writing if there arise any circumstances, including regulatory requirements, which in the opinion of DTTC, makes it inadvisable for DTTC to continue to provide the service to you as set out in this engagement letter.
In any event of termination of this engagement, you and DTTC agree that DTTC shall be entitled to a reasonable fee according to DTTC's contribution and involvement in this engagement or the relevant transaction up to the date of termination. DTTC accepts no liability whatsoever in relation to the termination of engagement as a result of this clause.
9. LAW AND JURISDICTION
The terms of our engagement shall be governed in all respect by the laws of the Hong Kong Special Administrative Region ("HKSAR") and the courts of the HKSAR shall have exclusive jurisdiction over any dispute which may arise in any way in connection with this engagement or any work or assignment arising from same. However, notwithstanding the above, we reserve the right to take legal action in the courts of any appropriate jurisdiction to recover any fees owing to us by you.
10. LIMITATION ON ACTIONS
No action, regardless of form, arising hereunder or relating to this engagement, may be brought by either party more than three years after the cause of action has accrued except that an action for non-payment of fees may be brought by a party not later than three years following the date of the last payment due to such party hereunder.
February 26, 2008
China Finance Online Co. Limited
This engagement letter, including the appendices attached hereto and made a part hereof, constitutes the entire agreement between the parties with respect to this engagement and supersedes all other prior and contemporaneous agreements or understandings between the parties, whether written or oral, relating to this engagement.
If the above terms are acceptable and the services described are in accordance with your understanding, please sign the copy of this engagement letter in the space provided and return it to us.
Yours faithfully,
Acknowledged and approved on behalf of
the Audit Committee of China Finance Online Co. Limited :
By: /s/ Title: Date: |
Accepted and agreed to by China Finance Online Co. Limited:
By: /s/ Title: Date: |
APPENDIX A
DESCRIPTION OF AN INTEGRATED AUDIT UNDER THE PCAOB STANDARDS
CHINA FINANCE ONLINE CO. LIMITED
YEAR ENDED DECEMBER 31, 2007 AND THREE QUARTERS ENDING SEPTEMBER 30, 2008
COMPONENTS OF AN INTEGRATED AUDIT
An integrated audit includes the following:
- Examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements
- Inquiring directly of the Audit Committee regarding its views about the risk of fraud and whether the Audit Committee has knowledge of any fraud or suspected fraud affecting the Company
- Assessing the accounting principles used and significant estimates made by management
- Evaluating the overall financial statement presentation
- Examining, on a test basis, evidence supporting the design and operating effectiveness of the Company's internal control over financial reporting
- Evaluating the effectiveness of the Company's internal control over financial reporting
REASONABLE ASSURANCE
An integrated audit is planned and performed to obtain reasonable, rather than absolute, assurance about (1) whether the financial statements are free of material misstatement, whether caused by error or fraud, and (2) whether material weaknesses exist as of the date specified in management's assessment of the effectiveness of the Company's internal control over financial reporting. Because of the characteristics of fraud, a properly planned and performed audit may not detect a material misstatement or material weakness. Accordingly, there is some risk that a material misstatement of the financial statements or a material weakness in internal control over financial reporting would remain undetected. Also, an integrated audit is not designed to detect error or fraud that is immaterial to the financial statements or deficiencies in internal control over financial reporting that, individually or in combination, are less severe than a material weakness.
APPENDIX A - CONTINUED
INHERENT LIMITATIONS OF INTERNAL CONTROL OVER FINANCIAL REPORTING
Because of the inherent limitations of internal control over financial reporting, including the possibility of collusion or management override of controls, material misstatements due to error or fraud may occur and not be detected. Also, projections of any evaluation of the internal control over financial reporting to future periods are subject to the risk that the internal control may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
APPENDIX B
DESCRIPTION OF AN INTERIM REVIEW UNDER THE PCAOB STANDARDS
CHINA FINANCE ONLINE CO. LIMITED
YEAR ENDED DECEMBER 31, 2007 AND THREE QUARTERS ENDING SEPTEMBER 30, 2008
A review of interim financial information is substantially less in scope than an audit in accordance with the PCAOB Standards, the objective of which is to express an opinion on the financial statements taken as a whole. Accordingly, a review will not result in the expression of an opinion concerning the fairness of the presentation of the interim financial information in conformity with generally accepted accounting principles and cannot be relied on to reveal all significant matters that would be disclosed in an audit.
A review consists principally of applying analytical procedures to pertinent financial data and making inquiries of and evaluating responses from certain management personnel of the Company who have responsibility for financial and accounting matters.
A review also includes obtaining sufficient knowledge of the Company's business and its internal control as it relates to the preparation of both annual and interim financial information to identify the types of potential material misstatements in the interim financial information, to consider the likelihood of their occurrence, and to select the inquiries and analytical procedures that will provide us with a basis for communicating whether we are aware of any material modifications that should be made to the interim financial information for it to conform with generally accepted accounting principles. A review is not designed to provide assurance on internal control or to identify control deficiencies.
APPENDIX C
MANAGEMENT'S RESPONSIBILITIES
CHINA FINANCE ONLINE CO. LIMITED
YEAR ENDED DECEMBER 31, 2007 AND THREE QUARTERS ENDING SEPTEMBER 30, 2008
FINANCIAL STATEMENTS AND THE EFFECTIVENESS OF INTERNAL CONTROL OVER FINANCIAL REPORTING
The overall accuracy of the financial statements, including interim financial
information, and their conformity with generally accepted accounting principles
is the responsibility of the Company's management. The assessment of the
effectiveness of internal control over financial reporting to comply with
Section 404 of the Sarbanes-Oxley Act of 2002 and related SEC rules and
regulations is also the responsibility of the Company's management. In this
regard, management has the responsibility for, among other things:
- Establishing and maintaining effective internal control over financial reporting and informing DTTC of all deficiencies in the design or operation of internal control over financial reporting identified by management, including separately disclosing to DTTC all such deficiencies that management believes to be significant deficiencies or material weaknesses in internal control over financial reporting.
- Informing DTTC of any significant changes in the design or operation of the Company's internal control over financial reporting that occurred during each fiscal quarter or subsequent to the date being reported on
- Identifying and ensuring that the Company complies with the laws and regulations applicable to its activities and informing us of any known material violations of such laws or regulations
- Adjusting the financial statements to correct material misstatements
- Making all financial records and related information available to us.
REPRESENTATION LETTERS
We will make specific inquiries of the Company's management about the representations embodied in the financial statements and management's assessment of the effectiveness of the Company's internal control over financial reporting. Additionally, we will request that management provide to us the written representations the Company is required to provide to its independent registered public accounting firm under the PCAOB Standards. As part of our integrated audit procedures, we will request that management provide us with a representation letter that includes, among other things:
APPENDIX C - CONTINUED
- Acknowledgment of management's responsibility for the preparation of the financial statements and for establishing and maintaining effective internal control over financial reporting.
- Affirmation of management's belief that the effects of any uncorrected financial statement misstatements aggregated by us during the current audit engagement and pertaining to the latest period presented are immaterial, both individually and in the aggregate, to the financial statements taken as a whole.
- Acknowledgment that management disclosed to us all deficiencies in the design or operation of internal control over financial reporting identified by management, including separately disclosing to us all such deficiencies that management believes to be significant deficiencies or material weaknesses in internal control over financial reporting.
We will also request that management confirm certain representations made to us during our audit. The responses to those inquiries and related written representations of management required by the PCAOB Standards are part of the evidential matter that DTTC will rely on in forming its opinions.
We will request a similar representation letter as part of our interim reviews, including representations about the disclosures related to changes in internal control over financial reporting that have materially affected, or are reasonably likely to materially affect, internal control over financial reporting.
PROCESS FOR OBTAINING PREAPPROVAL OF SERVICES
Management is responsible for the coordination of obtaining the preapproval of the Audit Committee, in accordance with the Audit Committee's preapproval process, for any services to be provided by DTTC to the Company.
INDEPENDENCE MATTERS RELATING TO FINANCIAL INTERESTS AND PROVIDING CERTAIN SERVICES
In connection with our engagement, DTTC, management, and the Audit Committee will assume certain roles and responsibilities in an effort to assist DTTC in maintaining independence and ensuring compliance with the securities laws and regulations. DTTC will communicate to its partners, principals, and employees that the Company is an attest client. Management of the Company will ensure that the Company, together with its subsidiaries and other entities that comprise the Company for purposes of the consolidated financial statements, has policies and procedures in place for the purpose of ensuring that neither the Company nor any such subsidiary or other entity will act to engage DTTC or accept from DTTC any service that either has not been subjected to their preapproval process or that under SEC or other applicable rules would impair DTTC's independence. All potential services are to be discussed with Mr. Taylor Lam or Ms. Elsie Zhou.
APPENDIX C - CONTINUED
In connection with the foregoing, the Company agrees to furnish to DTTC and keep
DTTC updated with respect to (1) a corporate tree that identifies the legal
names of the Company's affiliates (e.g., parents, subsidiaries, investors, or
investees), together with the ownership relationship among such entities, and
(2) equity and debt securities of the Company and its affiliates (including,
without limitation, tax-advantaged debt of such entities that is issued through
governmental authorities) that are available to individual investors (whether
through stock, bond, commodity, futures or similar markets, or equity, debt, or
any other securities offerings), together with related securities identification
information (e.g., ticker symbols or CUSIP(R), ISIN(R), or Sedol(R) numbers).
The Company acknowledges and consents that such information may be treated by
DTTC as being in the public domain.
INDEPENDENCE MATTERS RELATING TO HIRING
Management will coordinate with DTTC to ensure that DTTC's independence is not impaired by hiring former or current DTTC partners, principals, or professional employees for certain positions. Management of the Company will ensure that the Company, together with its subsidiaries and other entities that comprise the Company for purposes of the consolidated financial statements, also has policies and procedures in place for purposes of ensuring that DTTC's independence will not be impaired by hiring a former or current DTTC partner, principal, or professional employee in an accounting role or financial reporting oversight role that would cause a violation of securities laws and regulations. Any employment opportunities with the Company for a former or current DTTC partner, principal, or professional employee should be discussed with Mr. Taylor Lam or Ms. Elsie Zhou and approved by the Audit Committee before entering into substantive employment conversations with the former or current DTTC partner, principal, or professional employee, if such opportunity relates to serving (1) as chief executive officer, controller, chief financial officer, chief accounting officer, or any equivalent position for the Company or in a comparable position at a significant subsidiary of the Company; (2) on the Company's board of directors; (3) as a member of the Audit Committee; or (4) in any other position that would cause a violation of securities laws and regulations.
For purposes of the preceding four paragraphs, "DTTC" shall include Deloitte Touche Tohmatsu CPA Ltd., its partners, directors, consultants and employees, and to the extent providing services under the engagement letter to which these terms are attached, any member firm of Deloitte Touche Tohmatsu, their subsidiaries and affiliates and all of their partners, principals, members, owners, directors, staff and agents, and in all cases any successor or assignee. This paragraph is additional to and shall not be taken to detract from Sections 6.3 and 6.4 of the engagement letter to which these terms are annexed.
APPENDIX D
AUDIT COMMITTEE COMMUNICATIONS
CHINA FINANCE ONLINE CO. LIMITED
YEAR ENDED DECEMBER 31, 2007 AND THREE QUARTERS ENDING SEPTEMBER 30, 2008
INDEPENDENCE COMMUNICATIONS
We have the responsibility to comply with the requirements of the securities laws and regulations administered by the SEC regarding auditor independence. To demonstrate compliance with those requirements and in accordance with Independence Standards Board Standard No. 1, Independence Discussions with Audit Committees ("Independence Standard No. 1"), we will disclose to the Audit Committee, in writing, all relationships between DTTC and the Company and its related entities, that in our professional judgment may reasonably be thought to bear on our independence and confirm to the Audit Committee in such letter whether, in our professional judgment, we are independent of the Company within the meaning of the securities laws and regulations. We also will discuss our independence with the Audit Committee in accordance with Independence Standard No. 1. For purposes of this paragraph, "DTTC" shall mean DTTC and its subsidiaries; Deloitte Touche Tohmatsu, its member firms, the affiliates of DTTC, Deloitte Touche Tohmatsu and its member firms; and, in all cases, any successor or assignee.
OTHER COMMUNICATIONS ARISING FROM THE AUDIT OR REVIEWS
Fraud and Illegal Acts
We will report directly to the Audit Committee any fraud of which we become aware that involves senior management, and any fraud (whether caused by senior management or other employees) of which we become aware that causes a material misstatement of the financial statements. We will report to senior management any fraud perpetrated by lower level employees of which we become aware that does not cause a material misstatement of the financial statements; however, we will not report such matters directly to the Audit Committee, unless otherwise directed by the Audit Committee.
We will inform the appropriate level of management of the Company and determine that the Audit Committee is adequately informed with respect to illegal acts that have been detected or have otherwise come to our attention in the course of our audit, unless the illegal acts are clearly inconsequential.
APPENDIX D - CONTINUED
Internal Control Matters
We will communicate, in writing, to management and the Audit Committee all material weaknesses identified during the integrated audit prior to the issuance of our report on the effectiveness of the Company's internal control over financial reporting. We will also communicate in writing to the Audit Committee any significant deficiencies identified during the integrated audit. If we conclude that the oversight of the Company's external financial reporting and internal control over financial reporting by the Audit Committee is ineffective, we will also communicate that conclusion in writing to the Company's board of directors.
A significant deficiency is a deficiency, or a combination of deficiencies, in internal control over financial reporting that is less severe than a material weakness, yet important enough to merit attention by those responsible for oversight of the company's financial reporting. A material weakness is a deficiency, or a combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of the company's annual or interim financial statements will not be prevented or detected on a timely basis.
In addition, we will communicate to management, in writing, all deficiencies in internal control over financial reporting (that is, those deficiencies in internal control over financial reporting that are of a lesser magnitude than material weaknesses) identified during the integrated audit and inform the Audit Committee when such a communication has been made. When making this communication, we will not repeat information about such deficiencies that has been included in previously issued written communications, whether those communications were made by us, internal auditors, or others within the Company.
Other Matters
We will communicate matters required by PCAOB AU 380, Communications with Audit Committees, and Rule 2-07 of SEC Regulation S-X prior to the Company filing our report or consent with the SEC.
Communications Related to Interim Reviews
At the Audit Committee's request, we will not issue a written review report upon completion of our interim reviews; however, we will report to the Audit Committee and the Company's management (1) matters that cause us to believe that material modifications should be made to the interim financial information for it to conform with generally accepted accounting principles or (2) that the Company furnished the Form 6-K before the completion of our review. When conducting our review of interim financial information, we will also determine whether any other matters required by regulations or the PCAOB Standards as they relate to interim financial information have been identified. If such matters have been identified, we will communicate them to the Audit Committee prior to the submission of interim financial information with the SEC or, if such communication cannot be made before the submission, as soon as practicable under the circumstances.
.
.
.
Exhibit 8.1
PERCENTAGE COUNTRY OF OWNERSHIP NAME INCORPORATION INTEREST ---- ------------- ---------- Fortune Software (Beijing) Co., Ltd China 100 China Finance Online (Beijing) Co., Ltd. China 100 Beijing Fuhua Innovation Technology Development Co., Ltd.* China 100 Stockstar Information Technology (Shanghai) Co., Ltd China 100 Shanghai Meining Computer Software Co., Ltd. China 100 Zhengning Information & Technology (Shanghai) Co., Ltd. China 100 Shenzhen Genius Information Technology Co., Ltd. China 100 Jujin Software (Shenzhen) Co., Ltd. China 100 |
* Denotes variable interest entity
Exhibit 10.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in the Registration Statement Nos. 333-139192 and 333-123802 on Form S-8 of our reports (which report expresses an unqualified opinion and includes an explanatory paragraph, effective on January 1, 2007, relating to the adoption of the recognition and measurement methods under Financial Accounting Standards Board Interpretation No. 48, "Accounting for Uncertainty in Income Taxes - an Interpretation of FASB Statement No. 109" and effective on January 1, 2006, changing its method of accounting for stock-based compensation to conform to Statement of Financial Accounting Standard No. 123 (revised 2004), "Share-Based Payment") relating to the consolidated financial statements and financial statement schedule of China Finance Online Co. Limited and the effectiveness of China Finance Online Co. Limited's internal control over financial reporting dated May 30, 2008, appearing in this Annual Report on Form 20-F of China Finance Online Co. Limited for the year ended December 31, 2007.
(DELOITTE TOUCHE TOHMATSU CPA LTD.)
Beijing, the People's Republic of China
June 4, 2008
EXHIBIT 12.1
CERTIFICATION
I, Zhao Zhiwei, certify that:
1. I have reviewed this annual report on Form 20-F of China Finance Online Co.
Limited;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the company as of, and for, the periods presented in this report;
4. The company's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the company and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Evaluated the effectiveness of the company's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(c) Disclosed in this report any change in the company's internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the company's internal control over financial reporting; and
5. The company's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the company's auditors and the audit committee of the company's board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the company's ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the company's internal control over financial reporting.
Date: June 5, 2008 /s/ Zhao Zhiwei --------------------- Name: Zhao Zhiwei Title: Chief Executive Officer |
EXHIBIT 12.2
CERTIFICATION
I, Jeff Wang, certify that:
1. I have reviewed this annual report on Form 20-F of China Finance Online Co.
Limited;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the company as of, and for, the periods presented in this report;
4. The company's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the company and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Evaluated the effectiveness of the company's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(c) Disclosed in this report any change in the company's internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the company's internal control over financial reporting; and
5. The company's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the company's auditors and the audit committee of the company's board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the company's ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the company's internal control over financial reporting.
Date: June 5, 2008 /s/ Jeff Wang --------------------- Name: Jeff Wang Title: Chief Financial Officer |
EXHIBIT 13.1
CERTIFICATION OF PERIODIC FINANCIAL REPORT
Pursuant to 18 U.S.C. Section 1350
In connection with the Annual Report of China Finance Online Co. Limited (the
"Company") on Form 20-F for the fiscal year ended December 31, 2007 as filed
with the Securities and Exchange Commission on the date hereof (the "Report"),
I, Zhiwei Zhao, Chief Executive Officer of the Company, hereby certify, pursuant
to 18 U.S.C.Section 1350, as adopted pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002, to the best of my knowledge, that:
1. The Report fully complies with the requirements of Section 13(a) or 15(d) of
the Securities Exchange Act of 1934; and
2. The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Date: June 5, 2008 /s/ Zhao Zhiwei --------------------------- Name: Zhao Zhiwei Title: Chief Executive Officer |
A signed original of this written statement required by Section 906 of the Sarbanes-Oxley Act of 2002 has been provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request.
EXHIBIT 13.2
CERTIFICATION OF PERIODIC FINANCIAL REPORT
Pursuant to 18 U.S.C. Section 1350
In connection with the Annual Report of China Finance Online Co. Limited (the
"Company") on Form 20-F for the fiscal year ended December 31, 2007 as filed
with the Securities and Exchange Commission on the date hereof (the "Report"),
I, Jeff Wang, Chief Financial Officer of the Company, hereby certify, pursuant
to 18 U.S.C.Section 1350, as adopted pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002, to the best of my knowledge, that:
1. The Report fully complies with the requirements of Section 13(a) or 15(d) of
the Securities Exchange Act of 1934; and
2. The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Date: June 5, 2008 /s/ Jeff Wang ------------------------------ Name: Jeff Wang Title: Chief Financial Officer |
A signed original of this written statement required by Section 906 of the Sarbanes-Oxley Act of 2002 has been provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request.