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):