As filed with the Securities and Exchange Commission on April 4, 2005
Registration No. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CHINA FINANCE ONLINE CO. LIMITED
(Exact Name of Registrant as Specified in its Charter)
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Hong Kong SAR Not Applicable
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
China Finance Online Co. Limited
Room 610B, 6/F Ping'an Mansion
No. 23 Financial Street
Xicheng District, Beijing 100032
China
(86-10) 6621-0425
(Address and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
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CHINA FINANCE ONLINE CO. LIMITED
2004 STOCK INCENTIVE PLAN
(Full Title of the Plan)
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CT Corporation System
111 Eighth Avenue, 13th Floor
New York, New York 10011
(212) 894-8940
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
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COPY TO:
Douglas C. Freeman, Esq.
O'Melveny & Myers LLP
Suite 1905, Tower Two
Lippo Center
89 Queensway, Central
Hong Kong, SAR
China
(852) 2523-8266
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CALCULATION OF REGISTRATION FEE
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED(1) REGISTERED(2) UNIT PRICE FEE
------------------- ----------------- ------------------ ------------------ ------------
Ordinary Shares, par value HK$.001 per share
2004 Stock Incentive Plan 5,343,488 shares $0.16(3) $854,958.08(3) $100.63(3)
2004 Stock Incentive Plan 320,000 shares $1.04(3) $332,800.00(3) $39.17(3)
2004 Stock Incentive Plan 4,353,000 shares $1.314(3) $5,719,842.00(3) $673.23(3)
2004 Stock Incentive Plan 672,000 shares $1.188(4) $798,336.00(4) $93.96(4)
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Total: 10,688,488 shares $906.99
(1) The ordinary shares being registered hereby with respect to the China
Finance Online Co. Limited 2004 Stock Incentive Plan (the "Plan") may be
represented by the Registrant's American Depository Shares, each of which
represents five ordinary shares. The American Depository Shares evidenced
by American Depository Receipts issuable upon deposit of any of the
ordinary shares registered hereby have been registered pursuant to a
separate registration statement on Form F-6 filed with the Commission on
October 5, 2004 (File No. 333-119530).
(2) This Registration Statement covers, in addition to the number of ordinary
shares stated above, options and other rights to purchase or acquire the
ordinary shares covered by the Prospectus and, pursuant to Rule 416(c)
under the Securities Act of 1933, as amended (the "Securities Act"), an
additional indeterminate number of shares, options and rights which by
reason of certain events specified in the Plan may become subject to the
Plan.
(3) Pursuant to Rule 457(h), the maximum offering price, per share and in the
aggregate, and the registration fee for ordinary shares subject to
outstanding stock options that have been granted under the Plan as of the
date of this Registration Statement were calculated based upon the exercise
prices of such stock options.
(4) Pursuant to Rules 457(h), the maximum offering price, per share and in the
aggregate, and the registration fee for ordinary shares subject to future
awards under the Plan were calculated based upon the average of the high
and low prices of the Registrant's American Depository Shares on March 29,
2005, as reported on the Nasdaq National Market.
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PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form
S-8 (plan information and Company information) will be sent or given to
employees as specified by Securities Act Rule 428(b)(1). Such documents need not
be filed with the Securities and Exchange Commission (the "Commission") either
as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Securities Act Rule 424. These documents, which include
the statement of availability required by Item 2 of Form S-8, and the documents
incorporated by reference in this Registration Statement pursuant to Item 3 of
Form S-8 (Part II hereof), taken together, constitute a prospectus that meets
the requirements of Section 10(a) of the Securities Act.
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PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by China Finance
Online Co. Limited (the "Company") are incorporated herein by reference:
(a) The Company's Prospectus dated October 15, 2004, filed with
the Commission pursuant to Rule 424(b) (registration number
333-119166), which includes audited financial statements for
the Company's fiscal year ended December 31, 2003; and
(b) The description of the Company's Ordinary Shares contained in
the Company's Registration Statement on Form 8-A filed with
the Commission on October 4, 2004 (which incorporates such
description of the Ordinary Shares from the Company's
Registration Statement on Form F-1 (registration number
333-119166), which description is also hereby incorporated by
reference).
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which deregisters
all securities then remaining unsold shall be deemed to be incorporated by
reference into this Registration Statement and to be a part hereof from the date
of filing of such documents. Any statement contained herein or in a document,
all or a portion of which is incorporated or deemed to be incorporated by
reference herein, shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein or
in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or amended, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
The Company's ordinary shares, par value HK$0.001 per share (the
"Ordinary Shares"), are registered pursuant to Section 12 of the Exchange Act,
and, therefore, the description of securities is omitted.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's articles of association provide that, subject to the Hong
Kong Companies Ordinance (the "Ordinance"), every director or other officer of
the Company shall be indemnified against any liability incurred by him in his
capacity as such. However, directors and officers of the Company are not
indemnified against any liability to the Company or a related company arising
out of negligence, default, breach of duty or breach of trust with respect to
the Company or a related company, unless such liability is incurred in defending
any proceedings, whether civil or criminal, in which judgment is given in his
favor, or in which he is acquitted, or in connection with any application in
which relief is granted to him by the court pursuant to the Ordinance from
liability for negligence, default, breach of duty or breach of trust in relation
to the affairs of the Company.
3
Pursuant to the Company's form of Indemnification Agreement with
officers and directors, the Company will agree to indemnify its directors and
officers, to the extent permitted by Hong Kong law, against certain liabilities
and expenses incurred by such persons in connection with claims by reason of
their being such a director or officer.
Pursuant to the Company's Purchase Option and Cooperation Agreement,
China Finance Online (Beijing) Co., Ltd., or CFO Beijing, the Company's wholly
owned subsidiary, has agreed to indemnify Jun Ning, the Company's chairman of
the board of directors and chief executive officer, to the extent that he is
subject to any legal or economic liabilities as a result of performing his
obligations pursuant to his agreements with CFO Beijing.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
See the attached Exhibit Index at page 8.
ITEM 9. UNDERTAKINGS
(a) The undersigned Company hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in this Registration
Statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the Company pursuant to Section
13 or 15(d) of the Exchange Act that are incorporated by reference in
this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Company hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the Company's
annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
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(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, executive officers and controlling
persons of the Company pursuant to the provisions described in Item 6 above, or
otherwise, the Company has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company in
the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Beijing, China on April 4, 2005.
By: /s/ Jun Ning
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Jun Ning
Chairman and Chief Executive Officer
POWER OF ATTORNEY
Each of the undersigned officers and directors of China Finance Online Co.
Limited hereby severally constitutes and appoints Jun Ning and Sam Qian, and
each of them singly, the true and lawful attorney with full power to them, and
each of them singly, to sign for the undersigned and in his or her name in the
capacities indicated below, any and all amendments, including post-effective
amendments, to this Registration Statement, and generally to do all such things
in the undersigned's name and behalf in such capacities to enable China Finance
Online Co. Limited to comply with the applicable provisions of the Securities
Act of 1933, as amended, and all rules and regulations thereunder, and all
requirements of the Securities and Exchange Commission, and each of the
undersigned hereby ratifies and confirms all that said attorneys or any of them
shall lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated on April 4, 2005.
SIGNATURE TITLE
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/s/ Jun Ning Chairman and Chief Executive Officer
---------------------------------------------------------- (principal executive officer)
Jun Ning
/s/ Hugo Shong Director
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Hugo Shong
/s/ Lee Kheng Nam Director
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Lee Kheng Nam
/s/ Ling Wang Director
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Ling Wang
/s/ Fansheng Guo Director
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Fansheng Guo
/s/ Sam Qian President and Chief Financial Officer
----------------------------------------------------------- (principal financial officer)
Sam Qian
/s/ Bingshi Zhang Principal Accounting Officer
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Bingshi Zhang
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SIGNATURE OF AUTHORIZED REPRESENTATIVE IN THE UNITED STATES
Pursuant to the Securities Act of 1933, the undersigned, the duly
authorized representative in the United States of China Finance Online Co.
Limited, has signed this Registration Statement in New York, New York on April
4, 2005.
Authorized Representative
By: /s/ Donald J. Puglisi
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Name: Donald J. Puglisi
Title: Managing Director
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EXHIBIT INDEX
Exhibit
Number Description of Exhibit
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4.1 China Finance Online Co. Limited 2004 Stock Incentive Plan, as amended (Incorporated by reference
to Exhibit 10.1 to the Company's Registration Statement on Form F-1 filed with the Commission on
September 21, 2004 (Registration Number 333-119166).
4.2 Specimen of American Depositary Receipt (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).
4.3 Form of Deposit Agreement (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).
5 Opinion of O'Melveny & Myers LLP (Opinion re the validity of the Ordinary Shares being registered).
23.1 Consent of Deloitte Touche Tohmatsu Certified Public Accountants Ltd (Consent of Independent
Registered Public Accounting Firm).
23.2 Consent of O'Melveny & Myers LLP (included in Exhibit 5).
24 Powers of Attorney (included in this Registration Statement under "Signatures").
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