-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, KMIA0kYVkY1vC9KmF4BPRE/JtnZ6O22I1ql5mHx4JDqTlTvXG4BNK+TbT95tIZ27 sO5FlmvtMoHv9OWcbNX85A== 0001193125-06-250736.txt : 20061211 0001193125-06-250736.hdr.sgml : 20061211 20061211172427 ACCESSION NUMBER: 0001193125-06-250736 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 16 FILED AS OF DATE: 20061211 DATE AS OF CHANGE: 20061211 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: TIAN EDWARD CENTRAL INDEX KEY: 0001134725 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: BUSINESS PHONE: 861062501658 MAIL ADDRESS: STREET 1: 4/F ZHONGDIAN INFO TWR #6 ZHONGGUANAIN S STREET 2: HAIDIAN DISTRICT BEIJING CITY: 100086 PRC STATE: F5 ZIP: 99999 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: ASIAINFO HOLDINGS INC CENTRAL INDEX KEY: 0001100969 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-BUSINESS SERVICES, NEC [7389] IRS NUMBER: 752506390 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-60757 FILM NUMBER: 061269503 BUSINESS ADDRESS: STREET 1: 4/F ZHONGDIAN INFORMATION TOWER 6 STREET 2: ZHONGGUANCUN SOUTH STREET HAIDIAN CITY: BEIJING STATE: F4 ZIP: 100086 BUSINESS PHONE: 00861082166688 MAIL ADDRESS: STREET 1: 4/F ZHONGDIAN INFORMATION TOWER 6 STREET 2: ZHONGGUANCUN SOUTH STREET HAIDIAN CITY: BEIJING STATE: F4 ZIP: 100086 SC 13D 1 dsc13d.htm SCHEDULE 13D Schedule 13D

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

SCHEDULE 13D

 

Under the Securities Exchange Act of 1934

 

 

AsiaInfo Holdings, Inc.

(Name of Issuer)

 

Common Stock, par value $0.01

(Title of Class of Securities)

 

04518A104

(CUSIP Number)

 

Edward Tian

c/o China Broadband Capital Partners, L.P.

28/F, CITIC Tower

1 Tim Mei Avenue, Central

Hong Kong

Telephone: +852-22379393

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

 

November 30, 2006

(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of § 240.13d-l(e), 240.13d-l(f) or 240.13d-l(g), check the following box.  x

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7(b) for other parties to whom copies are to be sent.

 

*   The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (the “Exchange Act”) or otherwise subject to the liabilities of that section of the Exchange Act but shall be subject to all other provisions of the Exchange Act (however, see the Notes).

SEC 1746(3-06)

CUSIP No. 04518A104      

 

  1.  

NAMES OF REPORTING PERSONS.

I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY).

    
                Edward Tian    
  2.   CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS):  
  (a)  ¨  
    (b)  x    
  3.   SEC USE ONLY:  
         
  4.   SOURCE OF FUNDS (SEE INSTRUCTIONS):  
                PF    
  5.   CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e):   ¨
         
  6.   CITIZENSHIP OR PLACE OF ORGANIZATION:  
                The People’s Republic of China    
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH		     7.  SOLE VOTING POWER:
 
                  5,273,503 (1)
    8.  SHARED VOTING POWER:
 
                  6,223,184 (2)
    9.  SOLE DISPOSITIVE POWER:
 
                  5,273,503 (1)
  10.  SHARED DISPOSITIVE POWER:
 
                  2,198,079 (2)
11.   AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON:    
                7,471,582    
12.   CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS):   x
         
13.   PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11):  
                17.2% (3)    
14.   TYPE OF REPORTING PERSON (SEE INSTRUCTIONS):  
                IN    

 

(1) Includes: (i) 2,368,871 shares of common stock, $0.01 par value of the issuer (the “Common Stock”) directly held by Edward Tian, (ii) 4,000 shares of Common Stock held in a revocable trust for the benefit of Mr. Tian’s daughter, Stephanie Tian, (iii) 2,235,632 shares of Common Stock beneficially held through PacificInfo Limited, a company organized and existing under the laws of the British Virgin Islands, which is wholly-owned by Mr. Tian, (iv) 360,000 shares of Common Stock that Mr. Tian is entitled to acquire upon exercise of fully vested stock options to purchase shares of Common Stock, which expire on October 4, 2009, (v) 300,000 shares of Common Stock that Mr. Tian is entitled to acquire upon exercise of fully vested stock options to purchase shares of Common Stock, which expire on November 15, 2007, and (vi) 5,000 shares of Common Stock underlying restricted stock units that will vest in four tranches of 25% each, on December 26, 2006, 2007, 2008 and 2009.
(2) Includes: (i) 2,198,079 shares of Common Stock held by Mr. Tian’s spouse, Jean Qin Kong and (ii) 4,025,105 shares of Common Stock held by CITIC Capital MB Investment Limited (“CITIC”). Pursuant to the Proxy Agreement between Mr. Tian and CITIC dated October 9, 2006, attached hereto as Exhibit D, Mr. Tian holds a revocable proxy to vote the shares of Common Stock held by CITIC. Mr. Tian does not have dispositive power with respect to the shares of Common Stock held by CITIC and disclaims beneficial ownership of those shares.
(3) Based upon a total of 43,459,760 shares of Common Stock, which figure is based on the number of outstanding shares of Common Stock on November 6, 2006 (42,794,760), as disclosed by the Company in its report on Form 10-Q for the quarterly period ending September 30, 2006 and assumes the exercise of options and the vesting of restricted stock units representing 665,000 shares of Common Stock.

CUSIP No. 04518A104

Item 1. Security and Issuer

This statement on Schedule 13D (this “Statement”) relates to the common stock (“Common Stock”) of AsiaInfo Holdings, Inc., a Delaware corporation (“AsiaInfo” or the “Issuer”). The principal executive offices of the Issuer are located at 4th Floor, Zhongdian Information Tower, 6 Zhongguancun South Street, Haidian District, Beijing 100086, China.

Item 2. Identity and Background

(a) This Statement is being filed by Mr. Edward Tian (the “Reporting Person”). This Statement relates solely to, and is being filed for the investment by, the Reporting Person. This Statement is based upon the direct and indirect beneficial ownership of shares of the Issuer by the Reporting Person.

(b) The business address for the Reporting Person is c/o China Broadband Capital Partners, L.P., 15/F Building A, Corporate Square, 35 Financial Street, Xicheng District, Beijing 100032, China.

(c) The principal employment of the Reporting Person is as the Chairman of China Broadband Capital Partners, L.P.

(d) During the last five years, the Reporting Person has not been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).

(e) During the last five years, the Reporting Person has not been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

(f) The Reporting Person is a citizen of the People’s Republic of China.

Item 3. Source and Amount of Funds or Other Consideration

The information set forth in Item 4 hereof is incorporated by reference in its entirety into this Item 3. The total amount of funds used for the acquisition of the securities ultimately retained by the Reporting Person as described in Item 4 was $10,619,512. The source of funds for the transactions of the Reporting Person described in this Statement were the Reporting Person’s personal funds.

Item 4. Purpose of Transaction

Pursuant to a Stock Purchase Agreement, dated as of September 30, 2006, among CITIC Capital MB Investment Limited (“CITIC”), Warburg, Pincus Ventures L.P. and Warburg Pincus Ventures International L.P. (collectively “Warburg”), as amended on October 30, 2006 (the “SPA”), Warburg agreed to sell, subject to the terms and conditions set forth in the SPA, an aggregate of 8,050,210 shares of Common Stock (the “Purchased Shares”) to CITIC, its affiliates and/or assignees for an aggregate purchase price of $38,238,497.50 (representing a per share purchase price of $4.75). A copy of the SPA is attached hereto as Exhibit A and A-1 and is incorporated by reference in its entirety into this Item 4.

In connection with the SPA, CITIC entered into a Stockholders Agreement, dated as of October 9, 2006, with PacificInfo Limited, a company organized and existing under the laws of the British Virgin Islands (“PacificInfo”), as amended on October 31, 2006 (the “SHA”). PacificInfo is a holding company wholly-owned by the Reporting Person. Pursuant to the SHA, among other things, CITIC committed to assign its rights, interests, and obligations under the SPA with respect to up to 4,025,105 shares of Common Stock to PacificInfo (the “Assigned Shares”). A copy of the SHA is attached hereto as Exhibit B and B-1 and is incorporated by reference in its entirety into this Item 4.

 

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CUSIP No. 04518A104

On October 31, 2006, CITIC assigned all its rights, interests and obligations under the SPA with respect to 2,315,789 Assigned Shares to PacificInfo, and PacificInfo agreed to accept such assignment and to assume all of CITIC’s rights and obligations with respect to such Assigned Shares (the “First Assignment”). A copy of the First Assignment is attached hereto as Exhibit C and is incorporated by reference in its entirety into this Item 4. On November 19, 2006, CITIC assigned all its rights, interests and obligations under the SPA with respect to 1,709,316 Assigned Shares to PacificInfo, and PacificInfo agreed to accept such assignment and to assume all of CITIC’s rights and obligations with respect to such Assigned Shares (the “Second Assignment”). A copy of the Second Assignment is attached hereto as Exhibit C-1 and is incorporated by reference in its entirety into this Item 4.

In November of 2006, PacificInfo entered into five assignment agreements with other investors under which PacificInfo assigned to those investors all of its rights, interests and obligations under the SPA with respect to an aggregate of 1,789,473 Assigned Shares, in each case for a per share purchase price of $4.75. Specifically, PacificInfo entered into the following assignment agreements with the following investors: (i) an Assignment and Assumption Agreement dated November 21, 2006 with Mrs. Wendi Murdoch, under which PacificInfo assigned all of its rights, interests and obligations under the SPA with respect to 105,263 Assigned Shares; (ii) an Assignment and Assumption Agreement dated November 20, 2006 with Joy Power International Limited, a company organized under the laws of the Commonwealth of the Bahamas, under which PacificInfo assigned all of its rights, interests and obligations under the SPA with respect to 631,579 Assigned Shares; (iii) an Assignment and Assumption Agreement dated November 21, 2006 with Mr. James Ding, under which PacificInfo assigned all of its rights, interests and obligations under the SPA with respect to 210,526 Assigned Shares; (iv) an Assignment and Assumption Agreement dated November 29, 2006 with Fidelity Asia Principals L.P., under which PacificInfo assigned all of its rights, interests and obligations under the SPA with respect to 30,274 Assigned Shares; and (v) an Assignment and Assumption Agreement dated November 29, 2006 with Fidelity Asia Ventures Fund L.P., under which PacificInfo assigned all of its rights, interests and obligations under the SPA with respect to 811,831 Assigned Shares. The foregoing assignment agreements are attached hereto as Exhibits C-2 through C-6. The Reporting Person did not retain any rights or interest in the 1,789,473 Assigned Shares so assigned. As a result of these transactions, the Reporting Person transferred all of his rights, interests and obligations with regard to 1,789,473 Assigned Shares and ultimately retained in the assignment from CITIC 2,235,632 Assigned Shares of Common Stock, which are included in the shares reported as beneficially owned by the Reporting Person pursuant to Item 5 of this Statement. The closing of the share transfers from Warburg to CITIC, PacificInfo and the various assignees of PacificInfo described above were completed simultaneously on November 30, 2006.

 

4

CUSIP No. 04518A104

The Reporting Person has entered into the transactions described in this Statement for general investment purposes. Depending on market conditions, his continued evaluation of the business and prospects of the Issuer and other factors, the Reporting Person may dispose of or acquire additional securities of the Issuer. Additionally, if the Issuer determines to explore strategic alternatives, the Reporting Person may or may not participate in any process established by the Issuer. Except as otherwise described herein, the Reporting Person does not have any present plan or proposal that relates to or would result in the following (collectively, the “Extraordinary Events”):

(a) The acquisition by any person of additional securities of the Issuer, or the disposition of securities of the Issuer;

(b) An extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the Issuer or any of its subsidiaries;

(c) A sale or transfer of a material amount of assets of the Issuer;

(d) Any change in the present Board of Directors or management of the Issuer, including any plans or proposals to change the number or term of directors or to fill any existing vacancies on the board;

(e) Any material change in the present capitalization or dividend policy of the Issuer;

(f) Any other material change in the Issuer’s business or corporate structure;

(g) Changes in the Issuer’s charter, bylaws or instruments corresponding thereto or other actions which may impede the acquisition of control of the Issuer by any person;

(h) Causing a class of securities of the Issuer to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association;

(i) A class of equity securities of the Issuer becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Securities Exchange Act of 1934; or

(j) Any action similar to any of those enumerated above.

However, from time to time, the Reporting Person might initiate and/or participate in any Extraordinary Events.

 

5

CUSIP No. 04518A104

Item 5. Interest in Securities of the Issuer

(a) – (b) The information set forth in items 7, 8, 9, 10, 11 and 13 of the cover page to this Statement are incorporated herein by reference.

(c) The information set forth in Item 4 of this Statement is hereby incorporated herein by reference. To the best of the Reporting Person’s knowledge, other than as reported in this Statement there have been no transactions effected with respect to any Common Stock during the past 60 days by any of the persons named in response to Item 5(a) above.

(d) To the best of the Reporting Person’s knowledge, no person has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, such securities, with respect to shares of Common Stock beneficially owned by the Reporting Person.

(e) Inapplicable.

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

The information set forth, or incorporated by reference, in Item 4 is hereby incorporated by this reference in its entirety in this Item 6.

Pursuant to the SHA described in Item 4, CITIC entered into a Proxy Agreement (the “Proxy”), dated as of November 30, 2006, with the Reporting Person, pursuant to which CITIC granted the Reporting Person a revocable proxy with respect to the 4,025,105 Purchased Shares that were not Assigned Shares. A copy of the Proxy is attached hereto as Exhibit D and is incorporated by reference in its entirety into this Item 6. As a result, the Reporting Person acquired shared voting power with respect to an additional 4,025,105 shares of Common Stock, which are included in Item 5 of this Statement.

Pursuant to the SHA, CITIC entered into a Guarantee & Lockup Agreement (the “GLA”), dated as of October 9, 2006, with the Reporting Person, in which the Reporting Person irrevocably, absolutely, and unconditionally guaranteed as principal obligor and not merely as surety, the full, prompt and complete payment of all amounts payable by PacificInfo under the SPA. A copy of the GLA is attached hereto as Exhibit E and is incorporated by reference in its entirety into this Item 4.

On November 29, 2006, the Issuer entered into a Strategic Investors’ Agreement (the “SIA”) with CITIC and PacificInfo. The SIA governs the ownership and disposition by CITIC and PacificInfo of the Purchased Shares retained by them, and the relationship among the Issuer, CITIC and PacificInfo. Under the SIA section 8.1, CITIC will have the right to appoint to the board of directors of the Issuer a representative of CITIC reasonably acceptable to the Issuer and the Nominating and Corporate Governance Committee of the Issuer. The Issuer has agreed to nominate and recommend to its stockholders the election of such nominee to its board, or a replacement identified by CITIC that is reasonably acceptable to the Issuer and the Nominating Corporate Governance Committee of the Issuer, at the Issuer’s next annual meeting, for no less than one complete three-year term. In addition, under the SIA, CITIC and PacificInfo will have certain registration rights. The SIA provides that CITIC and PacificInfo will be subject to transfer restrictions for one year with respect to 50% of the Purchased Shares retained by them, and for two years with respect to the other 50%. In addition, CITIC and PacificInfo are subject to a standstill agreement for 24 months and the Purchased Shares retained by CITIC and PacificInfo are subject to a right of first offer in favor of the Issuer. A copy of the SIA is attached hereto as Exhibit F and is incorporated by reference in its entirety into this Item 6.

Other than as described in this Statement, to the best knowledge of the Reporting Person there are no contracts, arrangements, understandings or relationships between the Reporting Person and any other person with respect to any securities of the Issuer, including but not limited to, transfer and voting of any of the securities of the Issuer, finder’s fees, joint ventures, loan or option arrangements, put or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies or a pledge or contingency the occurrence of which would give another person voting power or investment power over the securities of the Issuer.

Item 7. Material to be Filed as Exhibits

 

Exh. No.

   

Document

A

    Stock Purchase Agreement, dated as of September 30, 2006, among CITIC Capital MB Investment Limited, Warburg, Pincus Ventures L.P. and Warburg, Pincus Ventures International, L.P.

A-1

    Amendment to Stock Purchase Agreement, dated as of September 30, 2006, among CITIC Capital MB Investment Limited, Warburg, Pincus Ventures L.P. and Warburg, Pincus Ventures International, L.P., as amended on October 30, 2006.

B

    Stockholders Agreement, dated as of October 9, 2006, between CITIC Capital MB Investment Limited and PacificInfo Limited.

B-1

    Amendment to Stockholders Agreement, dated as of October 9, 2006, between CITIC Capital MB Investment Limited and PacificInfo Limited, as amended on October 31, 2006.

C

    Assignment and Assumption Agreement dated October 31, 2006 between CITIC Capital MB Investment Limited and PacificInfo Limited with respect to 2,315,789 shares of Common Stock.

C-1

    Assignment and Assumption Agreement dated November 19, 2006 between CITIC Capital MB Investment Limited and PacificInfo Limited with respect to 1,709,316 shares of Common Stock.

 

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CUSIP No. 04518A104

 

C-2

    Assignment and Assumption Agreement dated November 17, 2006 between PacificInfo Limited and James Ding with respect to 210,526 shares of Common Stock.

C-3

    Assignment and Assumption Agreement dated November 20, 2006 between PacificInfo Limited and Joy Power International Limited with respect to 631,579 shares of Common Stock.

C-4

    Assignment and Assumption Agreement dated November 21, 2006 between PacificInfo Limited and Wendi Murdoch with respect to 105,263 shares of Common Stock.

C-5

    Assignment and Assumption Agreement dated November 29, 2006 between PacificInfo Limited and Fidelity Asia Principals Fund L.P. with respect to 30,274 shares of Common Stock.

C-6

    Assignment and Assumption Agreement dated November 29, 2006 between PacificInfo Limited and Fidelity Asia Ventures Fund L.P. with respect to 811,831 shares of Common Stock.

D

    Proxy Agreement, dated as of November 30, 2006, between CITIC Capital MB Investment Limited and Mr. Edward Tian.

E

    Guarantee & Lockup Agreement, dated as of October 9, 2006, between CITIC Capital MB Investment Limited and Mr. Edward Tian.

F

    Strategic Investors’ Agreement, dated as of November 29, 2006, among CITIC Capital MB Investment Limited, PacificInfo Limited and AsiaInfo Holdings, Inc. (incorporated by reference to Exhibit 10.2 of AsiaInfo’s Form 8-K, filed November 30, 2006).

 

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CUSIP No. 04518A104

SIGNATURE

After reasonable inquiry and to the best of our knowledge and belief, we certify that the information in this Statement is true, complete and correct.

Dated: December 11, 2006

 

/s/ Edward Tian

Edward Tian

 

8

EX-99.(A) 2 dex99a.htm STOCK PURCHASE AGREEMENT Stock Purchase Agreement

Exhibit A

STOCK PURCHASE AGREEMENT

THIS STOCK PURCHASE AGREEMENT (this “Agreement”) is made and entered into as of September 30, 2006 by and among CITIC Capital MB Investment Limited, an exempted company organized and existing under the laws of the Cayman Islands with registered address at P.O. Box 2804, 4th Floor, Scotia Centre, George Town, Grand Cayman, Cayman Islands (“CITIC”), Warburg, Pincus Ventures L.P., a Delaware limited partnership (“WPV”) and Warburg, Pincus Ventures International, L.P., a Bermuda limited partnership (“WPVI”, WPV and WPVI collectively as “Sellers”).

W I T N E S S E T H:

WHEREAS, WPV as of the date hereof beneficially owns 4,025,105 shares of common stock of AsiaInfo Holdings, Inc., a Delaware corporation (the “Company”) and WPVI as of the date hereof beneficially owns 4,025,105 shares of common stock of the Company.

NOW, THEREFORE, in consideration of the foregoing and the respective agreements, covenants, representations and warranties hereinafter set forth and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto hereby agree as follows:

ARTICLE I

THE STOCK PURCHASE

1.1 Purchase and Sale. At the Closing (as defined below) and subject to and upon the terms and conditions of this Agreement, CITIC, its affiliate and/or its assignee (collectively, “Buyer”) shall purchase from Sellers and Sellers shall sell, convey, transfer, assign and deliver to Buyer, free and clear of all liens, security interests, pledges, claims, restrictions, preferential arrangements, equities, charges and encumbrances of any nature whatsoever (collectively, “Liens”), all shares of the common stock of the Company held by Sellers (the “Stock”) as set forth herein (the “Stock Purchase Transaction”).

1.2 Purchase Price. Subject to the terms and conditions of this Agreement, in consideration of the sale, assignment and transfer of the Stock, Buyer will pay to Sellers at the times and in the manner specified herein, an aggregate purchase price of US$38,238,497.50 (the “Purchase Price”), split equally between WPV and WPVI and paid to the bank accounts specified in Schedule 1.2.

1.3 Deposit Arrangements. Notwithstanding the foregoing:

(a) within three (3) days (excluding Saturdays) on which commercial banks are generally open for business in Hong Kong (each a “Business Day”) after the date of execution and delivery of this Agreement by the parties hereto, Buyer shall deposit with Sellers an aggregate of US$3,823,849.75 (the “First Deposit”) of the Purchase Price otherwise payable to Sellers, split equally between WPV and WPVI and paid to the bank accounts specified in Schedule 1.2;

 

(b) within three (3) days Business Days after the date on which the Company’s Board of Directors shall have approved the Stock Purchase Transaction (the “Board Approval”), which approval shall, among other things, exempt the Stock Purchase Transaction from the operation of Section 203 of the Delaware General Corporation Law, Buyer shall notify Sellers of such Board Approval and shall deposit with Sellers an additional aggregate amount of US$3,823,849.75 (the “Second Deposit” and together with the First Deposit, the “Deposits”) of the Purchase Price otherwise payable to Sellers, split equally between WPV and WPVI and paid to the bank accounts specified in Schedule 1.2; and

(c) each of the Deposits shall be subject to Article VII hereof.

1.4 Closing.

(a) Upon the terms and subject to the conditions of this Agreement, the closing of the Stock Purchase Transaction (the “Closing”) will take place 60 calendar days after the date of execution and delivery of this Agreement by the parties hereto, or as promptly as practicable at such later date following satisfaction or valid waiver of the conditions set forth in Article VI hereof (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions), at the offices of O’Melveny & Myers LLP, counsel to Buyer, Plaza 66, 37th Floor, 1266 Nanjing Road West, Shanghai 200040, China, unless another time and/or place is mutually agreed upon in writing by Buyer and Sellers. The date upon which the Closing actually occurs shall be referred to herein as the “Closing Date.”

(b) Subject to the conditions set forth in this Agreement, at or prior to the Closing:

(i) Buyer shall pay Sellers the Purchase Price (less the Deposits), by cashier’s check or wire transfer of immediately available funds; and

(ii) Sellers shall deliver to Buyer one or more certificates representing the Stock to be sold by Sellers to Buyer, endorsed in blank or accompanied by duly executed assignment documents in form and substance acceptable to Buyer.

1.5 Expenses. Except as otherwise provided herein, Sellers will be solely responsible for the costs and expenses (including those of its employees and attorneys’ fees) incurred by Sellers in negotiating and consummating the transactions contemplated in this Agreement, and Buyer will be solely responsible for the costs and expenses (including those of its employees and attorneys’ fees) incurred by Buyer in negotiating and consummating the transactions contemplated in this Agreement.

 

2

ARTICLE II

REPRESENTATIONS AND WARRANTIES OF SELLERS

Sellers represent and warrant to Buyer that the statements contained in this Article II are true, complete and correct.

2.1 Organization and Standing of Sellers. WPV is a limited partnership duly formed, validly existing and in good standing under the laws of the state of Delaware, the United States of America. WPVI is a limited partnership duly formed, validly existing and in good standing under the laws of Bermuda. Sellers have all requisite power and authority necessary to enable it to own and operate their properties and to conduct their business as now being conducted and presently proposed to be conducted.

2.3 Ownership of Stock. Sellers are the lawful owners, beneficially and of record, of the Stock on the date of this Agreement and as of the Closing Date; and the Stock is to be sold pursuant to this Agreement. None of the Stock is subject to any Liens, or to any rights of first refusal of any kind, and Sellers have not granted any rights to purchase the Stock to any other person. Sellers have the sole right to transfer the Stock to Buyer. Upon the Closing, Buyer will receive title to the Stock, subject to no Liens retained, granted or permitted by Sellers.

2.4 Authority; Valid and Binding Agreements. Sellers have the legal capacity to enter into this Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement by Sellers and the consummation of the transactions contemplated hereby have been duly authorized by all requisite action on the part of Sellers and no further action is required. This Agreement has been duly executed and delivered by Sellers and, assuming the due authorization, execution and delivery by Buyer, constitutes the valid and binding obligations of Sellers, enforceable in accordance with its terms, except as such enforceability may be limited by principles of public policy and subject to the laws of general application relating to bankruptcy, insolvency and the relief of debtors and to rules of law governing specific performance, injunctive relief or other equitable remedies.

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF CITIC

CITIC hereby represents and warrants to Sellers that the statements contained in this Article III are true and correct.

3.1 Organization and Standing of CITIC. CITIC is a corporation duly organized, validly existing and in good standing under the laws of the Cayman Islands. CITIC has all requisite corporate power and authority necessary to enable it to own and operate its properties and to conduct its business as now being conducted and presently proposed to be conducted.

3.2 Authority; Valid and Binding Agreements. CITIC has all requisite corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement by CITIC and the consummation of the transactions contemplated hereby have been duly authorized by all requisite corporate action on the part of CITIC and no further corporate action is required. This Agreement has been duly executed and delivered by CITIC and, assuming the due authorization, execution and delivery of Sellers, constitutes the valid and binding obligations of CITIC,

 

3

enforceable against CITIC in accordance with its terms, except as such enforceability may be limited by principles of public policy and subject to the laws of general application relating to bankruptcy, insolvency and the relief of debtors and to rules of law governing specific performance, injunctive relief or other equitable remedies.

ARTICLE IV

CONDUCT PRIOR TO THE CLOSING DATE

4.1 Exclusivity. From the date of the execution of this Agreement until the earlier of (i) the date on which this Agreement is terminated pursuant to Article VII hereto and (ii) the Closing Date (the “Exclusivity Period”), neither Sellers nor any of their directors, officers, employees, agents, partners or advisors will, directly or indirectly, solicit, initiate or participate in negotiations or discussions or provide non-public information with respect to, any other investment in, or an acquisition of, the Stock or any similar transaction without the prior written consent of Buyer. In no event will Sellers accept or enter into an agreement concerning any such third party transaction during the Exclusivity Period.

ARTICLE V

ADDITIONAL AGREEMENTS

5.1 Confidentiality. Each party agrees that the terms, conditions and existence of this Agreement, the transactions contemplated by this Agreement, and, after the Closing, all information concerning the businesses and affairs of each party that is not already generally available to the public, shall be treated as the confidential information and that no reference to the terms, conditions or existence of this Agreement, the transactions contemplated by this Agreement, or to activities pertaining thereto or concerning the businesses and affairs of each party after the Closing may be made by party without the prior written consent of the other party, except: (i) as required by any court or other governmental body; (ii) as otherwise required by law; (iii) to legal counsel; (iv) in the case of Sellers, to their limited partners and their representatives, for regular fund reporting purposes; or (v) in confidence, in connection with the enforcement of this Agreement or rights under this Agreement. Without limiting the foregoing, neither party shall issue any statement or communication to any third party (subject to the exceptions set forth in the preceding sentence) regarding the subject matter of this Agreement, the transactions contemplated by this Agreement, including without limitation, if applicable, the termination of this Agreement and the reasons therefor, without the prior written consent of the other party. In the event either party must disclose the confidential information of the other party pursuant to the order or requirement of a court or other governmental body, such party shall provide prompt prior written notice thereof to the other party to allow the other party to obtain a protective order, and such party shall also use its reasonable best efforts to obtain a protective order, assist the other party in obtaining a protective order or otherwise prevent public disclosure of such information. If either party breaches any of its obligations with respect to confidentiality or use of confidential information hereunder, the other party shall be entitled to seek equitable relief to protect its interest therein, including injunctive relief, as well as money damages.

 

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5.2 Conveyance Taxes. Each party hereto shall be liable for, and shall hold the other party hereto harmless from and against, any transfer, sales and use, value added, stock transfer and stamp taxes, any transfer, recording, registration and other fees, and any similar taxes and fees which become payable in connection with the sale and purchase of the Stock pursuant to this Agreement for which such party is primarily liable under applicable law

5.3 Further Action. Each of the parties hereto shall use commercially reasonable efforts to take, or cause to be taken, all appropriate action, do or cause to be done all things necessary, proper or advisable under applicable law, and execute and deliver, or cause to be executed and delivered, such documents and other papers, in each case, as may reasonably be required to carry out the provisions of this Agreement and consummate and make effective the transactions contemplated by this Agreement, and to vest in Buyer good and valid title to the Stock.

ARTICLE VI

CONDITIONS TO CLOSING

6.1 Condition to Obligations of Each Party to Effect the Stock Purchase Transaction. The respective obligations of Buyer and Sellers to effect the Stock Purchase Transaction and to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to the Closing, of each of the following conditions:

(a) No Government Order. No government, court, administrative agency or commission or other governmental agency, authority or instrumentality, whether federal, state, provincial, regional, municipal or local, domestic or foreign, of competent jurisdiction, shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) and no other legal or regulatory restraint or prohibition shall be in effect, in either case, which has the effect of making the Stock Purchase Transaction illegal or otherwise preventing the consummation of the Stock Purchase Transaction.

6.2 Additional Conditions to Obligations of Sellers. The obligations of Sellers to effect the Stock Purchase Transaction and to consummate the transactions contemplated by this Agreement shall be subject to the satisfaction at or prior to the Closing of each of the following conditions, any of which may be waived, in writing, exclusively by Sellers:

(a) Representations and Warranties. Each representation and warranty of Buyer shall be true, correct and complete in all material respects on and as of the Closing Date with the same force and effect as if made on and as of the Closing Date.

(b) Agreements and Covenants. Buyer shall have performed and complied in all material respects with all agreements and covenants required by this Agreement to be performed and complied with by Buyer prior to or as of the Closing.

6.3 Conditions to the Obligations of Buyer. The obligation of Buyer to effect the Stock Purchase Transaction and to consummate the transactions contemplated by this Agreement shall

 

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be subject to the satisfaction at or prior to the Closing Date of each of the following conditions, any of which may be waived, in writing, exclusively by Buyer:

(a) Representations and Warranties. Each representation and warranty of Sellers shall be true, correct and complete in all material respects on and as of the Closing Date with the same force and effect as if made on and as of the Closing Date.

(b) Agreements and Covenants. Sellers shall have performed and complied in all material respects with all agreements and covenants required by this Agreement required to be performed and complied with by Sellers prior to or as of the Closing.

(c) Approval of Board of Directors of the Company. The Board Approval shall have been obtained.

ARTICLE VII

TERMINATION, AMENDMENT AND WAIVER

7.1 Termination. Except as provided herein, this Agreement may be terminated and the Stock Purchase Transaction abandoned at any time prior to the Closing:

(a) by mutual written consent of Buyer and Sellers;

(b) by Buyer or Sellers if: (i) there shall be a final, non-appealable order of a court of competent jurisdiction in effect preventing consummation of the Stock Purchase Transaction, or (ii) there shall be any statute, rule, regulation or order enacted, promulgated or issued or deemed applicable to the Stock Purchase Transaction by any governmental authority that would make consummation of the Stock Purchase Transaction illegal;

(c) by Sellers if the condition set forth in Section 6.3(c) has not been satisfied or validly waived by October 30, 2006; or

(d) by Buyer or Sellers if the Closing shall not have occurred by November 30, 2006.

7.2 Effect of Termination. In the event of termination of this Agreement as provided in Section 7.1 hereof, this Agreement shall forthwith become void and there shall be no liability or obligation on the part of Buyer or Sellers or their respective officers, directors, employees, agents, consultants, representatives or stockholders (in their respective capacities as such), if applicable; provided that each party hereto shall remain liable for any breach of this Agreement that occurred prior to its termination; and provided further, that, the provisions of Sections 1.5 (Expenses), 5.1 (Confidentiality), Article VIII and this Section 7.2 shall remain in full force and effect and survive any termination of this Agreement pursuant to the terms of this Article VII.

7.3 Amendment. The parties hereto may amend this Agreement at any time by execution of an instrument in writing signed by all parties.

 

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7.4 Extension; Waiver. At any time prior to the Closing, Buyer, on the one hand, and Sellers, on the other hand, may, to the extent legally allowed, (a) extend the time for the performance of any of the obligations of the other party hereto, (b) waive any inaccuracies in the representations and warranties made to such party contained herein or in any document delivered pursuant hereto, and (c) waive compliance with any of the agreements or conditions for the benefit of such party contained herein. At any time on or after the Closing, Buyer, on the one hand, and Sellers, on the other hand, may, to the extent legally allowed, (i) extend the time for the performance of any of the obligations of the other party hereto, (ii) waive any inaccuracies in the representations and warranties made to such party contained herein or in any document delivered pursuant hereto, and (iii) waive compliance with any of the agreements or conditions for the benefit of such party contained herein. Any agreement on the part of a party hereto to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party.

7.5 Deposits.

In the event of any termination of this Agreement by Sellers or Buyer in accordance with Section 7.1(a), (b) or (c) of this Agreement, or if the Closing does not occur due to the failure of a condition in Section 6.3, Sellers shall refund each of the Deposits to Buyer without delay and without interest. In the event of any other termination of this Agreement, the Deposits shall not be refunded to Buyer.

ARTICLE VIII

GENERAL PROVISIONS

8.1 Notices. All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally or by commercial delivery service to the appropriate address, or mailed by registered or certified mail (return receipt requested) or sent via facsimile (with acknowledgment of complete transmission) to the parties at the following addresses (or at such other address for a party as shall be specified by like notice); provided, however, that notices sent by mail will not be deemed given until the date and time of acknowledged receipt at the appropriate address:

(a) if to Buyer, to:

CITIC Capital MB Investment Limited

c/o CITIC Capital Partners Management Limited

28/F, CITIC Tower

1 Tim Mei Avenue

Central, Hong Kong

Facsimile: 852-2523-8312

Attn: Eric Chan

 

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with a copy (which shall not constitute notice) to:

O’Melveny & Myers LLP

Meiji Yasuda Seimei Building, 11th Floor

2-1-1, Marunouchi

Chiyoda-ku, Tokyo 100-0005, Japan

Facsimile: 81-3-5293-2780

Attn: Gregory D. Puff

(b) if to Sellers, to:

Warburg, Pincus Ventures L.P./Warburg, Pincus Ventures International L.P.

c/o Warburg Pincus Asia LLC

Suite 6703, Two IFC, 8 Finance Street

Hong Kong

Facsimile: 852-2521-3869

Attn: Andrew Chan

8.2 Counterparts. This Agreement may be executed in one or more counterparts and may be delivered by facsimile transmission, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other party, it being understood that all parties need not sign the same counterpart for it to be effective among the other parties.

8.3 Entire Agreement; Assignment. This Agreement and the documents and instruments and other agreements among the parties hereto referenced herein: (i) constitute the entire agreement among the parties with respect to the subject matter hereof and supersede all prior agreements and understandings both written and oral, among the parties with respect to the subject matter hereof, (ii) are not intended to confer upon any other person any rights or remedies hereunder, and (iii) shall not be assigned without the prior written consent of each other party hereto, except that CITIC may, by delivering to Sellers a prior written notice and a valid written instrument of assignment and assumption, without such consent assign its rights, interests and obligations under this Agreement to any of its affiliates or other assignee (a “Buyer Assignee”); provided, however, that in the event CITIC assigns any of its rights, interests and obligations to a Buyer Assignee, such Buyer Assignee shall specifically assume CITIC’s rights, interests and obligations under this Agreement; provided, further, however, that CITIC shall be fully liable as a principal obligor in the event of a failure by any such Buyer Assignee to perform any of its obligations under this Agreement.

8.4 Severability. In the event that any provision of this Agreement or the application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of such provision to other persons or circumstances will be interpreted so as reasonably to effect the intent of the parties hereto. The parties further agree to replace such void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such void or unenforceable provision.

 

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8.5 Governing Law; Jurisdiction. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. Any judicial proceeding brought against any of the parties to this Agreement in connection with any dispute arising out of this Agreement or the transactions contemplated hereby (each, a “Proceeding”) may be brought in the courts of the State of New York, or in the United States District Court for the Southern District of New York, and, by execution and delivery of this Agreement, each of the parties to this Agreement accepts the exclusive jurisdiction of such courts, and irrevocably agrees to be bound by any judgment rendered thereby in connection with this Agreement. The foregoing consent to jurisdiction shall not constitute general consents to service of process in the State of New York for any purpose except as provided above and shall not be deemed to confer rights on any person other than the respective parties to this Agreement. Each of Sellers and Buyer agree that service of any process, summons, notice or document by U.S. registered mail to such party’s address set forth above shall be effective service of process for any action, suit or proceeding in New York with respect to any Proceeding.

8.6 Public Announcements; Filings.

(a) No party to this Agreement shall make, or cause to be made, any press release or public announcement with respect to this Agreement or the transactions contemplated hereby and thereby or otherwise communicate with any news media with respect thereto without the prior written consent of the other party, and the parties shall cooperate as to the timing and contents of any such press release or public announcement; provided, however, that such prior written consent (i) shall not be unreasonably withheld, conditioned or delayed and (ii) shall not be required for releases, announcements or communications to the extent obtaining such prior written consent would prevent the timely and accurate dissemination of information as required to comply with any applicable law.

(b) Sellers confirm that they are not required to, and will not, make any filings with the U.S. Securities and Exchange Commission or any other regulatory authority, including without limitation any filings pursuant to Regulations 13D-13G of the Securities Exchange Act of 1934, until the Closing Date.

[The remainder of this page has been intentionally left blank]

 

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IN WITNESS WHEREOF, each party hereto has executed, or caused its duly authorized officer(s) to execute, this Agreement as of the date first written above.

 

“BUYER”
CITIC CAPITAL MB INVESTMENT LIMITED
By:  

/s/ Eric Chan

Name:   Eric Chan
Title:   Director
“SELLERS”
WARBURG, PINCUS VENTURES, L.P.
By:  

/s/ Scott A. Arenare

Name:   Scott A. Arenare, General Partner

For and on behalf of WARBURG, PINCUS

& CO., Managing Member

For WARBURG PINCUS PARTNERS,

LLC, General Partner

WARBURG, PINCUS VENTURES INTERNATIONAL, L.P.
By:  

/s/ Scott A. Arenare

Name:   Scott A. Arenare, General Partner

For and on behalf of WARBURG, PINCUS

& CO., Managing Member

For WARBURG PINCUS PARTNERS,

LLC, General Partner

 EX-99.(A1) 3 dex99a1.htm AMENDMENT TO STOCK PURCHASE AGREEMENT Amendment to Stock Purchase Agreement

Exhibit A-1

AMENDMENT

TO

STOCK PURCHASE AGREEMENT

THIS AMENDMENT (this “Amendment”) to the Stock Purchase Agreement (as defined below) is made and entered into as of October 30, 2006 by and among CITIC Capital MB Investment Limited, an exempted company organized and existing under the laws of the Cayman Islands with registered address at P.O. Box 2804, 4th Floor, Scotia Center, George Town, Grand Cayman, Cayman Islands (“CITIC”), Warburg, Pincus Ventures L.P., a Delaware limited partnership (“WPV”) and Warburg, Pincus Ventures International, L.P., a Bermuda limited partnership (“WPVI”, WPV and WPVI collectively as “Sellers”).

W I T N E S S E T H:

WHEREAS, CITIC and the Sellers entered into that certain Stock Purchase Agreement, dated as of September 30, 2006 (the “Stock Purchase Agreement”), relating to CITIC’s purchase of certain shares of common stock of AsiaInfo Holdings, Inc., a Delaware corporation (the “Company”), from Sellers.

WHEREAS, pursuant to Section 7.3 of the Stock Purchase Agreement, the parties to the Stock Purchase Agreement may amend the Stock Purchase Agreement at any time by execution of an instrument in writing signed by all parties.

WHEREAS, CITIC and the Sellers desire to amend the Stock Purchase Agreement as set forth herein.

NOW, THEREFORE, in consideration of the foregoing and the respective agreements, covenants, representations and warranties hereinafter set forth and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto hereby agree as follows:

1. CITIC hereby waives the closing condition set forth in Section 6.3(c) of Stock Purchase Agreement.

2. Section 7.1 of the Stock Purchase Agreement shall be amended in its entirety as follows:

“7.1 Termination. Except as provided herein, this Agreement may be terminated and the Stock Purchase Transaction abandoned at any time prior to the Closing:

(a) by mutual written consent of Buyer and Sellers;

(b) by Buyer or Sellers if: (i) there shall be a final, non-appealable order of a court of competent jurisdiction in effect preventing consummation of the Stock Purchase Transaction, or (ii) there shall be any statute, rule, regulation or order enacted, promulgated or issued or deemed applicable to the Stock Purchase Transaction by any governmental authority that would make consummation of the Stock Purchase Transaction illegal; or

 

(c) by Buyer or Sellers if the Closing shall not have occurred by November 30, 2006.”

3. Section 1.3(b) of the Stock Purchase Agreement shall be amended in its entirety as follows:

“(b) within three (3) Business Days after the date of execution and delivery of this Amendment by the parties hereto, Buyer shall deposit with Sellers an additional aggregate amount of US$3,823,849.75 (the “Second Deposit” and together with the First Deposit, the “Deposits”) of the Purchase Price otherwise payable to Sellers, split equally between WPV and WPVI; and”

4. Section 7.5 of the Stock Purchase Agreement shall be amended in its entirety as follows:

“7.5 Deposits.

In the event of any termination of this Agreement by Sellers or Buyer in accordance with Section 7.1(a) or (b) of this Agreement, or if the Closing does not occur due to the failure of a condition in Section 6.3, Sellers shall refund each of the Deposits to Buyer without delay without interest. In the event of any other termination of this Agreement, the Deposits shall not be refunded to Buyer.”

5. The parties hereto desire to make no further changes to the Stock Purchase Agreement, which shall continue to remain in full force and effect, except as amended by this Amendment.

6. Terms used but not defined herein shall have the meaning set forth in the Stock Purchase Agreement.

7. This Agreement shall be effective as of November 2, 2006.

IN WITNESS WHEREOF, each party hereto has executed, or caused its duly authorized officer(s) to execute, this Amendment as of the date first written above.

 

“BUYER”

CITIC CAPITAL MB INVESTMENT

LIMITED

By:  

/s/ Eric Chan

Name:   Eric Chan
Title:   Director

“SELLERS”

WARBURG, PINCUS VENTURES, L.P.
By:  

/s/ Timothy J. Curt

Name:   Timothy J. Curt, General Partner

For and on behalf of WARBURG, PINCUS

& CO., Managing Member

For WARBURG PINCUS PARTNERS,

LLC, General Partner

WARBURG, PINCUS VENTURES

INTERNATIONAL, L.P.

By:  

/s/ Timothy J. Curt

Name:   Timothy J. Curt, General Partner

For and on behalf of WARBURG, PINCUS

& CO., Managing Member

For WARBURG PINCUS PARTNERS,

LLC, General Partner

 EX-99.(B) 4 dex99b.htm STOCKHOLDERS AGREEMENT Stockholders Agreement

Exhibit B

STOCKHOLDERS AGREEMENT

THIS STOCKHOLDERS AGREEMENT (this “Agreement”) is made and entered into as of October 9, 2006 by and between CITIC Capital MB Investment Limited, an exempted company organized and existing under the laws of the Cayman Islands with registered address at P.O. Box 2804, 4th Floor, Scotia Centre, George Town, Grand Cayman, Cayman Islands (“CITIC”) and PacificInfo Limited, an international company organized and existing under the laws of the British Virgin Islands (“PacificInfo”).

W I T N E S S E T H:

WHEREAS, CITIC has entered into that certain Stock Purchase Agreement by and among CITIC, Warburg, Pincus Ventures L.P. and Warburg, Pincus Ventures International, L.P. (collectively, “WPV”), dated September 30, 2006 (the “WPV SPA”), pursuant to which CITIC has agreed to purchase from WPV an aggregate of 8,050,210 shares (the “WPV Shares”) of common stock of AsiaInfo Holdings, Inc., a Delaware corporation (the “Company”).

WHEREAS, CITIC may enter into a Stock Purchase Agreement by and between CITIC and Lenovo Group Limited (“Lenovo”) (the “Lenovo SPA” and together with the WPV SPA, the “SPAs”), pursuant to which CITIC would agree to purchase from Lenovo at least 3,200,000 shares of common stock of the Company (the “Lenovo Shares” and together with the WPV Shares, the “Shares”).

WHEREAS, CITIC is a party to that certain Transaction Summary by and among CITIC and the Company, dated as of September 22, 2006 (the “Transaction Summary”), pursuant to which, among other things, CITIC expects to enter into an agreement with the Company with respect to a lockup of its Shares in certain circumstances and CITIC has agreed to grant to the Company a right of first offer in connection with any proposed resale of the Shares in off-market transactions, which right shall be assignable by the Company.

NOW, THEREFORE, in consideration of the foregoing and the respective agreements, covenants, representations and warranties hereinafter set forth and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto hereby agree as follows:

ARTICLE I

COMMITMENTS

1.1 Assignment to PacificInfo.

(a) On or prior to the consummation of the purchase of the WPV Shares (the “WPV Closing”), CITIC shall assign its rights, interests and obligations under the WPV SPA with respect to 2,315,789 WPV Shares in accordance with Section 8.3 of the WPV SPA, and PacificInfo shall accept such assignment and shall assume all of CITIC’s rights and obligations with respect to such WPV Shares, including the obligation to purchase such WPV Shares for the amount of consideration per WPV Share as is set forth in the WPV SPA (less the amount of the Deposits received from PacificInfo pursuant to Section 1.2 below).

(b) In the event that the Lenovo SPA has not been entered into by all parties thereto on or prior to November 4, 2006, then CITIC may assign its rights, interests and obligations under the WPV SPA with respect to an additional 1,709,316 WPV Shares and, if such assignment is made by CITIC, PacificInfo shall accept such assignment and shall assume all of CITIC’s rights and obligations with respect to such WPV Shares, including the obligation to purchase such WPV Shares for the amount of consideration per WPV Share as is set forth in the WPV SPA. Each of CITIC and PacificInfo shall use its best efforts to cause the Lenovo SPA to be entered into by all parties thereto on or prior to November 4, 2006.

(c) To consummate any assignment and assumption contemplated by clauses (a) and (b) above, on or prior to the WPV Closing each of CITIC and PacificInfo shall execute a valid written instrument of assignment and assumption with respect to such WPV Shares, pursuant to which PacificInfo shall be fully liable in the event of a failure by PacificInfo to perform any of its obligations under the WPV SPA as assignee with respect to such WPV Shares.

1.2 Deposit Arrangements. Notwithstanding the foregoing:

(a) within two (2) days (excluding Saturdays) on which commercial banks are generally open for business in Hong Kong (each a “Business Day”) after the date of execution and delivery of the WPV SPA by the parties thereto, PacificInfo shall deposit, in cash in immediately available funds (the “First Deposit”), in an account specified by CITIC an aggregate of US$1,911,925;

(b) within two (2) Business Days after the date on which the Company’s board of directors shall have approved the WPV SPA, which approval shall, among other things, exempt the Stock Purchase Transaction (as defined in the WPV SPA) from the operation of Section 203 of the Delaware General Corporation Law, PacificInfo shall deposit, in cash in immediately available funds (the “Second Deposit” and together with the First Deposit, the “Deposits”), in an account specified by CITIC an aggregate of US$1,911,925;

(c) On the WPV Closing, provided that PacificInfo has performed each of its obligations with respect to the purchase of Shares at the WPV Closing, CITIC shall cause the full amount of the Deposits received from PacificInfo pursuant to clauses (a) and (b) above to be paid to WPV as a portion of the purchase price due to WPV for the Shares purchased at the WPV Closing by PacificInfo and/or any purchaser to whom PacificInfo has assigned its right to purchase Shares pursuant to Section 8.3; and

(d) Each of the Deposits shall be subject to Article VII hereof.

 

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ARTICLE II

REPRESENTATIONS AND WARRANTIES OF PACIFICINFO

PacificInfo hereby represents and warrants to CITIC that the statements contained in this Article II are true, complete and correct.

2.1 Organization and Standing of PacificInfo. PacificInfo is an entity duly organized, validly existing and in good standing under the laws of the British Virgin Islands. PacificInfo has all requisite corporate power and authority necessary to enable it to own and operate its properties and to conduct its business as now being conducted and presently proposed to be conducted.

2.2 Authority; Valid and Binding Agreements. PacificInfo has all requisite corporate power to enter into this Agreement and the SPAs and to consummate the transactions contemplated hereby and thereby, including without limitation all assignments contemplated hereby and thereby. The execution, delivery and performance of this Agreement by PacificInfo and the consummation of the transactions contemplated hereby have been duly authorized by all requisite corporate action on the part of PacificInfo and no further corporate action is required. This Agreement has been duly executed and delivered by PacificInfo and, assuming the due authorization, execution and delivery by CITIC, constitutes the valid and binding obligations of PacificInfo, enforceable in accordance with its terms, except as such enforceability may be limited by principles of public policy and subject to the laws of general application relating to bankruptcy, insolvency and the relief of debtors and to rules of law governing specific performance, injunctive relief or other equitable remedies.

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF CITIC

CITIC hereby represents and warrants to PacificInfo that the statements contained in this Article III are true and correct.

3.1 Organization and Standing of CITIC and its affiliates. Each of CITIC and any affiliate of CITIC that purchases WPV Shares or Lenovo Shares (each, a “CITIC Affiliate”) is an entity duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation. Each of CITIC and the CITIC Affiliates has all requisite corporate power and authority necessary to enable it to own and operate its properties and to conduct its business as now being conducted and presently proposed to be conducted.

3.2 Authority; Valid and Binding Agreements. CITIC has all requisite corporate power and authority to enter into this Agreement and the SPAs and to consummate the transactions contemplated hereby and thereby, including without limitation all assignments contemplated hereby and thereby. The execution, delivery and performance of this Agreement and the SPAs by CITIC and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all requisite corporate action on the part of CITIC and no further corporate action is required. This Agreement has been duly executed

 

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and delivered by CITIC and, assuming the due authorization, execution and delivery of PacificInfo, constitutes the valid and binding obligations of CITIC, enforceable against CITIC in accordance with its terms, except as such enforceability may be limited by principles of public policy and subject to the laws of general application relating to bankruptcy, insolvency and the relief of debtors and to rules of law governing specific performance, injunctive relief or other equitable remedies

3.3 CITIC Affiliates. Any CITIC Affiliate to whom any of CITIC’s rights, interests and obligations under this Agreement or the SPAs are assigned shall have all requisite corporate power and authority to consummate the transactions contemplated hereby and thereby, as the case may be, including without limitation all assignments contemplated hereby and thereby. The execution, delivery and performance of such assignments and of each CITIC Affiliate’s obligations under this Agreement and the SPAs and the consummation of the transactions contemplated hereby and thereby, as the case may be, will be duly authorized by all requisite corporate action on the part of such CITIC Affiliates. In the event of any assignment of CITIC’s rights, interests and obligations under this Agreement or the SPAs to any CITIC Affiliate, such CITIC Affiliate will duly execute and deliver such assignment and, assuming the due authorization, execution and delivery of PacificInfo, such assignment shall constitute the valid and binding obligations of each such CITIC Affiliate, enforceable against such CITIC Affiliate in accordance with its terms, except as such enforceability may be limited by principles of public policy and subject to the laws of general application relating to bankruptcy, insolvency and the relief of debtors and to rules of law governing specific performance, injunctive relief or other equitable remedies.

ARTICLE IV

EXCLUSIVITY

4.1 From the date of the execution of this Agreement until the date on which this Agreement is terminated pursuant to Article VII hereto (the “Exclusivity Period”), neither PacificInfo nor any of its affiliates, agents, partners or advisors will, directly or indirectly, solicit, initiate or participate in negotiations or discussions or provide non-public information with respect to, any other investment in, or an acquisition of, the Shares or any other securities of the Company or any similar transaction without the prior written consent of CITIC. In no event will PacificInfo accept or enter into an agreement concerning any such transaction during the Exclusivity Period.

ARTICLE V

ADDITIONAL AGREEMENTS

5.1 Default on Commitments. If the WPV SPA does not close in accordance with its terms due to the failure by any party hereto to meet its respective commitments thereunder, as assignee or otherwise, then such defaulting party shall bear any and all costs, damages, claims, or similar losses associated with such default, including without limitation the claims of WPV, all transactions costs occurred by the parties hereto, and attorneys’ fees related to the transactions contemplated by this Agreement and such default.

 

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5.2 Confidentiality. Each party agrees that the terms, conditions and existence of this Agreement, the transactions contemplated by this Agreement and the SPAs, and all information concerning the businesses and affairs of each party that is not already generally available to the public, shall be treated as the confidential information and that no reference to the terms, conditions or existence of this Agreement, the transactions contemplated by this Agreement and the SPAs, or to activities pertaining thereto or concerning the businesses and affairs of each party may be made by party without the prior written consent of the other party, except: (i) as required by any court or other governmental body; (ii) as otherwise required by law; (iii) to legal counsel; (iv) in the case of CITIC, to any current or potential CITIC Affiliate and to each of their limited partners and their representatives, for regular fund reporting purposes; or (v) in confidence, in connection with the enforcement of this Agreement or rights under this Agreement. Without limiting the foregoing, neither party shall issue any statement or communication to any third party (subject to the exceptions set forth in the preceding sentence) regarding the subject matter of this Agreement or the SPAs, the transactions contemplated by this Agreement or the SPAs, including without limitation, if applicable, the termination of this Agreement or the SPAs and the reasons therefor, without the prior written consent of the other party. In the event either party must disclose the confidential information of the other party pursuant to the order or requirement of a court or other governmental body, such party shall, if permitted by applicable laws, provide prompt prior written notice thereof to the other party to allow the other party to obtain a protective order, and such party shall also use its reasonable best efforts to obtain a protective order, assist the other party in obtaining a protective order or otherwise prevent public disclosure of such information. If either party breaches any of its obligations with respect to confidentiality or use of confidential information hereunder, the other party shall be entitled to seek equitable relief to protect its interest therein, including injunctive relief, as well as money damages.

5.3 Further Action. Each of the parties hereto shall use commercially reasonable efforts to take, or cause to be taken, all appropriate action, do or cause to be done all things necessary, proper or advisable under applicable law, and execute and deliver, or cause to be executed and delivered, such documents and other papers, in each case, as may reasonably be required to carry out the provisions of this Agreement and consummate and make effective the transactions contemplated by this Agreement.

5.4 Voting Rights; Proxy. Effective upon the applicable closing at which CITIC acquires Shares, if any, CITIC will execute and deliver a proxy appointing Mr. Edward Suning Tian, the sole shareholder of PacificInfo, as CITIC’s attorney-in-fact and proxy, with full power of substitution, for and in CITIC’s name, to vote, express consent or dissent, or otherwise utilize that voting power with respect to any Shares held by CITIC.

5.5 Right of First Offer. PacificInfo acknowledges that, pursuant to the Transaction Summary, CITIC has agreed to grant to the Company a right of first offer in connection with any proposed resale of the Shares in off-market transactions, which right shall be assignable by the Company. Provided that the Company does not exercise such right of first offer with respect to any Shares, CITIC hereby agrees to grant to Mr. Edward Suning Tian, the sole shareholder of PacificInfo, a secondary right of first offer in connection with any such proposed resale of the Shares in off-market transactions, which right shall not be assignable by Mr. Edward Suning Tian.

 

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5.6 Expenses. Except as otherwise provided herein, each party hereto shall bear its own expenses in connection with the negotiation and consummation of the transactions contemplated in this Agreement (including but not limited to financial and business due diligence costs and all attorneys’ fees).

5.7 Transaction fee. Upon the consummation of the purchase of any Shares by PacificInfo or any purchaser to whom PacificInfo has assigned its right to purchase Shares pursuant to Section 8.3, PacificInfo shall pay to CITIC (for himself and for each purchaser to whom PacificInfo has assigned its right to purchase Shares pursuant to Section 8.3) a transaction fee equal to 1% of the total purchase price PacificInfo and such purchaser(s) paid for such Shares pursuant to the WPV SPA or the Lenovo SPA, as the case may be.

5.8 Lock-Up. If, pursuant to any agreement between CITIC and the Company, CITIC is prohibited for any period from engaging in any sale, transfer or other disposition of any Shares or from entering into hedging or derivative arrangements in connection with any Shares (the “Lock-Up”), then PacificInfo shall enter into an agreement with the Company providing for substantially similar restrictions on Shares held by PacificInfo.

ARTICLE VI

RIGHT OF PARTICIPATION

6.1 Transfer Notice. If PacificInfo proposes to sell, transfer or otherwise dispose of in any manner (including transfer by gift) any Shares or any other equity securities of the Company now or hereafter owned by PacificInfo (collectively, the “PacificInfo Shares”) to one or more persons (the “Transferee”) pursuant to an off-market transaction (a “Transfer”), then PacificInfo shall give CITIC a prior written notice of its intention to make the Transfer (the “Transfer Notice”), which Transfer Notice shall include (i) a description of the PacificInfo Shares to be transferred (the “Offered Shares”), (ii) the identity of the prospective Transferee, (iii) the consideration to be paid for each Offered Share (the “Offered Price”), and (iv) the material terms and conditions upon which the proposed Transfer is to be made. The Transfer Notice shall certify that PacificInfo has received a bona fide firm offer from the prospective Transferee and in good faith believes a binding agreement for the Transfer is obtainable on the terms set forth in the Transfer Notice. The Transfer Notice shall also include a copy of any written proposal, term sheet or letter of intent or other agreement relating to the proposed Transfer.

6.2 Exercise by CITIC.

(a) CITIC shall have an option for a period of thirty (30) days from the date of the Transfer Notice to participate in such sale of Offered Shares on the same terms and conditions as those being offered to the Transferee and in no event less favorable to CITIC than those specified in the Transfer Notice. CITIC shall send notice to PacificInfo indicating the number of Shares that CITIC wishes to sell under its right to participate. To the extent CITIC exercises such right of participation in accordance with the terms and conditions set forth herein, the number of Offered Shares that PacificInfo may sell in the Transfer to the Transferee shall be correspondingly reduced.

 

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(b) CITIC may elect to sell up to such number of Shares equal to (on a fully converted basis) the product of (i) the aggregate number of Offered Shares proposed to be sold to the Transferee by (ii) a fraction, the numerator of which is the number of Shares owned by CITIC on the date of the Transfer Notice and the denominator of which is the total number of Shares owned by CITIC and PacificInfo Shares owned by PacificInfo on the date of the Transfer Notice.

(c) CITIC shall effect its participation in the sale by promptly delivering to PacificInfo for transfer to the Transferee one or more certificates and instruments of transfer, properly endorsed for transfer, which represent the type and number of Shares which CITIC elects to sell.

(d) The share certificate or certificates that CITIC delivers to PacificInfo pursuant to this Section 6.2 shall be transferred to the prospective Transferee (or delivered to the Company with replacement certificate(s) to be delivered to such Transferee) in consummation of the sale of the Offered Shares pursuant to the terms and conditions specified in the Transfer Notice, and PacificInfo shall concurrently therewith remit to CITIC that portion of the sale proceeds to which CITIC is entitled by reason of its participation in such sale.

(e) To the extent that any prospective Transferee prohibits the participation of CITIC exercising its rights of participation hereunder in a proposed Transfer or otherwise refuses to purchase Shares or other securities from CITIC exercising its rights of participation hereunder, PacificInfo shall not sell to such prospective Transferee any Offered Shares unless and until, simultaneously with such sale, PacificInfo shall purchase such Shares or other securities from CITIC for the same consideration and on the same terms and conditions as the proposed Transfer described in the Transfer Notice.

6.3 Non-Exercise of Rights.

(a) To the extent that CITIC has not exercised its rights of participation in the sale of all of the Offered Shares within the time periods specified in Section 6.2, PacificInfo shall have a period of forty-five (45) days from the expiration of such rights in which to sell the Offered Shares to the Transferee identified in the Transfer Notice upon terms and conditions (including without limitation the purchase price) no more favorable than those specified in the Transfer Notice.

(b) The parties agree that each Transferee shall, prior to the consummation of any Transfer, have executed documents assuming the obligations of PacificInfo under this Agreement with respect to the transferred Shares. In the event PacificInfo does not consummate the sale or disposition of the Offered Shares within forty-five (45) days from the expiration of such rights, CITIC’s rights of participation shall continue to be applicable to any subsequent disposition of the Shares by PacificInfo until such rights lapse in accordance with the terms of this Agreement.

 

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6.4 Prohibited Transfer. Any Transfer in violation of this Section 6 shall be null and void and shall not confer on any Transferee any rights whatsoever. In the event PacificInfo should Transfer any Offered Shares in disregard or in contravention of the right of participation under this Section 6 (a “Prohibited Transfer”), CITIC, in addition to such other remedies as may be available at law, in equity or hereunder, shall have the put option provided below, and PacificInfo shall be bound by the applicable provisions of such option.

6.5 Put Right. Without prejudice to any other rights and remedies available to CITIC, in the event of a Prohibited Transfer CITIC shall have the right to sell to PacificInfo the type and number of Shares equal to the number of Shares CITIC would have been entitled to transfer to the third-party Transferee under Section 6.2 hereof had the Prohibited Transfer been effected pursuant to and in compliance with the terms hereof. Such sale shall be made on the following terms and conditions:

(a) The price per share at which the Shares are to be sold to PacificInfo shall be equal to the price per share paid by the third-party Transferee to PacificInfo in the Prohibited Transfer. PacificInfo shall also reimburse CITIC for any and all reasonable fees and expense, including legal fees and out-of-pocket expenses, incurred pursuant to the exercise or the attempted exercise of CITIC’s rights hereunder.

(b) Within ninety (90) days after the later of the date on which CITIC (i) received notice of the Prohibited Transfer or (ii) otherwise became aware of the Prohibited Transfer, CITIC shall, if exercising its rights under this Section 6, deliver to PacificInfo the certificate or certificates and instruments of transfer properly endorsed for transfer representing the Shares to be sold under this Section 6 by CITIC, which transfer shall be conditioned upon PacificInfo paying the aggregate purchase price for such Shares pursuant to clause (c) below.

(c) PacificInfo shall, within seven (7) Business Days upon receipt of the certificate or certificates and instruments of transfer for the Shares to be sold by CITIC pursuant to this Section 6, pay the aggregate purchase price therefor and the amount of reimbursable fees and expenses, as specified in herein, in cash or by other means acceptable to CITIC.

ARTICLE VII

TERMINATION, AMENDMENT AND WAIVER

7.1 Termination. Except as provided herein, this Agreement may be terminated at any time:

(a) by mutual written consent of the parties;

(b) by any party if: (i) there shall be a final, non-appealable order of a court of competent jurisdiction in effect preventing consummation of the consummation of the transactions contemplated by this Agreement and/or the SPAs, or (ii) there shall be any statute, rule, regulation or order enacted, promulgated or issued or deemed applicable to the consummation of the transactions contemplated by this Agreement and/or the SPAs by any governmental authority that would make consummation of the transactions contemplated by this Agreement and/or the SPAs illegal; or

 

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(c) by CITIC if the WPV SPA is terminated in accordance with its terms.

7.2 Effect of Termination. In the event of termination of this Agreement as provided in Section 7.1 hereof, this Agreement shall forthwith become void and there shall be no liability or obligation on the part of any party hereto or their respective officers, directors, employees, agents, consultants, representatives or stockholders (in their respective capacities as such), if applicable; provided that each party hereto shall remain liable for any breach of this Agreement that occurred prior to its termination; and provided further, that, the provisions of Sections 5.1 (Default of Commitments), 5.2 (Confidentiality) and 5.6 (Expenses), Article VIII and this Section 7.2 shall remain in full force and effect and survive any termination of this Agreement pursuant to the terms of this Article VII.

7.3 Amendment. The parties hereto may amend this Agreement at any time by execution of an instrument in writing signed by all parties.

7.4 Extension; Waiver. Any party hereto may, to the extent legally allowed, (i) extend the time for the performance of any of the obligations of the other party hereto, (ii) waive any inaccuracies in the representations and warranties made to such party contained herein or in any document delivered pursuant hereto, and (iii) waive compliance with any of the agreements or conditions for the benefit of such party contained herein. Any agreement on the part of a party hereto to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party.

7.5 Deposits. Each of the Deposits shall be refunded to PacificInfo under any condition that permits the refund of a deposit in accordance with the WPV SPA; provided, that in any event the Deposits shall not be refunded to PacificInfo in the event that the WPV SPA does not close in accordance with its terms due to the failure of PacificInfo to meet its commitments thereunder, as assignee or otherwise. The Deposits shall not be refunded to PacificInfo under any condition that does not permit the refund of a deposit in accordance with the WPV SPA.

ARTICLE VIII

GENERAL PROVISIONS

8.1 Notices. All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally or by commercial delivery service to the appropriate address, or mailed by registered or certified mail (return receipt requested) or sent via facsimile (with acknowledgment of complete transmission) to the parties at the following addresses (or at such other address for a party as shall be specified by like notice); provided, however, that notices sent by mail will not be deemed given until the date and time of acknowledged receipt at the appropriate address:

(a) if to CITIC, to:

CITIC Capital MB Investment Limited

c/o CITIC Capital Partners Management Limited

28/F, CITIC Tower

1 Tim Mei Avenue

Central, Hong Kong

Facsimile: 852-2523-8312

Attn: Eric Chan

 

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with a copy (which shall not constitute notice) to:

O’Melveny & Myers LLP

Meiji Yasuda Seimei Building, 11th Floor

2-1-1, Marunouchi

Chiyoda-ku, Tokyo 100-0005, Japan

Facsimile: 81-3-5293-2780

Attn: Gregory D. Puff

(b) if to PacificInfo, to:

PacificInfo Limited

c/o Edward Tian

LOGO

Beijing 100032

People’s Republic of China

Facsimile: 86-10-8809-2193

8.2 Counterparts. This Agreement may be executed in one or more counterparts and may be delivered by facsimile transmission, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other party, it being understood that all parties need not sign the same counterpart for it to be effective among the other parties.

8.3 Entire Agreement; Assignment. This Agreement and the documents and instruments and other agreements among the parties hereto referenced herein: (i) constitute the entire agreement among the parties with respect to the subject matter hereof and supersede all prior agreements and understandings both written and oral, among the parties with respect to the subject matter hereof, (ii) are not intended to confer upon any other person any rights or remedies hereunder, (iii) may be assigned by CITIC to an assignee that specifically assumes CITIC’s rights, interests and obligations under this Agreement and the SPAs, and (iv) may be assigned by PacificInfo, with the prior written consent of CITIC, to an assignee that has specifically assumes PacificInfo’s rights, interests and obligations under this Agreement and the SPAs (except that none of the rights, interests and obligations set forth in Sections 5.4, 5.5, 5.8 or 6 of this Agreement shall be assigned by PacificInfo in connection with any such assignment); provided, however, that in the event of any assignment by CITIC or PacificInfo pursuant to clauses (iii) or (iv) above, CITIC or PacificInfo, as the case may be, shall be fully liable as a principal obligor in the event of a failure by any such assignee to perform any of its obligations under this Agreement or the SPAs.

 

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8.4 Severability. In the event that any provision of this Agreement or the application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of such provision to other persons or circumstances will be interpreted so as reasonably to effect the intent of the parties hereto. The parties further agree to replace such void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such void or unenforceable provision.

8.5 Governing Law; Jurisdiction. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. Any judicial proceeding brought against any of the parties to this Agreement in connection with any dispute arising out of this Agreement or the transactions contemplated hereby (each, a “Proceeding”) may be brought in the courts of the State of New York, or in the United States District Court for the Southern District of New York, and, by execution and delivery of this Agreement, each of the parties to this Agreement accepts the exclusive jurisdiction of such courts, and irrevocably agrees to be bound by any judgment rendered thereby in connection with this Agreement. The foregoing consent to jurisdiction shall not constitute general consents to service of process in the State of New York for any purpose except as provided above and shall not be deemed to confer rights on any person other than the respective parties to this Agreement. Each of the parties hereto agree that service of any process, summons, notice or document by U.S. registered mail to such party’s address set forth above shall be effective service of process for any action, suit or proceeding in New York with respect to any Proceeding.

8.6 Public Announcements; Filings. No party to this Agreement shall make, or cause to be made, any press release or public announcement with respect to this Agreement or the transactions contemplated hereby and thereby or otherwise communicate with any news media with respect thereto without the prior written consent of the other party, and the parties shall cooperate as to the timing and contents of any such press release or public announcement; provided, however, that such prior written consent (i) shall not be unreasonably withheld, conditioned or delayed and (ii) shall not be required for releases, announcements or communications to the extent obtaining such prior written consent would prevent the timely and accurate dissemination of information as required to comply with any applicable law.

[The remainder of this page is intentionally left blank]

 

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IN WITNESS WHEREOF, each party hereto has executed, or caused its duly authorized officer(s) to execute, this Agreement as of the date first written above.

 

“CITIC”
CITIC CAPITAL MB INVESTMENT LIMITED
By:  

/s/ Eric Chan

Name:   Eric Chan
Title:   Director
“PACIFICINFO”
PACIFICINFO LIMITED
By:  

/s/ Edward Suning Tian

Name:   Edward Suning Tian
Title:   Director

 

S-1

EX-99.(B1) 5 dex99b1.htm AMENDMENT TO STOCKHOLDERS AGREEMENT Amendment to Stockholders Agreement

Exhibit B-1

AMENDMENT

TO

STOCKHOLDERS AGREEMENT

THIS AMENDMENT (this “Amendment”) to the Stockholders Agreement (as defined below) is made and entered into as of October 31, 2006, by and between CITIC Capital MB Investment Limited, an exempted company organized and existing under the laws of the Cayman Islands with registered address at P.O. Box 2804, 4th Floor, Scotia Center, George Town, Grand Cayman, Cayman Islands (“CITIC”), and PacificInfo Limited, an international company organized and existing under the laws of the British Virgin Islands (“PacificInfo”).

W I T N E S S E T H:

WHEREAS, CITIC and PacificInfo entered into that certain Stockholders Agreement, dated as of October 9, 2006 (the “Stockholders Agreement”), relating to the common stock of AsiaInfo Holdings, Inc., a Delaware corporation.

WHEREAS, pursuant to Section 7.3 of the Stockholders Agreement, the parties to the Stockholders Agreement may amend the Stockholders Agreement at any time by execution of an instrument in writing signed by all parties thereto.

WHEREAS, CITIC and PacificInfo desire to amend the Stockholders Agreement as set forth herein.

NOW, THEREFORE, in consideration of the foregoing and the respective agreements, covenants, representations and warranties hereinafter set forth and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto hereby agree as follows:

1. Section 1.2(b) of the Stockholders Agreement shall be amended in its entirety as follows:

“(b) within two (2) Business Days after the date of execution and delivery of the Amendment by the parties hereto, PacificInfo shall deposit, in cash in immediately available funds (the “Second Deposit” and together with the First Deposit, the “Deposits”), in an account specified by CITIC an aggregate of US$1,911,925;”

2. The parties hereto desire to make no further changes to the Stockholders Agreement, which shall continue to remain in full force and effect, except as amended by this Amendment.

3. Terms used but not defined herein shall have the meaning set forth in the Stockholders Agreement.

 

1

IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written.

 

CITIC CAPITAL MB INVESTMENT LIMITED
By:  

/s/ Eric Chan

Name:   Eric Chan
Title:   Director
PACIFICINFO LIMITED
By:  

/s/ Edward Suning Tian

Name:   Edward Suning Tian
Title:   Director

 

2

EX-99.(C) 6 dex99c.htm ASSIGNMENT AND ASSUMPTION AGREEMENT DATED OCTOBER 31, 2006 Assignment and Assumption Agreement Dated October 31, 2006

Exhibit C

ASSIGNMENT AND ASSUMPTION AGREEMENT

This ASSIGNMENT AND ASSUMPTION AGREEMENT (this “Agreement”) is made and entered into as of October 31, 2006, by and between CITIC Capital MB Investment Limited, an exempted company organized and existing under the laws of the Cayman Islands with registered address at P.O. Box 2804, 4th Floor, Scotia Center, George Town, Grand Cayman, Cayman Islands (“CITIC”), and PacificInfo Limited, an international company organized and existing under the laws of the British Virgin Islands (“PacificInfo”). Reference is made to that certain Stockholders Agreement (the “SHA”), dated as of October 9, 2006, by and between CITIC and PacificInfo, relating to the common stock of AsiaInfo Holdings, Inc., a Delaware corporation.

WHEREAS, pursuant to Section 1.1 of the SHA, on or prior to the WPV Closing (as defined in the SHA), CITIC shall assign the rights, interests and obligations under the SHA with respect to certain WPV Shares (as defined in the SHA) to PacificInfo, and PacificInfo shall assume all of CITIC’s rights and obligations with respect to such shares;

WHEREAS, CITIC hereby wishes to assign its rights, interests and obligations under the SHA to 2,315,789 WPV Shares (as defined in the SHA) to PacificInfo, and PacificInfo hereby wishes to assume such rights, interests and obligations to such shares;

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, operative on the execution of this Agreement, CITIC assigns its rights, interests and obligations under the SHA with respect to 2,315,789 WPV Shares (as defined in the SHA) to PacificInfo, and PacificInfo unconditionally accepts such assignment and assumes all such rights, interests and obligations under the SHA with respect to such 2,315,789 WPV Shares (as defined in the SHA), and CITIC shall forever be released from any liability thereunder.

This Agreement may be executed in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed together shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.

 

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.

 

CITIC CAPITAL MB INVESTMENT LIMITED
By:  

/s/ Eric Chan

Name:   Eric Chan
Title:   Director
PACIFICINFO LIMITED
By:  

/s/ Edward Suning Tian

Name:   Edward Suning Tian
Title:   Director

 

2

EX-99.(C1) 7 dex99c1.htm ASSIGNMENT AND ASSUMPTION AGREEMENT DATED NOVEMBER 19, 2006 Assignment and Assumption Agreement Dated November 19, 2006

Exhibit C-1

ASSIGNMENT AND ASSUMPTION AGREEMENT

This ASSIGNMENT AND ASSUMPTION AGREEMENT (this “Agreement”) is made and entered into as of November 19, 2006, by and between CITIC Capital MB Investment Limited, an exempted company organized and existing under the laws of the Cayman Islands with registered address at P.O. Box 2804, 4th Floor, Scotia Center, George Town, Grand Cayman, Cayman Islands (“CITIC”), and PacificInfo Limited, an international company organized and existing under the laws of the British Virgin Islands (“PacificInfo”). Reference is made to that certain Stockholders Agreement (the “SHA”), dated as of October 9, 2006, by and between CITIC and PacificInfo, relating to the common stock of AsiaInfo Holdings, Inc., a Delaware corporation.

WHEREAS, pursuant to Section 1.1 of the SHA, on or prior to the WPV Closing (as defined in the SHA), CITIC shall assign the rights, interests and obligations under the SHA with respect to certain WPV Shares (as defined in the SHA) to PacificInfo, and PacificInfo shall assume all of CITIC’s rights and obligations with respect to such shares;

WHEREAS, CITIC hereby wishes to assign its rights, interests and obligations under the SHA to 1,709,316 WPV Shares (as defined in the SHA) to PacificInfo, and PacificInfo hereby wishes to assume such rights, interests and obligations to such shares;

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, operative on the execution of this Agreement, CITIC assigns its rights, interests and obligations under the SHA with respect to 1,709,316 WPV Shares (as defined in the SHA) to PacificInfo, and PacificInfo unconditionally accepts such assignment and assumes all such rights, interests and obligations under the SHA with respect to such 1,709,316 WPV Shares (as defined in the SHA), and CITIC shall forever be released from any liability thereunder.

This Agreement may be executed in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed together shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.

 

1

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.

 

CITIC CAPITAL MB INVESTMENT LIMITED
By:  

/s/ Eric Chan

Name:   Eric Chan
Title:   Director
PACIFICINFO LIMITED
By:  

/s/ Edward Suning Tian

Name:   Edward Suning Tian
Title:   Director

 

2

EX-99.(C2) 8 dex99c2.htm ASSIGNMENT AND ASSUMPTION AGREEMENT DATED NOVEMBER 17, 2006 Assignment and Assumption Agreement Dated November 17, 2006

Exhibit C-2

ASSIGNMENT AND ASSUMPTION AGREEMENT

This ASSIGNMENT AND ASSUMPTION AGREEMENT (this “Agreement”) is made and entered into as of November 17, 2006, by and between PacificInfo Limited, an international company organized and existing under the laws of the British Virgin Islands (“PacificInfo”), and Mr. James Jian Ding (“Assignee”).

WHEREAS, PacificInfo has agreed to purchase 4,025,105 shares of common stock of AsiaInfo Holdings, Inc., a Delaware corporation (the “Company”) from Warburg, Pincus Ventures L.P. and Warburg, Pincus Ventures International, L.P. (collectively, “WPV”), in connection with that certain Stockholders Agreement, dated as of October 9, 2006, by and between CITIC Capital MB Investment Limited (“CITIC”) and PacificInfo, as amended (the “SHA”), and that certain Stock Purchase Agreement by and among CITIC and WPV, dated as of September 30, 2006, as amended (the “WPV SPA”).

WHEREAS, in accordance with the terms of the SHA, including without limitation Section 8.3 thereof, PacificInfo hereby wishes to assign its rights, interests and obligations to 210,526 shares of common stock of the Company held by WPV (the “Assignee Shares”) to Assignee, and Assignee hereby wishes to assume such rights, interests and obligations to such Assignee Shares.

WHEREAS, pursuant to Section 5.7 of the SHA, upon the consummation of the purchase of the common stock of the Company held by WPV by PacificInfo or any purchaser to whom PacificInfo has assigned its right to purchase the common stock of the Company held by WPV, PacificInfo shall pay to CITIC a transaction fee equal to 1% of the total purchase price PacificInfo and such purchaser(s) paid for such shares pursuant to the WPV SPA (the “Transaction Fee”).

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, operative on the execution of this Agreement,

1. PacificInfo assigns its rights, interests and obligations with respect to the Assignee Shares to Assignee, and Assignee unconditionally accepts such assignment and assumes all such rights, interests and obligations under the SHA and the WPV SPA (except for the rights, interests and obligations set forth in Sections 5.4, 5.5, 5.8 and 6 of the SHA), with respect to such Assignee Shares.

2. Upon the consummation of the purchase of the Assignee Shares, Assignee shall pay to PacificInfo its pro rata portion (based on the number of shares purchased by Assignee as a percentage of the total number of shares purchased by PacificInfo or any purchaser to whom PacificInfo has assigned its right to purchase shares) of the Transaction Fee.

3. This Agreement may be executed in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed together shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.

 

1

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.

 

PACIFICINFO LIMITED
By:  

/s/ Edward Suning Tian

Name:   Edward Suning Tian
Title:   Director
ASSIGNEE
By:  

/s/ James Jian Ding

Name:   James Jian Ding

 

2

EX-99.(C3) 9 dex99c3.htm ASSIGNMENT AND ASSUMPTION AGREEMENT DATED NOVEMBER 20, 2006 Assignment and Assumption Agreement Dated November 20, 2006

Exhibit C-3

ASSIGNMENT AND ASSUMPTION AGREEMENT

This ASSIGNMENT AND ASSUMPTION AGREEMENT (this “Agreement”) is made and entered into as of November 20, 2006, by and between PacificInfo Limited, an international company organized and existing under the laws of the British Virgin Islands (“PacificInfo”), and Joy Power International Limited, a company organized and existing under the laws of the Commonwealth of the Bahamas. (“Assignee”).

WHEREAS, PacificInfo has agreed to purchase 4,025,105 shares of common stock of AsiaInfo Holdings, Inc., a Delaware corporation (the “Company”) from Warburg, Pincus Ventures L.P. and Warburg, Pincus Ventures International, L.P. (collectively, “WPV”), in connection with that certain Stockholders Agreement, dated as of October 9, 2006, by and between CITIC Capital MB Investment Limited (“CITIC”) and PacificInfo, as amended (the “SHA”), and that certain Stock Purchase Agreement by and among CITIC and WPV, dated as of September 30, 2006, as amended (the “WPV SPA”).

WHEREAS, in accordance with the terms of the SHA, including without limitation Section 8.3 thereof, PacificInfo hereby wishes to assign its rights, interests and obligations to 631,579 shares of common stock of the Company held by WPV (the “Assignee Shares”) to Assignee, and Assignee hereby wishes to assume such rights, interests and obligations to such Assignee Shares.

WHEREAS, pursuant to Section 5.7 of the SHA, upon the consummation of the purchase of the common stock of the Company held by WPV by PacificInfo or any purchaser to whom PacificInfo has assigned its right to purchase the common stock of the Company held by WPV, PacificInfo shall pay to CITIC a transaction fee equal to 1% of the total purchase price PacificInfo and such purchaser(s) paid for such shares pursuant to the WPV SPA (the “Transaction Fee”).

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, operative on the execution of this Agreement,

1. PacificInfo assigns its rights, interests and obligations with respect to the Assignee Shares to Assignee, and Assignee unconditionally accepts such assignment and assumes all such rights, interests and obligations under the SHA and the WPV SPA (except for the rights, interests and obligations set forth in Sections 5.4, 5.5, 5.8 and 6 of the SHA), with respect to such Assignee Shares.

2. Upon the consummation of the purchase of the Assignee Shares, Assignee shall pay to PacificInfo its pro rata portion (based on the number of shares purchased by Assignee as a percentage of the total number of shares purchased by PacificInfo or any purchaser to whom PacificInfo has assigned its right to purchase shares) of the Transaction Fee.

3. This Agreement may be executed in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed together shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.

 

1

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.

 

PACIFICINFO LIMITED
By:  

/s/ Edward Suning Tian

Name:   Edward Suning Tian
Title:   Director
JOY POWER INTERNATIONAL LIMITED
By:  

/s/ Lynn Kelly

Name:   Lynn Kelly
Title:   First Directorships Limited Director
By:  

/s/ Nicole Johnson

Name:

   Nicole Johnson

Title:

   Second Directorships Limited Director

 

2

EX-99.(C4) 10 dex99c4.htm ASSIGNMENT AND ASSUMPTION AGREEMENT DATED NOVEMBER 21, 2006 Assignment and Assumption Agreement Dated November 21, 2006

Exhibit C-4

ASSIGNMENT AND ASSUMPTION’ AGREEMENT

This ASSIGNMENT AND ASSUMPTION AGREEMENT (this “Agreement”) is made and entered into as of November 21, 2006, by and between PacificInfo Limited, an international company organized and existing under the laws of the British Virgin Islands (“PacificInfo”), and Mrs. Wendi Murdoch (“Assignee”).

WHEREAS, PacificInfo has agreed to purchase 4,025,105 shares of common stock of AsiaInfo Holdings, Inc. a Delaware corporation (the “Company”) from Warburg, Pincus Ventures L.P. and Warburg, Pincus Ventures International, L.P. (collectively, “WPV”), in connection with that certain Stockholders Agreement, dated as of October 9, 2006, by and between CITIC Capital MB Investment Limited (“CITIC”) and PacificInfo, as amended (the “SHA”), and that certain Stock Purchase Agreement by and among CITIC and WPV, dated as of September 30, 2006, as amended (the “WPV SPA”).

WHEREAS, in accordance with the terms of the SHA, including without limitation Section 8.3 thereof, PacificInfo hereby wishes to assign its rights, interests and obligations to 105,263 shares of common stock of the Company held by WPV (the “Assignee Shares”) to Assignee, and Assignee hereby wishes to assume such rights, interests and obligations to such Assignee Shares.

WHEREAS, pursuant to Section 5.7 of the SHA, upon the consummation of the purchase of the common stock of the Company held by WPV by PacificInfo or any purchaser to whom PacificInfo has assigned its right to purchase the common stock of the Company held by WPV, PacificInfo shall pay to CITIC a transaction fee equal to 1% of the total purchase price PacificInfo and such purchaser(s) paid for such shares pursuant to the WPV SPA (the “Transaction Fee”).

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, operative on the execution of this Agreement,

1. PacificInfo assigns its rights, interests and obligations with respect to the Assignee Shares to Assignee, and Assignee unconditionally accepts such assignment and assumes all such rights, interests and obligations under the SHA and the WPV SPA (except for the rights, interests and obligations set forth in Sections 5.4, 5.5, 5.8 and 6 of the SHA), with respect to such Assignee Shares.

2. Upon the consummation of the purchase of the Assignee Shares, Assignee shall pay to PacificInfo its pro rata portion (based on the number of shares purchased by Assignee as a percentage of the total number of shares purchased by PacificInfo or any purchaser to whom PacificInfo has assigned its right to purchase shares) of the Transaction Fee.

3. This Agreement may be executed in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed together shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.

 

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.

 

PACIFICINFO LIMITED
By:  

/s/ Edward Suning Tian

Name:   Edward Suning Tian
Title:   Director
ASSIGNEE
By:  

/s/ Wendi Murdoch

Name:   Wendi Murdoch

 

2

EX-99.(C5) 11 dex99c5.htm ASSIGNMENT AND ASSUMPTION AGREEMENT DATED NOVEMBER 29, 2006 Assignment and Assumption Agreement Dated November 29, 2006

Exhibit C-5

ASSIGNMENT AND ASSUMPTION AGREEMENT

This ASSIGNMENT AND ASSUMPTION AGREEMENT (this “Agreement”) is made and entered into as of November 29, 2006, by and between PacificInfo Limited, an international company organized and existing under the laws of the British Virgin Islands (“PacificInfo”), Fidelity Asia Principals LP (“Assignee”).

WHEREAS, PacificInfo has agreed to purchase 4,025,105 shares of common stock of AsiaInfo Holdings, Inc., a Delaware corporation (the “Company”) from Warburg, Pincus Ventures L.P. and Warburg, Pincus Ventures International, L.P. (collectively, “WPV”), in connection with that certain Stockholders Agreement, dated as of October 9, 2006, by and between CITIC Capital MB Investment Limited (“CITIC”) and PacificInfo, as amended (the “SHA”), and that certain Stock Purchase Agreement by and among CITIC and WPV, dated as of September 30, 2006, as amended (the “WPV SPA”).

WHEREAS, in accordance with the terms of the SHA, including without limitation Section 8.3 thereof, PacificInfo hereby wishes to assign its rights, interests and obligations to 30,274 shares of common stock of the Company held by WPV (the “Assignee Shares”) to Assignee, and Assignee hereby wishes to assume such rights, interests and obligations to such Assignee Shares.

WHEREAS, pursuant to Section 5.7 of the SHA, upon the consummation of the purchase of the common stock of the Company held by WPV by PacificInfo or any purchaser to whom PacificInfo has assigned its right to purchase the common stock of the Company held by WPV, PacificInfo shall pay to CITIC a transaction fee equal to 1% of the total purchase price PacificInfo and such purchaser(s) paid for such shares pursuant to the WPV SPA (the “Transaction Fee”).

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, operative on the execution of this Agreement,

1. PacificInfo assigns its rights, interests and obligations with respect to the Assignee Shares to Assignee, and Assignee unconditionally accepts such assignment and assumes all such rights, interests and obligations under the SHA and the WPV SPA (except for the rights, interests and obligations set forth in Sections 5.4, 5.5, 5.8 and 6 of the SHA), with respect to such Assignee Shares.

2. Upon the consummation of the purchase of the Assignee Shares, Assignee shall pay to PacificInfo its pro rata portion (based on the number of shares purchased by Assignee as a percentage of the total number of shares purchased by PacificInfo or any purchaser to whom PacificInfo has assigned its right to purchase shares) of the Transaction Fee.

3. This Agreement may be executed in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed together shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.

 

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.

 

PACIFICINFO LIMITED
By:  

/s/ Edward Suning Tian

Name:   Edward Suning Tian
Title:   Director
FIDELITY ASIA VENTURES FUND LP
By:  

/s/ Allan Pelvang

Name:   Allan Pelvang
Title:   Vice President

 

2

EX-99.(C6) 12 dex99c6.htm ASSIGNMENT AND ASSUMPTION AGREEMENT DATED NOVEMBER 29, 2006 Assignment and Assumption Agreement Dated November 29, 2006

Exhibit C-6

ASSIGNMENT AND ASSUMPTION AGREEMENT

This ASSIGNMENT AND ASSUMPTION AGREEMENT (this “Agreement”) is made and entered into as of November 29, 2006, by and between PacificInfo Limited, an international company organized and existing under the laws of the British Virgin Islands (“PacificInfo”), Fidelity Asia Ventures Fund LP (“Assignee”).

WHEREAS, PacificInfo has agreed to purchase 4,025,105 shares of common stock of AsiaInfo Holdings, Inc., a Delaware corporation (the “Company”) from Warburg, Pincus Ventures L.P. and Warburg, Pincus Ventures International, L.P. (collectively, “WPV”), in connection with that certain Stockholders Agreement, dated as of October 9, 2006, by and between CITIC Capital MB Investment Limited (“CITIC”) and PacificInfo, as amended (the “SHA”), and that certain Stock Purchase Agreement by and among CITIC and WPV, dated as of September 30, 2006, as amended (the “WPV SPA”).

WHEREAS, in accordance with the terms of the SHA, including without limitation Section 8.3 thereof, PacificInfo hereby wishes to assign its rights, interests and obligations to 811,831 shares of common stock of the Company held by WPV (the “Assignee Shares”) to Assignee, and Assignee hereby wishes to assume such rights, interests and obligations to such Assignee Shares.

WHEREAS, pursuant to Section 5.7 of the SHA, upon the consummation of the purchase of the common stock of the Company held by WPV by PacificInfo or any purchaser to whom PacificInfo has assigned its right to purchase the common stock of the Company held by WPV, PacificInfo shall pay to CITIC a transaction fee equal to 1% of the total purchase price PacificInfo and such purchaser(s) paid for such shares pursuant to the WPV SPA (the “Transaction Fee”).

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, operative on the execution of this Agreement,

1. PacificInfo assigns its rights, interests and obligations with respect to the Assignee Shares to Assignee, and Assignee unconditionally accepts such assignment and assumes all such rights, interests and obligations under the SHA and the WPV SPA (except for the rights, interests and obligations set forth in Sections 5.4, 5.5, 5.8 and 6 of the SHA), with respect to such Assignee Shares.

2. Upon the consummation of the purchase of the Assignee Shares, Assignee shall pay to PacificInfo its pro rata portion (based on the number of shares purchased by Assignee as a percentage of the total number of shares purchased by PacificInfo or any purchaser to whom PacificInfo has assigned its right to purchase shares) of the Transaction Fee.

3. This Agreement may be executed in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed together shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.

 

1

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.

 

PACIFICINFO LIMITED
By:  

/s/ Edward Suning Tian

Name:   Edward Suning Tian
Title:   Director
FIDELITY ASIA VENTURES FUND LP
By:  

/s/ Allan Pelvang

Name:   Allan Pelvang
Title:   Vice President

 

2

EX-99.(D) 13 dex99d.htm PROXY AGREEMENT Proxy Agreement

Exhibit D

PROXY AGREEMENT

This PROXY AGREEMENT, dated as of November 30, between CITIC Capital MB Investment Limited, an exempted company organized and existing under the laws of the Cayman Islands with registered address at P.O. Box 2804, 4th Floor, Scotia Center, George Town, Grand Cayman, Cayman Islands (“CITIC”), and Mr. Edward Suning Tian (“Tian”).

W I T N E S S E T H:

WHEREAS, CITIC and PacificInfo Limited, an international company organized and existing under the laws of the British Virgin Islands (“PacificInfo”), entered into that certain Stockholders Agreement, dated as of October 9, 2006, as amended on October 31, 2006 (the “Stockholders Agreement”), relating to the common stock of AsiaInfo Holdings, Inc., a Delaware corporation (“AsiaInfo”).

WHEREAS, pursuant to Section 5.4 of the Stockholders Agreement, effective upon the applicable closing at which CITIC acquires Shares (as defined in the Stockholders Agreement), if any, CITIC will execute and deliver a proxy appointing Tian, the sole shareholder of PacificInfo, as CITIC’s attorney-in-fact and proxy, with full power of substitution, for and in CITIC’s name, to vote, express consent or dissent, or otherwise utilize that voting power with respect to any Shares held by CITIC.

WHEREAS, as of the date hereof, CITIC acquired 4,025,105 shares of common stock of AsiaInfo (as adjusted for share splits, share dividends and the like, the “Proxy Shares”) pursuant to the WPV SPA (as defined in the Stockholders Agreement).

NOW, THEREFORE, in consideration of the premises and of the mutual agreements and covenants set forth herein, the parties hereto agree as follows:

SECTION 1.01. Proxy. CITIC, by this Agreement, with respect to the Proxy Shares, does hereby constitute and appoint Tian, with full power of substitution, as its true and lawful attorney and proxy, for and in its name, place and stead, to vote each of such Proxy Shares then held by CITIC as its proxy, at every annual, special, or adjourned meeting of the stockholders of AsiaInfo (including the right to sign its name (as stockholder) to any consent, certificate or other document relating to AsiaInfo that the law of the State of Delaware may permit or require); provided however that Tian must consult with CITIC prior to any such vote or consent with respect to the Proxy Shares then held by CITIC.

SECTION 1.02. Revocable. CITIC intends the foregoing proxy to be, and it shall be, revocable at any time by notice from CITIC to Tian, and will take such further action and execute such other instruments as may be necessary to effectuate the intent of this proxy and hereby revokes any proxy previously granted by it with respect to the Proxy Shares.

SECTION 1.03. Counterparts. This Proxy Agreement may be executed in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed together shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.

IN WITNESS WHEREOF, the parties have executed this Proxy Agreement as of the date first written above.

 

CITIC CAPITAL MB INVESTMENT LIMITED
By:  

/s/ Eric Chan

Name:   Eric Chan
Title:   Director

/s/ Edward Suning Tian

Name:   Edward Suning Tian

[SIGNATURE PAGE TO PROXY AGREEMENT]

EX-99.(E) 14 dex99e.htm GUARANTEE & LOCKUP AGREEMENT Guarantee & Lockup Agreement

Exhibit E

GUARANTEE & LOCKUP AGREEMENT

THIS GUARANTEE & LOCKUP AGREEMENT (this “Guarantee”) is made and entered into as of October 9, 2006 by and between CITIC Capital MB Investment Limited, an exempted company organized and existing under the laws of the Cayman Islands with registered address at P.O. Box 2804, 4th Floor, Scotia Centre, George Town, Grand Cayman, Cayman Islands (“CITIC”) and Mr. Edward Suning Tian (“Guarantor”).

RECITALS

WHEREAS, CITIC and PacificInfo Limited, an international company organized and existing under the laws of the British Virgin Islands that is wholly owned by Guarantor (“PacificInfo”) will enter into that certain Stockholders Agreement on the date hereof (the “Agreement”) with respect to the purchase of certain equity securities of AsiaInfo Holdings, Inc., a Delaware corporation (the “Company”) and other matters; and

WHEREAS, as inducement to CITIC to enter into the Agreement with PacificInfo, Guarantor has agreed to execute and deliver this Guarantee to undertake to guarantee and indemnify CITIC on the terms and conditions set out in this Guarantee.

NOW THIS GUARANTEE WITNESSETH and it is hereby agreed and declared as follows:

1. Interpretation. For purposes of this Guarantee, (i) references to the Agreement shall be construed as references to such agreement as the same may be amended, substituted, supplemented or varied from time to time, and (ii) unless otherwise defined herein, terms and expressions defined in the Agreement shall have the same meaning when used herein.

2. Guarantee of Performance. Guarantor hereby unconditionally and irrevocably guarantees to CITIC, and its respective successors and assigns, the full and prompt performance at the time due all obligations of PacificInfo with respect of the Agreement and the transactions contemplated thereby (the “Obligations”). If PacificInfo shall default in the due and punctual performance of any of the Obligations, Guarantor will forthwith perform and discharge fully, or cause to be performed and discharged fully, such Obligations at his sole cost and expense.

3. Guarantee of Payment. Guarantor hereby irrevocably, absolutely and unconditionally, guarantees, as principal obligor and not merely as surety, the full, prompt and complete payment of all amounts payable by PacificInfo (whether for itself or on behalf of any assignee of PacificInfo) under the Agreement, when and as payment of such amounts shall become due, and irrevocably and unconditionally undertakes to CITIC that, if and whenever PacificInfo shall be in default in payment of any such sum whatsoever under or in connection with PacificInfo’s obligations pursuant to the Agreement, Guarantor will on first demand make good in U.S. Dollars the default and pay all sums which may be payable as if

 

1

Guarantor, instead of PacificInfo, were the primary obligor. Without limiting the foregoing, as a separate and independent covenant, Guarantor hereby agrees that any sum expressed to be payable by PacificInfo under the Agreement but which is for any reason (whether or not now existing and whether or not now known or becoming known to any party thereto) not recoverable from Guarantor on the basis of a guarantee shall nevertheless be recoverable from Guarantor as if Guarantor were the sole principal obligor and shall be paid by Guarantor to CITIC on demand in U.S. Dollars.

4. Demands. Demands may be made under this Guarantee from time to time and may be enforced irrespective of whether any steps or proceedings are or will be taken against PacificInfo or any other person to with respect to the obligations and/or to recover the indebtedness claimed under this Guarantee.

5. Continuing Obligation. Each of Guarantor’s obligations under this Guarantee shall be continuing obligations and shall cover and remain in full force notwithstanding the bankruptcy, liquidation, winding-up, incapacity or any change in the constitution or status (as applicable) of Guarantor until such date when all the obligations of Guarantor have been fully and duly performed and observed in accordance with this Guarantee. This Guarantee is in addition to, and independent of, any encumbrance, guarantee or other security or right or remedy now or at any time hereafter held by or available to CITIC.

6. Waiver of Defenses. The obligations and liabilities of Guarantor hereunder shall not be affected or discharged by the granting of any time or indulgence, concession, relief, discharge or release by CITIC or the realization, giving up, agreement to any variation, renewal or replacement of, release, abstention from or delay in taking advantage of any other rights or remedies which CITIC may have against Guarantor or PacificInfo hereunder or under the Agreement or otherwise or any act or omission of CITIC or any other person which, but for this provision, would or might discharge, exonerate or affect the liability of Guarantor.

7. Indemnity. Guarantor, unconditionally and irrevocably undertakes to indemnify CITIC against all losses, liabilities, damages, costs and expenses whatsoever arising out of any failure by Guarantor to observe its obligations hereunder.

8. Lockup. Each of CITIC and Guarantor acknowledge that CITIC expects to enter into an agreement with the Company with respect to a lockup of certain equity securities of the Company owned by CITIC (the “Lockup”). Guarantor hereby agrees that from the date hereof until the earlier of (i) the date on which the Company and CITIC agree that CITIC shall not be required to enter into the Lockup, or (ii) the termination of the Lockup, Guarantor shall not sell, transfer or otherwise dispose of any equity securities of PacificInfo and shall not enter into any hedging or derivative arrangements in connection with any equity securities of PacificInfo.

9. Successors and Assigns. This Guarantee shall be binding upon and shall be enforceable by each party hereto, its successors and permitted assigns. No party hereto may assign any of its rights or obligations hereunder without the prior written approval of the other party.

 

2

10. Notice. All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally or by commercial delivery service to the appropriate address, or mailed by registered or certified mail (return receipt requested) or sent via facsimile (with acknowledgment of complete transmission) to the parties at the following addresses (or at such other address for a party as shall be specified by like notice); provided, however, that notices sent by mail will not be deemed given until the date and time of acknowledged receipt at the appropriate address:

if to CITIC, to:

CITIC Capital MB Investment Limited

c/o CITIC Capital Partners Management Limited

28/F, CITIC Tower, 1 Tim Mei Avenue

Central, Hong Kong

Facsimile: 852-2523-8312

Attn: Eric Chan

with a copy (which shall not constitute notice) to:

O’Melveny & Myers LLP

Meiji Yasuda Seimei Building, 11th Floor

2-1-1, Marunouchi, Chiyoda-ku, Tokyo 100-0005, Japan

Facsimile: 81-3-5293-2780

Attn: Gregory D. Puff

if to Guarantor, to:

Edward Tian

LOGO

Beijing 100032

People’s Republic of China

Facsimile: 86-10-8809-2193

11. Severability. Any provision of this Guarantee prohibited by or unlawful or unenforceable under any applicable law actually applied by any court of competent jurisdiction shall, to the extent required by such law, be severed from this Guarantee and rendered ineffective so far as is possible without modifying the remaining provisions of this Guarantee. Where however the provisions of any such applicable law may be waived, they are hereby waived by the parties hereto to the full extent permitted by such law to the end that this Guarantee shall be a valid and binding agreement enforceable in accordance with its terms.

12. Governing Law; Jurisdiction. THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. Any judicial proceeding brought against any of the parties to this Guarantee in connection with any dispute arising out of this Guarantee or the transactions contemplated hereby (each, a “Proceeding”) may be brought in the courts of the State of New York, or in the United States District Court for the Southern District of New York, and, by execution and delivery of this Guarantee, each of the parties to this Guarantee accepts the exclusive jurisdiction of such courts, and irrevocably agrees to be bound by any judgment

 

3

rendered thereby in connection with this Guarantee. The foregoing consent to jurisdiction shall not constitute general consents to service of process in the State of New York for any purpose except as provided above and shall not be deemed to confer rights on any person other than the respective parties to this Guarantee. Each of the parties hereto agree that service of any process, summons, notice or document by U.S. registered mail to such party’s address set forth above shall be effective service of process for any action, suit or proceeding in New York with respect to any Proceeding.

13. Amendment. The parties hereto may amend this Guarantee at any time by execution of an instrument in writing signed by all parties.

14. Counterparts. This Guarantee may be executed in one or more counterparts and may be delivered by facsimile transmission, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other party, it being understood that all parties need not sign the same counterpart for it to be effective among the other parties.

[The remainder of this page is intentionally left blank]

 

4

IN WITNESS WHEREOF, each party hereto has executed, or caused its duly authorized officer(s) to execute, this Guarantee as of the date first written above.

 

“CITIC”
CITIC CAPITAL MB INVESTMENT LIMITED
By:  

/s/ Eric Chan

Name:   Eric Chan
Title:   Director
“GUARANTOR”
EDWARD SUNING TIAN

/s/ Edward Suning Tian            

 

S-1

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