Exhibit 4
NEITHER THIS WARRANT NOR ANY OF THE CLASS A COMMON SHARES WHICH MAY BE ISSUED
ON ITS EXERCISE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND NEITHER THIS WARRANT NOR ANY SUCH SHARES
MAY BE OFFERED, SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED UNLESS
(1) THEY ARE REGISTERED UNDER THE SECURITIES ACT, (2) OFFERED, SOLD, PLEDGED,
HYPOTHECATED OR OTHERWISE TRANSFERRED PURSUANT TO AN AVAILABLE EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS OF THE UNITED
STATES OF AMERICA, OR (3) REGISTRATION OTHERWISE IS NOT REQUIRED.
Void after 5:00 p.m., Hong Kong Time, on the day that is 48 months
following the IPO Closing Date (defined below),
except as otherwise provided herein.
Date of Original Issuance: June 8, 1999
WARRANT "B" TO PURCHASE CLASS A COMMON SHARES
OF
XXXXX.XXX CORPORATION
THIS CERTIFIES THAT, FOR VALUE RECEIVED, America Online, Inc., a
Delaware corporation, or its transferees or assigns (the "Holder"), is
entitled to purchase, subject to the provisions of this Warrant B, from
Xxxxx.xxx Corporation, a Cayman Islands corporation (the "Issuer"), the
number of duly authorized, fully paid, validly issued and nonassessable Class
A common shares, par value US$0.001 per share (the "Class A Shares"), of the
Issuer as calculated in accordance with Section (a)(ii) hereof (the "Shares")
at a price per Share equal to the price per Class A Share at which the Issuer
completed its first public offering of Class A Shares following the Issuer's
initial public offering of Class A Shares (the "Secondary Offering") (the
"Exercise Price"); provided however, that if the Secondary Offering has
closed on a date within six (6) months of the date of the exercise of the
right to purchase the Shares hereunder or if no such Secondary Offering was
completed by the Issuer, the Exercise Price shall be the price per Class A
Share at which the Issuer completed its initial public offering. The right
to purchase the Shares under this Warrant B is exercisable, subject to the
terms herein, in whole or in part, at any time on or after the day that is 24
months after the closing date of the Issuer's initial public offering (the
"IPO Closing Date") and prior to 5:00 p.m., Hong Kong time, on the day that
is 48 months following the IPO Closing Date. This Warrant B and all warrants
issued upon transfer, division or in substitution thereof are hereinafter
sometimes referred to as the "Warrants".
(a) Exercise of Warrant.
(i) Subject to the conditions hereinafter set forth, this
Warrant B may be exercised by presentation and surrender to the Issuer at its
principal office, or at the office of its principal stock transfer agent,
with the Purchase Form annexed hereto duly executed and accompanied by
payment of the aggregate Exercise Price for the Shares. Payment may be made
by wire transfer to such account of the Issuer as it may direct or by
certified or official bank check. As soon as practicable after the exercise
of this Warrant B, and in any event within five (5) business days, the Issuer
shall issue and deliver to the Holder a certificate or certificates
representing the number of Shares issuable upon the exercise of this Warrant
B, registered in the name of the Holder or its designee. Upon receipt by the
Issuer of this Warrant B at its office, or by the principal stock transfer
agent of the Issuer at its office, in proper form for exercise, the Holder
shall as of that date be deemed to be the holder of record of the number of
the Shares specified in the Purchase Form. The Issuer shall pay any and all
documentary stamp or similar issue or transfer taxes payable in respect of
the issue or delivery of the Shares on exercise of this Warrant B; provided,
however, that the Issuer shall not be required to pay any tax which may be
payable in respect of any transfer involved in the issue or delivery of the
Shares in a name other than that of the Holder.
(ii) Upon the exercise of this Warrant B and payment of the
aggregate Exercise Price, the Holder shall be entitled to acquire the number
of Shares equal to 6.5% of the then total outstanding Class A Shares on a
fully diluted basis.
(b) Reservation of Shares. The Issuer shall at all times reserve
and keep available out of the Common Shares held by the Issuer in treasury,
for issuance on exercise of this Warrant B, such number of Shares as shall be
required for issuance and delivery upon exercise of this Warrant B.
(c) Transfer of Warrant.
(i) This Warrant B may not be sold, transferred, assigned, or
hypothecated, to any person, other than to any limited partnership with the
same general partner, or to any company that directly, or indirectly,
controls or is controlled by or is under common control with the Holder,
where ownership of fifty percent (50%) or more of the voting securities of a
company shall constitute control, without the prior written consent of the
Issuer.
(ii) Any transfer of this Warrant B pursuant to this Section
(c) shall be effected by the Holder by executing the Assignment Form annexed
hereto and surrendering this Warrant B for cancellation to the Issuer at its
principal office, or at the office of its principal stock transfer agent,
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whereupon the Issuer shall issue in the name or names specified by the Holder
(including the Holder) a new Warrant or Warrants of like tenor and
representing in the aggregate rights to purchase the same number of Shares as
are purchasable hereunder.
(d) Loss or Destruction of Warrant. Upon receipt by the Issuer of
evidence satisfactory to it of the loss, theft, destruction or mutilation of
this Warrant B and (i) in the case of loss, theft or destruction, of
reasonably satisfactory indemnification, or (ii) in the case of mutilation,
upon surrender and cancellation of this Warrant B, the Issuer will execute
and deliver a new Warrant B of like tenor and date. Any such new Warrant B
shall not constitute an additional contractual obligation on the part of the
Issuer, whether or not the Warrant B so lost, stolen, destroyed, or mutilated
shall be at any time enforceable by any person.
(e) Rights of the Holder. The Holder shall not, by virtue hereof,
be entitled to any rights of a shareholder in the Issuer, either at law or
equity, and the rights of the Holder are limited to those expressed in this
Warrant B and are not enforceable against the Issuer except to the extent
expressly set forth herein.
(f) Survival. Any obligation of the Issuer under this Warrant B,
the complete performance of which may require performance beyond the term of
this Warrant B, shall survive the expiration of such term.
(g) Amendments and Waivers. The respective rights and obligations
of the Issuer and the Holder may be modified or waived only by a writing
executed by the party against whom the amendment or waiver is to be enforced.
(h) Governing Law. This Warrant shall be governed by and
construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the Issuer has caused this Warrant B to be duly
executed and delivered.
XXXXX.XXX CORPORATION
By: /s/ Xxxxxx X. Xxxxx, III
------------------------------
Name: Xxxxxx X. Xxxxx, III
Title: Attorney-In-Fact
Dated: June 8, 1999
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PURCHASE FORM
The undersigned hereby irrevocably elects to exercise the within
Warrant B as to ____________ Class A Shares and hereby makes payment of
$________ in payment of the actual exercise price thereof.
INSTRUCTIONS FOR REGISTRATION OF CLASS A SHARES
Name: __________________________________________________________________
(Please typewrite or print in block letters)
Address: __________________________________________________________________
__________________________________________________________________
Signature: _________________________________
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ASSIGNMENT FORM
FOR VALUE RECEIVED, _________________________________________
hereby sells, assigns and transfers unto
Name: __________________________________________________________________
(Please typewrite or print in block letters)
Address: __________________________________________________________________
__________________________________________________________________
the right to purchase Class A Shares represented by this Warrant B to the
extent of _________ Class A Shares as to which such right is exercisable and
does hereby irrevocably constitute and appoint _____________________
Attorney, to transfer the same on the books of the Issuer with full power of
substitution in the premises.
Dated: _______________, ________
Signature: ______________________
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