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Exhibit 10.4
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT
OF 1933, AS AMENDED, ANY STATE SECURITIES LAWS, OR THE SECURITIES
LAWS OF ANY OTHER APPLICABLE JURISDICTION. IT MAY NOT BE SOLD OR
OFFERED FOR SALE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT AS TO THE SECURITIES UNDER SAID ACT, ANY APPLICABLE STATE
SECURITIES LAWS AND THE SECURITIES LAWS OF ANY OTHER APPLICABLE
JURISDICTION, OR THE AVAILABILITY OF AN EXEMPTION FROM REGISTRATION
UNDER SAID ACT, ANY APPLICABLE SATE SECURITIES LAWS AND THE
SECURITIES LAWS OF ANY OTHER JURISDICTION.
VOID AFTER 5:00 P.M., NEW YORK TIME, ON THE EXPIRATION DATE (AS
DEFINED BELOW).
No. 1 200,000 SERIES A PREFERRED SHARES
WARRANT TO PURCHASE
SERIES A PREFERRED SHARES OF
MARSEC HOLDINGS, INC.
TRANSFER RESTRICTED -- SEE SECTION 4.01
This Warrant certifies that, for good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, AsiaInfo Holdings, Inc.
or its registered assigns, is entitled to purchase from MARSEC Holdings, Inc.
(the "Company"), at any time during the period commencing on September 15, 2000
(the "Effective Date") and ending at 5:00 p.m., New York City time, on the first
anniversary of the Effective Date (the "Expiration Date"), the number of fully
paid and nonassessable series a preferred shares (par value US$0.01 per share)
of the Company (the "Series A Preferred Shares") stated above at an exercise
price of US$3.50 per share (the "Exercise Price").
ARTICLE I
DEFINITIONS
Section 1.01 As used herein, the following terms shall have the following
meanings.
"Affiliate" means any person which directly or indirectly through one or
more intermediaries controls, or is controlled by, or is under common control
with, the Warrantholder. The term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a person, whether through the ownership of voting shares, by
contract or otherwise.
"Business Day" means a day other than a Saturday, Sunday or any other day
on which banks in Beijing are authorized by law to remain closed.
"Holder" or "Warrantholder" means AsiaInfo Holdings, Inc. or any
assignee or transferee in whose name this Warrant or any part hereof is
registered on the books of the Company. "Holders" or "Warrantholders" shall
have correlative meanings.
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"Securities Act" means the U.S. Securities Act of 1933, as amended.
"Warrant Shares" means the Series A Preferred Shares or other securities
deliverable upon exercise of the Warrants.
"Warrants" means this Warrant and any new Warrant or Warrants issued by
the Company and representing any part or parts hereof.
ARTICLE II
DURATION AND EXERCISE OF WARRANT
Section 2.01 This Warrant may be exercised at any time after 9:00 A.M.,
New York City time, on the Effective Date, and before 5:00 P.M., New York City
time, on the Expiration Date. If this Warrant is not exercised at or before 5:00
P.M., New York City time, on the Expiration Date, it will become void and
neither the Warrantholder nor any other person will have any rights under this
Warrant.
Section 2.02
(a) To exercise this Warrant, in whole or in part, the Warrantholder must
surrender this Warrant, with the Subscription Form attached hereto duly
executed, to the Company at its principal office accompanied by a certified or
official bank check payable to the order of the Company in an amount equal to
the Exercise Price for the Warrant Shares as to which this Warrant is being
exercised.
(b) When the Company receives this Warrant with the Subscription Form duly
executed and accompanied by payment of the full Exercise Price for the Warrant
Shares as to which this Warrant is being exercised, the Company will enter the
name of the Warrantholder on the Company's register of members in respect of the
Warrant Shares and will issue certificates, registered in the name of the
Warrantholder or such other names as are designated by the Warrantholder,
representing the total number of Series A Preferred Shares (and other
securities, if any) as to which this Warrant is being exercised, in such
denominations as are requested by the Warrantholder, and the Company will
deliver those certificates to the Warrantholder, within a reasonable period of
time, not exceeding fifteen (15) days after the rights represented by this
Warrant shall have been exercised.
(c) If the Warrantholder exercises this Warrant with respect to fewer than
all the Warrant Shares to which it relates, the Company will execute a new
Warrant (with terms and conditions identical, mutatis mutandis, with the terms
and conditions hereof) for the balance of the Warrant Shares that may be
purchased upon exercise of this Warrant and deliver that new Warrant to the
Warrantholder.
(d) The Company will pay any taxes that may be payable in respect of the
issuance of the Warrant Shares or in respect of the issuance of a new Warrant if
this Warrant is exercised as to fewer than all the Warrant Shares to which it
relates. The Company will not, however, be required to pay any transfer tax
which becomes payable because Warrant Shares or a new Warrant are to be
registered in a name other than that of the Warrantholder, and the Company will
not be required to issue any Warrant Shares or to issue a new Warrant registered
in a name other than that of the Warrantholder until the Company receives either
(i) evidence reasonably satisfactory to it that any applicable transfer taxes
have been paid, or (ii) sufficient funds with which to pay such transfer taxes.
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ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF WARRANTHOLDERS
Section 3.01 A Warrantholder will not, as such, be entitled to vote, to
receive dividends or to have any other of the rights of a shareholder of the
Company, except that after this Warrant is exercised in accordance with the
terms of this Warrant, the persons in whose names the Warrant Shares purchased
through exercise of this Warrant are to be issued will be deemed to become the
holders of record of those Warrant Shares for all purposes even if certificates
representing those Warrant Shares are not issued.
Section 3.02
(a) The Company will at all times reserve and keep available for issuance
upon exercise of this Warrant the number of authorized and unissued Series A
Preferred Shares equal to the maximum number of Series A Preferred Shares the
Company may be required to issue upon exercise of this Warrant.
(b) All Series A Preferred Shares issued on exercise of this Warrant will,
when they are issued, be validly issued, fully paid, nonassessable and free of
preemptive rights.
(c) The Company agrees that if any Series A Preferred Shares reserved for
the purpose of the issuance of Series A Preferred Shares upon the exercise of
this Warrant require registration with or approval of any governmental authority
under any applicable law before such Series A Preferred Shares may be validly
issued or delivered to the Warrantholder upon exercise of the Warrant, then the
Company shall in good faith and as expeditiously as possible endeavor to secure
such registration or approval, as the case may be. If and so long as the Warrant
Shares issuable upon the exercise of this Warrant are listed on any national
securities exchange, the Company shall, if permitted by the rules of such
exchange, list and keep listed on such exchange, upon official notice of
issuance, all Warrant Shares issuable upon exercise of this Warrant.
Section 3.03 The Company will not be required to issue any fraction of a
Series A Preferred Share upon exercise of a Warrant. In any case in which the
Warrantholder would, except for the provisions of this Section 3.03, be entitled
to receive a fraction of a Series A Preferred Share upon exercise of a Warrant,
the Company will issue the maximum number of whole Series A Preferred Shares it
is required to issue, but the Company will not be required to make any payment
or give any other consideration with respect to a fraction of a Series A
Preferred Share to which the Warrantholder would be entitled but for this
Section 3.03.
Section 3.04 The Company will maintain a Warrant Register in which the
name and address of each registered holder of Warrants will be recorded.
Section 3.05 Notices or other communications to the Warrantholder will be
deemed given by the Company on the third Business Day after the day on which
they are sent by first class mail addressed to the Warrantholder at the
Warrantholder's last known address shown on the Warrant Register maintained by
the Company.
Section 3.06 Until this Warrant is properly presented for registration of
transfer, the Company may treat the Warrantholder as the absolute owner of this
Warrant for all purposes, including for the purpose of determining the persons
entitled to exercise this Warrant, despite any notice to the contrary.
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ARTICLE IV
TRANSFER OF WARRANTS
Section 4.01 This Warrant may only be sold, transferred, assigned or
hypothecated, in whole or in part, with the written consent of the Company and
only in accordance with Sections 4.02 and 4.03, provided however, that the
Warrantholder may transfer the Warrant to any Affiliate of the Warrantholder
without the written consent of the Company.
Section 4.02 Upon surrender of this Warrant to the Company at its
principal office with the Form of Assignment attached hereto (or another
instrument of assignment) duly executed and accompanied by (i) evidence that any
transfer tax has been paid, or funds sufficient to pay any transfer tax, and
(ii) evidence reasonably satisfactory to the Company that the proposed
assignment will not violate Section 4.01, the Company will, without charge,
execute and deliver a new Warrant registered in the name of the assignee named
in the Form of Assignment (or other instrument of assignment) and will promptly
cancel this Warrant. This Warrant may be divided into several Warrants or
combined with other Warrants by surrender of this Warrant (and any other
Warrants with which it is to be combined) at the principal office of the Company
together with a written notice, signed by the Warrantholder, specifying the
names and denominations in which new Warrants are to be issued, in which case
the Company will issue new Warrants in such denominations and with terms and
conditions identical, mutatis mutandis, with the terms and conditions hereof.
Section 4.03 Upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this
Warrant, and (in the case of loss, theft or destruction) of reasonably
satisfactory indemnification, or (in the case of mutilation) upon surrender of
this Warrant, the Company will execute and deliver a new Warrant relating to the
same number of Warrant Shares as this Warrant and the lost, stolen, destroyed or
mutilated Warrant will become void. Any new Warrant executed and delivered in
accordance with this Section 4.03 will constitute an additional contractual
obligation of the Company, and will be valid and enforceable whether or not the
Warrant which was believed to have been lost, stolen or destroyed is
subsequently presented for exercise.
ARTICLE V
OTHER MATTERS
Section 5.01 Unless the resale of Warrant Shares is the subject of a
registration statement which has become effective under the Securities Act, the
certificates representing Warrant Shares issued on exercise of this Warrant may
bear the following legend:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER
THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THE TRANSFER
OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE
CONDITIONS SPECIFIED IN THE SHAREHOLDERS AGREEMENT DATED AS OF
SEPTEMBER 15, 2000. A COPY OF SUCH CONDITIONS WILL BE
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FURNISHED BY THE COMPANY TO THE HOLDER HEREOF UPON WRITTEN REQUEST
AND WITHOUT CHARGE. THESE SECURITIES MAY BE RESOLD OR TRANSFERRED
ONLY (1) PURSUANT TO THE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER,
(2) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH REGULATION S UNDER
THE SECURITIES ACT, (3) IN RELIANCE UPON ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT SUBJECT, IN
EACH CASE DESCRIBED ABOVE, TO THE RECEIPT BY THE COMPANY OF ANY
NECESSARY CERTIFICATIONS OR ENDORSEMENTS RELATING TO COMPLIANCE WITH
THE RESTRICTIONS ON TRANSFER APPLICABLE TO THE SECURITIES AND, IN
THE CASE OF ANY TRANSFER PURSUANT TO CLAUSES (1) AND (3) ABOVE, AN
OPINION OF COUNSEL TO THE EFFECT THAT SUCH TRANSFER IS EXEMPT FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR (4) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN
EACH CASE IN ACCORDANCE WITH APPLICABLE STATE AND OTHER SECURITIES
LAWS.
Section 5.02 The provisions of this Warrant will bind, and inure to the
benefit of, the Company and its successors and assigns.
(a) Any notice or other communication to the Company relating to this
Warrant will be deemed given on the day when it is delivered or sent by
facsimile transmission (with a confirmation copy sent by mail), or on the third
Business Day after the day on which it is sent by first-class mail, to the
Company at the following address (or such other address as may be specified by
the Company after the date of this Warrant in a notice given pursuant to Section
3.05):
MARSEC Holdings, Inc.
c/o AsiaInfo Holdings, Inc.
#00-0, Xxxxxxxxxx Xxxx
Xxxxxxx Xxxxxxxx
Xxxxxxx 000000
XXX
Attention: Fan Bao
Facsimile: (8610) 6250 1893
(b) Any notice or other communication to the Warrantholder will be deemed
given when and as provided in Section 3.05.
Section 5.04 The Company stipulates that the remedies at law of the Holder
of this Warrant in the event of any default or threatened default by the Company
in the performance of or compliance with any of the terms of this Warrant are
not and will not be adequate, and that such terms may be specifically enforced
by a decree for the specific performance of any agreement contained herein or by
an injunction against a violation of any of the terms hereof or otherwise.
Section 5.05 This Warrant will be governed by, and construed in accordance
with, the laws of the State of New York relating to contracts made and to be
performed in that State.
Section 5.06 The Article and Section headings in this Warrant are for
convenience only, are not part of this Warrant and are not intended to affect
the meaning or interpretation of any of the terms of this Warrant.
IN WITNESS WHEREOF, this Warrant has been executed by the Company as of
the 15th day of September, 2000.
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MARSEC HOLDINGS, INC.
By /s/ Fan Bao
------------------------------------
Name: Fan Bao
Title: Chairman of the Board
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FORM OF ASSIGNMENT
(To be signed only upon assignment)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers the attached Warrant to __________________________________ to
the extent of the right to purchase _________________ Warrant Shares, and
the undersigned directs MARSEC Holdings, Inc. (the "Company") to record
this transfer on the books of the Company.
Dated: ___________, ___
Signature: _____________________________
(Signature must conform to
the name of the Warrantholder
specified on the face of the
Warrant)
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SUBSCRIPTION FORM
(To be signed only upon exercise)
To: MARSEC Holdings, Inc.
c/o AsiaInfo Holdings, Inc.
#00-0, Xxxxxxxxxx Xxxx
Xxxxxxx Xxxxxxxx
Xxxxxxx 000000
XXX
Attention: Fan Bao
Facsimile: (8610) 6250 1893
The undersigned irrevocably elects to purchase ________ Warrant Shares by
exercising the Warrant to which this form is attached and tenders payment of the
full Exercise Price with respect to those Warrant Shares. The undersigned
requests that the certificates representing the Warrant Shares as to which the
Warrant is being exercised be registered as follows:
Name:
Address:
Deliver to:
Address:
If the Warrant Shares as to which the Warrant is being exercised are fewer
than all the Warrant Shares to which the Warrant relates, please issue a new
Warrant for the balance of those Warrant Shares registered in the name of the
undersigned and deliver it to the undersigned at the following address:
Dated: _______________, ____ Signature _____________________________
(Signature must conform to
the name of the Warrantholder
specified on the face of the
Warrant)
