EXHIBIT F
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is entered into as of February
16, 2007, between Lenovo IT Alliance Limited, a British Virgin Islands
corporation ("Seller") and Fidelity Asia Ventures Fund L.P., a Bermuda limited
partnership and Fidelity Asia Principals Fund L.P., a Bermuda limited
partnership (each a "Purchaser" and collectively, "Purchasers").
WHEREAS, Seller is the beneficial owner of shares of common stock, par value
USD$0.01 per share (the "Common Stock"), of AsiaInfo Holdings, Inc., a Delaware
corporation (the "Company"); and
WHEREAS, Seller wishes to sell to Purchasers, and Purchasers wish to purchase
from Seller, an aggregate of 710,618 shares of Common Stock (as may be adjusted
equitably to reflect any stock dividends, recapitalizations, stock splits or
similar transactions, the "Shares") on the terms and subject to the conditions
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 hereby agree
as follows:
ARTICLE I
SALE AND PURCHASE OF SHARES
1.1 Sale and Purchase of Shares.
(a) At Closing (as defined below) and on the terms set forth herein,
Seller shall sell and deliver to each Purchaser, and each Purchaser shall
purchase and accept from Seller, all right, title, and interest of Seller in and
to such number of Shares as set forth on Exhibit A hereto, free and clear of all
mortgages, liens, pledges, security interests, charges, and other encumbrances
("Liens").
(b) The closing of the purchase and sale of the Shares shall take
place on a date before March 30, 2007 that is mutually agreeable to the parties
hereto (such date referred to as the "Closing Date") at the offices of Seller in
Hong Kong Special Administrative Region of the People's Republic of China
("Closing").
1.2 Purchase Price. At Closing, Purchasers shall pay to Seller an
aggregate amount equal to USD$5,684,944 for the Shares, which each Purchaser's
payment amount specifically set forth on Exhibit A (the "Purchase Price") by
wire transfer of immediately available funds to a bank account designated in
writing by Seller.
1.3 Deliveries. At Closing, (i) Seller shall deliver to Purchasers
one or more certificates representing the Shares, endorsed in blank or
accompanied by duly executed assignment documents in form and substance
acceptable to Purchasers; and (ii) Purchasers shall deliver to Seller the
Purchase Price in accordance with Section 1.2; provided, however, that in lieu
of delivering such certificates representing the Shares to
Purchasers at Closing as described in item (i) above, subject to the consent of
Purchasers, Seller shall, at Closing, deliver the instruction letter to the
Company's transfer agent (as contemplated by Section 4.1 below) with respect to
the consummation of the sale and transfer of the Shares as of the Closing Date,
in which case all right, title, and interest of Seller in and to such Shares
shall be deemed sold and delivered to Purchasers as of the Closing pursuant to
this Agreement and such instruction letter, notwithstanding the fact that the
actual certificates are not delivered to Purchasers at the Closing. In such
event, the parties acknowledge and agree the actual certificates representing
the purchased Shares will be issued by the Company's transfer agent to
Purchasers as soon as reasonably practicable following the Closing Date.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Purchasers as of the date hereof as
follows:
2.1 Organization. Seller is an organization of the type referred to
in the first paragraph of this Agreement and is duly organized, validly
existing, and in good standing under the applicable laws of the jurisdictions
specified.
2.2 Authorization. Seller has the requisite power to execute and
deliver this Agreement and to perform the transactions contemplated hereby to be
performed by it. The execution and delivery by Seller of this Agreement and the
performance by it of the transactions contemplated hereby to be performed by it
have been duly authorized by all necessary action on the part of Seller. This
Agreement has been duly executed and delivered by the duly authorized officer of
Seller and, assuming the due execution and delivery of this Agreement by
Purchasers, constitutes a valid and binding obligation of Seller, enforceable
against Seller in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium and similar laws affecting creditors'
rights and remedies generally, and subject, as to enforceability, to general
principles of equity, including principles of commercial reasonableness, good
faith and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity).
2.3 Consents and Approvals. Except for filings that may be required
under the Securities Exchange Act of 1934, as amended (the "Exchange Act") and
obtaining confirmation of Seller's compliance with the Company's "xxxxxxx
xxxxxxx policy", no consent, approval, waiver, order, or authorization of, or
registration, declaration, or filing with, or notice to, any federal, state, or
foreign court or governmental agency, authority, or body or any instrumentality
or political subdivision thereof ("Governmental Entity") or any other person or
entity is required to be obtained or made by Seller in connection with the
execution and delivery of this Agreement by Seller, the performance by Seller of
the transactions contemplated hereby to be performed by it, or the consummation
of the transactions contemplated hereby.
2.4 No Conflicts. The execution and delivery of this Agreement does
not, and neither the performance by Seller of the transactions contemplated
hereby to be performed by it, nor the consummation of the transactions
contemplated hereby, will,
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(i) conflict with the constitutional documents of Seller, (ii) conflict with,
result in any violation of, or constitute a default under any material agreement
to which Seller is a party, or (iii) to Seller's knowledge, violate any law,
rule, or regulation applicable to Seller.
2.5 Title to Shares. Seller has good and valid title to the Shares.
Seller is the record and beneficial owner of the Shares, free and clear of all
Liens. The delivery by Seller to Purchasers of the certificate or certificates
representing the purchased Shares in accordance with this Agreement will vest
such Purchaser with good and valid title to the Shares, free and clear of all
Liens; provided, however, that if the parties agree to consummate the sale and
transfer of the Shares on the Closing Date without delivery by Seller to
Purchasers of the actual certificate or certificates representing the purchased
Shares, Purchaser shall be deemed to have acquired good and valid title to the
Shares as of the Closing Date pursuant to this Agreement; it being understood
that, as soon as reasonably practicable following the Closing, Purchasers shall
receive such certificate or certificates representing the purchased Shares from
either Seller or the Company's transfer agent (as contemplated pursuant to
Section 4.1 below).
2.6 Exempt from Registration. Based in part on the representations of
Purchasers contained in Sections 3.5 and 3.6 of this Agreement, the sale of the
Shares hereunder is exempt from registration under the Securities Act of 1933,
as amended (the "Securities Act").
2.7 Information. In the course of discussions relating to this
Agreement and the transaction contemplated hereby, Seller has not conveyed to
Purchasers any material non-public information in respect of the Company and/or
the Company's business, operations, pending transactions, financial condition,
results of operations, or prospects (collectively, "Non-Public Information").
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchasers hereby represent and warrant to Seller as of the date hereof and as
of the Closing Date as follows:
3.1 Organization. Each Purchaser is an organization of the type
referred to in the first paragraph of this Agreement and is duly organized,
validly existing, and in good standing under the applicable laws of the
jurisdictions specified.
3.2 Authorization. Each Purchaser has the requisite power to execute
and deliver this Agreement and to perform the transactions contemplated hereby
to be performed by it. The execution and delivery by each Purchaser of this
Agreement and the performance by it of the transactions contemplated hereby to
be performed by it have been duly authorized by all necessary action on the part
of such Purchaser. This Agreement has been duly executed and delivered by a duly
authorized officer of each Purchaser and, assuming the due execution and
delivery of this Agreement by Seller, constitutes a valid and binding obligation
of each Purchaser, enforceable against each Purchaser in accordance with its
terms, subject to applicable bankruptcy, insolvency,
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reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally, and subject, as to enforceability, to general principles of
equity, including principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a proceeding at law or
in equity).
3.3 Consents and Approvals. No consent, approval, waiver, order, or
authorization of, or registration, declaration, or filing with, or notice to,
any Governmental Entity is required to be obtained or made by Purchasers in
connection with the execution and delivery of this Agreement by Purchasers, the
performance by Purchasers of the transactions contemplated hereby to be
performed by it, or the consummation of the transactions contemplated hereby,
except for any filings that may be required under the Exchange Act.
3.4 No Conflicts. The execution and delivery of this Agreement does
not, and neither the performance by Purchasers of the transactions contemplated
hereby to be performed by them, nor the consummation of the transactions
contemplated hereby, will, (i) conflict with the constitutional documents of
Purchasers, (ii) conflict with, result in any violation of, or constitute a
default under any agreement to which Purchasers are a party, or (iii) to each
Purchaser's knowledge, violate any law, rule, or regulation applicable to such
Purchaser.
3.5 Securities Law Matters.
(a) Each Purchaser understands and acknowledges that as of the date
hereof the Shares have not been registered under the Securities Act, or the
securities laws of any state or foreign jurisdiction, and, unless so registered,
may not be offered, sold, transferred, or otherwise disposed of except pursuant
to an exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act and any applicable securities laws of any
state or foreign jurisdiction.
(b) Each Purchaser acknowledges that the Shares must be held
indefinitely unless subsequently registered under the Securities Act or unless
an exemption from such registration is available. Each Purchaser is aware of the
provisions of Rule 144 promulgated under the Securities Act which permit the
limited resale of securities purchased in a private placement subject to the
satisfaction of certain conditions, including, among other things, the existence
of a public market for such securities, the availability of certain current
public information about the Company, the resale occurring not less than one (1)
year after a party has purchased and paid for the security to be sold, the sale
being effected through a "brokers transaction" or in a transaction directly with
a "market maker," and the number of securities being sold during any three (3)
month period not exceeding limitations specified in Rule 144.
(c) Each Purchaser acknowledges that appropriate legends restricting
the transfer of the Shares as aforesaid shall be placed on the stock
certificates representing such Shares.
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(d) Each Purchaser is an "accredited investor" (as defined in Rule
501(a) of Regulation D under the Securities Act).
(e) Each Purchaser (i) has knowledge and experience in financial and
business matters such that it is capable of evaluating the merits and risks of
purchasing the Shares, and (ii) is able to bear the economic risk of an
investment in the Shares for an indefinite period, including the risk of a
complete loss of any such investment.
(f) The Shares were not offered to Purchasers in any form of general
solicitation or general advertisement and each Purchaser (i) is acquiring the
Shares for investment for its own account, and not with a view to, or for sale
in connection with, any distribution thereof, (ii) does not have any agreement
or understanding, whether or not legally binding, with any other person or
entity, to sell, pledge, engage in short sales or other hedging transactions,
transfer, or otherwise distribute or dispose of the Shares or any interest
therein.
(g) Each Purchaser understands and acknowledges that Seller may be
deemed an "affiliate" of the Company (as defined in Rule 144(a)(1) under the
Securities Act).
3.6 Investigation.
(a) Each Purchaser believes that it has received all the information
it considers necessary or appropriate for deciding whether to purchase the
Shares.
(b) Each Purchaser acknowledges that (i) it is a sophisticated
financial institution engaged in the business of assessing and assuming
investment risks in respect of securities, including securities such as the
Shares and is hereby voluntarily assuming the risks relating to the transactions
contemplated hereby, (ii) it is fully satisfied with the Purchase Price it is
paying hereunder to Seller for the Shares, (iii) Seller may in the future enter
into discussions with holders of the Company's Common Stock regarding the sale
of all or a portion of its other shares of the Company's Common Stock for
consideration greater or lesser than or different from the Purchase Price,
and/or on terms and conditions different from the terms and conditions set forth
herein, (iv) Seller is consummating this transaction with Purchasers in reliance
on (A) Purchasers' acknowledgements and representations contained in this
Agreement and (B) with Purchasers' understanding and agreement that Seller (or
its affiliates) is privy to Non-Public Information that may be material to a
reasonable investor, such as Purchasers, and such information has not been
provided to Purchasers by Seller or the Company, (v) Seller is under no duty or
other obligation to disclose any Non-Public Information to Purchasers, and (vi)
as of the date hereof, although the Company has publicly announced its unaudited
financial results for the fourth quarter ended December 31, 2006 and the fiscal
year ended December 31, 2006 (pursuant to a Current Report on Form 8-K dated
January 24, 2007), the Company has not yet filed its Annual Report on Form 10-K
for such year-end period.
(c) Each Purchaser hereby waives and releases to the fullest extent
permitted by applicable law any claim or potential claim it has or may have
against Seller
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or its officers, directors, stockholders, partners, affiliates, successors, and
assigns, relating to any such person's possession of Non-Public Information.
ARTICLE IV
SECURITIES LAW COMPLIANCE MATTERS
4.1 Stock Certificate Legend. In connection with the Closing, Seller
shall instruct the Company's transfer agent to provide Purchasers with one or
more certificate(s) representing the Shares, with such restrictive legends as
may be required under applicable laws, including the following (or a legend
substantially similar to the following):
"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE US SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAW AND
MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT COVERING SUCH SECURITIES
UNLESS THE ISSUER RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER OF THESE
SECURITIES REASONABLY SATISFACTORY TO THE ISSUER STATING THAT SUCH SALE,
TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND
PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT OR THAT THE SALE IS MADE IN
ACCORDANCE WITH RULE 144 UNDER THE SECURITIES ACT."
4.2 Securities Law Compliance. Each Purchaser shall not, directly or
indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit
any offers to buy, purchase or otherwise acquire or take a pledge of) any Common
Stock of the Company, nor will Purchaser engage in, or permit any party on
behalf of Purchaser or for the benefit of Purchaser to engage in, any short sale
or other hedging transaction that results, or may result, in a disposition of
any of the Shares by Purchaser, except pursuant to an effective registration
statement under the Securities Act or an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act and any
applicable securities laws of any state or foreign jurisdiction or otherwise in
compliance with applicable securities laws.
ARTICLE V
CONDITIONS TO CLOSING
5.1 Condition to Obligations of Each Party. The respective
obligations of Seller and Purchasers to consummate the transactions contemplated
by this Agreement shall be subject to the fulfillment, at or prior to Closing,
of each of the following conditions:
(a) No Government Order. No Governmental Entity 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 (including any prohibitions on
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sale under the Company's "xxxxxxx xxxxxxx policy") shall be in effect, in either
case, which has the effect of making the transactions illegal or otherwise
preventing the consummation of such transactions.
5.2 Additional Conditions to Obligations of Seller. The obligations
of Seller to consummate the transactions contemplated by this Agreement shall be
subject to the satisfaction at or prior to 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 Purchasers 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. Purchasers 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 Purchasers prior to or as of
Closing.
5.3 Additional Conditions to the Obligations of Purchasers. The
obligation of Purchasers to consummate the transactions contemplated by this
Agreement shall 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 Purchaser:
(a) Representations and Warranties. Each representation and warranty
of Seller 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. Seller 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 Seller prior to or
as of Closing.
ARTICLE VI
MISCELLANEOUS
6.1 Binding Effect. Except as otherwise expressly provided herein,
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
6.2 Counterparts. This Agreement may be executed in multiple
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same instrument.
6.3 Entire Agreement: Survival. This Agreement (including the
Exhibits attached hereto) constitutes the entire agreement of the parties hereto
in respect of the subject matter hereof, and supersedes all prior agreements or
understandings between the parties hereto in respect of the subject matter
hereof.
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6.4 Expenses. Each of Seller and Purchasers shall bear all of the
expenses (including fees and disbursements of its counsel) incurred by or on
behalf of it in connection with the preparation, negotiation, execution,
delivery, and performance of this Agreement and the consummation of the
transactions contemplated hereby.
6.5 Further Assurances. Each party hereto shall execute and deliver
all such further and additional instruments and agreements and shall take such
further and additional actions, as may be reasonably requested by the other
party in order to evidence or carry out the provisions of this Agreement or to
consummate the transactions contemplated hereby.
6.6 Governing Law. This Agreement shall be enforced, governed and
construed in all respects in accordance with the laws of the State of New York,
without regard to the principles of conflicts of laws thereof.
6.7 Jurisdiction; Venue. The parties hereto submit to the
non-exclusive jurisdiction of the courts of Hong Kong Special Administrative
Region of the People's Republic of China, but this Agreement may be enforced by
the parties in any court of competent jurisdiction.
6.8 Notices. Any notice, request, demand, or other communication
required or permitted to be given hereunder shall be in writing and shall be
deemed to have been duly given if sent by hand delivery, mail (first class,
certified mail, postage prepaid), facsimile, or overnight courier if to any
party hereto, at the address or facsimile number set forth below such party's
name on the signature pages hereto or to such other address or facsimile number
as such party shall have last designated by notice to the other parties hereto
in accordance with this Section. Notices sent by hand delivery shall be deemed
to have been given when received or delivery is refused; notices mailed in
accordance with this Section shall be deemed to have been given three days after
the date so mailed; notices sent by facsimile shall be deemed to have been given
when electronically confirmed; and notices sent by overnight courier shall be
deemed to have been given on the next business day after the date so sent.
6.9 Severability. If any provision of this Agreement or the
application of such provision to any person or circumstance shall be held by a
court of competent jurisdiction to be invalid, illegal, or unenforceable under
the applicable law of any jurisdiction, (i) the remainder of this Agreement or
the application of such provision to other persons or circumstances or in other
jurisdictions shall not be affected thereby, and (ii) such invalid, illegal, or
unenforceable provision shall not affect the validity or enforceability of any
other provision of this Agreement.
6.10 No Third-Party Beneficiaries. Nothing express or implied in this
Agreement, is intended or shall be construed to confer upon or give any person
other than the parties hereto and their respective successors and permitted
assigns any right, benefit, or remedy under or by reason of this Agreement.
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6.11 WAIVER OF TRIAL BY JURY. TO THE MAXIMUM EXTENT NOT PROHIBITED BY
APPLICABLE LAW, EACH PARTY HERETO, HEREBY KNOWINGLY, VOLUNTARILY, AND
INTENTIONALLY WAIVES ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
ACTION, SUIT, OR PROCEEDING, DIRECTLY OR INDIRECTLY, AT ANY TIME ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
6.12 Confidentiality. Each party agrees that the terms, conditions and
existence of this Agreement, the transactions contemplated by this Agreement,
and, after 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 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 (including pursuant
to U.S. federal securities laws with respect to public filings required to be
timely made by Seller following the Closing); (iii) to legal counsel; 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.
6.13 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 Shares pursuant to this
Agreement for which such party is primarily liable under applicable law.
6.14 Independent Advice. Each Purchaser confirms that it has
independently participated in the negotiation of the transaction contemplated
hereby with the advice of its own counsel and advisors.
* * * * *
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
SELLER: PURCHASERS:
LENOVO IT ALLIANCE LIMITED FIDELITY ASIA VENTURES FUND L.P.
By: /s/ Xxxxxx Xxxxxx By: Fidelity Asia Partners, L.P., its
----------------- General Partner
Name: Xxxxxx Xxxxxx
Title: Vice President
By: FIL Asia Ventures Limited, its
Address: 23/F., Lincoln House, General Partner
Taikoo Place, 000 Xxxx'x Xxxx,
Xxxxxx Xxx, Xxxx Xxxx By: /s/ Xxxxxx Xxxx
---------------------
Name: Xxxxxx Xxxx
Title: Alternate Director
Facsimile No.: (000) 0000 0000
Attention: Xx. Xxxxxx Xxxxxx c/o Fidelity Asia Ventures
17/F, One International Finance Centre,
0 Xxxxxxx Xxxx Xxxxxx
Xxxxxxx, Xxxx Xxxx,
Xxxxxxxxx No.: (000) 0000 0000
Attention:
FIDELITY ASIA PRINCIPALS FUND L.P.
By: Fidelity Asia Partners, L.P., its
General Partner
By: FIL Asia Ventures Limited, its
General Partner
By: /s/ Xxxxxx Xxxx
---------------------
Name: Xxxxxx Xxxx
Title: Alternate Director
Address: c/o Fidelity Asia Ventures
17/F, One International Finance Centre,
0 Xxxxxxx Xxxx Xxxxxx
Xxxxxxx, Xxxx Xxxx,
Xxxxxxxxx No.: (000) 0000 0000
Attention:
[SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT]
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EXHIBIT A
SCHEDULE OF INVESTORS
PURCHASER SHARES AMOUNT
---------------------------------- --------- -------------
FIDELITY ASIA VENTURES FUND L.P. 685,071 USD$5,480,568
FIDELITY ASIA PRINCIPALS FUND L.P. 25,547 USD$204,376
---------------------------------- --------- -------------
Total 710,618 USD$5,684,944
---------------------------------- --------- -------------
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