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:
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