As filed with the Securities and Exchange Commission on February 18, 2004
Registration No. __________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Form S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ASIAINFO HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction 752506390
of incorporation or organization) (I.R.S. Employer Identification No.)
AsiaInfo Holdings, Inc.
4th Floor, Zhongdian Information Tower
No. 6 Zhongguancun South Street, Haidian District
Beijing 100086, China
Tel: (8610) 6250-1658
(Address of Principal Executive Offices)
ASIAINFO HOLDINGS, INC.
2002 STOCK OPTION PLAN
(Full title of the plan)
Melissa Lin, Manager
AsiaInfo Holdings, Inc.
5201 Great America Parkway, Suite 429
Santa Clara, California 95054
Tel: (408) 970-9788
(Name, address, and telephone number, including area code, of agent for service)
Copy to:
Matthew D. Adler, Esq.
Clifford Chance
3326 China World Tower 1
1 Jianguomenwai Dajie
Chaoyang District
Beijing 100004, China
Tel: (8610)6505 9018
Fax: (8610)6505 9028
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CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED REGISTERED OFFERING PRICE AGGREGATE REGISTRATION
(1) PER SHARE OFFERING PRICE FEE
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Common Stock, $0.01 par value, to be
issued upon exercise of options granted 2,384,290 $6.10(2) $14,544,169 $1,842.75
under the AsiaInfo Holdings, Inc. 2002
Stock Option Plan (the "Plan")
Common Stock, $0.01 par value, to be
issued upon exercise of options available
for future grant under the Plan 1,725,300 $7.83(3) $13,509,099 $1,711.60
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Total 4,109,590 $28,053,268 $3,554.35
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(1) This Registration Statement also covers an indeterminate number of shares
that may be issuable under the Plan because of any stock splits, stock dividends
or similar transactions in accordance with Rule 416 under the Securities Act of
1933, as amended (the "Securities Act").
(2) In accordance with Rule 457(h) under the Securities Act, the computation is
based upon the weighted average exercise price per share of approximately $6.10
as to 2,384,290 outstanding options to purchase Common Stock under the Plan.
(3) The Proposed Maximum Offering Price Per Share has been estimated in
accordance with Rule 457 (h) under the Securities Act as to an additional
1,725,300 shares of Common Stock authorized for issuance pursuant to the Plan
solely for the purpose of calculating the registration fee. No options have been
granted with respect to such shares. The computation is based on the average of
the high and low price of the Common Stock as reported on the Nasdaq National
Market on February 17, 2004 because the price at which the options to be
granted in the future may be exercised in not currently determinable.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
EXPLANATORY NOTE
We have prepared this Registration Statement in accordance with the
requirements of Form S-8 under the Securities Act to register 4,109,590 shares
of Common Stock, par value $.01 per share, (including additional shares that may
be reissued or offered as a result of stock splits, stock dividends or similar
transactions relating to these shares) which we have reserved for issuance upon
exercise of stock options granted under the Plan.
The information required by Part I of Form S-8 with respect to the
foregoing shares is included in documents sent or given to participants in the
Plan pursuant to Rule 428(b)(1) of the Securities Act.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of documents by reference
AsiaInfo Holdings, Inc. ("AsiaInfo") is subject to the informational and
reporting requirements of Sections 13(a), 14 and 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act"), and in accordance therewith files
reports, proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). The following documents, which are on file with
the Commission are incorporated in this Registration Statement by reference:
(a) AsiaInfo's Annual Report on Form 10-K (Commission File No. 001-15713)
for the year ended December 31, 2002, filed with the Commission on March 21,
2003.
(b) AsiaInfo's current report on Form 8-K filed with the Commission on
April 22, 2003, July 22, 2003, September 23, 2003, October 21, 2003, October 22,
2003, January 20, 2004 and February 13, 2004, including the Form 8-K Amendment
filed with the Commission on July 23, 2003, its quarterly reports on Form 10-Q
filed with the Commission on May 14, 2003, August 14, 2003 and November 14,
2003, including the form 10-Q Amendment filed with the Commission on September
25, 2003, and all other reports filed pursuant to Section 13(a) or Section 15(d)
of the Exchange Act since the end of 2002.
(c) The description of AsiaInfo's outstanding Common Stock contained in
AsiaInfo's Registration Statement on Form S-1 No. 333-93199, as amended, which
was declared effective March 2, 2000 by the Commission and AsiaInfo's
Registration Statement No. 001-15713 on Form 8-A filed with the Commission on
February 28, 2000, under Section 12 of the Exchange Act, including any amendment
or report filed for the purpose of updating such description.
In addition to the above, all documents subsequently filed by AsiaInfo
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all shares of
Common Stock offered hereby have been sold or which deregisters all shares of
Common Stock remaining unsold shall be deemed to be incorporated by reference in
this Registration Statement and to be part hereof from the date of the filing of
such documents.
Item 4. Description of securities
Not applicable.
Item 5. Interests of named experts and counsel
Not applicable.
Item 6. Indemnification of directors and officers
Section 145 of the Delaware General Corporation Law permits a
corporation to include in its charter documents and in agreements between the
corporation and its directors and officers, provisions expanding the scope of
indemnification beyond that specifically provided by the current law. AsiaInfo's
Certificate of Incorporation and Bylaws provides for the limitation of liability
and indemnification of officers, directors and third parties acting on behalf of
the corporation to the fullest extent permitted under the Delaware General
Corporation Law.
AsiaInfo has obtained an insurance policy covering directors and
officers for claims they might otherwise be required to pay or for which
AsiaInfo is required to indemnify them, subject to certain limited exclusions.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers, or persons controlling AsiaInfo
pursuant to the foregoing provisions, AsiaInfo has been informed that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
Item 7. Exemption from registration claimed
Not applicable.
Item 8. Exhibits
The Exhibits listed on the accompanying Index to Exhibits are filed as
a part of, or incorporated by reference into, this Registration Statement. (See
Index to Exhibits below).
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement (i) to include
any prospectus required by Section 10(a)(3) of the Securities Act; (ii) to
reflect in the prospectus any facts or events arising after the effective date
of this Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in this Registration Statement; and (iii) to
include any material information with respect to the plan of distribution not
previously disclosed in this Registration Statement or any material change to
such information in this Registration Statement; provided, however, that clauses
(i) and (ii) hereto do not apply if the information required to be included in a
post-effective amendment by clauses (i) and (ii) is contained in periodic
reports filed with or furnished to the Commission by AsiaInfo pursuant to
Section 13 or 15(d) of the Exchange Act that are incorporated by reference in
this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized.
Date: February 18, 2004
ASIAINFO HOLDINGS, INC.
By: /s/ Ying Han
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Ying Han
Chief Financial Officer
(duly authorized officer and
principal financial officer)
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Ying Han, as his or her attorney-in-fact,
with full power of substitution, for her in any and all capacities, to sign any
amendments to this Registration Statement on Form S-8 and to file the same, with
exhibits thereto and other documents in connection therewith, with the
Commission, hereby ratifying and confirming all that the said attorney-in-fact,
or her substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
Signature Title Date
/s/ James Ding Chairman of the Board and Board Member February 18, 2004
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James Ding
/s/ Xingsheng Zhang Chief Executive Officer and Board Member February 18, 2004
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Xingsheng Zhang
/s/ Alan Bickell Board Member February 18, 2004
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Alan Bickell
/s/ Chang Sun Board Member February 18, 2004
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Chang Sun
/s/ Michael Zhao Board Member February 18, 2004
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Michael Zhao
/s/ Tao Long Board Member February 18, 2004
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Tao Long
/s/ Edward Tian Board Member February 18, 2004
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Edward Tian
/s/ Weiying Zhang Board member February 18, 2004
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Weiying Zhang
/s/ Ying Wu Board member February 18, 2004
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Ying Wu
/s/ Ying Han Executive Vice President and Chief February 18, 2004
-------------------- Financial Officer
Ying Han
INDEX TO EXHIBITS
Exhibit Number Documents
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4* Instrument Defining Rights of Shareholders (Share
Certificate and Articles of Incorporation)
5.1 Opinion of Clifford Chance as to the legality of
securities being registered
23.1 Consent of Clifford Chance (contained in Exhibit 5.1)
23.2 Consent of Independent Auditors
24.1 Power of Attorney (set forth on signature page)
99** AsiaInfo Holdings, Inc. 2002 Stock Option Plan
* Incorporated by reference from AsiaInfo's Registration
Statement on Form S-1 No. 333-93199, originally filed
under the Securities Act with the Commission on December
21, 1999, as amended through the date hereof.
** Incorporated by reference from AsiaInfo's Proxy Statement
No. 001-15713 filed with the Commission on March 21, 2003
pursuant to Section 14(a) of the Exchange Act of 1934, as
amended.