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EXHIBIT 10.8
ASIAINFO HOLDINGS, INC.
1999 INCENTIVE STOCK OPTION PLAN, AS AMENDED
ARTICLE 1
PURPOSE
The purpose of the Plan is to attract employees to AsiaInfo Holdings, Inc., a
Delaware corporation (the "Company"), and to its Subsidiaries (hereafter
defined), and to provide such persons and employees of the Company and its
Subsidiaries with a proprietary interest in the Company through the granting of
Incentive Stock Options that will:
(a) increase the interest of the employees in the Company's welfare;
(b) furnish an incentive to the employees to continue their services for the
Company; and
(c) provide a means through which the Company may attract able persons to enter
its employ.
ARTICLE 2
DEFINITIONS
For the purpose of the Plan, unless the context requires otherwise, the
following terms shall have the meanings indicated:
"Board" means the board of directors of the Company and, to the extent
applicable, such members thereof as are delegated powers under Article 3 of this
Plan.
"Code" means the Internal Revenue Code of 1986, as amended.
"Common Stock" means the Common Stock, $.01 par value, which the Company is
currently authorized to issue or may in the future be authorized to issue.
"Company" means AsiaInfo Holdings, Inc., a Delaware corporation.
"Date of Grant" means the effective date on which an option is awarded to an
employee as set forth in the stock option agreement.
"Incentive Stock Option" means an option to purchase Common Stock of the Company
granted under this Plan and which is intended to qualify as an incentive stock
option under Section 422 of the Code.
"Option Period" means the period during which an option may be exercised.
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"Plan" means this AsiaInfo Holdings, Inc., 1999 Incentive Stock Option Plan, as
amended from time to time.
"Subsidiary" means any corporation, partnership, limited liability company, or
other entity (for the purposes of this definition, a "company") in an unbroken
chain of companies beginning with the Company if, at the time of the granting of
an Incentive Stock Option, each of the companies other than the last company in
the unbroken chain owns stock possessing 50% or more of the total combined
voting power of all classes of stock or other interests in one of the other
companies in the chain, and "Subsidiaries" means more than one of any such
companies.
ARTICLE 3
ADMINISTRATION
The Plan shall be administered by the Board; provided, however, that the Board
in its discretion may appoint a Stock Option Committee (the "Committee") or
designate the Compensation Committee of the Board as the Committee, the
Committee consisting of not fewer than two persons, for the purpose of
administering the Plan (hereafter, for convenience only, all references to
administration will be to the Board). The Board may upon resolution delegate
some or all of its powers with respect to the administration of the Plan to the
Committee. The Committee shall have only such powers as may be so delegated.
If the Board delegates some or all of its powers to the Committee as provided
hereunder, any member of the Committee (or all members in the event the Board
elects to assume direct responsibility for administration of the Plan) may be
removed at any time, with or without cause, by resolution of the Board. Any
vacancy occurring in the membership of the Committee may be filled by
appointment by the Board. The Committee shall select one of its members to act
as its Chairman and shall make such rules and regulations for its operation as
it deems appropriate. A majority of the Committee shall constitute a quorum, and
the act of a majority of the members of the Committee present at a meeting at
which a quorum is present shall be the act of the Committee. The Committee shall
determine and designate from time the employees to whom options will be granted,
the number of shares subject to each option, interpret the Plan, prescribe,
amend, and rescind any rules and regulations necessary or appropriate for the
administration of the Plan, and make such other determinations and take such
other action as it deems necessary or advisable. Any interpretation,
determination, or other action made or taken by the Committee shall be final,
binding, and conclusive on all interested parties. If no Committee is appointed,
the Board shall have the powers described in this Article.
ARTICLE 4
ELIGIBILITY
Any employee of the Company or any of its Subsidiaries whose judgment,
initiative and
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efforts contributed or may be expected to contribute to a successful performance
of the Company is eligible to participate in the Plan.
ARTICLE 5
SHARES SUBJECT TO PLAN
The Board may not grant options under the Plan for more than Four Million Five
Hundred and Eight Thousand (4,508,000) shares of Common Stock of the Company (as
may be adjusted in accordance with Article 20 hereof). Shares to be optioned and
sold may be made available from either authorized but unissued Common Stock or
Common Stock held by the Company in its treasury. Shares that by reason of the
expiration or cancellation of an option granted under the Plan may be reoffered
under the Plan.
ARTICLE 6
STOCK OWNERSHIP LIMITATIONS
No option may be granted to an employee who owns more than 5% of the total
combined voting power of all classes of stock of the Company or its
Subsidiaries; provided, however, that this limitation will not apply if the
exercise price is at least 110% of the fair market value of the stock of the
Company on the Date of Grant and the Option Period is not greater than five
years from the Date of Grant.
ARTICLE 7
LIMITATION ON EXERCISES
To the extent required by the Code, the exercise of options granted under the
Plan shall be subject to the $100,000 calendar-year limit set forth in Section
422(d) of the Code.
ARTICLE 8
ALLOTMENT OF SHARES
The Board shall determine the number of shares of Common Stock to be offered
from time to time by grant of options to participants under the Plan. The grant
of an option to a participant shall not be deemed either to entitle the
participant to, or to disqualify the participant from, participation in any
other grant of options under the Plan.
ARTICLE 9
GRANT OF OPTIONS
All options under the Plan shall be granted by the Board and are intended to be
Incentive
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Stock Options. The grant of options shall be evidenced by stock option
agreements setting forth the total number of shares subject to the option, the
exercise price, the term of the option, the Date of Grant, and such other terms
and provisions as are approved by the Board, but not inconsistent with the Plan,
including provisions that may be necessary to assure that the option is an
Incentive Stock Option under the Code. The Company shall execute stock option
agreements with the participants after approval of the issuance of stock option
grants. The Plan shall be submitted to the Company's stockholders for approval;
however, the Board may grant options under the Plan prior to the time of
stockholder approval.
ARTICLE 10
EXERCISE PRICE
The exercise price shall not be less than 100% of the fair market value per
share of the Common Stock on the Date of Grant. The Board shall determine the
fair market value of the Common Stock on the Date of Grant and shall set forth
the determination in its minutes, using any reasonable valuation method.
ARTICLE 11
OPTION PERIOD
The Option Period of each option will begin and terminate on the dates specified
by the Board, but may not terminate later than ten years from the Date of Grant.
No option granted under the Plan may be exercised at any time after its term.
The Board may provide for exercise of options immediately or in instalments and
upon such other terms, conditions and restrictions as it may determine,
including granting the Company the right to repurchase shares issued upon
exercise of options.
ARTICLE 12
TERMINATION OF EMPLOYMENT
In the event a participant shall cease to be employed by the Company or its
Subsidiaries, such participant's Incentive Stock Options shall be terminated as
follows:
(a) Death. In the event of death while employed, the option may be exercised,
for a period of ninety (90) days after the participant's death or until
expiration of the Option Period (if sooner) to the extent of the shares
with respect to which the option could have been exercised by the
participant on the date of the participant's death; such option may only be
exercised by the personal representative of the participant's estate or by
the person who acquired the right to exercise the option by bequest or
inheritance or by reason of the participant's death.
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(b) Disability. In the event of termination of employment as the result of a
total and permanent disability (as defined in Section 22 (e) of the Code),
the option may be exercised by the participant or his guardian for a period
of ninety (90) days after such termination or until expiration of the
Option Period (if sooner), to the extent of the shares with respect to
which the option could have been exercised by the participant on the date
of such termination.
(c) Termination for Other Reasons. In the event of termination of employment
(for reasons other than as set forth in subparagraphs (a) and (b) above),
the option may be exercised by participant for a period of 30 days after
the participant's termination or until expiration of the Option Period (if
sooner), to the extent of the shares with respect to which the option could
have been exercised by the participant on the date of termination.
ARTICLE 13
PAYMENT
Full payment for shares purchased upon exercise of an option shall be made in
cash, at the option of the Board by the participant's delivery to the Company of
shares of Common Stock which have a fair market value equal to the exercise
price, or at the option of the Board in any combination of cash and shares of
Common Stock having an aggregate fair market value equal to the exercise price.
No shares may be issued until full payment of the purchase price thereof has
been made, and a participant will have none of the rights of a stockholder until
shares are issued to him.
ARTICLE 14
EXERCISE OF OPTIONS
Options granted under the Plan may be exercised during the Option Period, at
such times and in such amounts, in accordance with the terms and conditions and
subject to such restrictions as are set forth in the applicable stock option
agreements. If the Board imposes conditions upon exercise, then subsequent to
the Date of Grant the Board may, also in its sole discretion, accelerate the
date on which all or any portion of the options may be exercised. In no event
may an option be exercised or shares be issued pursuant to an option if
necessary listing of the shares on a stock exchange or any registration under
state or federal securities laws required under the circumstances has not been
accomplished.
ARTICLE 15
NON-ASSIGNABILITY
An option granted to a participant may not be transferred or assigned other than
by will or by
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the laws of descent and distribution or pursuant to the terms of a qualified
domestic relations order as defined in Code Section 411(a)(13). If the
participant attempts to alienate, assign, pledge, hypothecate or otherwise
dispose of his option or any right thereunder, except as provided for in this
Plan or the stock option agreement, or in the event of any levy, attachment,
execution or similar process upon the right or interest conferred by this Plan
or the stock option agreement, the Board may terminate the participant's option
by notice to him, and it shall thereupon become null and void.
ARTICLE 16
DISQUALIFYING DISPOSITION
If stock acquired upon exercise of an Incentive Stock Option is disposed of by a
participant prior to the expiration of either two years from the Date of Grant
of such option or one year from the transfer of shares to the participant
pursuant to the exercise of such option, or in any other disqualifying
disposition within the meaning of Section 422 of the Code, such participant
shall notify the Company in writing of the date and terms of such disposition. A
disqualifying disposition by a participant shall not affect the status of any
other option granted under the Plan as an Incentive Stock Option within the
meaning of Section 422 of the Code.
ARTICLE 17
AMENDMENT OR DISCONTINUANCE
The Plan may be amended or discontinued by the Board without the approval of the
stockholders of the Company, unless stockholders approval is required to
maintain the special tax treatment for Incentive Stock Options under the Code or
by any stock exchange on which the shares to be issued upon exercise of the
options are listed. No amendment may adversely affect an outstanding option
without the consent of the participant.
ARTICLE 18
EFFECT OF THE PLAN
Neither the adoption of this Plan nor any action of the Board or the Committee
shall be deemed to give any officer or employee any right to be granted an
option to purchase Common Stock of the Company or any other rights except as may
be evidenced by a stock option agreement, or any amendment thereto, duly
authorized by the Board and executed on behalf of the Company and then only to
the extent and upon the terms and conditions expressly set forth therein.
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ARTICLE 19
TERM
Unless sooner terminated by action of the Board, the Plan will terminate on the
[tenth] anniversary of the Effective Date, but options granted before the date
will continue to be effective in accordance with their terms and conditions.
ARTICLE 20
RECAPITALIZATION, MERGER AND CONSOLIDATION
(a) The existence of this Plan and options granted hereunder shall not affect
in any way the right or power of the Company or its stockholders to make or
authorize any or all adjustments, recapitalizations, reorganizations or
other changes in the Company's capital structure and its business, or any
merger or consolidation of the Company, or any issue of bonds, debentures,
preferred or preference stocks ranking prior to or otherwise affecting the
Common stock or the rights thereof (or any rights, options or warrants to
purchase same), or the dissolution or the liquidation of the Company, or
any sale or transfer of all or any part of its assets or business, or any
other corporate act or proceeding, whether or a similar character or
otherwise.
(b) The number of shares of Common Stock available under the Plan described in
Article 5, the number of shares of Common Stock that may be purchased
pursuant to options granted under the Plan, and the consideration payable
per share upon exercise, shall be proportionately adjusted by the Board for
any increase or decrease in the number of issued shares of Common Stock
resulting from a subdivision or consolidation of shares or other capital
adjustment, or the payment of a stock dividend or other increase or
decrease in such shares, effected without receipt of consideration by the
Company; provided, however, that any fractional shares resulting from any
such adjustment shall be eliminated for the purposes of such adjustment.
(c) Subject to any required action by the stockholders, if the Company shall be
the surviving or resulting corporation in any merger or consolidation, any
option granted hereunder shall pertain to and apply to the securities or
rights (including cash, property or assets) to which a holder of the number
of shares of Common Stock subject to the option would have been entitled.
(d) In the event of any merger or consolidation pursuant to which the Company
is not the surviving or resulting corporation, there shall be substituted
for each share of Common Stock subject to the unexercised portions of such
outstanding options, that number of shares of each class of stock or other
securities or that amount of cash, property or assets of the surviving or
consolidated company which were distributed or distributable to the
stockholders of the Company in respect to each share of Common Stock held
by them, such outstanding options to be thereafter exercisable (subject to
appropriate adjustment, if appropriate, as to the per share exercise prices
for such
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stock, securities, cash or property, as determined under subsection (b)
above) in accordance with their terms. Notwithstanding the foregoing,
however, all such options may be cancelled by the Company as of the
effective date of any such reorganization, merger or consolidation or of
any dissolution or liquidation of the Company by giving notice to each
holder thereof or his personal representative of its intention to do so and
by permitting the purchase during the thirty (30) day period next preceding
such effective date of all of the shares subject to such outstanding
options.
(e) In the event that either sufficient shares of the Company's Common Stock
are purchased, or any tender, exchange or similar offer is commenced which
would, if successful (i) result in any of the events described in sections
20(c) and (d) or (ii) materially alter the structure or business of the
Company, then, notwithstanding any other provision in its Plan to the
contrary, all unmatured instalments of options outstanding shall thereupon
automatically be accelerated and exercisable in full and any right the
Company may have to repurchase shares issued upon exercise of options shall
terminate. The determination of the Board that any of the foregoing
conditions has been met shall be binding and conclusive an all parties.
(f) Expect as hereinbefore expressly provided, the issue by the Company of
shares of stock of any class, or securities convertible into shares of
stock of any class, for cash or property, or for labor or services either
upon direct sale or upon the exercise of rights or warrants to subscribe
therefor, or upon conversion of shares or obligations of the Company
convertible into such shares or other securities, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number or
price of shares of Common Stock subject to options granted pursuant to this
Plan.
(g) Upon the occurrence of each event requiring an adjustment of the price or
the number of shares purchasable pursuant to options granted pursuant to
the terms of this Plan, the Company shall mail forthwith to each
participant a copy of its computation of such adjustment which shall be
conclusive and shall be binding upon each such participant.
ARTICLE 21
LIQUIDATION OR DISSOLUTION
In case the Company shall, at any time while any option under this Plan shall be
in force and remain unexpired, (i) sell all or substantially all its property,
or (ii) dissolve, liquidate, or wind up its affairs, then each participant may
thereafter receive upon exercise hereof (in lieu of each share of Common Stock
of the Company which such participant would have been entitled to receive) the
same kind and amount of any securities or assets as may be issuable,
distributable or payable upon any such sale, dissolution, liquidation, or
winding up with respect to each share of Common Stock of the Company. If the
Company shall, at any time prior to the expiration of any option, make any
partial distribution of its assets, in the nature of a partial liquidation,
whether payable in cash or in kind (but excluding the distribution of a cash
dividend payable out of earned surplus and designated as such) then in such
event the prices then in effect with respect to each option shall be reduced, on
the payment date of such
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distribution, in proportion to the percentage reduction in the tangible book
value of the shares of the Company's Common Stock (determined in accordance with
generally accepted accounting principles) resulting by reason of such
distribution.
ARTICLE 22
OPTIONS IN SUBSTITUTION FOR
STOCK OPTIONS GRANTED BY OTHER CORPORATIONS
Stock options may be granted under the Plan from time to time in substitution
for such options held by employees of a corporation who become or are about to
become employees of the Company or its Subsidiaries as the result of a merger or
consolidation of the employing entity with the Company or the acquisition by the
Company of stock of the employing entity. The terms and conditions of the
substitute options so granted may vary from the terms and conditions set forth
in this Plan to such extent as the Board at the time of grant may deem
appropriate to conform, in whole or in part, to the provisions of the options in
substitution for which they are granted.
ARTICLE 23
INVESTMENT INTENT
The Company may require that there be presented to and filed with it by any
participant under the Plan, such evidence as it may deem necessary to establish
that the options granted or the shares of Common Stock to be purchased or
transferred are being acquired for investment and not with a view to their
distribution.
ARTICLE 24
NO RIGHT TO CONTINUE EMPLOYMENT
Nothing in the Plan or the grant of any option confers upon any employee the
right to continue in the employ of the Company or its Subsidiaries or interferes
with or restricts in any way the right of the Company or its Subsidiaries to
discharge any employee at any time (subject to any contract rights of such
employee).
ARTICLE 25
INDEMNIFICATION OF BOARD AND COMMITTEE
No member of the Board or the Committee, nor any officer or employee of the
Company acting on behalf of the Board or the Committee, shall be personally
liable for any action, determination, or interpretation taken or made in good
faith with respect to the Plan, and all members of the Board or the Committee
and each and any officer or employee of the
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Company acting on their behalf shall, to the extent permitted by law, be fully
indemnified and protected by the Company in respect of any such action,
determination or interpretation. This obligation shall survive any termination
of this Plan.
ARTICLE 26
TAX REQUIREMENTS
The Company shall have the right to deduct from all amounts hereunder paid in
cash any taxes required by United States (including state and local taxes) or
other applicable law to be withheld with respect to such cash payments. The
employee receiving shares issued upon exercise of any stock option shall be
required to pay the Company the amount of any taxes which the Company is
required to withhold with respect to such shares of Common Stock. Such payments
shall be required to be made prior to the delivery of any certificate
representing such shares of Common Stock. Such payment may be made in cash, by
check, or through the delivery of shares of Common Stock owned by the employee
(which may be effected by the actual delivery of shares of Common Stock by the
employee or by the Company's withholding a number of shares to be issued upon
the exercise of the stock option), which shares have an aggregate fair market
value equal to the required withholding payment, or any combination thereof.
ARTICLE 27
EFFECTIVE DATE
The effective date (the "Effective Date") of the Plan shall be 1 June 1999, that
is, the date the plan was approved and adopted by the Board.
IN WITNESS WHEREOF, the Company has caused this instrument to be executed as of
the effective date, by its President pursuant to prior action taken by the
Board.
ASIAINFO HOLDINGS, INC.
By: James Ding
Title: CEO and Company Secretary
Signature: /s/ James Ding
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