<PAGE>
As filed with the Securities and Exchange Commission on August 28, 2000
Registration No. 333-
_____________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________________
Form S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
ASIAINFO HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
Delaware 752506390
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
c/o AsiaInfo Technologies (China), Inc.
4th Floor, Zhongdian Information Tower
No. 18, Baishiqiao Road, Haidian District
Beijing 100086, China
Tel: (8610) 6250-1658
(Address of Principal Executive Offices) (Zip Code)
ASIAINFO HOLDINGS, INC.
1999 INCENTIVE STOCK OPTION PLAN, AS AMENDED
ASIAINFO HOLDINGS, INC
1997 INCENTIVE STOCK OPTION PLAN
[AsiaInfo Holdings, Inc. Restricted Stock]
(Full title of the plans)
James Zhang, General Manager
AsiaInfo Holdings, Inc.
Techmart of Santa Clara
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:
Jeffrey M. Maddox
Clifford Chance
Jardine House, 29th Floor
One Connaught Place
Central, Hong Kong
Tel: (852) 2825-8888
Fax: (852) 2825-8800
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=============================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Per Aggregate Offering Amount of
to be Registered Registered/(1)/ Share/(2)/ Price/(2)/ Registration Fee
-----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1999 Incentive Stock
Option Plan, As Amended 3,168,000/(3)/ $34.38 $108,915,840 $28,753.78
Common Stock ($.01 par value)
-----------------------------------------------------------------------------------------------------------------------------
1997 Incentive Stock
Option Plan,
Common Stock ($.01 par value) 424,800/(4)/ $34.38 $14,604,624 $3,855.62
-----------------------------------------------------------------------------------------------------------------------------
Restricted Securities offered for
resale 2,663,057 $34.38 $91,555,900 $24,170.76
-----------------------------------------------------------------------------------------------------------------------------
TOTAL 6,255,857 -- $215,076,364 $56,780.16
-----------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) This Registration Statement also covers an indeterminate number of shares
that may be issuable as a result of any stock splits, stock dividends or
similar transactions in accordance with Rule 416 under the Securities Act
of 1933, as amended.
(2) Estimated solely for the purpose of computing the registration fee,
pursuant to Rule 457(c) and 457(h), on the basis of the average of the high
and low sales prices of AsiaInfo's common stock as reported on the Nasdaq
National Market on August 21, 2000.
(3) AsiaInfo Holdings, Inc. is registering an aggregate 3,168,000 shares under
its 1999 Incentive Stock Option Plan, as amended, pursuant to this
Registration Statement. This aggregate number represents an increase in the
shares reserved for issuance under AsiaInfo Holdings, Inc.'s 1999 Incentive
Stock Option Plan with 418,000 new shares approved on November 15, 1999;
1,500,000 new shares approved on November 16, 1999; 1,000,000 new shares
approved on December 14, 1999; and 250,000 new shares approved on April 18,
2000. An aggregate of 1,313,000 shares were previously registered for
issuance under the 1999 Incentive Stock Option Plan pursuant to the
previous Form S-8 filed by AsiaInfo Holdings, Inc. with the Securities and
Exchange Commission (the "Commission") on June 15, 2000 (Registration No.
333-39366).
(4) AsiaInfo Holdings, Inc. is registering an additional 424,800 shares under
its 1997 Incentive Stock Option Plan pursuant to this Registration
Statement. This aggregate number represents the number of non-registered
shares available for issuance under the 1997 Incentive Stock Option Plan.
An aggregate of 1,300,000 shares were previously registered for issuance
under the 1997 Incentive Stock Option Plan pursuant to the previous Form S-
8 filed by AsiaInfo Holdings, Inc. with the Commission on June 15, 2000
(Registration No. 333-39366).
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
EXPLANATORY NOTE
Pursuant to General Instruction E on Form S-8 regarding the registration of
additional securities, AsiaInfo Holdings, Inc. ("AsiaInfo") hereby is
registering additional shares of common stock, par value $0.1 per share, in the
number set forth on the cover page of this Registration Statement. Such shares
are of the same class as other securities of the Company for which a previous
Registration Statement on Form S-8 has been filed with the Securities and
Exchange Commission relating to AsiaInfo's 1995 Incentive Stock Option Plan;
1996 Incentive Stock Option Plan; 1997 Incentive Stock Option Plan; 1998
Incentive Stock Option Plan; and 1999 Incentive Stock Option Plan (the "Plans").
The aforementioned Plans were registered under the Registration Statement on
Form S-8 (File No. 333-39366) filed on June 15, 2000.
Pursuant to Rule E, this Registration Statement contains such information
required by Form S-8 that is not otherwise included in the Registration
Statement on Form S-8 (File No. 333-39366) filed on June 15, 2000 and in the
Post-Effective Amendment to the Registration Statement on Form S-8 filed on
August 28, 2000.
The Prospectus set forth below and filed as part of this Registration
Statement has been prepared in accordance with the requirements on Form S-3 and
may be used for reofferings and resales of unregistered securities of common
stock of AsiaInfo issued by AsiaInfo prior to the filing of the Registration
Statement on Form S-8 (File No. 333-39366) filed on June 15, 2000.
<PAGE>
REOFFER PROSPECTUS
2,663,057 Shares
AsiaInfo Holdings, Inc.
Common Stock
This Prospectus relates to the public offering and sale by certain
stockholders (the "Selling Shareholders") of up to 2,663,057 shares of common
stock, par value $.01 per share, which they have acquired under various employee
benefit plans prior to the filing of the Registration Statement on Form S-8 (No.
333-39366) on June 15, 2000 with the Securities and Exchange Commission (the
"Commission").
The prices at which the Selling Shareholders may sell the shares will be
determined by the prevailing market price for the shares or in negotiated
transactions. We will not receive any proceeds from the sale of the shares.
Our common stock is listed on the NASDAQ National Market under the symbol
"ASIA".
---------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this Prospectus. Any representation to the contrary is
a criminal offense.
The date of this Prospectus is August 28, 2000
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Items Page No.
-----
<S> <C>
Where You Can Find More Information .....................................2
The Company .....................................3
Risk Factors .....................................3
Use of Proceeds ................................... 13
Plan of Distribution ................................... 13
Selling Shareholders ................................... 15
Interests of Named Experts and Counsel ................................... 19
Legal Matters ................................... 19
Disclosure of Commission Position
on Indemnifications For Securities
Act Liabilities ................................... 19
</TABLE>
No person has been authorized to give any information or to make any
representations other than those contained in this Prospectus in connection with
the offering made hereby, and if given or made, such information or
representations must not be relied upon as having been authorized by AsiaInfo
Holdings, Inc. (referred to in this Prospectus as "AsiaInfo" or the
"Registrant"), any Selling Shareholder or by any other person. Neither the
delivery of this Prospectus nor any sale made hereunder shall, under any
circumstances, create any implication that information herein is correct as of
any time subsequent to the date hereof. This Prospectus does not constitute any
offer to sell or a solicitation of an offer to buy any security other than the
securities covered by this Prospectus, nor does it constitute an offer to or
solicitation of any person in any jurisdiction in which such offer or
solicitation may not lawfully be made.
1
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the Commission. You may read and copy any documents we file at
the Commission's public reference rooms in Washington, D.C., New York, New York
and Chicago, Illinois. Please call the Commission at 1-800-SEC-0330 for further
information on public reference rooms. Our filings with the Commission are also
available to the public from the Commission's web site at http://www.sec.gov.
The Commission allows us to "incorporate by reference" certain information
we file with them, which means that we can disclose important information to you
by referring you to those documents. We incorporate by reference the documents
listed below and any future filings made by us with the Commission under
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") until we sell all of the securities that we have registered.
Information that we file later with the Commission will automatically update and
supersede this information.
We have incorporated by reference into this Prospectus the following
documents we filed with the Commission:
(a) AsiaInfo's prospectus filed with the Commission under Rule 424(b)
under the Securities Act of 1933 (the "Securities Act"), in connection with the
Registration Statement on Form S-1 No. 333-93199 filed with the Commission on
December 21, 1999, the amendment filed on February 3, 2000, the amendment filed
on February 17, 2000, the amendment filed on March 1, 2000, and the Registration
Statement on Form S-1 No. 333-93199, as amended, which was declared effective on
March 2, 2000 by the Commission.
(b) AsiaInfo's quarterly reports on Form 10-Q filed with the Commission on
May 15, 2000 and August 14, 2000 under Section 13(a) of the Exchange Act and all
other reports filed pursuant to Section 13(a) or Section 15(d) of the Exchange
Act since the end of the 1999.
(c) The description of AsiaInfo's outstanding Common Stock contained in
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; 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; AsiaInfo's Registration Statement No. 333-39366 on
Form S-8 filed with the Commission on June 15, 2000; and AsiaInfo's Post-
Effective Amendment to the Registration Statement filed with the Commission on
August 28, 2000.
All reports and definitive proxy or information statements filed under
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold shall also be incorporated by
reference into this Registration Statement and deemed to be a part hereof from
the date of filing of such documents.
You may request a copy of these filings, at no cost, by contacting us at
the following address and telephone number: Mr Charles Liang, General Counsel,
c/o AsiaInfo Technologies (China), Inc.,
2
<PAGE>
4th Floor, Zhongdian Information Tower, No. 18 Baishiqiao Road, Haidian
District, Beijing 100086, China at (8610) 6250 1658.
You should rely on the information incorporated by reference or provided in
this Prospectus or any prospectus supplement. We have authorized no one to
provide you with different information. We are not making an offer of these
securities in any state where the offer is not permitted. You should not assume
that the information in this Prospectus or any prospectus supplement is accurate
as of any date other than the date on the front of the document.
THE COMPANY
AsiaInfo's principal executive offices are located at c/o AsiaInfo
Technologies (China), Inc., 4th Floor, Zhongdian Information Tower, No. 18,
Baishiqiao Road, Haidian District, Beijing 100086, China, and our telephone
number is (8610) 6250 1658.
RISK FACTORS
You should carefully consider the risks and uncertainties described below
before making an investment decision. The risks described below are not the only
ones facing AsiaInfo. Additional risks not presently known to us or that we
currently deem immaterial may also impair our business operations. Our business,
financial condition or results of operations could be materially adversely
affected by any of these risks. The trading price of our common stock could
decline due to any of these risks, and you may lose all or part of your
investment.
This Prospectus also contains forward-looking statements that involve risks
and uncertainties. Our actual results could differ materially from those
anticipated in these forward-looking statements as a result of certain factors,
including the risks faced by us described below and elsewhere in this
Prospectus.
RISKS RELATING TO ASIAINFO
THE GROWTH OF OUR BUSINESS IS DEPENDENT ON GOVERNMENT BUDGETARY POLICY,
PARTICULARLY THE ALLOCATION OF FUNDS, TO SUSTAIN THE GROWTH OF THE
TELECOMMUNICATIONS INDUSTRY AND THE INTERNET IN CHINA.
Virtually all our large customers are directly or indirectly owned or
controlled by the Chinese government. Accordingly, their business strategies and
capital expenditure budgets and spending plans are largely decided in accordance
with government policies, which, in turn, are determined on a centralized basis
at the highest level by the State Planning Commission. As a result, the growth
of our business is heavily dependent on government policies for
telecommunications and Internet infrastructure.
Despite the high priority currently accorded by the government to the
development of telecommunications industry and Internet infrastructure and a
high level of funding allocated by the government to these sectors in 1999, we
believe that our customers' capital spending for Internet infrastructure was
lower in 1999 than 1998 due to a variety of factors, particularly the current
restructuring of the telecommunications industry. While there is a possibility
that the unspent funds will be carried forward to 2000, we cannot make any
conclusions or predictions at this time regarding government funding plans for
the telecommunications industry and the Internet. Furthermore, we can
3
<PAGE>
give no assurance as to the government's budget policies in future years.
Insufficient government allocation of funds to sustain the growth of the
telecommunications industry and the Internet in China could reduce the demand
for our products and services and thus have a material adverse effect on our
ability to maintain the current level of revenue and grow our business.
LAWS AND REGULATIONS APPLICABLE TO THE INTERNET IN CHINA REMAIN UNSETTLED
AND COULD HAVE A MATERIAL ADVERSE EFFECT ON INTERNET'S GROWTH AND THEREBY HAVE
MATERIAL ADVERSE EFFECT ON OUR BUSINESS.
Growth of the Internet in China could be materially adversely affected by
governmental regulation of the industry. Due to the increasing popularity and
use of the Internet and other online services, it is possible that regulations
may be adopted with respect to the Internet or other services covering issues
such as user privacy, pricing, content, copyrights, distribution, antitrust and
characteristics and quality of products and services. Furthermore, the growth
and development of the market for electronic commerce may prompt calls for more
stringent consumer protection laws that may impose additional burdens on
companies conducting business online. Although we are engaged in Internet
infrastructure development and Internet-related software business, the adoption
of additional laws or regulations may slow the growth of the Internet or other
services, which could in turn lead to reduced Internet traffic, decrease the
demand for our network solutions and Internet-related software products and
increase our cost of doing business.
The Ministry of Information Industries is currently reviewing its
telecommunications regulations, particularly as they relate to Internet content.
While we are not aware of any existing or proposed regulations that have a
significant direct adverse effect on our business, a restrictive regulatory
policy regarding the Chinese Internet industry would have a material direct
adverse effect on us by retarding the industry's growth in China.
OUR CUSTOMER BASE IS HIGHLY CONCENTRATED AND THE LOSS OF ONE OR MORE OF OUR
CUSTOMERS COULD CAUSE OUR BUSINESS TO SUFFER SIGNIFICANTLY.
We have derived and believe that we will continue to derive a significant
portion of our revenues from a limited number of large customers, such as the
China Telecom system and China Unicom. Although various provincial and local
entities of the China Telecom system are separate legal entities and generally
make purchasing decisions independent of the Directorate General of
Telecommunications, or DGT, their business decisions may nonetheless be affected
by the DGT. Entities of the China Telecom system accounted for almost all of our
revenues in 1997 and 1998. At December 31, 1999, entities of the China Telecom
system and China Unicom accounted for approximately 87% of our backlog and on
June 30, 2000 that figure was 82%. In the future, we expect to derive an
increasing portion of our revenues from China Unicom, China Mobile and China
Netcom. The loss of the China Telecom system, whose provincial and local
entities have historically accounted for a major portion of our business, or
cancellation or deferral of any large contract by any of our large customers
would have a material adverse effect on our revenues, and consequently our
profits.
THE LONG AND VARIABLE SALES CYCLES FOR OUR PRODUCTS AND SERVICES CAN CAUSE
OUR REVENUES AND OPERATING RESULTS TO VARY SIGNIFICANTLY FROM PERIOD TO PERIOD
AND MAY ADVERSELY AFFECT THE TRADING PRICE OF OUR COMMON STOCK.
4
<PAGE>
Our revenues and operating results will vary significantly from quarter to
quarter due to a number of factors, many of which are outside of our control and
any of which may cause our stock price to fluctuate. A customer's decision to
purchase our services and products involves a significant commitment of its
resources and an extended evaluation. As a result, our sales cycle tends to be
lengthy. We spend considerable time and expense educating and providing
information to prospective customers about features and applications of our
services and products. Because our major customers operate large and complex
networks, they usually expand their networks in large increments on a sporadic
basis. The combination of these factors can cause our revenues and results of
operations to vary significantly and unexpectedly. Other factors that may affect
us include the following:
. fluctuation in demand for our products and services as a result of
budgetary cycles of our large customers, particularly state-owned
enterprises;
. the reduction, delay, interruption or termination of one or more
infrastructure projects; and
. our ability to introduce, develop and deliver new software products that
meet customer requirements in a timely manner.
A large part of the contract amount of a network solutions project usually
relates to hardware procurement. Since we recognize most of the revenues
relating to hardware plus a portion of contract services revenues at the time of
hardware delivery, the timing of hardware delivery can cause our quarterly
revenues to fluctuate significantly.
Due to the foregoing factors, we believe that quarter-to-quarter comparisons
of our operating results are not a good indication of our future performance and
should not be relied upon. It is likely that our operating results in some
periods may be below the expectations of public market analysts and investors.
In this event, the price of our common stock will probably decline, perhaps
significantly more in percentage terms than the decline in operating results.
OUR WORKING CAPITAL REQUIREMENTS MAY INCREASE SIGNIFICANTLY.
We typically purchase hardware for our customers as part of our turnkey total
solutions services. We generally require our customers to pay 90% of the invoice
value of the hardware upon delivery. We place orders for hardware only against a
back-to-back order from customers and seek favorable payment terms from hardware
vendors. This policy has historically minimized our working capital
requirements. However, for certain large and strategically important projects,
we have agreed to payment of less than 90% of the invoice value of the hardware
upon delivery in order to maintain competitiveness. Wider adoption of less
favorable payment terms or delays in hardware deliveries would require us to
increase our working capital needs.
Our working capital requirements may also increase significantly in order to
fund more rapid expansion and acquisitions, to develop new or enhanced services
or products, to respond to competitive pressure to compete successfully for
larger projects involving higher levels of hardware purchases or otherwise if
our business grows more rapidly than we currently predict. An increase in our
working capital needs may require that we raise additional funding following
this offering sooner than we presently expect.
5
<PAGE>
WE HAVE SUSTAINED LOSSES IN PRIOR YEARS AND MAY INCUR SLOWER EARNINGS GROWTH,
EARNINGS DECLINES OR NET LOSSES IN THE FUTURE.
Although we made a net profit in 1996 and 1998, we have sustained losses in
prior years and in 1999. There are no assurances that we can regain or sustain
profitability or avoid net losses in the future. We continue to expect to
increase our operating expenses as our business grows. The level of these
expenses will be largely based on anticipated organizational growth and revenue
trends and a high percentage will be fixed. As a result, any delays in expanding
sales volume and generating revenue could result in substantial operating
losses. Any such developments could cause the market price of shares of our
common stock to decline.
MANAGEMENT'S ABILITY TO IMPLEMENT ADEQUATE CONTROL SYSTEMS WILL BE CRITICAL TO
SUCCESSFULLY MANAGE OUR FUTURE GROWTH.
We have been expanding our operations rapidly, both in size and scope, in
recent years. Our growth places a significant strain on our management systems
and resources. Our ability to successfully offer our products and implement our
business plan in a rapidly evolving market requires an effective planning and
management process. We will need to continue to improve our financial,
managerial and operational controls and reporting systems, and to expand, train
and manage our work force. We may not be able to implement adequate control
systems in an efficient and timely manner.
WE FACE A COMPETITIVE LABOR MARKET IN CHINA FOR SKILLED PERSONNEL AND
THEREFORE ARE HIGHLY DEPENDENT ON THE SKILLS AND SERVICES OF OUR EXISTING KEY
SKILLED PERSONNEL AND OUR ABILITY TO HIRE ADDITIONAL SKILLED EMPLOYEES.
Competition for highly skilled software design, engineering and sales and
marketing personnel is intense in China. Failure to attract, assimilate or
retain qualified personnel to fulfill our current or future needs could impair
our growth. Competition for skilled personnel comes primarily from a wide range
of foreign companies active in China, many of which have substantially greater
resources than us. Limitations on our ability to hire and train sufficient
number of personnel at all levels would limit our ability to undertake projects
in the future and could cause us to lose market share. We may need to increase
the levels of our employee compensation more rapidly than in the past in order
to remain competitive. These additional costs could reduce our profitability and
cause losses.
SINCE OUR BUSINESS HAS BEEN EVOLVING, OUR HISTORICAL FINANCIAL INFORMATION MAY
NOT BE AN APPROPRIATE BASIS ON WHICH TO EVALUATE US OR OUR PROSPECTS.
We moved our operations from Texas to China in 1995, began generating
substantial network solutions revenue in 1996 and selling software products in
1996. We expect our business to continue to evolve as the Internet and
telecommunications markets in China change and expand. In particular, we are
currently investing substantial personnel and financial resources in expanding
our software business, which we expect to account for a significantly greater
portion of our operating expenses and revenues than in the past. As a result,
our historical financial data may not provide a meaningful basis upon which
investors may evaluate us and our prospects. You should consider the risks and
difficulties encountered by companies like ours in a new and rapidly evolving
market. Our ability to
6
<PAGE>
sell products and the level of success, if any, we achieve depends, among other
things, on the level of demand for Internet-related, professional IT services
and software products in China, which are rapidly evolving.
WE EXTEND WARRANTIES TO OUR NETWORK SOLUTIONS CUSTOMERS THAT EXPOSE US TO
POTENTIAL LIABILITIES.
We customarily provide our customers with one to three year warranties, under
which we agree to maintain the installed systems at no additional cost to our
customers. The maintenance services cover both hardware and our proprietary and
third party software products. Although we seek to arrange back-to-back
warranties with hardware and software vendors, we have the primary
responsibility to maintain the installed hardware and software. Our contracts do
not have disclaimers or limitations on liability for special, consequential and
incidental damages nor do we cap the amounts recoverable for damages. In
addition, we do not currently maintain any insurance policy with respect to our
exposure to warranty claims. Although to date we have not incurred any liability
for special, consequential or incidental damages, failure of our installed
projects to operate properly could give rise to substantial claims against us
that in turn could materially and adversely affect us, particularly because our
customers are primarily large telecommunication service providers.
WE SELL OUR LARGE SYSTEMS INTEGRATION PROJECTS ON A FIXED-PRICE, FIXED-TIME
BASIS WHICH EXPOSES US TO RISKS ASSOCIATED WITH COST OVERRUNS AND DELAYS.
We sell substantially all our systems integration projects on a fixed-price,
fixed-time basis. Failure to complete a fixed-price, fixed-time project within
budget and the required time frame would expose us to cost overruns and
penalties that could have a material adverse effect on our business, operating
results and financial condition. In contracts with our customers, we typically
agree to pay late completion fines up to 5% of the total contract value. In
large scale Internet infrastructure projects, there are many factors beyond our
control which could cause delays or cost overruns. In this event, we would be
exposed to cost overruns and liable for late completion fines. A part of our
network solutions business is installing Internet network hardware. If we are
unable to obtain access to such equipment in a timely manner or on acceptable
commercial terms, our business, particularly our relationships with our
customers, may be materially and adversely affected.
WE MAY BECOME LESS COMPETITIVE IF WE ARE UNABLE TO DEVELOP OR ACQUIRE NEW
PRODUCTS OR ENHANCEMENTS TO OUR SOFTWARE PRODUCTS THAT ARE MARKETABLE ON A
TIMELY AND COST-EFFECTIVE BASIS.
We continually develop new services and proprietary software products.
Unexpected technical, operational, distribution or other problems could delay or
prevent the introduction of one or more of these products or services or any
products or services that we may plan to introduce in the future. Moreover, we
cannot be sure that any of these products and services will achieve widespread
market acceptance or generate incremental revenue.
OUR PROPRIETARY RIGHTS MAY BE INADEQUATELY PROTECTED AND THERE IS A RISK OF
WEAK LAW ENFORCEMENT.
Our success and ability to compete depend substantially upon our intellectual
property rights,
7
<PAGE>
which we protect through a combination of copyright, trade secret law and
trademark law. We have filed trademark applications with the United States
Trademark Office and the Trademark Bureau of the State Administration of
Industry and Commerce in China. We have also been granted copyrights by the
State Copyright Bureau in China with respect to Internet-related software
products although we have not applied for copyright protection elsewhere
(including the United States). Despite these precautions, the legal regime
protecting intellectual property rights in China is weak. Since the Chinese
legal system in general and the intellectual property regime in particular is
relatively weak, it is often difficult to enforce intellectual property rights
in China. In addition, there are other countries where effective copyright,
trademark and trade secret protection may be unavailable or limited, and the
global nature of the Internet makes it virtually impossible to control the
ultimate destination of our products.
We do not own any patents and have not filed any patent applications, as we do
not believe that the benefits of patent protection outweigh the costs of filing
and updating patents for our software products. We enter into confidentiality
agreements with our employees and consultants, and control access to and
distribution of our documentation and other licensed information. Despite these
precautions, it may be possible for a third party to copy or otherwise obtain
and use our licensed services or technology without authorization, or to develop
similar technology independently. Policing unauthorized use of our licensed
technology is difficult and there can be no assurance that the steps taken by us
will prevent misappropriation or infringement of our proprietary technology. In
addition, litigation may be necessary in the future to enforce our intellectual
property rights, to protect our trade secrets or to determine the validity and
scope of the proprietary rights of others, which could result in substantial
costs and diversion of our resources.
WE ARE EXPOSED TO CERTAIN BUSINESS AND LITIGATION RISKS WITH RESPECT TO
TECHNOLOGY RIGHTS HELD BY THIRD PARTIES.
We currently license technology from third parties. As we introduce services
that require new technology, we will probably need to license additional third
party technology. We cannot provide assurance that these technology licenses
will be available to us on commercially reasonable terms, if at all. Our
inability to obtain any of these licenses could delay or compromise our ability
to introduce new services. In addition, we may or may allegedly breach the
technology rights of others and incur legal expenses and damages, which, in the
aggregate, could be substantial.
8
<PAGE>
INVESTORS MAY NOT BE ABLE TO ENFORCE JUDGMENTS BY UNITED STATES COURTS AGAINST
US.
AsiaInfo is incorporated in the State of Delaware. However, a majority of
Asialnfo's directors, executive officers and shareholders live outside the
United States, principally in Beijing, China and Hong Kong. Also, all or most of
our assets are located outside the United States. As a result, you may not be
able to:
. effect service of process upon us or these persons within the United
States, or
. enforce against us or these persons in United States courts judgments
obtained in United States courts, including judgments relating to the
federal securities laws of the United States.
WE DO NOT INTEND TO PAY AND MAY BE RESTRICTED FROM PAYING DIVIDENDS ON OUR
COMMON STOCK.
We have never declared or paid any dividends on our capital stock and we do
not intend to declare any dividends. We currently intend to retain future
earnings to fund growth. Furthermore, if we decide to pay dividends, foreign
exchange and other regulations in China may restrict our ability to distribute
retained earnings from China or convert these payments from Renminbi into
foreign currencies. In addition, loan agreements and contractual arrangements we
enter into in the future may also restrict our ability to pay dividends.
9
<PAGE>
THE FACT THAT OUR BUSINESS IS CONDUCTED IN BOTH U.S. DOLLARS AND RENMINBI MAY
SUBJECT US TO CURRENCY EXCHANGE RATE RISK DUE TO FLUCTUATIONS IN THE EXCHANGE
RATE BETWEEN THESE TWO CURRENCIES.
Substantially all of our revenues, expenses and liabilities are denominated in
either U.S. dollars or Renminbi. As a result, we are subject to the effects of
exchange rate fluctuations between these currencies. The contracts we enter into
with our customers provide for price adjustments reflecting foreign exchange
fluctuations; however, we cannot guarantee that future contracts will contain
such provisions. As a result of the unitary exchange rate system introduced in
China on January 1, 1994, the official bank exchange rate for conversion of
Renminbi to U.S. dollars experienced a devaluation of approximately 50%. Since
we report our financial results in U.S. dollars, any future devaluation of the
Renminbi against the U.S. dollar may have an adverse effect upon our reported
net income.
RISKS RELATING TO THE INDUSTRY
THE MARKETS IN WHICH WE SELL OUR SERVICES AND PRODUCTS ARE HIGHLY
COMPETITIVE AND WE MAY NOT BE ABLE TO COMPETE EFFECTIVELY.
The information technology services market for Internet infrastructure in
China is new and rapidly changing. Our competitors in the market mainly include
domestic systems integrators such as Suntek and Aotian. Although we are a
leading player in this market, there are many large multinational companies with
substantial, existing information technology operations in other markets in
China, such as IBM and Hewlett-Packard, that have significantly greater
financial, technological, marketing and human resources. Should they decide to
enter the information technology services market for Internet infrastructure,
this could hurt our profitability and erode our market share.
In the customer management and billing market, we compete with both
international and local software providers. In the online billing segment, we
compete primarily with Portal Software Inc. and Suntek, and in the wireless
billing segment, we compete with more than ten local competitors. The messaging
software sector is highly competitive. Our principal competitors in this sector
are Software.com and Netease. Currently, due in part to a stringent approval
system for providers of wireless billing software in China and competitive
pricing offered by domestic companies, some multinational information technology
companies have been deterred from entering this market. In view of the gradual
deregulation of the Chinese telecommunications industry and China's pending
entry into the WTO, we anticipate the entrance of new competitors into the
customer management and billing software market.
Our competitors, some of whom have greater financial, technical and human
resources than us, may be able to respond more quickly to new and emerging
technologies and changes in customer requirements or devote greater resources to
the development, promotion and sale of new products or services. It is possible
that competition in the form of new competitors or alliances, joint ventures or
consolidation among existing competitors may decrease our market share.
Increased competition could result in lower personnel utilization rates, billing
rate reductions, fewer customer engagements, reduced gross margins and loss of
market share, any one of which could materially and adversely affect our profits
and overall financial condition.
POLITICAL, ECONOMIC AND REGULATORY RISKS
10
<PAGE>
POLITICAL AND ECONOMIC POLICIES OF THE CHINESE GOVERNMENT COULD AFFECT OUR
INDUSTRY IN GENERAL AND OUR COMPETITIVE POSITION IN PARTICULAR.
Since the establishment of the People's Republic of China in 1949, the
Communist Party has been the governing political party in China. The highest
bodies of leadership are the Politburo, the Central Committee and the National
Party Congress. The State Council, which is the highest institution of
government administration, reports to the National People's Congress and has
under its supervision various commissions, agencies and ministries, including
The Ministry of Information Industries, the telecommunications regulatory body
of the Chinese government.
Since the late 1970s, the Chinese government has been reforming the Chinese
economic system. Although we believe that economic reform and the macroeconomic
measures adopted by the Chinese government have had and will continue to have a
positive effect on the economic development in China, there can be no assurance
that the economic reform strategy will not from time to time be modified or
revised. Such modifications or revisions, if any, could have a material adverse
effect on the overall economic growth of China and investment in the Internet
and the telecommunications industry in China. Such developments could reduce,
perhaps significantly, the demand for our products and services. There is no
guarantee that the Chinese government will not impose other economic or
regulatory controls that would have a material adverse effect on our business.
Furthermore, changes in political, economic and social conditions in China,
adjustments in policies of the Chinese government or changes in laws and
regulations could adversely affect our industry in general and our competitive
position in particular.
THE FAILURE OF CHINA TO GAIN ENTRY INTO WTO COULD NEGATIVELY IMPACT THE
CHINESE ECONOMY AND OUR GROWTH.
Failure by China to join the World Trade Organization, as expected, could
slow down China's economic growth and could result in lower than forecasted
spending in the telecommunications sector in China, which in turn could
adversely affect the demand for our products and services from our large
customers.
UNCERTAINTIES WITH RESPECT TO THE CHINESE LEGAL SYSTEM COULD ADVERSELY
AFFECT US.
Our subsidiaries are wholly foreign owned enterprises, which are
enterprises incorporated in China and wholly owned by foreign investors. They
are subject to laws and regulations applicable to foreign investment in China in
general and laws applicable to wholly foreign owned enterprises in particular.
The legislation and regulations over the past 20 years have significantly
enhanced the protections afforded to various forms of foreign investment in
China. However, since the Chinese legal system is still evolving, the
interpretations of many laws, regulations and rules are not always uniform and
enforcement of these laws, regulations and rules involve uncertainties, which
may limit remedies available to us.
FLUCTUATIONS IN EXCHANGE RATES COULD ADVERSELY AFFECT THE VALUE OF OUR
SHARES.
Substantially all our revenues and expenses relating to hardware sales are
denominated in U.S. dollars, and substantially all our revenues and expenses
relating to the service component of our network solutions business and software
business are denominated in Renminbi. Although in general our exposure to
foreign exchange risks should be limited, the value in our shares will be
affected by the foreign exchange rate between the U.S. dollar and the Renminbi
because the value of our business is effectively denominated in Renminbi, while
the shares will be traded in U.S. dollars. Furthermore, a decline in the value
of the Renminbi could reduce the U.S. dollar value of earnings from and our
investment in our subsidiaries in China.
11
<PAGE>
HIGH TECHNOLOGY AND EMERGING MARKET SHARES HAVE HISTORICALLY EXPERIENCED
EXTREME VOLATILITY AND MAY SUBJECT YOU TO LOSSES.
The trading price of our shares may be subject to significant market
volatility due to:
. investor perceptions of us and investments relating to China and Asia;
. developments in the Internet and telecommunications industries;
. variations in our operating results from period to period due to project
timing; and
. announcements of new products or services by us or by our competitors.
In addition, the high technology sector of the stock market frequently
experiences extreme price and volume fluctuations, which have particularly
affected the market prices of many Internet and computer software companies and
which have often been unrelated to the operating performance of these companies.
FUTURE SALES OF SHARES BY OUR COMPANY OR EXISTING SHAREHOLDERS COULD CAUSE
THE MARKET PRICE OF OUR COMMON STOCK TO FALL.
If our stockholders sell substantial amounts of our common stock, including
shares issued upon the exercise of outstanding options and warrants in the
public market, the market price of our common stock could fall. Such sales also
might make it more difficult for us to sell equity or equity-related securities
in the future at a time and price that we deem appropriate.
A SMALL NUMBER OF SHAREHOLDERS CONTROLS ASIAINFO.
Our seven largest shareholders, Warburg-Pincus Ventures, ChinaVest Group,
Fidelity International and Intel Pacific, Inc., and their affiliates, as well as
Edward Tian, one of our directors, James Ding, our Chief Executive Officer, and
Louis Lau, our Chairman, in the aggregate, control approximately 70% of our
voting stock. As a result, these shareholders will be able to control all
matters requiring shareholder approval, including election of directors and
approval of significant corporate transactions, such as a sale of our assets and
the terms of future equity financings. The combined voting power of our large
shareholders could have the effect of delaying or preventing a change in control
of AsiaInfo.
WE ARE SUBJECT TO ANTI-TAKEOVER PROVISIONS WHICH COULD PREVENT A CHANGE OF
CONTROL OF ASIAINFO AND PREVENT YOU FROM REALIZING A PREMIUM ON YOUR INVESTMENT.
The board of directors has the authority to issue up to an additional
2,000,000 shares of preferred stock. Further, without any further vote or
action on the part of the stockholders, the board of directors will have the
authority to determine the price, rights, preferences, privileges and
restrictions of the preferred stock. This preferred stock, if it is ever issued,
may have preference over and harm the rights of the holders of common stock.
Although the issuance of this preferred stock will provide us with flexibility
in connection with possible acquisitions and other corporate purposes, this
issuance may make it more difficult for a third party to acquire a majority of
our outstanding voting stock.
12
<PAGE>
AsiaInfo currently has authorized the size of its board to be not less than
three nor more than nine directors. The terms of the office of the seven-member
board of directors have been divided into three classes: Class I, whose term
will expire at the annual meeting of the stockholders to be held in 2000; Class
II, whose term will expire at the annual meeting of stockholders to be held in
2001; and Class III, whose term will expire at the annual meeting of
stockholders to be held in 2002. This classification of the board of directors
may have the effect of delaying or preventing changes in control or management
of AsiaInfo.
We are subject to the provisions of Section 203 of the Delaware General
Corporation Law. In general, the statute prohibits a publicly-held Delaware
corporation from engaging in a "business combination" with an "interested
stockholder" for a period of three years after the date when the person became
an interested stockholder unless, subject to exceptions, the business
combination or the transaction in which the person became an interested
stockholder is approved in a prescribed manner. Generally, a "business
transaction" includes a merger, asset or stock sale, or other transaction
resulting in a financial benefit to the stockholder.
USE OF PROCEEDS
We will not receive any proceeds from the sale of the shares of common
stock offered hereby. However, we will receive the proceeds from the exercise
of options granted pursuant to our employee benefit plans.
DILUTION
Because our Selling Shareholders will offer and sell the common stock
covered by this Prospectus at various times at prices and at terms then
prevailing or at prices related to the then current market price or in
negotiated transactions, we have not included in this Prospectus information
about the dilution (if any) to the public arising from these sales.
PLAN OF DISTRIBUTION
AsiaInfo is registering 2,663,057 shares on behalf of the Selling
Shareholders. All of the shares were originally issued by us pursuant to
employee benefit plans. The Selling Shareholders named in the table below or
pledgees, donees, transferees or other successors-in-interest selling shares
received from a named selling shareholder as a gift, partnership distribution or
other non-sale-related transfer after the date of this Prospectus may sell the
shares from time to time. The Selling Shareholders will act independently of
AsiaInfo in making decisions with respect to the timing, manner and size of each
sale. The sales may be made on one or more exchanges or in the over-the-counter
market or otherwise, at prices and at terms then prevailing or at prices related
to the then current market price, or in negotiated transactions. The Selling
Shareholders may effect such transactions by selling the shares to or through
broker-dealers or directly to purchasers (in the event of a private sale). The
shares may be sold by one or more of, or a combination of, the following:
. a block trade in which the broker-dealer so engaged will attempt to sell
the shares as agent but may position and resell a portion of the block
as principal to facilitate the transaction;
. purchases by a broker-dealer as principal and resale by such broker-
dealer for its account pursuant to this Prospectus;
13
<PAGE>
. an over-the-counter distribution in accordance with the rules of the
Nasdaq National Market;
. ordinary brokerage transactions and transactions in which the broker
solicits purchasers; and
. in privately negotiated transactions.
To the extent required, this Prospectus may be amended or supplemented from
time to time to describe a specific plan of distribution. In effecting sales,
broker-dealers engaged by the Selling Shareholders may arrange for other broker-
dealers to participate in the resales.
The Selling Shareholders may enter into hedging transactions with broker-
dealers in connection with distributions of the shares or otherwise. In such
transactions, broker-dealers may engage in short sales of the shares in the
course of hedging the positions they assume with Selling Shareholders. The
Selling Shareholders may also sell shares short and redeliver the shares to
close out such short positions. The Selling Shareholders may enter into option
or other transactions with broker-dealers which require the delivery to the
broker-dealer of the shares. The broker-dealer may then resell or otherwise
transfer such shares pursuant to this Prospectus. The Selling Shareholders also
may loan or pledge the shares to a broker-dealer. The broker-dealer may sell
the shares so loaned, or upon a default the broker-dealer may sell the pledged
shares pursuant to this Prospectus.
Broker-dealers or agents may receive compensation in the form of
commissions, discounts or concessions from Selling Shareholders. Broker-dealers
or agents may also receive compensation from the purchasers of the shares for
whom they act as agents or to whom they sell as principals, or both. Usual and
customary brokerage fees will be paid by the Selling Shareholders. Broker-
dealers or agents and any other participating broker-dealers or the Selling
Shareholders may be deemed to be "underwriters" within the meaning of Section
2(11) of the Securities Act in connection with sales of the shares.
Accordingly, any such commission, discount or concession received by them and
any profit on the resale of the shares purchased by them may be deemed to be
underwriting discounts or commissions under the Securities Act. Because Selling
Shareholders may be deemed to be "underwriters" within the meaning of Section
2(11) of the Securities Act, the Selling Shareholders will be subject to the
prospectus delivery requirements of the Securities Act. In addition, any
securities covered by this Prospectus which qualify for sale pursuant to Rule
144 promulgated under the Securities Act may be sold under Rule 144 rather than
pursuant to this Prospectus. The Selling Shareholders have advised AsiaInfo
that they have not entered into agreements, understandings or arrangements with
any underwriters or broker-dealers regarding the sale of their securities.
There is no underwriter or coordinating broker acting in connection with the
proposed sale of shares by Selling Shareholders.
The shares will be sold only through registered or licensed brokers or
dealers if required under applicable state securities laws. In addition, in
certain states the shares may not be sold unless they have been registered or
qualified for sale in the applicable state or an exemption from the registration
or qualification requirement is available and is complied with.
Under applicable rules and regulations under the Exchange Act, any person
engaged in the distribution of the shares may not simultaneously engage in
market making activities with respect to our common stock for a specified period
prior to the commencement of such distribution. In addition,
14
<PAGE>
each Selling Shareholder will be subject to applicable provisions of the
Exchange Act and the associated rules and regulations under the Exchange Act,
including Regulation M, which provisions may limit the timing of purchases and
sales of shares of our common stock by the Selling Shareholders. AsiaInfo will
make copies of this Prospectus available to the Selling Shareholders and has
informed them of the need for delivery of copies of this Prospectus to
purchasers at or prior to the time of any sale of the shares.
AsiaInfo will file a supplement to this Prospectus, if required, pursuant
to Rule 424(b) under the Securities Act upon being notified by a Selling
Shareholder that any material arrangement has been entered into with a broker-
dealer for the sale of shares through a block trade, special offering, exchange
distribution or secondary distribution or a purchase by a broker or dealer.
Such supplement will disclose:
. the name of each such Selling Shareholder and of the participating
broker-dealer(s),
. the number of shares involved,
. the price at which such shares were sold,
. the commissions paid or discounts or concessions allowed to such broker-
dealer(s), where applicable,
. that such broker-dealer(s) did not conduct any investigation to verify
the information set out or incorporated by reference in this Prospectus,
and
. other facts material to the transaction.
AsiaInfo will bear all costs, expenses and fees in connection with the
registration of the shares. The Selling Shareholders will bear all commissions
and discounts, if any, attributable to the sales of the shares. The Selling
Shareholders may agree to indemnify any broker-dealer or agent that participates
in transactions involving sales of the shares against certain liabilities,
including liabilities arising under the Securities Act. The Selling
Shareholders have agreed to indemnify certain persons, including broker-dealers
and agents, against certain liabilities in connection with the offering of the
shares, including liabilities arising under the Securities Act.
SELLING SHAREHOLDERS
The following table sets forth the number of shares owned by each of the
Selling Shareholders. Each of the Selling Shareholders is entitled to receive
shares of AsiaInfo's common stock under its employee benefit plans. No estimate
can be given as to the amount of shares that will be held by the Selling
Shareholders after completion of this offering because the Selling Shareholders
may offer all or some of the shares and because there currently are no
agreements, arrangements or understandings with respect to the sale of any of
the shares. The shares offered by this Prospectus may be offered from time to
time by the Selling Shareholders named below.
15
<PAGE>
<TABLE>
<CAPTION>
Name of Selling Number of shares Shares offered for sale
Shareholder beneficially owned under this Prospectus /(1)/
-------------------------------------------------------------------------------
<S> <C> <C>
Zhang, Yunfei 978,241 978,241
Xu, Xiaoman 500,000 500,000
Liu, Yadong 363,939 363,939
Ho, John 225,000 225,000
Guo, Fengying 80,000 80,000
Julie Hao Wang 73,186 73,186
Huang, Larry Liuqing 55,000 55,000
Zeng, Quantao 28,613 28,613
Qi, Jian 27,548 27,548
Wu, Shijie 25,000 25,000
Shao, Minhua 21,600 21,600
Song, Yi 21,600 21,600
Wang, Huan 21,600 21,600
Wang, Rui 21,600 21,600
Wu, Songbai 21,600 21,600
Zhang, Jiangang 17,280 17,280
Sun, Yilang 16,000 16,000
Liao, Sangnan 12,600 12,600
Feng, Bo 12,000 12,000
Qu, Yan 10,800 10,800
Ding, Zhimin 8,400 8,400
Guo, Yuenian 8,000 8,000
Li, Haifeng 6,000 6,000
Zhou, Wei 6,000 6,000
Chin Thua Yin 5,000 5,000
So Siu Ling 5,000 5,000
Tsen Vui Yin 5,000 5,000
Wing Hee 5,000 5,000
Gu Yuanqin 5,000 5,000
Cuilian Liu 4,800 4,800
Jinwen Wang 3,900 3,900
Du, Fengjing 3,000 3,000
Alexander Chan Harrison 2,630 2,630
</TABLE>
16
<PAGE>
Allegra Chan Harrison 2,630 2,630
Chan Wing Tai and Lai Di Fong 2,630 2,630
Evelyn Jayne Olson Harrison 2,630 2,630
Elaine Liu 2,500 2,500
Karen Liu 2,500 2,500
Liu Jiacheng 2,500 2,500
Xu Ping 2,500 2,500
Zhang Ping 2,500 2,500
Bai Jian 2,500 2,500
Zheng, Xiaoqiang 2,000 2,000
Si, Jianwei 1,500 1,500
Li, Depeng 1,200 1,200
Han, Shaoyun 1,000 1,000
Lu, Yaning 1,000 1,000
Wang, Liping 1,000 1,000
Hong Luan The 1,000 1,000
Maria Sui Ho 1,000 1,000
Loretta Matthews 1,000 1,000
Ngetchin Carter 1,000 1,000
Siu Pong Ho 1,000 1,000
Binfeng Ye 1,000 1,000
Isabel Huang 1,000 1,000
Karen Huang 1,000 1,000
Xuefang Zhang 1,000 1,000
Yuehua Zhang 1,000 1,000
Jiang, Hong 800 800
Jiang, Qi 800 800
Wei, Xiangli 800 800
Zhang, Hao 800 800
Xiong, Ying 750 750
Zhang, Ruili 700 700
Zhu, Caiqin 700 700
Yu, Qing 650 650
Cai, Ruibo 600 600
Gong, Yachuan 600 600
Guan, Hongyu 600 600
17
<PAGE>
He, Li 600 600
Liu, Xutao 600 600
Lu, Jianhui 600 600
Luo, Peng 600 600
Ma, Jin 600 600
Wei, Dong 600 600
Wu, Tao 600 600
Xing, Xuyang 600 600
Zhu, Junqiang 600 600
Xu, Guo 530 530
Bai, Jing 500 500
Xu, Ying 500 500
Guo, Zhanhai 400 400
Lang, Yuefeng 400 400
Li, Jin 400 400
Li, Mei 400 400
Li, Yannan 400 400
Sun, Jian 400 400
Cai, Jin 300 300
Huang, Jingjing 300 300
Liu, Feng 300 300
Qu, Xuan 300 300
Ren, Lei 300 300
Sun, Yuhui 300 300
Wang, Cheng 300 300
Wang, Hongjun 300 300
Yang, Zhigang 300 300
Zhang, Xiaomei 300 300
Allen Shi 300 300
Amanda Shi 300 300
Dong, Guiying 200 200
Liu, Feng 200 200
Liu, Ya 200 200
Wang, Yihong 200 200
----------------------------------------------------------
TOTAL 2,663,057 2,663,057
18
<PAGE>
--------------------------------------------------------------------------------
(1) This Registration Statement also shall cover any additional shares of
common stock which become issuable in connection with the shares registered
for sale hereby by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the receipt
of consideration which results in an increase in the number of AsiaInfo's
outstanding shares of common stock.
INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the common stock being offered hereby has been passed upon
for us by Clifford Chance. As of the date of this Prospectus attorneys who are
members of or are employed by Clifford Chance and participating in matters on
behalf of AsianInfo relating to this Prospectus beneficially own an aggregate of
4,000 shares of AsiaInfo's common stock.
LEGAL MATTERS
We have not authorized any person to make a statement that differs from
what is in this Prospectus. If any person does make a statement that differs
from what is in this Prospectus, you should not rely on it. This Prospectus is
not an offer to sell, nor is it seeking an offer to buy, these securities in any
state in which the offer or sale is not permitted. The information in this
Prospectus is complete and accurate as of its date, but the information may
change after that date.
DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES ACT
LIABILITIES
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.
Article VIII of AsiaInfo's Bylaws provides for the 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.
At present, there is no pending litigation or proceeding involving a
director, officer, employee, or other agent of AsiaInfo in which indemnification
is being sought, nor is AsiaInfo aware of any threatened litigation that may
result in a claim for indemnification by any director, officer, employee, or
other agent of AsiaInfo.
19
<PAGE>
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, as amended (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 prospectus filed with the SEC under Rule 424(b) under the
Securities Act, in connection with the Registration Statement on Form S-1 No.
333-93199 filed with the Commission on December 21, 1999, the amendment filed on
February 3, 2000, the amendment filed on February 17, 2000, the amendment filed
on March 1, 2000, and the Registration Statement on Form S-1 No. 333-93199, as
amended, which was declared effective on March 2, 2000 by the Commission.
(b) AsiaInfo's quarterly reports on Form 10-Q filed with the Commission on
May 15, 2000 and August 14, 2000 under Section 13(a) of the Exchange Act and all
other reports filed pursuant to Section 13(a) or Section 15(d) of the Exchange
Act since the end of 1999.
(c) The description of AsiaInfo's outstanding common stock contained in
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; 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 AsiaInfo's Registration Statement No. 333-39366 on
Form S-8 filed with the Commission on June 15, 2000; and AsiaInfo's Post-
Effective Amendment to the Registration Statement filed with the Commission on
August 28, 2000.
All reports and definitive proxy or information statements filed under
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold shall also be incorporated by
reference into this Registration Statement and deemed to be a part hereof from
the date of filing of such documents.
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
--------------------------------------
The validity of the shares of common stock offered hereby has been
passed upon for AsiaInfo by Clifford Chance. As of the date of this Registration
Statement, attorneys who are members of or are employed by Clifford Chance and
participating in matters on behalf of AsiaInfo relating to this Registration
Statement, beneficially own an aggregate of 4,000 shares of AsiaInfo's common
stock.
II-1
<PAGE>
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.
Article VIII of AsiaInfo's Bylaws provides for the 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.
At present, there is no pending litigation or proceeding involving a
director, officer, employee, or other agent of AsiaInfo in which indemnification
is being sought, nor is AsiaInfo aware of any threatened litigation that may
result in a claim for indemnification by any director, officer, employee, or
other agent of AsiaInfo.
Item 7. Exemption from registration claimed
-----------------------------------
Rule 701 under the Securities Act ("Rule 701") exempts from
registration offers and sales of securities issued by non-reporting issuers
pursuant to employee benefit plans with employees. If an option was
exempt from registration pursuant to Rule 701 at the time of its issuance, Rule
701 continues to exempt from registration the exercise of such option even if
the issuer completes a public offering and becomes a reporting issuer.
The options underlying the restricted securities were granted to the
employees when AsiaInfo was a non-reporting Company and the options were
exercised before the filing of AsiaInfo's Registration Statement No. 333-39366
on June 15, 2000.
Item 8. Exhibits
--------
Exhibit Number Documents
--------------- ------------------------------------------------------------
5.1 Opinion of Clifford Chance as to legality of securities
being registered
10.6* 1997 Incentive Stock Option Plan
10.8 1999 Incentive Stock Option Plan, as amended
23.1 Consent of Clifford Chance (contained in Exhibit 5.1)
23.2 Consent of Independent Auditors
24.1 Power of Attorney (see page II-5)
---------------
*Previously filed.
II-2
<PAGE>
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.
(4) To file a post-effective amendment to this Registration
Statement to include any financial statements required by Rule 3-19 of
Regulation S-X under the Securities Act at the start of any delayed offering or
throughout a continuous offering. Financial statements and information otherwise
required by Section 10(a)(3) of the Securities Act need not be furnished,
provided, that the AsiaInfo includes in the prospectus, by means of a post-
effective amendment, financial statements required pursuant to this paragraph
(a)(4) and other information necessary to ensure that all other information in
the prospectus is at least as current as the date of those financial statements.
(b) Filing incorporating subsequent Exchange Act documents by
reference
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) Request for acceleration of effective date or filing of
registration statement on Form S-8
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.
II-3
<PAGE>
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: August 28, 2000
ASIAINFO HOLDINGS, INC.
By: /s/ Ying Han
---------------------------------
Ying Han
Chief Financial Officer
(duly authorized officer and
principal financial officer)
II-4
<PAGE>
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.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ James Ding Chief Executive Officer and Board Member August 28, 2000
----------------------------
James Ding
/s/ Michael Zhao Senior Vice President, Chief Strategy August 28, 2000
____________________________ Officer and Board Member
Michael Zhao
/s/ Chang Sun Board Member August 28, 2000
----------------------------
Chang Sun
/s/ Edward Tian Board Member August 28, 2000
____________________________
Edward Tian
</TABLE>
II-5
<PAGE>
<TABLE>
<S> <C> <C>
/s/ Ying Han Executive Vice President and Chief August 28, 2000
---------------------------- Financial Officer
Ying Han
/s/ James Zhang Authorized U.S. Representative August 28, 2000
----------------------------
James Zhang
</TABLE>
II-6
<PAGE>
ASIAINFO CORPORATION
REGISTRATION STATEMENT ON FORM S-8
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Number Documents
------------------ ------------------------------------------------------------------------------
<S> <C>
5.1 Opinion of Clifford Chance as to legality of securities being registered
10.6* 1997 Incentive Stock Option Plan
10.8 1999 Incentive Stock Option Plan, as amended
23.1 Consent of Clifford Chance (contained in Exhibit 5.1)
23.2 Consent of Independent Auditors
24.1 Power of Attorney (see page II-5)
</TABLE>
__________________
*Previously filed.
