SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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SCHEDULE 13D/A
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)
(Amendment No. 1)(1)
Sohu.com Inc.
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(Name of Issuer)
Common Stock, $0.001 par value
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(Title of Class Securities)
83408W 10 3
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(CUSIP Number)
Kenneth T. Cote
Sidley Austin Brown & Wood
49/F, Bank of China Tower
One Garden Road
Central, Hong Kong
(011-852) 2509-7888
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(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
May 18, 2001
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(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition that is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(e), 13d-1(f), or 13d-1(g), check the
following box |_|.
Note. Schedules filed in paper format shall include a signed original and
five copies of the schedule, including all exhibits. See Rule 13d-7(b) for
other parties to whom copies are to be sent.
(continued on following pages)
(Page 1 of 27 Pages)
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1 The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not
be deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
SCHEDULE 13D/A
CUSIP No.
83408W 10 3 13D/A Page 2 of 27 Pages
1 NAME OF REPORTING PERSON
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)
Hong Kong Jade Bird Science and Technology Limited
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |_|
3
SEC USE ONLY
4
SOURCE OF FUNDS*
WC
5 |_|
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
6
CITIZENSHIP OR PLACE OF ORGANIZATION
Hong Kong
NUMBER OF 7 SOLE VOTING POWER
SHARES 6,720,386
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 23,427,804
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 6,720,386
PERSON 10 SHARED DISPOSITIVE POWER
WITH 0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,720,386
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
18.9%
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTION BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION
Schedule 13D/A
This Amendment No. 1 to the Schedule 13D filed on April 21, 2001 amends
and restates in its entirety such Schedule 13D.
Item 1. Security and Issuer
The class of equity securities to which this statement on Schedule 13D (the
"Statement") relates is the common stock, par value $0.001 per share (the
"Common Stock"), of Sohu.com Inc. (the "Company"), a Delaware corporation. The
principal executive offices of the Company are located at 7 Jianguomen Nei
Avenue, Suite 1519, Tower 2, Bright China Chang An Building, Beijing 100005,
People's Republic of China.
Item 2. Identity and Background
(a) Name of Person Filing:
Hong Kong Jade Bird Science and Technology Limited (the "Reporting
Person"). The Reporting Person is a wholly-owned subsidiary of Beijing
Beida Jade Bird Limited, a company organized under the laws of the
People's Republic of China ("Beijing Beida"). Attached hereto as
Appendix A is information required by this Item 2 with respect to the
executive officers and directors of the Reporting Person and Beijing
Beida.
(b) Address of Principal Business Office:
Unit 02, 7th Floor, Asia Pacific Center
No. 8 Wyndham Street
Central, Hong Kong
(c) Principal Business:
The principal business of the Reporting Person is investment holding.
(d) Criminal Proceedings:
During the last five years, neither the Reporting Person nor any
executive officer or director of the Reporting Person or Beijing Beida
has been convicted in any criminal proceeding.
(e) Civil Proceedings:
During the last five years, neither the Reporting Person nor any
executive officer or director of the Reporting Person or Beijing Beida
has been party to any civil proceeding of a judicial or administrative
body of competent jurisdiction as a result of which such person was or
is subject to any judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to,
Federal or State securities laws or finding any violation with respect
to such laws.
(f) Place of Organization:
Hong Kong
Item 3. Source and Amount of Funds or Other Consideration
(a) 3,073,750 shares of Common Stock beneficially owned by the Reporting Person
were acquired on April 27, 2001 pursuant to a Securities Purchase Agreement
dated April 11, 2001 between Intel Corporation ("Intel") and the Reporting
Person, pursuant to which Intel agreed to sell to the Reporting Person all of
the Common Stock owned by Intel. These shares were purchased at a price of
US$1.18 per share, or an aggregate of US$3,627,025.00.
(b) 2,298,645 shares of Common Stock beneficially owned by the Reporting Person
were acquired on May 18, 2001 pursuant to a Securities Purchase Agreement dated
May 8, 2001 among The Goldman Sachs Group Inc., Stone Street Fund 2000, L.P.,
Bridge Street Special Opportunities Fund 2000, L.P., JOHO Fund Ltd., JOHO
Partners L.P., Aurora Investments II L.L.C. and the Reporting Person, pursuant
to which such holders agreed to sell to the Reporting Person shares of the
Common Stock owned by each holder. These shares were purchased at a price of
US$1.68 per share, or an aggregate of US$3,861,723.60.
(c) 1,347,991 shares of Common Stock beneficially owned by the Reporting Person
were acquired on May 21, 2001 pursuant to a Securities Purchase Agreement dated
May 7, 2001 between Internet Creations Limited ("Internet Creations") and the
Reporting Person, pursuant to which Internet Creations agreed to sell to the
Reporting Person all of the Common Stock owned by Internet Creations. These
shares were purchased at a price of US$1.73 per share, or an aggregate of
US$2,332,024.43.
The Reporting Person funded each acquisition of the shares described in
paragraphs (a), (b) and (c) above from working capital.
Item 4. Purpose of Transaction
The Reporting Person acquired the Common Stock for investment purposes. It may
acquire additional securities of the Company at any time and from time to time
in the open market or otherwise. The Reporting Person may also seek to foster
and develop future business and strategic relationships with the Company if the
Reporting Person later determines that it is in its interest to do so. In the
event of such a determination, the Reporting Person may seek representation on
the Company's board of directors.
The Reporting Person may at any time and from time to time review or reconsider
its position and/or change its purpose and/or formulate plans or proposals with
respect thereto.
Item 5. Interest in Securities of the Issuer
(a) Amount Beneficially Owned:
The Reporting Person beneficially owns an aggregate of 6,720,386
shares of Common Stock of the Company, representing 18.86% of the
outstanding shares of Common Stock of the Company (based upon
35,625,716 shares of Common Stock outstanding as of March 2, 2001 as
stated by the Company in its Annual Report on Form 10-K for the fiscal
year ended December 31, 2000).
(b) (i) Sole Power to Vote, Direct the Vote, or Dispose of Shares:
6,720,386
(ii) Shared Power to Vote or Direct the Vote of Shares: 23,427,804
(c) Recent Transactions:
Other than the transactions reported in Item 3 of this Schedule 13D,
neither the Reporting Person nor, to the best of the Reporting
Person's knowledge, any of the persons identified on Schedule A have
effected any transactions in the Common Stock during the past 60 days.
(d) Rights with Respect to Dividends or Sales Proceeds: N/A
(e) Date of Cessation of Five Percent Beneficial Ownership: N/A
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer
The Securities Purchase Agreement, dated as of April 11, 2001, between Intel
and the Reporting Person provides that the Reporting Person is subject to the
terms and conditions of the Sohu.com Inc. Second Amended and Restated
Stockholders' Voting Agreement, dated as of October 18, 1999, among Charles
Zhang, Nicholas Negroponte, Brant C. Binder, Edward B. Roberts, Intel, Maxtech
Enterprises Limited and Dow Jones & Company, Inc., pursuant to which the
parties have agreed to vote their shares of Common Stock in favor of the
nominees for directors selected by each of Dow Jones & Company, Inc. and
Maxtech Enterprises Limited.
Except for the contracts described in Item 3 to this Statement and the Sohu.com
Inc. Second Amended and Restated Stockholders' Voting Agreement described in
this Item 6, neither the Reporting Person nor, to the best of the Reporting
Person's knowledge, any of the persons identified on Schedule A, has any
contract, arrangement, understanding or relationship (legal or otherwise) with
any person with respect to the Common Stock.
Item 7. Material to Be Filed as Exhibits
Exhibit 1: Securities Purchase Agreement, dated April 11, 2001 (incorporated by
reference to Exhibit 1 to the Schedule 13D filed by the Reporting Person on
April 21, 2001).
Exhibit 2: Sohu.com Inc. Second Amended and Restated
Stockholders' Voting Agreement, dated October 18, 1999 (incorporated by
reference to Exhibit 2 to the Schedule 13D filed by the Reporting Person on
April 21, 2001).
Exhibit 3: Securities Purchase Agreement, dated May 8, 2001,
among The Goldman Sachs Group Inc., Stone Street Fund 2000, L.P., Bridge Street
Special Opportunities Fund 2000, L.P., JOHO Fund Ltd., JOHO Partners L.P.,
Aurora Investments II L.L.C. and Hong Kong Jade Bird Science and Technology
Limited.
Exhibit 4: Securities Purchase Agreement, dated May 7, 2001, between
Internet Creations Limited and Hong Kong Jade Bird Science and Technology
Limited.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: May 21, 2001
HONG KONG JADE BIRD SCIENCE
AND TECHNOLOGY LIMITED
/s/ Xu Zhendong
Name: Xu Zhendong
Title: Chief Executive Officer and Director
Schedule A
DIRECTORS AND EXECUTIVE OFFICERS
I. Directors and Executive Officers of Hong Kong Jade Bird Science and
Technology Limited (the "Reporting Person").
All directors and executive officers of the Reporting Person are citizens of
the People's Republic of China.
Xu Zhen Dong, Chief Executive Officer and Director
c/o Hong Kong Jade Bird Science and Technology Limited, Unit 02, 7th Floor,
Asia Pacific Center, No. 8 Wyndham Street, Central, Hong Kong.
Principal Occupation: Chief Executive Officer and Director of the Reporting
Person. Xu Zhen Dong also serves as President and Director of the Reporting
Person's parent corporation, Beijing Beida Jade Bird Limited ("Beijing Beida").
Xu Zhi Xiang, Director
c/o Beijing Beida Jade Bird Limited, 14/F, Beida Pacific Science and Technology
Development Center, Haidian District, Beijing 100080,
People's Republic of China.
Principal Occupation: Executive President and Director of Beijing Beida.
Chen Zhong, Director
c/o Beijing Beida Jade Bird Limited, 14/F, Beida Pacific Science and Technology
Development Center, Haidian District, Beijing 100080,
People's Republic of China.
Principal Occupation: Chief Technology Officer and Director of Beijing Beida.
Ni Jin Lei, Director
c/o Beijing Beida Jade Bird Limited, 14/F, Beida Pacific Science and Technology
Development Center, Haidian District, Beijing 100080,
People's Republic of China.
Principal Occupation: Vice President of Beijing Beida.
Wang Jian Hua, Director
c/o Beijing Zhong Xie Tian Di Investment Consulting Limited, No. 21,
Andingmenwai Street, Dongcheng District, Beijing, People's Republic of China.
Principal Occupation: President of Beijing Zhong Xie Tian Di Investment
Consulting Limited. Wang Jian Hua is also a Director of Beijing Beida.
II. Directors and Executive Officers of Beijing Beida.
All directors and executive officers of Beijing Beida are citizens of the
People's Republic of China.
Xu Zhen Dong, President and Director
c/o Beijing Beida Jade Bird Limited, 14/F, Beida Pacific Science and Technology
Development Center, Haidian District, Beijing 100080,
People's Republic of China.
Principal Occupation: President and Director of Beijing Beida.
Xu Zhi Xiang, Executive President
c/o Beijing Beida Jade Bird Limited, 14/F, Beida Pacific Science and Technology
Development Center, Haidian District, Beijing 100080,
People's Republic of China.
Principal Occupation: Executive President of Beijing Beida.
Chen Zhong, Chief Technology Officer and Director
c/o Beijing Beida Jade Bird Limited, 14/F, Beida Pacific Science and Technology
Development Center, Haidian District, Beijing 100080,
People's Republic of China.
Principal Occupation: Chief Technology Officer and Director of Beijing Beida.
Fan Yi Min, Chief Operating Officer
c/o Beijing Beida Jade Bird Limited, 14/F, Beida Pacific Science and Technology
Development Center, Haidian District, Beijing 100080,
People's Republic of China.
Principal Occupation: Chief Operating Officer of Beijing Beida.
Liu Yong Jin, Senior Vice President
c/o Beijing Beida Jade Bird Limited, 14/F, Beida Pacific Science and Technology
Development Center, Haidian District, Beijing 100080,
People's Republic of China.
Principal Occupation: Senior Vice President of Beijing Beida.
Zhang Yong Li, Senior Vice President
c/o Beijing Beida Jade Bird Limited, 14/F, Beida Pacific Science and Technology
Development Center, Haidian District, Beijing 100080,
People's Republic of China.
Principal Occupation: Senior Vice President of Beijing Beida.
Zhou Yan Jun, Senior Vice President
c/o Beijing Beida Jade Bird Limited, 14/F, Beida Pacific Science and Technology
Development Center, Haidian District, Beijing 100080,
People's Republic of China.
Principal Occupation: Senior Vice President of Beijing Beida.
Xu Er Hui, Senior Vice President
c/o Beijing Beida Jade Bird Limited, 14/F, Beida Pacific Science and Technology
Development Center, Haidian District, Beijing 100080,
People's Republic of China.
Principal Occupation: Senior Vice President of Beijing Beida.
Hou Qi, Vice President
c/o Beijing Beida Jade Bird Limited, 14/F, Beida Pacific Science and Technology
Development Center, Haidian District, Beijing 100080,
People's Republic of China.
Principal Occupation: Vice President of Beijing Beida.
Zhang Wan Zhong, Vice President
c/o Beijing Beida Jade Bird Limited, 14/F, Beida Pacific Science and Technology
Development Center, Haidian District, Beijing 100080,
People's Republic of China.
Principal Occupation: Vice President of Beijing Beida.
Miao Li, Vice President
c/o Beijing Beida Jade Bird Limited, 14/F, Beida Pacific Science and Technology
Development Center, Haidian District, Beijing 100080,
People's Republic of China.
Principal Occupation: Vice President of Beijing Beida.
Liu Yue, Vice President
c/o Beijing Beida Jade Bird Limited, 14/F, Beida Pacific Science and Technology
Development Center, Haidian District, Beijing 100080,
People's Republic of China.
Principal Occupation: Vice President of Beijing Beida.
Li Ming Chun, Vice President
c/o Beijing Beida Jade Bird Limited, 14/F, Beida Pacific Science and Technology
Development Center, Haidian District, Beijing 100080,
People's Republic of China.
Principal Occupation: Vice President of Beijing Beida.
Ni Jin Lei, Vice President
c/o Beijing Beida Jade Bird Limited, 14/F, Beida Pacific Science and Technology
Development Center, Haidian District, Beijing 100080,
People's Republic of China.
Principal Occupation: Vice President of Beijing Beida.
Chen Shu Xin, Vice President
c/o Beijing Beida Jade Bird Limited, 14/F, Beida Pacific Science and Technology
Development Center, Haidian District, Beijing 100080,
People's Republic of China.
Principal Occupation: Vice President of Beijing Beida.
Xiang Lei, Vice President
c/o Beijing Beida Jade Bird Limited, 14/F, Beida Pacific Science and Technology
Development Center, Haidian District, Beijing 100080,
People's Republic of China.
Principal Occupation: Vice President of Beijing Beida.
Zhang Jian Buo, Vice President
c/o Beijing Beida Jade Bird Limited, 14/F, Beida Pacific Science and Technology
Development Center, Haidian District, Beijing 100080,
People's Republic of China.
Principal Occupation: Vice President of Beijing Beida.
Yang Fu Qing, Chairman of the Board
c/o Beijing University, Haidian District, Beijing 100080, People's Republic
of China.
Principal Occupation: Professor at Beijing University.
Xing Huan Lou, Vice Chairman of the Board
c/o Beijing International Electricity Development Investment Company, Tianyin
Plaza, A2 South Fuxingmen Street, Xicheng District, Beijing,
People's Republic of China.
Principal Occupation: Chief Executive Officer and Director of Beijing
International Electricity Development Investment Company.
Peng Xi Zhong, Vice Chairman of the Board
c/o Da Xing Industrial Development Zone Development Management Company, East
Kangzhuang Crossing, Daxing County, Beijing, People's
Republic of China.
Principal Occupation: Chairman of the Board of Beijing Da Xing Industrial
Development Zone Development Management Company.
Wang Yang Yuan, Director
c/o Beijing University, Haidian District, Beijing 100871, People's Republic
of China.
Principal Occupation: Professor at Beijing University.
Yang Yu Lu, Director
c/o Beijing Integrated Investment Company, No. 44, Exhibition Center Road,
Xicheng District, Beijing, People's Republic of China.
Principal Occupation: Vice President, Beijing Integrated Investment Company.
Li Ping Fang, Director
c/o Beijing University, Haidian District, Beijing 100080, People's
Republic of China.
Principal Occupation: Office of Commercial Operations at Beijing University.
Cai Lian Jun, Director
c/o Beijing Da Xing Industrial Development Zone Development Management Company,
East Kangzhuang Crossing, Daxing County, Beijing 100080,
People's Republic of China
Principal Occupation: President of Beijing Da Xing Industrial Development Zone
Development Management Company.
Wang Jian Hua, Director
c/o Beijing Zhong Xie Tian Di Investment Company Limited, No. 21, Andingmenwai
Street, Dongcheng District, Beijing, People's Republic of China.
Principal Occupation: President of Beijing Zhong Xie Tian Di Investment
Company Limited.
Zhang Li, Director
c/o Beijing Integrated Investment Company, No. 44, Exhibition Center Road,
Xicheng District, Beijing, People's Republic of China.
Principal Occupation: Manager at Beijing Integrated Investment Company,
Division of Investments.
Wei Dong, Director
c/o Yong Jin Group, Fujia Economic Development Zone, Xiaozheng Town, Qingpu
County, Shanghai, People's Republic of China.
Principal Occupation: Chairman of the Board of the Yong Jin Group.
Exhibit Index
Exhibit Description
1 Securities Purchase Agreement, dated
April 11, 2001 (incorporated by reference to
Exhibit 1 to the Schedule 13D filed by the
Reporting Person on April 21, 2001).
2 Sohu.com Inc. Second Amended and
Restated Stockholders' Voting Agreement,
dated October 18, 1999 (incorporated by
reference to Exhibit 2 to the Schedule 13D
filed by the Reporting Person on
April 21, 2001.
3 Securities Purchase Agreement, dated
May 8, 2001.
4 Securities Purchase Agreement, dated
May 7, 2001.
Exhibit 3
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT, dated as of May 8, 2001, between HONG KONG JADE
BIRD SCIENCE AND TECHNOLOGY LIMITED, a company incorporated under the laws of
Hong Kong (the "Purchaser") and each of the sellers listed on Exhibit A
attached hereto (each a "Seller" and, collectively, the "Sellers").
1. Sale of Stock. Subject to the terms and conditions contained herein, on
the Settlement Date (as defined below), each Seller hereby agrees to sell
and deliver to the Purchaser and the Purchaser hereby agrees to purchase
from each Seller the number of shares of Common Stock (the "Common
Shares") of Sohu.com, Inc., a Delaware corporation (the "Company"), set
forth opposite such Seller's name on Exhibit A hereto, at a price equal
to US$1.68 per share of the Company's Common Shares (the "Purchase
Price").
2. Settlement. Subject to satisfaction of the conditions of settlement
specified in Section 3 of this Agreement, settlement of the sale and
purchase under Section 1 of this Agreement (the "Settlement") shall take
place at the offices of Morrison & Foerster, 21st Floor, Entertainment
Building, 30 Queen's Road Central, Hong Kong, at 10:00 a.m. on May 18,
2001, or on such other date, time or place as the Purchaser and the
Sellers may mutually agree (the "Settlement Date"). On the Settlement
Date, each Seller shall cause to be delivered to the Purchaser a
certificate or certificates for the number of Common Shares set forth
opposite such Seller's name on Exhibit A hereto or shall deliver
appropriate instructions for book entry transfer, against delivery by the
Purchaser to such Seller of the Purchase Price for such Common Shares.
The Purchase Price shall be paid by wire transfer of immediately
available funds to such account or accounts as the Seller shall designate
in writing.
3. Conditions of Settlement.
A. The obligation of the Purchaser to purchase and pay for the
Common Shares is subject to satisfaction of the condition that all
representations and covenants of each Seller contained in Section 4
hereof shall be true, correct and satisfied in all respects on and as
of the Settlement Date, with the same force and effect as though such
representations and covenants had been made on and as of the
Settlement Date.
B. The obligation of each of the Sellers to sell and deliver its Common
Shares is subject to the satisfaction of each of the following
conditions: (i) all representations and covenants of the Purchaser
contained in Section 5 hereof shall be true, correct and satisfied in
all respects on and as of the Settlement Date, with the same force and
effect as though such representations and covenants had been made on
and as of the Settlement Date; (ii) the Purchaser shall have delivered
to the Sellers an executed Accredited Investor Certificate in form and
substance substantially as attached hereto as Exhibit B; (iii) the
Purchaser shall have delivered to the Sellers the full aggregate
Purchase Price for the Sellers' Common Shares on the Settlement Date,
in accordance with Section 2 of this Agreement, as consideration for
the Common Shares acquired hereunder; and (iv) the Purchaser shall
have complied with its confidentiality obligations under Section 9 of
this Agreement.
4. Representations and Covenants of Seller. Each of the Sellers represents,
warrants and agrees, severally and not jointly, that:
a) The Seller beneficially owns the Common Shares as set forth
opposite such Seller's name on Exhibit A hereto, free and clear of
all liens, claims, charges and other encumbrances. There are no
restrictions on the Seller's right to transfer such Common Shares
pursuant to this Agreement, except as may be restricted by laws of
general application, including without limitation the Securities Act
of 1933, as amended (the "Act").
b) The Seller has full right, power and authority to enter into
this Agreement and to transfer such Common Shares in accordance with
the terms of this Agreement and this Agreement constitutes a legal,
valid and binding obligation of the Seller.
c) The Seller's execution, delivery and performance of the
Agreement do not violate or conflict with any law applicable to it,
any agreement or instrument to which it is a party, any order or
judgment of any court or other agency of government applicable to it
or any of its assets, or any contractual restriction binding on or
affecting it or any of its assets.
d) The Seller is not an "affiliate" of the Company as such term is
defined in Regulation 230.501(b) under the Act.
5. Representations and Covenants of Purchaser. The Purchaser represents,
warrants and agrees that:
a) The Purchaser is acquiring the Common Shares to be acquired
by it hereunder for its own account and not with a view to the
resale or distribution thereof, and will resell such Common Shares
only in transactions which would be permissible under the securities
laws of the United States of America or any state thereof.
b) The Purchaser is an "accredited investor" as such term is defined in
Regulation 230.501(a) under the Act.
c) The Purchaser is aware that, until the Company is reasonably
satisfied in accordance with industry practice that such legend is
not required, a legend similar to the following may appear on the
certificates representing the Common Shares: "These securities have
not been registered under the Securities Act of 1933 and may be
re-offered and sold only if so registered or if any exemption from
registration is available."
d) The Purchaser is a company duly organized, validly existing
and in good standing under the laws of Hong Kong, where it was
incorporated. The Purchaser has full right, power and authority to
enter into this Agreement, and to purchase the Common Shares from
the Seller on the terms described herein, and this Agreement
constitutes a legal, valid and binding obligation of the Purchaser.
e) The Purchaser's execution, delivery and performance of the
Agreement do not violate or conflict with any law applicable to it,
any agreement or instrument to which it is a party, any order or
judgment of any court or other agency of government applicable to it
or any of its assets, or any contractual restriction binding on or
affecting it or any of its assets.
f) The Purchaser acknowledges and represents that it has made its own
investigation into the merits and risks of entering into the
transaction contemplated by this Agreement and that it has the
capacity and financial experience to evaluate the same. To the
Purchaser's full satisfaction, the Purchaser has received all the
information it considers necessary or appropriate for deciding
whether to acquire the Common Shares and has had an opportunity to
secure all such information as it deems necessary regarding the
business, properties, prospects and financial condition of the
Company. Except as provided in this Agreement, no additional
representations or warranties have been made to the Purchaser by the
Seller.
g) The Purchaser understands that the Common Shares have not been
registered under the Act, nor qualified under any state securities
laws, and that they are being offered and sold pursuant to an
exemption from such registration and qualification based in part upon
the representations and covenants of the Purchaser contained herein.
The Purchaser understands that the Common Shares being purchased
hereunder are restricted securities within the meaning of Rule 144
under the Act and that the Common Shares are not registered and must
be held indefinitely unless they are subsequently registered or an
exemption from such registration is available. The Purchaser has
determined that the Common Shares are a suitable investment for the
Purchaser and that the Purchaser is able at this time, and in the
foreseeable future, to bear the full economic risk thereof.
6. Law Governing. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without reference to
choice of law doctrine.
7. Parties in Interest. All the terms and provisions of this Agreement shall
be binding upon and inure to the benefit of and be enforceable by the
respective heirs, representatives, successors, and assigns of the parties
hereto.
8. Investor Rights Agreement. Subject to the completion of the
Settlement, each of the Sellers transfers its rights to the Purchaser
pursuant to Section 4(1)(b) of the Sohu.com, Inc. Third Amended and
Restated Investor Rights Agreement dated February 1, 2000, as amended
(the "Investor Rights Agreement") to the extent permitted and subject to
all the terms and conditions contained in the Investor Rights Agreement.
The Purchaser acknowledges that it will be subject to the terms and
conditions contained therein.
9. Publicity and Confidentiality. Based upon the advice of counsel, each of
the parties agrees that, under existing circumstances, it will not and
does not need to make any disclosure to any third party or to the public
of this Agreement, its terms or the transactions contemplated hereby
prior to the Settlement Date. Each of the parties agrees that it will
not, directly or indirectly, in any manner whatsoever, disclose to any
person, corporation, partnership or other entity any information
regarding this Agreement, its terms and the transactions contemplated
hereby, until the parties mutually agree upon the language and timing of
a press release or until such time as one such party determines, based
upon the advice of counsel, that a public announcement is required by
law, in which case the parties hereto shall in good faith attempt to
agree on any public announcements or publicity statements with respect
thereto.
10. Miscellaneous. This Agreement may be executed concurrently in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Each counterpart
may be delivered by facsimile transmission, which transmission shall be
deemed delivery of an originally executed document. The headings of the
Sections hereof are inserted for convenience only and shall not be deemed
to constitute a part hereof. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof
and supersedes all the previous agreements, promise or representations,
whether written or oral, between the parties.
11. Fees and Expenses. Each of the Purchaser and the Seller agrees to pay its
own expenses and disbursements incident to the performance of its
obligations hereunder.
12. Amendment and Waiver. This Agreement may be amended only by a
written agreement executed by each of the parties hereto. No amendment of
or waiver of, or modification of any obligation under this Agreement will
be enforceable unless set forth in a writing signed by the party against
which enforcement is sought. Any amendment effected in accordance with
this section will be binding upon all parties hereto and each of their
respective successors and assigns. No delay or failure to require
performance of any provision of this Agreement shall constitute a waiver
of that provision as to that or any other instance. No waiver granted
under this Agreement as to any one provision herein shall constitute a
subsequent waiver of such provision or of any other provision herein, nor
shall it constitute the waiver of any performance other than the actual
performance specifically waived.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
THE PURCHASER:
HONG KONG JADE BIRD SCIENCE AND TECHNOLOGY LIMITED
By:
----------------------------------------
Name:
Title:
THE SELLERS:
THE GOLDMAN SACHS GROUP INC.
By:
----------------------------------------
Name:
Title:
STONE STREET FUND 2000, L.P.
by Stone Street 2000, L.L.C., its General Partner
By:
----------------------------------------
Name:
Title:
BRIDGE STREET SPECIAL OPPORTUNITIES FUND 2000, L.P.
by Bridge Street Special Opportunities 2000, L.L.C., its General Partner
By:
----------------------------------------
Name:
Title:
JOHO FUND LTD.
By:
----------------------------------------
Name:
Title:
JOHO PARTNERS L.P.
By:
----------------------------------------
Name:
Title:
AURORA INVESTMENTS II L.L.C.
By:
----------------------------------------
Name:
Title:
[SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
EXHIBIT A
LIST OF SELLERS
- ---------------------------------------------------------------------------------------------------------
Number of Purchase
Name of Seller Common Shares Consideration (US$)
- ---------------------------------------------------------------------------------------------------------
The Goldman Sachs Group Inc. 1,201,568 $2,018,634.24
Stone Street Fund 2000, L.P. 89,782 $150,833.76
Bridge Street Special Opportunities Fund 89,782 $150,833.76
2000, L.P.
Joho Fund Ltd. 455,929 $765,960.72
Joho Partners L.P. 113,982 $191,489.76
Aurora Investments II L.L.C. 347,602 $583,971.36
TOTAL 2,298,645 $3,861,723.60
- ---------------------------------------------------------------------------------------------------------
EXHIBIT B
Form of Accredited Investor Certificate
ACCREDITED INVESTOR CERTIFICATE
The undersigned Investor hereby certifies that he is an Accredited Investor as
that term is defined in Regulation D adopted pursuant to the Securities Act of
1933 (the "Act"). The specific category(s) of Accredited Investor applicable
to the undersigned is checked below.
_____ a. an individual whose individual net worth, or joint net worth with
that individual's spouse, exceeds $1,000,000 (including the value of
homes, home furnishings and personal automobiles);
_____ b. an individual who had an individual income in excess of $200,000
in 1999 and 2000 or joint income with that person's spouse in excess
of $300,000 in each of those years and who reasonably expects to
reach the same income level in 2001. For purposes of this offering,
individual income shall equal adjusted gross income, as reported in
the investor's federal income tax return, less any income
attributable to a spouse or to property owned by the spouse, and as
may be further adjusted in accordance with the rules, regulations,
and releases of the Commission;
_____ c. a bank as defined in Section 3(a)(2) of the Act, or a savings and
loan association or other institution as defined in Section
3(a)(5)(A) of the Act, whether acting in its individual or fiduciary
capacity; an insurance company as defined in Section 2(13) of the
Act; an investment company registered under the Investment Company
Act of 1940 (the "1940 Act") or a business development company as
defined in Section 2(a)(48) of the 1940 Act; a Small Business
Investment Company licensed by the U.S. Small Business Administration
under Section 301(c) or (d) of the Small Business Investment Act of
1958; or an employee benefit plan within the meaning of Title I of
the Employee Retirement Income Security Act of 1974 ("ERISA"), if the
investment decision is made by a plan fiduciary, as defined in
Section 3(21) of ERISA, which is either a bank, savings and loan
association, insurance company or registered investment adviser, or
if the employee benefit plan has total assets in excess of $5,000,000
or if a self-directed plan, with investment decisions made solely by
persons that are accredited investors;
_____ d. a private business development company as defined in Section
202(a)(22) of the Investment Advisers Act of 1940;
_____ e. an organization described in Section 501(c)(3) of the Internal
Revenue Code, corporation, Massachusetts or similar business trust,
or partnership, not formed for the specific purpose of acquiring the
Shares, with total assets in excess of $5,000,000;
_____ f. an individual who is a director or executive officer of the
Company; or
_____ g. an entity in which all of the equity owners are accredited
investors as set forth above.
IN WITNESS WHEREOF, the undersigned has executed this Accredited
Investor Certificate this ___ day of May, 2001.
HONG KONG JADE BIRD SCIENCE AND
TECHNOLOGY LIMITED
By: ___________________________________
Name: ________________________________
Title: _______________________________
Exhibit 4
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT, dated as of May 7, 2001, between INTERNET
CREATIONS LIMITED, a company incorporated under the laws of the British Virgin
Islands (the "Seller") and HONG KONG JADE BIRD SCIENCE AND TECHNOLOGY LIMITED,
a Hong Kong corporation (the "Purchaser").
1. Sale of Stock. Subject to the terms and conditions contained
herein, on the Settlement Date (as defined below), the Seller hereby
agrees to sell and deliver to the Purchaser and the Purchaser hereby
agrees to purchase from the Seller 1,347,991 shares of Common Stock (the
"Common Shares") of Sohu.com, Inc., a Delaware Corporation (the
"Company"), at a price equal to US$1.73 per share of the Company's Common
Shares (the "Purchase Price").
2. Settlement. Subject to satisfaction of the conditions of settlement
specified in Section 3 of this Agreement, settlement of the sale and
purchase under Section 1 of this Agreement (the "Settlement") shall take
place at 10:00 a.m. on the tenth Business Day following execution of this
Agreement by both the Purchaser and the Seller. Settlement shall take
place at the offices of the Seller in Hong Kong on such date, or on such
other date, time or place as the Purchaser and the Seller may mutually
agree (the "Settlement Date"). On the Settlement Date, the Seller shall
cause to be delivered to the Purchaser a certificate or certificates
evidencing the Common Shares and a duly executed instrument of transfer,
against delivery by the Purchaser to the Seller of the Purchase Price.
The Purchase Price shall be paid by wire transfer of immediately
available funds to such account or accounts as the Seller shall designate
in writing. As used in this Agreement, the term "Business Day" means a
day (other than a Saturday or Sunday) on which banks are generally open
for business in the Hong Kong Special Administrative Region of the
People's Republic of China.
3. Conditions of Settlement.
A. The obligation of the Purchaser to purchase and pay for the
Common Shares is subject to the satisfaction of each of the following
conditions: (i) all representations and covenants of the Seller
contained in Section 4 hereof shall be true and correct in all
respects on and as of the Settlement Date, with the same force and
effect as though such representations and covenants had been made on
and as of the Settlement Date; and (ii) the Seller shall have
delivered to the Purchaser the representation letter attached hereto
as Exhibit A.
B. The obligation of the Seller to sell and deliver the Common
Shares is subject to the satisfaction of each of the following
conditions: (i) all representations and covenants of the Purchaser
contained in Section 5 hereof shall be true and correct in all
respects on and as of the Settlement Date, with the same force and
effect as though such representations and covenants had been made on
and as of the Settlement Date; and (ii) the Purchaser shall have
delivered to the Seller the representation letter attached hereto as
Exhibit B.
4. Representations and Covenants of Seller. The Seller represents, warrants
and agrees that:
a) The Seller beneficially owns and has the unrestricted right
(other than as such right may be restricted by laws of general
application, including the Securities Act of 1933, as amended (the
"Act")) to transfer the Common Shares, free and clear of all liens,
claims, charges and other encumbrances.
b) The Seller has full corporate right, power and authority to
enter into this Agreement and to transfer the Common Shares in
accordance with the terms of this Agreement and this Agreement
constitutes a legal, valid and binding obligation of the Seller.
c) The Seller's execution, delivery and performance of the
Agreement do not violate or conflict with any law applicable to it,
any agreement or instrument to which it is a party, any order or
judgment of any court or other agency of government applicable to it
or any of its assets, or any contractual restriction binding on or
affecting it or any of its assets.
d) The Seller is not an "affiliate" of the Company, as such term is
defined in Regulation 230.501(b) under the Act.
5. Representations and Covenants of Purchaser. The Purchaser represents,
warrants and agrees that:
a) The Purchaser is acquiring the Common Shares to be acquired
by it hereunder for its own account, not as a nominee or agent, and
not with a view to, or for resale in connection with, any
distribution thereof, and will resell such Common Shares only in
transactions which would be permissible under the securities laws of
the United States of America or any state thereof.
b) The Purchaser is an "accredited investor" as such term is defined in
Regulation 230.501(a) under the Act.
c) The Purchaser is aware that, until the Company is reasonably
satisfied in accordance with industry practice that such legend is
not required, a legend similar to the following may appear on the
certificates representing the Common Shares: "The Securities
represented by this Certificate have not been registered under the
Securities Act of 1933 and may not be sold or otherwise transferred
without an opinion of counsel satisfactory to Sohu.com Inc. that
such transfer may be made without such registration."
d) The Purchaser has full corporate right, power and authority
to enter into this Agreement, and to purchase the Common Shares from
the Seller on the terms described herein, and this Agreement
constitutes a legal, valid and binding obligation of Purchaser.
e) The Purchaser's execution, delivery and performance of the
Agreement do not violate or conflict with any law applicable to it,
any agreement or instrument to which it is a party, any order or
judgment of any court or other agency of government applicable to it
or any of its assets, or any contractual restriction binding on or
affecting it or any of its assets.
f) The Purchaser acknowledges and represents that it has made its own
investigation into the merits and risks of entering into the
transaction contemplated by this Agreement, is experienced in
evaluating and investing in private placement transactions of
securities in companies similar to the Company, and that it has the
capacity and financial experience to evaluate the same and to protect
its own interest. The Purchaser believes it has received all the
information it considers necessary or appropriate for deciding
whether to acquire the Common Shares and has had an opportunity to
secure all such information as it deems necessary regarding the
business, properties, prospects and financial condition of the
Company.
g) The Purchaser understands that the Common Shares have not
been registered under the Act, nor qualified under any state
securities laws, and that they are being offered and sold pursuant
to an exemption from such registration and qualification based in
part upon the representations and covenants of the Purchaser
contained herein. The Purchaser understands that the Common Shares
being purchased hereunder are restricted securities within the
meaning of Rule 144 under the Act; that the Common Shares are not
registered and must be held indefinitely unless they are
subsequently registered or an exemption from such registration is
available.
h) The Purchaser is not a U.S. Person within the meaning of Regulation
S of the Act.
6. Law Governing. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without reference to
choice of law doctrine.
7. Parties in Interest. All the terms and provisions of this Agreement shall
be binding upon and inure to the benefit of and be enforceable by the
respective heirs, representatives, successors, and assigns of the parties
hereto.
8. Investor Rights Agreement. The Seller is transferring its rights
to the Purchaser pursuant to Section 4.1 of the Sohu.com, Inc. Third
Amended and Restated Investor Rights Agreement dated February 1, 2000,
among the Company and the investors named therein (the "Investor Rights
Agreement") subject to all the terms and conditions contained in the
Investor Rights Agreement, as amended. The Purchaser acknowledges that it
has received and reviewed the Investor Rights Agreement and will be
subject to the terms and conditions contained therein.
9. Miscellaneous. This Agreement may be executed concurrently in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Each counterpart
may be delivered by facsimile transmission, which transmission shall be
deemed delivery of an originally executed document. The headings of the
Sections hereof are inserted for convenience only and shall not be deemed
to constitute a part hereof. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof
and supersedes all the previous agreements, promise or representations,
whether written or oral, between the parties. Any provision of this
Agreement which is invalid, illegal or unenforceable in any jurisdiction
shall, as to that jurisdiction, be ineffective to the extent of such
invalidity, illegality or unenforceability, without affecting in any way
the remaining provisions hereof in such jurisdiction or rendering that or
any other provision of this Agreement invalid, illegal or unenforceable
in any other jurisdiction.
10. Fees and Expenses. Each of the Purchaser and the Seller agrees to pay its
own expenses and disbursements incident to the performance of its
obligations hereunder.
11. Amendment and Waiver. This Agreement may be amended only by a written
agreement executed by each of the parties hereto. No amendment of or
waiver of, or modification of any obligation under this Agreement will be
enforceable unless set forth in a writing signed by the party against
which enforcement is sought. Any amendment effected in accordance with
this section will be binding upon all parties hereto and each of their
respective successors and assigns. No delay or failure to require
performance of any provision of this Agreement shall constitute a waiver
of that provision as to that or any other instance. No waiver granted
under this Agreement as to any one provision herein shall constitute a
subsequent waiver of such provision or of any other provision herein, nor
shall it constitute the waiver of any performance other than the actual
performance specifically waived.
12. Confidentiality. The Purchaser and the Seller hereby agree to keep
this Agreement and the transaction contemplated herein confidential until
the earlier of (a) the consummation of the transaction on the Settlement
Date or (b) the public filing by the Purchaser of Schedule 13D in
connection with the transaction contemplated herein with the Securities
and Exchange Commission. Notwithstanding the foregoing, upon discovery by
the Seller that all or any part of the transaction contemplated herein is
required to be disclosed pursuant to the Rules Governing the Listing of
Securities on The Stock Exchange of Hong Kong Limited (the "Listing
Rules"), the Seller shall immediately notify the Purchaser of such
requirement and, after consultation with the Purchaser, take such actions
as may be necessary for continued compliance with the Listing Rules.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
SELLER: INTERNET CREATIONS LIMITED
By:_________________________________
Name:
Title:
PURCHASER: HONG KONG JADE BIRD SCIENCE AND TECHNOLOGY LIMITED
By:
----------------------------------------
Name:
Title:
[SECURITIES PURCHASE AGREEMENT BETWEEN INTERNET CREATIONS
LIMITED AND HONG KONG JADE BIRD SCIENCE AND TECHNOLOGY
LIMITED]
EXHIBIT A
FORM OF SELLER'S REPRESENTATION LETTER
May 7, 2001
HONG KONG JADE BIRD SCIENCE AND TECHNOLOGY LIMITED
Unit 02, 7th Floor, Asia Pacific Center, 8 Wyndham Street, Hong Kong
In connection with the sale by the undersigned of 1,347,991 shares of Common
Stock (the "Common Shares") of Sohu.com, Inc., a Delaware Corporation (the
"Company"), at a price of US$1.73 per share of the Company's Common Stock (the
"Purchase Price"), the undersigned, being a duly authorized officer Internet
Creations Limited, a company incorporated under the laws of the British Virgin
Islands (the "Seller"), hereby represents to you that:
1. Seller acquired 259,229 shares of Series D Convertible Preferred Stock
from the Company on February 2, 2000 pursuant to a Series D Preferred
Stock Purchase Agreement, dated January 29, 2000, between the Company and
the persons and entities set forth on Exhibit A thereto (the "Tranche I
Purchase Agreement"); and 259,229 shares of Series D Convertible
Preferred Stock on February 2, 2000 pursuant to a Series D Preferred
Stock Purchase Agreement (Tranche II), dated February 2, 2000, between
the Company and Seller (such shares, together with the shares purchased
pursuant to the Tranche I Purchase Agreement, the "Preferred Shares").
The Preferred Shares were acquired in a private placement transaction and
were exempt from the registration requirements of Section 5 of the
Securities Act of 1933 by virtue of Section 4(2) thereof and Rule 506
thereunder based on opinions of U.S. counsel to the Company issued to the
Seller dated February 1, 2000 and February 2, 2000.
2. Upon the completion of the initial public offering of the Company
on or about July 12, 2000, the Preferred Shares were automatically
converted into 1,347,991 shares of Common Stock of the Company, adjusted
for stock splits. Seller did not pay any additional consideration for the
shares of Common Stock received upon such conversion. The Common Shares
which Seller is selling to Purchaser are part of this block of shares.
Counsel to the Company is entitled to rely on this letter in connection with
rendering its opinion letter to the Company or the transfer agent for the
common stock of the Company in connection with the sale of the Common Shares
by Seller to Purchaser.
Very truly yours,
INTERNET CREATIONS LIMITED
By:_________________________
Title:_______________________
EXHIBIT B
FORM OF PURCHASER'S REPRESENTATION LETTER
May 7, 2001
INTERNET CREATIONS LIMITED
In connection with the purchase by the undersigned of 1,347,991 shares of
Common Stock (the "Common Shares") of Sohu.com, Inc., a Delaware Corporation
(the "Company"), at a price of US$1.73 per share of the Company's Common Stock
(the "Purchase Price"), the undersigned, being a duly authorized officer of
Hong Kong Jade Bird Science and Technology Limited, a Hong Kong Company (the
"Purchaser"), hereby represents to you that:
1. Purchaser is acquiring the Common Shares to be acquired by it hereunder
for its own account and will resell such Common Shares only in
transactions which would be permissible under the securities laws of the
United States of America or any state thereof.
2. Purchaser is an "accredited investor" as such term is defined in
Regulation 230.501(a) under the Securities Act of 1933, as amended (the
"Act").
3. Purchaser acknowledges that the Common Shares have not been registered
under the Securities Act of 1933, as amended (the "Securities Act") or
the securities laws of any state, and, as a result thereof, the Common
Shares are "restricted securities" as defined in Rule 144 under the
Securities Act and are subject to substantial restrictions on transfer,
and that the Common Shares and certificates evidencing the same will bear
a legend reflecting such restrictions.
4. Purchaser understands that the Common Shares are being offered
and sold by Seller in reliance on exemptions from the registration
requirements of federal and state securities laws and that the Company is
relying upon the truth and accuracy of the representations, warranties,
agreements, acknowledgments and understandings set forth herein in order
to determine the applicability of such exemptions.
Counsel to the Company is entitled to rely on this letter in connection with
rendering its opinion letter to the Company or the transfer agent for the
common stock of the Company in connection with the sale of the Common Shares
by Seller to Purchaser.
Very truly yours,
HONG KONG JADE BIRD SCIENCE AND TECHNOLOGY LIMITED
By:_________________________
Title:_______________________