EMPLOYMENT AGREEMENT
Exhibit
4.17
AGREEMENT,
dated as of February 25, 2008 between Remington Hu, residing at
____________________________ (“Executive”), and Yucheng Technologies Limited, a
BVI a British Virgin Islands corporation having its principal office at
__________________________ (“Company”)
WHEREAS,
the Company believes that Executive provides unique management services for the
Company and wishes to retain the continued services of Executive as its Chief
Financial Officer; and
WHEREAS,
the Company and Executive have reached an understanding with respect to the
extension of Executive’s employment with the Company for a three year period
commencing as of February 25, 2008, and
WHEREAS,
the Company and Executive desire to evidence their agreement in writing and to
provide for the employment of Executive by the Company on the terms set forth
herein.
IT IS
AGREED:
1.
Employment, Duties and Acceptance.
1.1.
Effective as of February 25, 2008 the Company hereby agrees to the continued
employment of Executive as its Chief Executive Officer hereby accepts such
continued employment on the terms and conditions contained in the
Agreement. During the term of this Agreement, the Executive shall
make himself available during regular business hours to the Company to pursue
the business of the Company subject to the supervision and direction of the
Board of Directors of the Company (“Board” or “Board of
Directors”).
1.2. The
Board may assign the Executive such general management and supervisory
responsibilities and executive duties for the Company as are appropriate and
commensurate with Executive’s position as Chief Financial Officer of the Company
(“CFO”) and would otherwise be consistent in stature and prestige with the
responsibilities of a CFO.
1.3.
Executive accepts such employment and agrees to devote substantially all of his
business time, energies and attention to the performance of his duties;
provided, however, that Executive may continue to be actively involved in
educational and civic activities to the extent that such activities do not
materially detract from the reasonable performance of his duties (such material
detraction to be evidenced by a resolution approved by the majority of the Board
and a written notice to Executive, in which event Executive shall have thirty
(30) days to reduce the level of such activities in a reasonable
manner). The Company recognizes the value to it of Executive’s
continued involvement in these activities and will reimburse Executive for
reasonable expenses incurred by him in connection with such
activities. Nothing herein shall be construed as preventing Executive
from (i) making and supervising investments on a personal or family basis
(including trusts, funds and investment entities in which Executive or members
of his family have an interest) and (ii) in serving on the Board of Directors of
not more than three corporations involved primarily in “for profit” business
activities; provided, however, that these activities do not materially interfere
with the performance of his duties hereunder or violate the provisions of
Section 4.4 hereof.
2.
Compensation and Benefits.
2.1 The
Company shall pay to Executive a salary at an annual base rate of not less than
_______ for the term hereof. During the Executive’s employment salary
will be paid not less frequently than every month without the prior written
consent of Executive. Executive’s annual base rate will be reviewed
one month prior to the commencement of the third year for purposes of
determining what the new base salary will be.
2.2. The
Company shall also pay to Executive such bonuses as may be determined from time
to time by the Compensation Committee of the Board of Directors. The
amount of annual bonus payable to Executive may vary at the discretion of the
Compensation Committee of the Board of Directors. Executive will be
entitled to earn an equity bonus to be awarded under the Stock Option
Plan.
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2.3.
Executive shall be entitled to such insurance and other benefits including,
among others, medical and disability coverage and life insurance as are afforded
to other senior executives of the Company, subject to applicable waiting periods
and other conditions which may be generally applicable. The Company
also shall purchase if possible (i) long term disability insurance of not less
than 50% of Executive’s then current annual salary and (ii) split dollar life
insurance with coverage of not less than $1.0 million. The
beneficiary of these policies shall be designated by Executive and these
policies shall be transferred to Executive or his designees by the Company at
his written request.
2.4.
Executive shall be entitled to four weeks of vacation in each calendar year and
to a reasonable number of other days off for religious and personal
reasons.
2.5. The
Company will pay or reimburse executive for all transportation, hotel and other
expenses incurred by Executive on business trips (including business air travel
on scheduled flights of more than 5) consecutive hours) and for all other
ordinary and reasonable out-of-pocket expenses actually incurred by him in the
conduct of the business of the Company against itemized vouchers submitted with
respect to any such expenses.
2.6.
Executive agrees that his services shall be rendered primarily at the Company’s
executive offices which shall be located in, or within thirty (30) miles of, the
Company’s current executive offices located in
______________________. If the Company moves its offices more than
thirty(30) miles of the aforementioned location, the Company will reimburse
Executive for the following, which may be taxable to Executive:
(1) Usual
and customary expenses incurred if Executive sells his home himself or through a
broker; however, reimbursement for the broker’s commission (if Executive
utilizes the services of a broker) may not exceed six (6) percent of the sales
proceeds;
(2)
Reasonable expenses incurred in moving furniture, normal household goods and
personal belongings to the new location and incidental expenses related to the
move;
(3)
Reasonable expenses (including travel and hotel) while house-hunting, including
four trips to the new location with Executive’s spouse and
children;
(4)
Reasonable and customary closing costs incurred in buying Executive’s new home;
and
(5)
Reasonable temporary living expenses incurred while awaiting occupancy in
Executive’s new quarters.
3. Term
and Termination.
3.1. The
term of this Agreement commences as of February 25, 2008
and shall
continue until February 24, 2011 unless sooner terminated as herein
provided.
3.2. If
Executive dies during the term of this Agreement, this Agreement shall thereupon
terminate, except that the Company shall pay to the legal representative of
Executive’s estate the base salary due Executive pursuant to Section 2.1 hereof
through the first anniversary of Executive’s death (or the scheduled expiration
under Section 3.1, if earlier than the first anniversary date) as well as a pro
rata allocation of bonus payments under Section 2.2 based on the days of service
during the year of death, and all amounts owing to Executive at the time of
termination, including for previously accrued but unpaid bonuses, expense
reimbursements and accrued but unused vacation pay.
3.3. If
Executive shall be rendered incapable by an incapacitating illness or disability
(either physical or mental) of complying with the terms, provisions and
conditions hereof on his part to be performed for a period in excess of 180
consecutive days during any consecutive twelve (12) month period, then the
Company, at its option, may terminate this Agreement by written notice to
Executive (the “Disability Notice”) delivered prior to the date Executive
resumes the rendering of services hereunder; provided, however, if requested by
Executive (or a representative thereof) such termination shall not occur until
after examination of Executive by a medical doctor (retained by the Company with
the consent of the Executive which consent shall not be unreasonably withheld)
who certifies in a
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written
report to the Board with a copy of such report delivered simultaneously to
Executive that Executive is and shall be incapable of performing his duties for
in excess of two additional months because of the continuing existence of such
incapacitating illness or disability. Notwithstanding such
termination, the Company (a) shall make a payment to Executive of a pro rata
allocation of payments under Section 2.2 based on the days of service during the
year in which the Disability Notice is delivered and (b) shall pay to Executive
the base salary due Executive pursuant to Section 2.1 hereof through the second
anniversary of the date of such notice (the “Disability Period”), less any
amount Executive receives for such period from any Company-sponsored or
Company-paid for source of insurance, disability compensation or governmental
program. The Company shall also pay to Executive all amounts owing to
Executive at the time of termination, including for previously accrued but
unpaid bonuses, expense reimbursements and accrued but unused vacation
pay.
3.4. The
Company, by notice to Executive, may terminate this Agreement for
cause. As used herein, “cause” shall include (a) the refusal in bad
faith by Executive to carry out specific written directions of the Board, (b)
intentional fraud or dishonest action by Executive in his relations with the
Company (“dishonest” for these purposes shall mean Executive’s knowingly making
of a material misstatement to the Board for the purpose of obtaining direct
personal benefit); or (c) the conviction of Executive of any crime involving an
act of significant moral turpitude after appeal or the period for appeal has
elapsed without an appeal being filed by Executive. Notwithstanding
the foregoing, no “cause” for termination shall be deemed to exist with respect
to Executive’s acts described in clause (a) or (b) above, unless the Board shall
have given written notice to Executive (after five (5) days advance written
notice to Executive and a reasonable opportunity to Executive to present his
views with respect to the existence of “cause”), specifying the “cause” with
particularity and, within five (5) business days after such notice, Executive
shall not have disputed the Board’s determination or taken action to cure or
eliminate prospectively the problem or thing giving rise to such “cause,”
provided, however, that a repeated breach after notice and cure, of any
provision of clause (a) or (b) above, involving the same or substantially
similar actions or conduct, shall be grounds for termination for cause upon not
less than five (5) days additional notice from the Company.
3.5. The
Executive, by notice to the Company, may terminate this Agreement if a “Good
Reason” exists. For purposes of this Agreement, “Good Reason” shall
mean the occurrence of any of the following circumstances without the
Executive’s prior express written consent:
(a) a
material adverse change in the nature of Executive’s title, duties or
responsibilities with the Company that represents a demotion from his title,
duties or responsibilities as in effect immediately prior to such change; (b) a
material breach of this Agreement by the Company; (c) a failure by the Company
to make any payment to Executive when due, unless the payment is not material or
is being contested by the Company, in good faith provided it is not the subject
of a proper set off or proper withholding pursuant to applicable law or
regulation; (d) a liquidation, bankruptcy or receivership of the
Company. Notwithstanding the foregoing, no Good Reason shall be
deemed to exist with respect to the Company’s acts described in clauses (a), (b)
or (c) above, unless Executive shall have given written notice to the Company
specifying the Good Reason with reasonable particularity and, within ten (10)
business days after such notice, the Company shall not have cured or eliminated
the problem or thing giving rise to such Good Reason.
3.6. In
the event that Executive terminates this Agreement for Good
Reason, pursuant to the provisions of paragraph 3.5, or the Company terminates
this Agreement without “Cause,” as defined in paragraph 3.4, the Company shall
pay to Executive (or in the case of his death, the legal representative of
Executive’s estate or such other person or persons as Executive shall have
designated by written notice to the Company) the sum of $300,000 and benefits
through the terms of this Agreement. If Executive’s employment is
terminated for Good Reason or without “Cause,” Executive shall have no duty to
mitigate awards paid or payable to him pursuant to this subsection, and any
compensation paid or payable to Executive from sources other than the Company
will not offset or terminate the Company’s obligation to pay to Executive the
full amounts pursuant to this subsection 3.6.
3.7
Any termination of the employment of the Executive will be deemed to be a
resignation, as of the date of termination, of the Executive from all executive
office and director positions, of whatever nature and authority, with the
Company and any affiliate or subsidiary of the Company and a termination of all
other authorities to execute documents and to bind the Company and its
affiliates and subsidiaries.
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4.
Protection of Confidential Information; Non-Competition.
4.1.
Executive acknowledges that:
(1) As a
result of his current employment with the Company, Executive will obtain secret
and confidential information concerning the business of the Company and its
subsidiaries and affiliates (referred to collectively in this Article 4 as the
“Company”), including, without limitations, financial information, designs and
other proprietary rights, trade secrets and “know-how,” customers and sources
(“Confidential Information”).
(2) The
Company will suffer substantial damage which will be difficult to compute if,
during the period of his employment with the Company or thereafter, Executive
should enter a business competitive with the Company or divulge Confidential
Information.
(3) The
provisions of this Agreement are reasonable and necessary for the protection of
the business of the Company.
4.2.
Executive agrees that he will not at any time, either during the term of this
Agreement or thereafter, divulge to any person or entity any Confidential
Information obtained or learned by him as a result of his employment with the
Company, except (i) in the course of performing his duties hereunder, (ii) to
the extent that any such information is in the public domain other than as a
result of Executive’s breach of any of his obligations hereunder, (iii) where
required to be disclosed by court order, subpoena or other government process or
(iv) if such disclosure is made without Executive’s knowing intent to cause
material harm to the Company. If Executive shall be required to make
disclosure pursuant to the provisions of clause (iii) of the preceding sentence,
Executive promptly, but in no event more than 72 hours after learning of such
subpoena, court order, or other government process, shall notify, by personal
delivery or by electronic means, confirmed by mail, the Company and, at the
Company’s expense, Executive shall: (a) take reasonably necessary and lawful
steps required by the Company to defend against the enforcement of such
subpoena, court order or other government process, and (b) permit the Company to
intervene and participate with counsel of its choice in any proceeding relating
to the enforcement thereof.
4.3. Upon
termination of his employment with the Company, Executive will promptly deliver
to the Company all memoranda, notes, records, reports, manuals, drawings,
blue-prints and other documents (and all copies thereof) relating to the
business of the Company and all property associated therewith, which he may then
possess or have under his control; provided, however, that the Executive shall
be entitled to retain one copy of such documents for his personal use and
records.
4.4.
During the period commencing with the start date of employment under this
agreement and terminating three years after termination of employment: (A)
Executive, without the prior written permission of the Company, shall not,
anywhere in the People’s Republic of China, Hong Kong SAR and Taiwan, (i) enter
into the employ of or render any services to any person, firm or corporation
engaged in any business which is directly in competition with the Company’s
principal existing business at the time of termination (“Competitive Business”);
(ii) engage in any Competitive Business as an individual, partner, shareholder,
creditor, director, officer, principal, agent, employee, trustee consultant,
advisor or in any other relationship or capacity; (iv) employ, or have or cause
any other person or entity to employ, any person who was employed by the Company
at the time of termination of Executive’s employment by the Company (other than
Executive’s personal secretary and assistant); or (v) solicit, interfere with,
or endeavor to entice away from the Company, for the benefit of a Competitive
Business, any of its customers. Notwithstanding the foregoing,
Executive shall not be precluded from investing and managing the investment of,
his or his family’s assets in the securities of any corporation or other
business entity which is engaged in a Competitive Business if such securities
are traded on a national stock exchange or in the over-the-counter market and if
such investment does not result in his beneficially owning, at any time, more
than 5% of any class of the publicly-traded equity securities of such
Competitive Business; provided, however, that for a period commencing with the
start date of employment under this agreement and terminating three years after
termination of Executive’s employment (except for investments in a class of
securities trading on public markets), Executive shall refer to the Company for
consideration (before any other party) any and all opportunities to acquire or
purchase, or otherwise make equity or debt investments in, companies primarily
involved in a Competitive Business if such opportunities becomes
known
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to
Executive while he is the Chief Executive Officer of the Company. If
the Company determines not to exploit any opportunity referred to in the
foregoing sentence, the Company shall determine what, if anything, should be
done with such opportunity. Executive shall not be entitled to any
compensation, as a finder or otherwise, if either the Company or Executive
introduces such opportunity to other persons, it being understood that all such
compensation shall be paid to the Company. Notwithstanding the
foregoing, in the event the Company terminates this Agreement without “cause” or
if Executive terminates this Agreement for Good Reason under Section 3.5 hereof,
Executive’s obligations under this Section 4.4 shall terminate one month
following termination.
4.5. If
Executive commits a breach of any of the provisions of Sections
4.2 or 4.4, the Company shall have the right:
(1) to
have the provisions of this Agreement specifically enforced by any court having
equity jurisdiction, it being acknowledged and agreed by Executive that the
services being rendered hereunder to the Company are of a special, unique and
extraordinary character and that any breach or threatened breach will cause
irreparable injury to the Company and that money damages will not provide an
adequate remedy to the Company; and
(2) to
require Executive to account for and pay over to the Company all monetary
damages determined by a non-appealable decision by a court of law to have been
suffered by the Company as the result of any actions constituting a breach of
any of the provisions of Section 4.2 or 4.4, and Executive hereby agrees to
account for and pay over such damages to the Company (up to the maximum of all
payments made under the Agreement).
4.6. If
Executive shall violate any covenant contained in Section 4.4, the duration of
such covenant so violated shall be automatically extended for a period of time
equal to the period of such violation.
4.7. If
any provision of Sections 4.2 or 4.4 is held to be unenforceable because of the
scope, duration or area of its applicability, the tribunal making such
determination shall not have the power to modify such scope, duration, or area,
or all of them and such provision or provisions shall be void ab
initio.
5.
Miscellaneous Provisions.
5.1. All
notices provided for in this Agreement shall be in writing, and shall be deemed
to have been duly given when delivered personally to the party to receive the
same, when transmitted by electronic means, or when mailed first class postage
prepared, by certified mail, return receipt requested, addressed to the party to
receive the same at his or its address set forth below, or such other address as
the party to receive the same shall have specified by written notice given in
the manner provided for in this Section 5.1. All notices shall be
deemed to have been given as of the date of personal delivery, transmittal or
mailing thereof.
If to
Executive:
If to the
Company:
Yucheng
Technologies Limited
5.2. In
the event of any claims, litigation or other proceedings arising under this
Agreement (including, among others, arbitration under Section 3.4), which are
determined to be non-appealable final decisions, the losing party will pay the
expenses, including reasonable attorneys’ fees and expenses of the other party
within thirty (30) days after delivery to the other of statements for the costs
incurred.
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5.3. The
Company, to the fullest extent permitted by law, shall indemnify Executive for
any liability, damages, losses, costs and expenses arising out of alleged or
actual claims (collectively, “Claims”)
made against Executive by third parties for any actions or omissions as an
officer and/or director of the Company or its subsidiaries. To the
extent that the Company obtains director and officers insurance coverage for any
period in which Executive was an officer, director or consultant to the Company,
Executive shall be a named insured and shall be entitled to coverage
thereunder.
5.4. The
provision of Article 4, Sections 5.2 and 5.3 and any provisions relating to
payments owed to Executive after termination of employment shall survive
termination of this Agreement for any reason.
5.5. This
Agreement sets forth the entire agreement of the parties relating to the
employment of Executive and is intended to supersede all prior negotiations,
understandings and agreements. No provisions of this Agreement may be
waived or changed except by a writing by the party against whom such waiver or
change is sought to be enforced. The failure of any party to require
performance of any provision hereof or thereof shall in no manner affect the
right at a later time to enforce such provision.
5.6. All
questions with respect to the construction of this Agreement,
and the rights and obligations of the parties hereunder, shall be determined in
accordance with the law of the People’s Republic of China applicable to
agreements made and to be performed entirely in the PRC.
5.7. This
Agreement shall inure to the benefit of and be binding upon the successors and
assigns of the Company. This Agreement shall not be assignable by
Executive, but shall inure to the benefit of and be binding upon Executive’s
heirs and legal representatives.
5.8.
Should any provision of this Agreement become legally unenforceable, no other
provision of this Agreement shall be affected, and this Agreement shall continue
as if the Agreement had been executed absent the unenforceable
provision.
IN WITNESS
WHEREOF, the parties have executed this Agreement as of the date first above
written.
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EXECUTIVE
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YUCHENG
TECHNOLOGIES LIMITED
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By:
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Remington
Hu
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Name:
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Title:
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