Exhibit 4.(c).3
CDC CORPORATION LIMITED
AND
ASIA PACIFIC ONLINE LIMITED
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TERMINATION AND RELEASE
AGREEMENT
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THIS TERMINATION AND RELEASE AGREEMENT effective as of the Effective
Date between CDC Corporation Limited located at 00/X Xxxxxxxx Xxxxxx, 00
Xxxxxxxxx Xxxx, Xxxxxxxx Xxx, Xxxx Xxxx (the "Company") and Asia Pacific Online
Limited located at Xxxxx 0000, 00/X Xxxxx Xxxxxxxxx Xxxxxxxx, Xxxxxxx, Xxxx Xxxx
("APOL"). The Company and APOL are collectively referred to as the "Parties" and
each, a "Party".
WHEREAS, the Company and APOL had entered into an Executive Services
Agreement effective as of January 1, 2002 (the "Executive Services Agreement")
pursuant to which APOL had agreed to provide certain services to the Company,
including the services of Xx. Xxx as the Chief Executive Officer and
Vice-Chairman of the Company (the "Executive") on the terms set forth therein.
WHEREAS, the Company and APOL desire to terminate the Executive
Services Agreement pursuant to the terms and conditions set forth herein.
WHEREAS, the terms of this Agreement have been approved by the Board
of Directors of the Company (the "Board") and the form of this Agreement has
been ratified by the Board.
NOW, THEREFORE, in consideration of the foregoing mutual covenants and
agreements contained herein, the Parties hereby agree as follows:
1. TERMINATION OF EXECUTIVE SERVICES AGREEMENT
1.1 Except as otherwise set out in Clause 3 of this Agreement, the Company
and APOL agree that the Executive Services Agreement is hereby and
forever terminated. Each of the Company and APOL on behalf of
themselves and their respective affiliates, hereby releases APOL and
the Company, respectively, from any and all obligations and claims
related to the Executive Services Agreement pursuant to the terms set
forth in Clause 9 hereof.
2. CONFIDENTIAL INFORMATION
2.1 APOL represents and warrants to the Company that it has complied with
the terms of Clause 7 of the Executive Services Agreement relating to
Confidential Information (as defined in the Executive Services
Agreement).
3. SURVIVAL OF CLAUSE 8 AND CLAUSE 9.2 OF THE EXECUTIVE SERVICES
AGREEMENT
3.1 Notwithstanding anything in this Agreement to the contrary, each of
the Company and APOL acknowledge and agree that Clause 8 and Clause
9.2 of the Executive Services Agreement shall survive termination.
4. CERTAIN BENEFITS
4.1 For a period of five years from the Effective Date of this Agreement,
the Company agrees that it will continue to maintain a health
insurance policy for the Executive (including spouse and immediate
family) and allow the Executive to be eligible to participate in any
life insurance program maintained by the Company, in each case with
terms and conditions similar to that available to its other Hong
Kong-based executives. APOL
acknowledges, however, that the adoption of any particular form or
type of medical insurance or life insurance program by the Company
shall be within the full discretion of the Company.
5. RETURN OF PAPERS
5.1 APOL represents and warrants to the Company that it has complied with
the terms of Clause 10 of the Executive Services Agreement relating to
Return of Papers (as defined in the Executive Services Agreement).
6. PROPRIETARY INVENTIONS
6.1 APOL represents and warrants that it has disclosed promptly to the
Company all new discoveries, ideas, formulae, products, methods,
processes, designs, trade secrets, copyrightable material, patentable
inventions, intellectual property or other useful technical
information or know-how and all improvements, modifications or
alterations of existing discoveries made, discovered or developed by
APOL or the Executive, either alone or in conjunction with any other
person during the term of the Executive Services Agreement, or using
the Company's or any Associated Company's materials or facilities
which discoveries or developments are based on, derived from or make
use of any information directly related to the business disclosed to,
or otherwise acquired by, APOL or the Executive from the Company or
any Associated Company during the term of Executive Services
Agreement. APOL covenants and agrees that any copyright, patent,
trademark or other proprietary rights in any such discoveries shall be
the sole and exclusive property of the Company, and the Company need
not account to APOL or the Executive for any revenue or profit derived
therefrom. If by operation of law or otherwise, any or all of the
items of this Clause 6.1 or any component or element thereof is
considered to be the intellectual property right of APOL, APOL
covenants and agrees to irrevocably assign to the Company, its
successor and assigns, ownership of all copyrights and all other
intellectual property rights available with respect to each such
element or item. APOL shall be deemed to have granted the Company an
irrevocable power of attorney to execute as its agent any and all
documents (including copyright registrations) deemed necessary by the
Company to perfect Company's intellectual property rights in and to
each of the items in this clause.
7. RIGHT TO INJUNCTIVE RELIEF
7.1 APOL acknowledges that the Company or an Associated Company may suffer
irreparable harm, which cannot readily be measured in monetary terms,
if APOL breaches its representations, warranties or obligations under
Clauses 2, 3, 5 or 6 of this Agreement. APOL further acknowledges and
agrees that the Company or an Associated Company may obtain injunctive
or other equitable relief against it to prevent or restrain such
breach causing such harm; provided, however, that where such breach
involves subject matter that is susceptible of being cured, then APOL
will cure such breach as promptly as practicable upon notice of such
breach to APOL. Such injunctive relief shall be in addition to any
other remedies the Company might have under this Agreement or at law.
7.2 IN CONNECTION WITH CLAUSE 3, APOL REPRESENTS THAT ITS EXPERIENCE,
CAPABILITIES AND CIRCUMSTANCES ARE SUCH THAT THESE PROVISIONS WILL NOT
PREVENT IT FROM EARNING A LIVELIHOOD AND THAT THE LIMITATIONS SET
FORTH THEREIN ARE REASONABLE AND PROPERLY REQUIRED FOR THE ADEQUATE
PROTECTION OF THE COMPANY.
8. COVENANTS UPON CEASING TO RENDER SERVICES
8.1 APOL agrees that in the event Executive shall no longer serve as a
director on the Company's Board, to procure the Executive to observe
the covenants set forth in Schedule A to this Agreement.
9. RELEASE
9.1 Except as otherwise set out in the terms of this Agreement, APOL, on
behalf of itself and its affiliates, hereby irrevocably and
unconditionally releases and waives all claims, causes of action or
similar rights of any type whether present or future, known or
unknown, howsoever arising from the Executive Services Agreement or
any other employment arrangements that any of APOL, the Executive, or
their respective affiliates, have or may have against the Company, all
current and former parents, subsidiaries, related companies,
partnerships, or joint ventures, and, with respect to each of them,
their predecessors and successors; and, with respect to each such
entity, all of its past, present and future employees, officers,
directors, shareholders, owners, representatives, assigns and any
other persons acting by, through, under or in concert with any of the
persons or entities listed in this clause, and their successors.
9.2 Except as otherwise set out in the terms of this Agreement, the
Company, on behalf of itself and its affiliates, hereby irrevocably
and unconditionally releases and waives all claims, causes of action
or similar rights of any type whether present or future, known or
unknown, howsoever arising from the Executive Services Agreement or
any other employment arrangements that the Company, or its affiliates,
have or may have against APOL, the Executive, all current and former
parents, subsidiaries, related companies, partnerships, or joint
ventures, and, with respect to each of them, their predecessors and
successors; and, with respect to each such entity, all of its past,
present and future employees, officers, directors, shareholders,
owners, representatives, assigns and any other persons acting by,
through, under or in concert with any of the persons or entities
listed in this clause, and their successors; provided, however, this
release and waiver shall not apply to the extent that (a) the
representations and warranties from APOL set forth in Clause 2 or
Clause 5 of this Agreement are not accurate or (b) APOL shall breach
the provisions of Clause 8 or Clause 9.2 of the Executive Services
Agreement which survive termination pursuant to Clause 3 hereto.
10. MISCELLANEOUS MATTERS
10.1 If any provision of this Agreement, or the application thereof to any
person, place, or circumstance, shall be held by a court of competent
jurisdiction to be invalid, unenforceable, or void, the remainder of
this Agreement and such provisions as applied to other persons,
places, and circumstances shall remain in full force and effect. It is
the intention of the Parties that the provisions contained in Clauses
2, 3, 5 and 6 shall be enforced to the greatest extent (but to no
greater extent) in time, area, and degree of
participation as is permitted by the law of that jurisdiction whose
law is found to be applicable to any acts allegedly in breach of these
provisions.
10.2 This Agreement may not be modified or amended, except by an instrument
in writing, signed by a duly authorized representative of APOL and the
Company. By an instrument in writing similarly executed, any Party may
waive compliance by the other Party with any provision of this
Agreement that such other Party was or is obligated to comply with or
perform; provided, however, that such waiver shall not operate as a
waiver of, or estoppel with respect to, any other or subsequent
failure. No failure to exercise and no delay in exercising any right,
remedy or power hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any right, remedy or power hereunder
preclude any other or further exercise thereof or the exercise of any
other right, remedy or power provided herein or by law or in equity.
10.3 The terms of this Agreement are intended by the Parties to be the full
and final expression of their agreement and may not be contradicted by
evidence of any prior or contemporaneous agreement. The Parties
further intend that this Agreement shall constitute the complete and
exclusive statement of its terms and that no extrinsic evidence
whatsoever may be introduced in any judicial, administrative or other
legal proceeding involving this Agreement. This Agreement fully
supersedes any prior oral or written agreement between the Parties.
10.4 The headings for the clauses of this Agreement are for convenience
only and are not part of this Agreement.
10.5 This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original and such counterparts together
shall constitute one and the same instrument.
10.6 The Parties acknowledge that (i) they have had the opportunity to
consult counsel in regard to this Agreement if they so desire; (ii)
they have read and understand the Agreement and they are fully aware
of its legal effect; and (iii) they are entering into this Agreement
freely and voluntarily, and based on each Party's own judgment and not
on any representations or promises made by the other Parties, other
than those contained in this Agreement.
11. NOTICE
11.1 All such notices and communications shall be effective (a) when sent
by FedEx or other overnight service of recognized standing, on the
third business day following the deposit with such service; and (b)
when faxed during normal business hours on a day on which the Company
is open for business, upon confirmation of receipt. The Parties shall
be obligated to notify each other in writing of any change of the
below address. Notice of change of address shall be effective only
when done in accordance with this Clause. All notices, requests,
demands, consents, instructions or other communications required or
permitted hereunder shall be in writing and faxed or delivered via
courier to each Party as follows:
If to the Company:
Address: 34/F, Citicorp Centre
00 Xxxxxxxxx Xxxx
Xxxxxxxx Xxx, Xxxx Xxxx
Facsimile: (000) 0000-0000
Attention: Xx. Xxxxxxx Ch'ien
If to APOL:
Address: Suite 4302
43/F China Resources Xxxxxxxx
00 Xxxxxxx Xxxx
Xxxxxxx, Xxxx Xxxx
Facsimile: (000) 0000-0000
Attention: Xx. Xxxxx Xxx
12. GOVERNING LAW
12.1 This Agreement shall be governed by and construed under the law of
Hong Kong and each of the Parties hereby irrevocably agrees for the
exclusive benefit of the Company that the Courts of Hong Kong are to
have exclusive jurisdiction to settle any disputes which may arise out
of or in connection with this Agreement.
13. DEFINITIONS
13.1 "Associated Company" means a company which is from time to time a
subsidiary or a holding company of the Company or a subsidiary (other
than the Company) of a holding company of the Company. In this
definition "subsidiary" and "holding company" have the same meanings
as in section 128 of the Companies Ordinance (Cap.32).
13.2 "Effective Date" means July 15, 2005
14. EFFECTIVE DATE
14.1 This Agreement shall become effective as of the Effective Date.
IN WITNESS whereof this Termination and Release Agreement has been
signed by or on behalf of the Parties hereto and is effective as of the
Effective Date.
SIGNED by Xxxxx Xxxx ) /s/ Xxxxx Xxxx
Director ) -------------------------------
on behalf of the CDC Corporation Limited )
in the presence of Xxxxx Xxx )
/s/ Xxxxx Xxx
-------------------------------
Date:
------------------------
SIGNED by /s/ Xxxxx Xxx )
-------------------- )
Director
on behalf of Asia Pacific Online Limited ) /s/ Xxxxx Xx
in the presence of Xxxxx Xx ) -------------------------------
Date: Dec. 12, 2005
SCHEDULE A
The Executive agrees in the event Executive shall no longer serve as a
director on the Company's Board, to observe the covenants set forth below:
1. For the period from the date of this Agreement until six (6) months
after such time (the "Six Month Period"), not grant interviews or make
statements regarding the Company, any Associated Company or any of
their respective directors, executive officers or employees without
the prior express written consent of the then current CEO.
2. During the Six Month Period, other than as may be required by a court
order, not to disparage the Company or any Associated Company, or any
member of the board of directors, executive officer or employee of the
Company or any Associated Company.
3. For the period from the date of this Agreement until six (6) months
after such time, acknowledge that APOL and/or the Executive has or may
be deemed to have had under the relevant securities laws access to
confidential and/or price-sensitive information relating to the
Company and Associated Companies. The Executive agrees that he will
not and will use reasonable endeavors to cause immediate family and
associated companies (including, but not limited to APOL) not to trade
in securities of the Company and Associated Companies, and will take
such actions or engage in such conduct as advisable or necessary to
avoid liability or violations of "xxxxxxx xxxxxxx" rules under
relevant securities laws, including avoiding any conduct that would
result in becoming a "tipper" or "tippee" under the U.S. Securities
Act of 1933, the U.S. Securities Exchange Act of 1934, and the rules
of the Stock Exchange of Hong Kong Limited and the Securities and
Futures Commission of Hong Kong. The Company will render reasonable
assistance to APOL and/or the Executive to enable any restricted
shares or options of the Company owned to become freely tradable.
4. During the Six Month Period, cooperate with the Company and any
Associated Company in the initiation of a claim and/or counterclaim of
any action brought against any third party, as the case may be, with
respect to the Company or any Associated Company.
5. During the Six Month Period, cooperate with the Company and any
Associated Company in the defense of any action brought by any third
party against the Company or any Associated Company that relates to
any aspect of the Executive's employment with the Company.
6. In connection with proceedings related to covenants 4 and 5 above
(other than against the Company or any Associated Company) use
advisers nominated by the Company and, if the Company requests, allow
the Company the exclusive conduct of the proceedings provided that it
is not detrimental to the Executive's interest and the Executive may
retain his own counsel at reasonable expense that is not to exceed
that of the Company's counsel to advise him on such proceedings.
