EXHIBIT 10.63
EMPLOYMENT AGREEMENT
This Employment Agreement, dated November 18, 2003, is between Linktone
Ltd., a Cayman Islands exempted company (the "Company") and XIN YE, an
individual residing at 0000 Xxxxx Xxx, Xxx Xxxx, Xxxxxxxxxx, 00000, XXX
("Executive").
1. POSITION AND RESPONSIBILITIES
1.1 POSITION. Executive is employed by the Company to render
services to the Company in the position of Chief Technology Officer. Executive
shall perform such duties and responsibilities as are normally related to such
position in accordance with the standards of the industry and any additional
duties now or hereafter assigned to Executive by the Company. Executive shall
abide by the rules, regulations, and practices as adopted or modified from time
to time in the Company's sole discretion.
1.2 OTHER ACTIVITIES. Executive shall devote his/her full business
time, attention and skill to perform any assigned duties, services and
responsibilities while employed by the Company, for the furtherance of the
Company's business, in a diligent, loyal and conscientious manner. Except upon
the prior written consent of the Company, Executive will not, during the term of
this Agreement, (i) accept any other employment, or (ii) engage, directly or
indirectly, in any other business activity (whether or not pursued for pecuniary
advantage) that might interfere with Executive's duties and responsibilities
hereunder or create a conflict of interest with the Company.
1.3 NO CONFLICT. Executive represents and warrants that
Executive's execution of this Agreement, Executive's employment with the
Company, and the performance of Executive's proposed duties under this Agreement
shall not violate any obligations Executive may have to any other employer,
person or entity, including any obligations with respect to proprietary or
confidential information of any other person or entity.
2. COMPENSATION AND BENEFITS
2.1 BASE SALARY. In consideration of the services to be rendered
under this Agreement, the Company shall pay Executive a salary equivalent to
Sixty Thousand Dollars ($60,000) per year ("Base Salary"). The Base Salary shall
be paid in accordance with the Company's regularly established payroll practice.
Executive's Base Salary shall be reduced by withholdings required by law.
Executive's Base Salary will be reviewed from time to time in accordance with
the established procedures of the Company for adjusting salaries for similarly
situated employees and may be adjusted in the sole discretion of the Company.
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2.2 STOCK OPTIONS. The Company shall recommend to the Board of
Directors that Executive be provided with an option to purchase 12,000 ordinary
shares of the Company at a price per share equivalent to the ordinary shares'
fair market value. This recommendation will be considered for approval at the
Company's next Board of Directors' meeting. The price per share of any approved
options will be determined at that meeting. Executive's entitlement to any stock
options that may be approved is conditioned upon Executive's signing of the
Stock Option Agreement and is subject to its terms and the terms of the Stock
Option Plan under which the options are granted, including vesting requirements.
2.3 BENEFITS. Executive shall be eligible to participate in the
benefits made generally available by the Company to similarly-situated
employees, in accordance with the benefit plans established by the Company, and
as may be amended from time to time in the Company's sole discretion. In
addition, Executive shall be entitled to the following benefits:
2.3.1 Vacation. Executive will be entitled to receive four
weeks of vacation annually in addition to PRC national public holidays;
2.3.2 Medical Expense Allowance. Executive will be entitled
to an annual medical allowance of up to $2000;
2.3.3 Housing Allowance. Executive will receive a housing
cash allowance of $3,000 per month. Executive is responsible for
signing any long term leases associated with housing;
2.3.4 Car Allowance. Executive will receive a car allowance
of $500 per month to rent (or purchase) a car and driver for both
business and private purposes;
2.3.5 Air Fare Reimbursement. Executive shall have one
economy class air fares for him and his family reimbursed for the
purposes of home leave;
2.3.6 Relocation Expenses. Executive shall have the
expenses related to moving to and from Shanghai reimbursed;
2.3.7 Child Education Expenses. Executive will receive a
family education allowance of $1,000 per month;
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provided, however, that the benefits listed above in parts 2.3.3 to
2.3.7 shall not exceed $60,000 per year (the "Annual Benefits").
If actual Annual Benefits paid are less than $60,000 per year, the
remaining portion will be paid to the Executive in a one time Cost of Living
Allowance (COLA) payment.
2.4 EXPENSES. The Company shall reimburse Executive for reasonable
travel and other business expenses, including obtaining visas and work permits,
incurred by Executive in the performance of Executive's duties hereunder in
accordance with the Company's expense reimbursement guidelines, as they may be
amended in the Company's sole discretion.
2.4 TAXATION. According to the presently valid tax laws of China,
the Executive is required to pay individual income tax on all income derived
from working in China. The Company will register the Executive with the local
Tax Bureau (Foreign Taxation Branch). The Company may withhold individual income
taxes from the Executive's salary or any bonus as required by applicable law,
and in such case will remit them to the tax authorities on behalf of the
Executive.
3. TERM OF EMPLOYMENT
The employment of Executive shall be "at-will" at all times. The Company or
Executive may terminate Executive's employment with the Company at any time,
without any advance notice, for any reason or no reason at all. The at-will
relationship may not be modified by anything contrary contained in or arising
from any statements, policies or practices of the Company relating to the
employment, discipline or termination of its employees. Upon and after such
termination, all obligations of the Company under this Agreement shall cease.
4. TERMINATION OF EMPLOYMENT
4.1 TERMINATION OF EMPLOYMENT. The Executive understands that its
employment with the Company is "at-will", which means that its employment is for
no definite period and may be terminated by either party at any time and for any
reason with or without cause upon thirty (30) days' advance written notice. The
Company shall have the option, in its complete discretion, to terminate the
Executive at any time prior to the end of such notice period, provided the
Company pays the Executive all compensation due and owing through the last day
actually worked, plus an amount equal to the Base Salary and Annual Benefits the
Executive would have received through the balance of the above notice period;
thereafter, all of the Company's obligations under this Agreement shall cease.
In the event the Executive is
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terminated without cause or by reason of Constructive Termination (as defined
below), the Company will compensate the Executive with the equivalent of 3
months payment of the annual Base Salary and Annual Benefits. In addition, the
Company will offer the Executive the opportunity to exercise any vested stock
options according to the Executive's Stock Option Agreement for a period of 3
months from the date of termination. The Company may discipline or demote the
Executive with or without cause and with or without prior notice.
4.2 EXCLUSIVE TERMINATION PROVISIONS. This Article 4 is intended
to be the complete and exclusive statement regarding the circumstances under
which the Executive's employment may be terminated. It supersedes any prior
agreement or representation. If any term of this Article 4 conflicts with any
practice or policy of the Company, now or in the future, the terms of this
Article 4 will control. The Executive's status as an at-will employee may not be
changed except by written agreement signed by the Company's Chief Executive
Officer or his or her representative specially authorized in writing to fulfill
this obligation under this Agreement.
4.3 CONSTRUCTIVE TERMINATION. "Constructive Termination" shall be
deemed to occur if there is (A)(1) a request by the Company for the Executive to
relocate to a facility or location more than one hundred (100) miles from the
Company's current location, or (2) there is a material adverse change in
Executive's position causing such position to be of less stature or of less
responsibility than Chief Technology Officer; and (B) within the ninety (90) day
period immediately following such event Executive elects to terminate his
employment voluntarily.
5. POST-TERMINATION OBLIGATIONS
5.1 RETURN OF PROPERTY. Executive agrees that all property
(including without limitation all equipment, tangible proprietary information,
documents, records, notes, contracts and computer-generated materials) furnished
to or created or prepared by Executive incident to Executive's employment
belongs to the Company and shall be promptly returned to the Company upon
termination of Executive's employment.
5.2 RESIGNATION AND COMPENSATION. Following any termination of
employment, Executive shall cooperate with the Company in the winding up of
pending work on behalf of the Company and the orderly transfer of work to other
employees. Executive shall also cooperate with the Company in the defense of any
action brought by any third party against the Company that relates to
Executive's employment by the Company.
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6. INVENTIONS AND PROPRIETARY INFORMATION; PROHIBITION ON THIRD PARTY
INFORMATION
6.1 PROPRIETARY RIGHTS AND INFORMATION AGREEMENT. Executive agrees
to sign and be bound by the terms of the Proprietary Rights and Information
Agreement, which is attached as Exhibit A ("Proprietary Information Agreement").
6.2 NON-DISCLOSURE OF THIRD PARTY INFORMATION. Executive
represents and warrants and covenants that Executive shall not disclose to the
Company, or use, or induce the Company to use, any proprietary information or
trade secrets of others at any time, including but not limited to any
proprietary information or trade secrets of any former employer, if any; and
Executive acknowledges and agrees that any violation of this provision shall be
grounds for Executive's immediate termination and could subject Executive to
substantial civil liabilities and criminal penalties. Executive further
specifically and expressly acknowledges that no officer or other employee or
representative of the Company has requested or instructed Executive to disclose
or use any such third party proprietary information or trade secrets.
7. LIMITED AGREEMENT NOT TO COMPETE OR SOLICIT
7.1 NON-COMPETITION. During the term of this Agreement, and for 1
year after the termination of Executive's employment with the Company, Executive
shall not, directly or indirectly, work as an employee, consultant, agent,
principal, partner, manager, officer, or director for any person or entity who
or which engages in a substantially similar business as the Company.
For purposes of this Agreement the Company is currently engaged in the
business of the development, marketing or distribution of wireless media,
entertainment and communication services in China in three major categories:
personalized media, games and entertainment, and information and communication.
7.2 NON-SOLICITATION. Executive shall not, during his or her
employment and for a period of 2 years immediately after termination of his or
her employment, for any reason, either directly or indirectly: (a) call on,
solicit, or take away any of the Company's customers or potential customers
about whom Executive became aware or with whom Executive had contact as a result
of Executive's employment with the Company, either for benefit of Executive or
for any other person or entity; or (b) solicit, induce, recruit or encourage any
of the Company's employees or contractors to leave the employ of the Company or
cease providing services to the Company on behalf of the Executive or on behalf
of any other person or entity.
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8. ARBITRATION
Executive agrees to sign and be bound by the terms of the Arbitration Agreement,
which is attached as Exhibit B.
9. AMENDMENTS; WAIVERS; REMEDIES
This Agreement may not be amended or waived except by a writing signed by
Executive and by a duly authorized representative of the Company. Failure to
exercise any right under this Agreement shall not constitute a waiver of such
right. Any waiver of any breach of this Agreement shall not operate as a waiver
of any subsequent breaches. All rights or remedies specified for a party herein
shall be cumulative and in addition to all other rights and remedies of the
party hereunder or under applicable law.
10. ASSIGNMENT; BINDING EFFECT
10.1 ASSIGNMENT. The performance of Executive is personal
hereunder, and Executive agrees that Executive shall have no right to assign and
shall not assign or purport to assign any rights or obligations under this
Agreement. This Agreement may be assigned or transferred by the Company; and
nothing in this Agreement shall prevent the consolidation, merger or sale of the
Company or a sale of any or all or substantially all of its assets.
10.2 BINDING EFFECT. Subject to the foregoing restriction on
assignment by Executive, this Agreement shall inure to the benefit of and be
binding upon each of the parties; the affiliates, officers, directors, agents,
successors and assigns of the Company; and the heirs, devisees, spouses, legal
representatives and successors of Executive.
11. NOTICES
Any notice under this Agreement must be in writing and addressed to the Company
or to Executive at the corresponding address below. Notices under this Agreement
shall be effective upon (a) hand delivery, when personally delivered; (b)
written verification of receipt, when delivered by overnight courier or
certified or registered mail; or (c) acknowledgment of receipt of electronic
transmission, when delivered via electronic mail or facsimile. Executive shall
be obligated to notify the Company in writing of any change in Executive's
address. Notice of change of address shall be effective only when done in
accordance with this paragraph.
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Company's Notice Address:
Linktone Ltd
Harbour Ring Xxxxx
00 Xx Xxxx Xxxxx Xx
Xxxxxxxx XXX 000000
Executive's Notice Address:
Xin Ye
0000 Xxxxxx Xxx
Xxx Xxxx, Xxxxxxxxxx 00000
XXX
12. SEVERABILITY
If any provision of this Agreement shall be held by a court or arbitrator to be
invalid, unenforceable, or void, such provision shall be enforced to the fullest
extent permitted by law, and the remainder of this Agreement shall remain in
full force and effect. In the event that the time period or scope of any
provision is declared by a court or arbitrator of competent jurisdiction to
exceed the maximum time period or scope that such court or arbitrator deems
enforceable, then such court or arbitrator shall reduce the time period or scope
to the maximum time period or scope permitted by law.
13. TAXES
All amounts paid under this Agreement (including without limitation Base Salary)
shall be reduced by all applicable state and federal tax withholdings and any
other withholdings required by any applicable jurisdiction.
14. GOVERNING LAW
The validity, interpretation, enforceability, and performance of this Agreement
shall be governed by and construed in accordance with the laws of the State of
New York, without regard to New York conflict of laws principles.
15. INTERPRETATION
This Agreement shall be construed as a whole, according to its fair meaning, and
not in favor of or against any party. Sections and section headings contained in
this Agreement are for
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reference purposes only, and shall not affect in any manner the meaning or
interpretation of this Agreement. Whenever the context requires, references to
the singular shall include the plural and the plural the singular.
16. OBLIGATIONS SURVIVE TERMINATION OF EMPLOYMENT
Executive agrees that any and all of Executive's obligations under this
agreement, including but not limited to Exhibits B and C, shall survive the
termination of employment and the termination of this Agreement.
17. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original of this Agreement, but all of which together shall
constitute one and the same instrument.
18. AUTHORITY
Each party represents and warrants that such party has the right, power and
authority to enter into and execute this Agreement and to perform and discharge
all of the obligations hereunder; and that this Agreement constitutes the valid
and legally binding agreement and obligation of such party and is enforceable in
accordance with its terms.
19. ENTIRE AGREEMENT
This Agreement (including the Exhibits attached hereto, which are incorporated
herein by reference) is the final, complete and exclusive agreement of the
parties with respect to the subject matter hereof and supersedes and merges all
prior or contemporaneous representations, discussions, proposals, negotiations,
conditions, communications and agreements, whether written or oral, between the
parties relating to the subject matter hereof and all past courses of dealing or
industry custom.
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EXECUTIVE ACKNOWLEDGES EXECUTIVE HAS HAD THE OPPORTUNITY TO CONSULT LEGAL
COUNSEL CONCERNING THIS AGREEMENT, THAT EXECUTIVE HAS READ AND UNDERSTANDS THE
AGREEMENT, THAT EXECUTIVE IS FULLY AWARE OF ITS LEGAL EFFECT, AND THAT EXECUTIVE
HAS ENTERED INTO IT FREELY BASED ON EXECUTIVE'S OWN JUDGMENT AND NOT ON ANY
REPRESENTATIONS OR PROMISES OTHER THAN THOSE CONTAINED IN THIS AGREEMENT.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date
first written above.
LINKTONE LTD.: EXECUTIVE:
By: Xxxxxxx Xxxx Lei /s/ Xxxxxxx Xxxx By: Xin Ye /s/ Xin Ye
-------------------- -----------------
Title: Chief Executive Officer CEO Chief Technology Officer
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EXHIBIT A
PROPRIETARY RIGHTS AND INFORMATION AGREEMENT
In consideration of my employment by Linktone Ltd. (the
"Company"), I hereby agree to the following restrictions and obligations placed
on my use and development of information, technology, ideas, inventions and
other materials:
1. PROPRIETARY INFORMATION
a. RESTRICTIONS ON PROPRIETARY INFORMATION. I agree that, during
my employment and at all times thereafter, I will hold the Proprietary
Information of the Company in strict confidence and will neither use the
information for the benefit of myself or any other third party nor disclose it
to anyone, except to the extent necessary to carry out my responsibilities as an
employee of the Company or as specifically authorized in writing by a duly
authorized officer of the Company other than me. I understand that "Proprietary
Information" means all information pertaining in any manner to the business of
the Company or its affiliates, consultants, customers, business associates or
members, unless (i) the information is or becomes generally known to the public
through lawful means and through no fault of mine; (ii) the information was part
of my general knowledge prior to the initial disclosure of the information by
the Company or any person under a duty of confidentiality; or (iii) the
information is disclosed to me without restriction by a third party who
rightfully possesses the information and is under no duty of confidentiality.
This definition of "Proprietary Information" includes but is not limited to any
and all (a) technical or non-technical information, know-how, computer software
(whether in source code or object code form), programs, tools, data, research,
designs, drawings, diagrams, plans, specifications, trade secrets, inventions,
concepts, structures, improvements, products, patents pending, prototypes,
processes, formulas, algorithms, methods, techniques, hardware, devices,
schematics, works in process, systems, technologies or applications; (b)
financial and other information about costs, profits, markets, sales and pricing
structures, customers, subscribers, members, and bids; (c) plans, forecasts and
strategies for business, marketing, future development and new product concepts;
and (d) employee personnel files and information about employee compensation and
benefits; in any form and whether or not labeled or identified as confidential
or proprietary. I agree that I will have the burden of proving the applicability
of any of the foregoing exceptions.
b. LOCATION AND REPRODUCTION. I agree to maintain at my work
station and/or any other place under my control only such Proprietary
Information as I have a current "need to know." I agree to return to the
appropriate person or location or otherwise properly dispose of Proprietary
Information once that need to know no longer
EXHIBIT A
exists. I also agree that I will make copies and otherwise reproduce Proprietary
Information solely to the extent necessary to carry out my responsibilities as
an employee of the Company or as specifically authorized by a duly authorized
officer of the Company other than me.
c. PRIOR ACTIONS AND KNOWLEDGE. Except as disclosed on Schedule A
to this Agreement, I have no knowledge about the Company's business or
Proprietary Information, other than information I have learned from the Company
in the course of being hired and employed.
d. THIRD-PARTY INFORMATION. I recognize that the Company has
received and will receive confidential or proprietary information from third
parties. I will hold all such information in the strictest confidence and will
not use the information or disclose it to anyone (except as necessary in
carrying out my work for the Company consistent with the Company's agreement
with such third party).
e. INTERFERENCE WITH BUSINESS. I acknowledge that because of my
position in the Company, I will have access to the Company's confidential
information and trade secrets. I agree that during my employment with the
Company and for a period of 2 years after termination of my employment with the
Company, I shall not directly or indirectly (i) divert or attempt to divert from
the Company (or any affiliate) any business of any kind, including without
limitation the solicitation of or interference with any of its customers,
clients, members, business partners or suppliers or (ii) solicit, induce,
recruit or encourage any person employed by the Company to terminate his or her
employment.
f. NONCOMPETITION. I acknowledge that the Company's relationships
with its customers, clients, vendors, employees and other entities are valuable
business assets, and that there is a substantial likelihood that if I directly
compete with the Company, it would result in the unauthorized use or disclosure
of Proprietary Information or interfere with the Company's relationship with its
customers, clients, vendors, employees and other entities, which use or
disclosure of Proprietary Information would be extremely difficult to detect or
prove. Therefore, and in consideration for my employment with the Company, I
agree that during the period of my employment with the Company and for a period
of 1 year after termination of my employment with Company, I shall not, directly
or indirectly engage or participate in the development, marketing or
distribution of wireless media, entertainment and communication services in
China in three major categories: personalized media, games and entertainment,
and information and communication.
EXHIBIT A
2. INNOVATIONS
a. INNOVATIONS. "Innovations" collectively means any and all
ideas, concepts, inventions, discoveries, developments, software, content,
textual or artistic works, video, graphics, sound recordings, know-how,
structures, designs, formulas, algorithms, methods, products, processes, systems
and technologies in any stage of development that are conceived, created,
developed or reduced to practice by me alone or with others; any and all
patents, patents pending, copyrights, moral rights, trademarks and any other
intellectual property rights therein; and any and all improvements,
modifications, derivative works from, other rights in and claims related to any
of the foregoing under the laws of any jurisdiction; except Innovations excluded
in Schedule A.
b. OWNERSHIP OF INNOVATIONS. I hereby agree and acknowledge that
all Innovations shall be deemed to be "works made for hire" belonging to
Company. To the extent that any such Innovations, under applicable law, may not
be considered work made for hire by me for Company, or to the extent that such
Innovation is a patentable invention under Title 35 of the United States Code, I
agree to assign, and upon creation automatically assign, and transfer to the
Company, without further consideration, my entire right, title and interest
(throughout the United States and in all other countries or jurisdictions), free
and clear of all liens and encumbrances, in and to all Innovations, including
all intellectual property rights in such Innovations, as well as any extensions
and renewals thereof. Such assignment and transfer to the Company shall be
continuous during my employment as of the relevant time of development of each
such Innovation. The Company may, in its sole discretion, agree to provide
consideration for certain Innovations through a written agreement between the
Company and the undersigned which specifically provides for such consideration;
in all other cases, no consideration shall be paid. The Innovations shall be the
sole property of the Company, whether or not copyrightable or patentable or in a
commercial stage of development.
c. MORAL RIGHTS. To the extent allowed by law, this assignment of
Innovations includes all rights of paternity, integrity, disclosure and
withdrawal and any other rights that may be known as or referred to as "moral
rights," "artist's rights," or the like (collectively "Moral Rights"). To the
extent I retain any such Moral Rights under applicable law, I hereby ratify and
consent to any action that may be taken with respect to such Moral Rights by or
authorized by the Company and agree not to assert any Moral Rights with respect
thereto. I will confirm any such ratifications, consents and agreements from
time to time as requested by the Company.
EXHIBIT A
d. LICENSE FOR OTHER INNOVATIONS. I agree not to incorporate into
any Company property any work or invention owned by me or in which I have an
interest without obtaining Company's prior written consent. If, after receiving
such consent, in the course of my employment with the Company, I incorporate
into Company property a work or invention owned by me or in which I have an
interest, I hereby grant to the Company a worldwide, nonexclusive, royalty-free,
irrevocable, perpetual, transferable and sublicenseable (through multiple tiers)
license to make, use, import, offer for sale, sell, copy, distribute, publicly
display, perform publicly and by means of a digital audio transmission such work
or invention as part of and in connection with the Company property.
e. ASSIST WITH REGISTRATION AND PROTECTION. In the event any
Innovation shall be deemed by the Company to be copyrightable, patentable or
otherwise registrable, I will assist the Company (at its expense) in every way
deemed necessary or desirable by Company to protect the Innovations throughout
the world, including without limitation, performing acts necessary for
obtaining, maintaining and enforcing patent or other applicable registrations
and vesting the Company, or any of its affiliates, with full title. Should the
Company be unable to secure my signature on any document necessary to apply for,
prosecute, obtain, or enforce any patent, copyright, or other right or
protection relating to any Innovation, due to my incapacity or any other cause,
I hereby irrevocably designate and appoint the Company and each of its duly
authorized officers and agents as my agent and attorney-in-fact to do all
lawfully permitted acts to further the prosecution, issuance, and enforcement of
patents, copyrights, or other rights or protection with the same force and
effect as if executed and delivered by me.
f. DISCLOSURE. I agree to maintain current and adequate written
records on the development of all Innovations, and to disclose promptly to the
Company all such Innovations and records. I further agree to disclose promptly
to the Company any idea that I do not believe to be an Innovation, but which is
conceived, developed, or reduced to practice by me (alone or with others) while
I am employed by the Company, I will disclose the idea, along with all
information and records pertaining to the idea, and the Company will examine the
disclosure in confidence to determine if in fact it is an Innovation subject to
this Agreement.
3. FORMER OR CONFLICTING AGREEMENTS
a. FORMER AGREEMENTS. I represent and warrant that my performance
of the terms of this Agreement will not breach any agreement to keep in
confidence proprietary information acquired by me prior to my employment by the
Company. I
EXHIBIT A
have listed in Schedule A all other agreements concerning proprietary
information or inventions to which I am a party and attached copies of any
agreements in my possession. To the best of my knowledge, there is no other
contract between me and any other person or entity that is in conflict with this
Agreement or concerns proprietary information, inventions or assignment of
ideas.
b. PROHIBITION ON USE OF THIRD PARTY INFORMATION. I represent and
warrant and covenant that I will not disclose to the Company, or use, or induce
the Company to use, any proprietary information or trade secrets of others at
any time, including but not limited to any proprietary information or trade
secrets of any former employer, if any. I acknowledge and agree that any
violation of this provision shall be grounds for my immediate termination and
could subject me to substantial civil liabilities and criminal penalties. I
further specifically and expressly acknowledge that no officer or other employee
or representative of the Company has requested or instructed me to disclose or
use any such third party proprietary information or trade secrets.
4. TERMINATION
a. RETURN OF THE COMPANY'S PROPERTY. I agree to promptly return
to the Company upon termination of my employment all Proprietary Information,
including all tangible embodiments of such Proprietary Information in my
possession, and all personal property furnished to or prepared by me in the
course of or incident to my employment. Following my termination, I will not
retain any written or other tangible material containing any Proprietary
Information or information pertaining to any Innovation.
b. TERMINATION CERTIFICATE. In the event of the termination of my
employment, I agree, if requested by the Company, to sign and deliver the
Termination Certificate attached as Schedule B.
c. SUBSEQUENT EMPLOYERS. I agree that after the termination of my
employment with the Company, I will not enter into any agreement that conflicts
with my obligations under this Agreement and will inform any subsequent
employers of my obligations under this Agreement.
5. NO IMPLIED EMPLOYMENT RIGHTS
I recognize that nothing in this Agreement shall be construed
to imply that my employment is guaranteed for any period of time. Unless stated
in a written
EXHIBIT A
agreement signed by a duly authorized officer of the Company, my employment is
for an indefinite duration and at-will, and either the Company or I can
terminate our employment relationship at any time, without notice and for any
reason or no reason, with or without cause.
6. REMEDIES
I recognize that nothing in this Agreement is intended to
limit any remedy of the Company under any federal or state law concerning trade
secrets. I recognize that my violation of this Agreement could cause the Company
irreparable harm and agree that the Company shall have the right to apply to any
court of competent jurisdiction for an order restraining any breach or
threatened breach of this Agreement.
7. ASSIGNMENT
I acknowledge and agree that my performance is personal
hereunder, and that I shall have no right to assign and shall not assign or
purport to assign any rights or obligations under this Agreement. This Agreement
may be assigned or transferred by the Company. Subject to the foregoing
restrictions on assignment, this Agreement shall inure to the benefit of the
Company and its affiliates, officers, directors, agents, successors and assigns;
and shall be binding on me and my heirs, devisees, spouses, agents, legal
representatives and successors.
8. GOVERNING LAW AND ARBITRATION
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without reference to conflicts
of law principles. Any dispute arising out of this Agreement that the Company
and I cannot settle amicably shall be resolved exclusively by arbitration before
one neutral arbitrator in the City of New York and administered by the American
Arbitration Association ("AAA") in accordance with its Employment Dispute
Arbitration Rules. The arbitrator shall be an attorney selected by mutual
agreement of the Company and me; however, if we cannot agree on the selection of
an arbitrator within fifteen (15) days following the delivery by either party to
the other of a demand for arbitration, the arbitrator shall be selected by or in
accordance with the Employment Dispute Arbitration Rules of the AAA.
9. SEVERABILITY
If any provision of this Agreement, or application thereof to
any person, place, or circumstance, shall be held by a court of competent
jurisdiction to be
EXHIBIT A
unenforceable, such provision shall be enforced to the
greatest extent permitted by law and the remainder of this Agreement shall
remain in full force and effect.
10. AMENDMENT; WAIVERS
This Agreement may not be amended or waived except by a
writing signed by me and by a duly authorized representative of the Company
other than me. Failure to exercise any right under this Agreement shall not
constitute a waiver of such right. Any waiver of any breach of this Agreement
shall not operate as a waiver of any subsequent breaches. All rights or remedies
specified for a party herein shall be cumulative and in addition to all other
rights and remedies of the party hereunder or under applicable law.
11. INTERPRETATION
This Agreement shall be construed as a whole, according to its
fair meaning, and not in favor of or against any party. Sections and section
headings contained in this Agreement are for reference purposes only, and shall
not affect in any manner the meaning of interpretation of this Agreement.
Whenever the context requires, references to the singular shall include the
plural and the plural the singular and any gender shall include any other
gender.
12. ENTIRE AGREEMENT
The terms of this Agreement are the final expression of my agreement
with respect to the subject matter hereof and may not be contradicted by
evidence of any prior or contemporaneous agreement. This Agreement shall
constitute the complete and exclusive statement of its terms. I acknowledge that
the Company has not made any other representations or warranties concerning the
subject matter of this Agreement. The termination of any employment or other
agreement between the Company and me shall not terminate this Agreement and each
and all of the terms and conditions hereof shall survive and remain in full
force and effect.
EXHIBIT A
I HEREBY ACKNOWLEDGE THAT I HAVE READ THIS AGREEMENT CAREFULLY
AND UNDERSTAND THE LEGAL EFFECT OF ITS TERMS. I HAVE HAD THE OPPORTUNITY TO
CONSULT WITH INDEPENDENT LEGAL COUNSEL AND AM ENTERING INTO THIS AGREEMENT
FREELY BASED ON MY OWN JUDGMENT. I HAVE COMPLETELY NOTED ON SCHEDULE A TO THIS
AGREEMENT ANY PROPRIETARY INFORMATION, INVENTIONS, IDEAS, PROCESSES,
INNOVATIONS, TECHNOLOGY, WRITINGS, PROGRAMS, DESIGNS, FORMULAS, DISCOVERIES,
PATENTS, COPYRIGHTS, OR TRADEMARKS, OR IMPROVEMENTS, RIGHTS, OR CLAIMS RELATING
TO THE FOREGOING, THAT I DESIRE TO EXCLUDE FROM THIS AGREEMENT.
Date: 11/18/2003
Xin Ye
Employee Name
/s/ Xin Ye
-----------------------------------
Employee Signature
EXHIBIT A
SCHEDULE A
EMPLOYEE'S DISCLOSURE
1. PROPRIETARY INFORMATION. Except as set forth below, I acknowledge that
at this time I know nothing about the business or Proprietary
Information of Linktone Ltd. (the "Company"), other than information I
have learned from the Company in the course of being hired: ___________
_______________________________________________________________________
_______________________________________________________________________
2. PRIOR INNOVATIONS. Except as set forth below, there are no ideas,
concepts, inventions, discoveries, developments, know-how, structures,
designs, formulas, algorithms, methods, products, processes, systems
and technologies in any stage of development that are conceived,
developed or reduced to practice by me alone or with others; any
patents, patents pending, copyrights, moral rights, trademarks and any
other intellectual property rights therein; or any improvements,
modifications, derivative works from, other rights in and claims
related to any of the foregoing under the laws of any jurisdiction,
that I wish to exclude from the operation of this Agreement:___________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
3. PRIOR AGREEMENTS. Except as set forth below, I am aware of no prior
agreements between me and any other person or entity concerning
proprietary information or inventions (attach copies of all agreements
in your possession):
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
Date: 11/18/2003
Xin Ye
Employee Name
/s/ Xin Ye
-----------------------------------
Employee Signature
EXHIBIT A
SCHEDULE B
TERMINATION CERTIFICATE CONCERNING
COMPANY PROPRIETARY INFORMATION
This is to certify that I have returned all property of
Linktone Ltd. (the "Company"), including, without limitation, all source code
listings, books, manuals, records, models, drawings, reports, notes, contracts,
lists, blueprints, and other documents and materials, Proprietary Information,
and equipment furnished to or prepared by me in the course of or incident to my
employment with the Company, and that I did not make or distribute any copies of
the foregoing.
I further certify that I have reviewed the Company's
Proprietary Information Agreement ("Agreement") signed by me and that I have
complied with and will continue to comply with each and all of its terms and
conditions, including without limitation: (i) the reporting of any and all
ideas, concepts, inventions, discoveries, developments, know-how, structures,
designs, formulas, algorithms, methods, products, processes, systems and
technologies; any and all patents, patents pending, copyrights, moral rights,
trademarks and any other intellectual property rights therein; and any and all
improvements, modifications, derivative works from, other rights in and claims
related to any of the foregoing under the laws of any jurisdiction, conceived or
developed by me alone or with others and covered by the Agreement and (ii) the
preservation as confidential all Proprietary Information pertaining to the
Company. This certificate in no manner limits my responsibilities or the
Company's rights under the Agreement.
On termination of my employment with the Company, I will be
employed by _____________________ [Name of New Employer] [in the ______________
division] and I will be working in connection with the following projects:
[generally describe the projects]
___________________________________________________________________
___________________________________________________________________
Date: 11/18/2003
Xin Ye
Employee Name
/s/ Xin Ye
-----------------------------------
Employee Signature
EXHIBIT B
ARBITRATION AGREEMENT
Linktone Ltd. (the "Company") and Employee hereby agree that, to the
fullest extent permitted by law, any and all claims or controversies between
them (or between Employee and any present or former officer, director, agent, or
employee of the Company or any parent, subsidiary, or other entity affiliated
with the Company) relating in any manner to the employment or the termination of
employment of Employee shall be resolved by final and binding arbitration.
Except as specifically provided herein, any arbitration proceeding shall be
conducted in accordance with the National Rules for the Resolution of Employment
Disputes of the American Arbitration Association ("the AAA Rules").
Claims subject to arbitration shall include, without limitation:
contract claims, tort claims, claims relating to compensation and stock options,
as well as claims based on any federal, state, or local law, statute, or
regulation.
A neutral and impartial arbitrator shall be chosen by mutual agreement
of the parties; however, if the parties are unable to agree upon an arbitrator
within a reasonable period of time, then a neutral and impartial arbitrator
shall be appointed in accordance with the arbitrator nomination and selection
procedure set forth in the AAA Rules. The arbitrator shall prepare a written
decision containing the essential findings and conclusions on which the award is
based so as to ensure meaningful judicial review of the decision. The arbitrator
shall apply the same substantive law, with the same statutes of limitations and
same remedies, that would apply if the claims were brought in a court of law.
Either the Company or Employee may bring an action in court to compel
arbitration under this Agreement and to enforce an arbitration award. Otherwise,
neither party shall initiate or prosecute any lawsuit of claim in any way
related to any arbitrable claim. Nothing in this Agreement, however, precludes a
party from filing an administrative charge before an agency that has
jurisdiction over an arbitrable claim.
All arbitration hearings under this Agreement shall be conducted in New
York, unless otherwise agreed by the parties. The arbitration provisions of this
Arbitration Agreement shall be governed by the Federal Arbitration Act. In all
other respects, this Arbitration Agreement shall be construed in accordance with
the laws of the State of New York, without reference to conflicts of law
principles.
Each party shall pay its own costs and attorney's fees, unless a party
prevails on a statutory claim, and the statute provides that the prevailing
party is entitled to payment of its
1
EXHIBIT B
attorneys' fees. In that case, the arbitrator may award reasonable attorneys'
fees and costs to the prevailing party as provided by law.
This Agreement does not alter Employee's at-will employment status.
Accordingly, Employee understands that the Company may terminate Employee's
employment, as well as discipline or demote Employee, at any time, with or
without prior notice, and with or without cause. The parties also understand
that Employee is free to leave the Company at any time and for any reason, with
or without cause and with or without advance notice.
If any provision of this Agreement shall be held by a court or the
arbitrator to be invalid, unenforceable, or void, such provision shall be
enforced to the fullest extent permitted by law, and the remainder of this
Agreement shall remain in full force and effect. The parties' obligations under
this Agreement shall survive the termination of Employee's employment with the
Company and the expiration of this Agreement.
The Company and Employee understand and agree that this Arbitration
Agreement contains a full and complete statement of any agreements and
understandings regarding resolution of disputes between the parties, and the
parties agree that this Arbitration Agreement supersedes all previous
agreements, whether written or oral, express or implied, relating to the
subjects covered in this agreement. The parties also agree that the terms of
this Arbitration Agreement cannot be revoked or modified except in a written
document signed by both Employee and an officer of the Company.
THE PARTIES ALSO UNDERSTAND AND AGREE THAT THIS AGREEMENT CONSTITUTES A WAIVER
OF THEIR RIGHT TO A TRIAL BY JURY OF ANY CLAIMS OR CONTROVERSIES COVERED BY THIS
AGREEMENT. THE PARTIES AGREE THAT NONE OF THOSE CLAIMS OR CONTROVERSIES SHALL BE
RESOLVED BY A JURY TRIAL.
THE PARTIES FURTHER ACKNOWLEDGE THAT THEY HAVE BEEN GIVEN THE OPPORTUNITY TO
DISCUSS THIS AGREEMENT WITH THEIR LEGAL COUNSEL AND HAVE AVAILED THEMSELVES OF
THAT OPPORTUNITY TO THE EXTENT THEY WISH TO DO SO.
Date: 11/18/2003
Signed: /s/ Xin Ye
-------------------------------
Employee
2
EXIHIBT B
Date: 11/18/03
Signed: /s/ Xxxx Xxxxxx
-----------------------------------------
By: Xxxx Xxxxxx
Position: Chief Financial Officer
Linktone Ltd.
3
EXHIBIT C
CERTIFICATE REGARDING CONFIDENTIAL
AND TRADE SECRET INFORMATION
I understand that Linktone Ltd. (the "Company") has hired me
because of my job experience and qualifications, and not because it wants to
obtain trade secrets or other confidential or proprietary information from my
previous employers. Accordingly, I hereby certify that:
1. I have returned all property provided to me, or obtained by me, from my
previous employers including, without limitation: all books, manuals, records,
models, drawings, reports, notes, contracts, customer lists and other lists,
blueprints, equipment, and other documents and materials. In addition, I did not
make or distribute any copies of the foregoing, except as authorized by my
previous employers.
2. Listed on Schedule "A" are all non-disclosure, non-competition, and
non-solicitation agreements that I signed with previous employers. I have also
attached copies of all such agreements in my possession. To the best of my
knowledge, there are no other agreements between me and any other person or
entity concerning non-disclosure of proprietary information, non-competition, or
non-solicitation. I have reviewed the agreements listed on Schedule "A," and I
have complied with and will continue to comply with all of the lawful terms of
these agreements, including the preservation as confidential of all trade secret
and confidential information pertaining to my previous employers.
3. My performance of my job duties for the Company will not breach any
agreement to keep in confidence confidential, proprietary, and trade secret
information that I may have acquired during my previous employment.
4. During my employment with the Company, I will not disclose to the
Company any confidential, proprietary, or trade secret information of any of my
previous employers; I will not bring such information to the Company's
attention; and I will not use such information in my own employment by the
Company.
Date: 11/18/2003
/s/ Xin Ye
---------------------------
Employee Signature
Xin Ye
Printed Name
Chief Technology Officer
Position
1
EXHIBIT C
SCHEDULE "A"
PRIOR AGREEMENTS. Below is a list of all non-disclosure,
non-competition, and non-solicitation agreements between me and any other entity
that I have signed or that may apply to me in any way:
1. _____________________________________________________________________
2. _____________________________________________________________________
3. _____________________________________________________________________
4. _____________________________________________________________________
5. _____________________________________________________________________
6. _____________________________________________________________________
7. _____________________________________________________________________
8. _____________________________________________________________________
9. _____________________________________________________________________
10. _____________________________________________________________________
Please attach copies of all agreements in your possession, unless
confidentiality provisions prohibit you from attaching the agreements.
2
