FIRST AMENDMENT TO AMENDED AND RESTATED EXECUTIVE SERVICES (CEO) AGREEMENT
Exhibit 5
THIS FIRST AMENDMENT TO AMENDED AND RESTATED EXECUTIVE SERVICES (CEO) AGREEMENT (“First
Amendment”) effective as of March 11, 2009 (“Effective Date”) between CDC Corporation Limited
located at 00/X Xxxxxxxx Xxxxxx, 00 Xxxxxxxxx Xxxx, Xxxxxxxx Xxx, Xxxx Xxxx (the “Company”) and
Asia Pacific On-Line Limited located at Suite 3302,33/F., Hopewell Centre, 183 Queen’s Road East,
Wanchai, Hong Kong (“APOL”). The Company and APOL are
collectively referred to as the “Parties”
and each, a “Party”.
WHEREAS, APOL and the Company have previously entered into an Amended and Restated Executive
Services Agreement dated December 19, 2008 (the “Existing Services Agreement”) in which APOL has
agreed to provide certain Services to the Company, including the services of Xx. Xxxxx Xxx (the
“Executive”) as the Chief Executive Officer and Vice-Chairman of CDC Corporation on the terms set
forth herein.
WHEREAS, the Company and APOL have agreed to amend the Existing Services Agreement in order
to, among other things, revise the bonus compensation payable thereunder.
NOW, THEREFORE, in consideration of the foregoing mutual covenants and agreements contained
herein, the Parties hereby agree as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 In this First Amendment, the capitalized words and expressions shall bear the same meaning as
set forth in the Existing Services Agreement, unless the context otherwise requires.
2. MILESTONE ADJUSTMENT
2.1 The Company and APOL hereby agree to adjust and revise the milestone payment set forth in the
first bullet point under the fourth bullet point of Section 4.2 (the “Convertible Debt
Milestone”), by deleting the Convertible Debt Milestone in its entirety and inserting in lieu
thereof a new paragraph pursuant to which the $350,000 bonus payout previously provided would be
revised as follows:
| o | $175,000 upon the achievement of at least $18.7 million in savings of interest charges that would otherwise have been payable to non affiliates as a result of purchases by the Company or its affiliates of its 3.75% Convertible Exchangeable Debentures due 2011 (the “Convertible Debt”), and another $175,000 upon the successful achievement of the payment, modification or discharge, outside of any proceeding seeking or obtaining protection against creditors, of the entire $168 million principal balance of Convertible Debt effective prior to November 10, 2009, such that the Holder Redemption Put Right (as defined in the Notes) is avoided or eliminated; and |
3. SOLE AMENDMENT
The foregoing amendment of the Executive Services Agreement shall be the sole amendment
thereof, and except to the extent expressly set forth in this First Amendment, the Executive
Services Agreement and all of the other terms and conditions thereof shall remain in full force
and effect.
Page 1 of 2
IN WITNESS WHEREOF,
this First Amendment to Amended and Restated Executive Services (CEO)
Agreement has been signed by or on behalf of the parties hereto and is effective as of the date
first written above.
| ) ) ) ) |
 |
|||
Date: |
||||
SIGNED by Xx. Xxxxx Xxxxx Loi Director Chinadotcom Secretarial Services Limited On behalf of CDC Corporation Limited In the presence of  |
) ) ) ) |
 |
||
Date: April 23, 2009 |
||||
SIGNED by Xxxxx Xxx Director On behalf of Asia Pacific Online Limited In the presence of  |
) ) ) ) |
 |
||
Date: April 29, 2009 |
||||
| Acknowledged and agreed to by Xxxxx Xxx, as the Executive. | ||||
SIGNED by Xxxxx Xxx Executive In the presence of  |
) ) ) |
 |
||
Date: April 29, 2009 |
||||
Page 2 of 2
