Exhibit 10.24
CHINA FINANCE ONLINE CO., LIMITED
FORM OF CHANGE IN CONTROL AGREEMENT
THIS AGREEMENT is made and entered into by and between China Finance Online
Co., Limited, a company formed under the laws of Hong Kong Special
Administrative Region, People's Republic of China (hereinafter referred to as
the "COMPANY") and ________________ (hereinafter referred to as the
"EXECUTIVE").
RECITALS
The Board of Directors of the Company has approved the Company entering
into a severance agreement with the Executive.
The Executive is a key executive of the Company.
Should the possibility of a Change in Control of the Company arise, the
Board believes it imperative that the Company and the Board should be able to
rely upon the Executive to continue in his position, and that the Company should
be able to receive and rely upon the Executive's advice, if requested, as to the
best interests of the Company and its stockholders without concern that the
Executive might be distracted by the personal uncertainties and risks created by
the possibility of a Change in Control.
Should the possibility of a Change in Control arise, in addition to his
regular duties, the Executive may be called upon to assist in the assessment of
such possible Change in Control, advise management and the Board as to whether
such Change in Control would be in the best interests of the Company and its
stockholders, and to take such other actions as the Board might determine to be
appropriate.
NOW THEREFORE, to assure the Company that it will have the continued
dedication of the Executive and the availability of his advice and counsel
notwithstanding the possibility, threat, or occurrence of a Change in Control of
the Company, and to induce the Executive to remain in the employ of his Employer
in the face of these circumstances and for other good and valuable
consideration, the Company and the Executive agree as follows:
ARTICLE 1. TERM
This Agreement shall be effective as of September 30, 2004 (the "EFFECTIVE
DATE"). This Agreement will continue in effect through September 30, 2007.
However, at the end of such three (3) year period and, if extended, at the end
of each additional year thereafter, the term of this Agreement shall be extended
automatically for one (1) additional year, unless the Committee delivers written
notice at least six (6) months prior to the end of such term, or extended term,
to the Executive that this Agreement will not be extended, and if such notice is
timely given this Agreement will terminate at the end of the term then in
progress; provided, however, that this provision for automatic extension shall
have no application following a Change in Control.
However, in the event a Change in Control occurs during the original or any
extended term, this Agreement will remain in effect for the longer of: (i)
twenty-four (24) months beyond the month in which such Change in Control
occurred; or (ii) until all obligations of the Company
1
hereunder have been fulfilled, and until all benefits required hereunder have
been paid to the Executive. Any subsequent Change in Control ("SUBSEQUENT CHANGE
IN CONTROL") that occurs during the original or any extended term shall also
continue the term of this Agreement until the later of: (i) twenty-four (24)
months beyond the month in which such Subsequent Change in Control occurred; or
(ii) until all obligations of the Company hereunder have been fulfilled, and
until all benefits required hereunder have been paid to the Executive; provided,
however, that if a Subsequent Change in Control occurs, it shall only be
considered a Change in Control under this Agreement if it occurs no later than
twenty-four (24) months after the immediately preceding Change in Control or
Subsequent Change in Control.
ARTICLE 2. DEFINITIONS
Whenever used in this Agreement, the following terms shall have the
meanings set forth below and, when the meaning is intended, the initial letter
of the word is capitalized:
(a) "AGREEMENT" means this Change in Control Agreement.
(b) "BASE SALARY" means the salary of record paid to the Executive by his
Employer as annual salary (whether or not deferred), but excludes
amounts received under incentive or other bonus plans.
(c) "BENEFICIARY" means the persons or entities designated or deemed
designated by the Executive pursuant to Section 9.2.
(d) "BOARD" means the Board of Directors of the Company.
(e) "CAUSE" shall mean the occurrence of either or both of the following:
(i) The Executive's conviction for committing an act of fraud,
embezzlement, theft, or other act constituting a felony (other
than traffic related offenses or as a result of vicarious
liability); or
(ii) The willful engaging by the Executive in misconduct that is
significantly injurious to the Company and/or the Executive's
Employer. However, no act, or failure to act, on the Executive's
part shall be considered "willful" unless done, or omitted to be
done, by the Executive not in good faith and without reasonable
belief that his action or omission was in the best interest of
the Company and his Employer.
(f) "CHANGE IN CONTROL" of the Company shall be deemed to have occurred as
of the first day that any one or more of the following events shall
have occurred:
(i) The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act (a
"PERSON")) of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of 20% or more of
either (a) the then-outstanding Ordinary Shares of the Company
(the "OUTSTANDING ORDINARY SHARES") or (b) the combined voting
power of the then-outstanding voting securities
2
of the Company entitled to vote generally in the election of
directors (the "OUTSTANDING VOTING SECURITIES"); provided,
however, that, for purposes of this definition the following
acquisitions shall not constitute a Change in Control; (1) any
acquisition directly from the Company, (2) any acquisition by the
Company, (3) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Company or any
affiliate of the Company or a successor, or (4) any acquisition
by any entity pursuant to a transaction that complies with
clauses (iii)(a), (b) and (c) below;
(ii) Individuals who, as of the Effective Date, constitute the Board
(the "INCUMBENT BOARD") cease for any reason to constitute at
least a majority of the Board; provided, however, that any
individual becoming a director subsequent to the Effective Date
whose election, or nomination for election by the Company's
shareholders, was approved by a vote of at least two-thirds of
the directors then comprising the Incumbent Board (including for
these purposes, the new members whose election or nomination was
so approved, without counting the member and his predecessor
twice) shall be considered as though such individual were a
member of the Incumbent Board, but excluding, for this purpose,
any such individual whose initial assumption of office occurs as
a result of an actual or threatened election contest with respect
to the election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on behalf of
a Person other than the Board;
(iii) Consummation of a reconstruction and amalgamation,
reorganization, merger, statutory share exchange or consolidation
or similar corporate transaction involving the Company or any of
its Subsidiaries, a sale or other disposition of all or
substantially all of the assets of the Company, or the
acquisition of assets or stock of another entity by the Company
or any of its Subsidiaries (each, a "BUSINESS COMBINATION"), in
each case unless, following such Business Combination, (a) all or
substantially all of the individuals and entities that were the
beneficial owners of the Outstanding Ordinary Shares and the
Outstanding Voting Securities immediately prior to such Business
Combination beneficially own, directly or indirectly, more than
50% of the then-outstanding ordinary shares and the combined
voting power of the then-outstanding voting securities entitled
to vote generally in the election of directors, as the case may
be, of the entity resulting from such Business Combination
(including, without limitation, an entity that, as a result of
such transaction, owns the Company or all or substantially all of
the Company's assets directly or through one or more subsidiaries
(a "PARENT")) in substantially the same proportions as their
ownership immediately prior to such Business Combination of the
Outstanding Ordinary Shares and the Outstanding Voting
Securities, as the case may be, (b) no Person (excluding any
entity resulting from such Business Combination or a Parent or
any employee benefit plan (or related trust) of the Company or
such entity resulting from such Business
3
Combination or Parent) beneficially owns, directly or indirectly,
20% or more of, respectively, the then-outstanding ordinary
shares of the entity resulting from such Business Combination or
the combined voting power of the then-outstanding voting
securities of such entity, except to the extent that the
ownership in excess of 20% existed prior to the Business
Combination, and (c) at least a majority of the members of the
board of directors or trustees of the entity resulting from such
Business Combination or a Parent were members of the Incumbent
Board at the time of the execution of the initial agreement or of
the action of the Board providing for such Business Combination;
or
(iv) Approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company other than in the
context of a transaction that does not constitute a Change in
Control under clause (iii) above.
Notwithstanding the foregoing, in no event shall (a) beneficial
ownership of any securities of the Company by IDG Technology Venture
Investments, Inc., IDG Technology Venture Investments, LP, Vertex
Technology Fund (III) Ltd., CAST Technology, Inc. or FANASIA Capital
Limited, or (b) any transaction or other event that occurred prior to
the Effective Date, constitute a Change in Control.
(g) "CODE" means the United States Internal Revenue Code of 1986, as
amended.
(h) "COMMITTEE" means the Compensation Committee of the Board, or any
other committee appointed by the Board to perform the functions of the
Compensation Committee.
(i) "COMPANY" means China Finance Online Co., Limited, a company formed
under the laws of Hong Kong Special Administrative Region, People's
Republic of China or any successor thereto as provided in Article 8.
(j) "DISABILITY" means the Executive's inability, because of physical or
mental illness or injury, to perform the essential function of his
customary duties of his employment with his Employer, with or without
reasonable accommodation, and the continuation of such disabled
condition for a period of one hundred twenty (120) continuous days, or
for not less than two hundred ten (210) days during any continuous
twenty-four (24) month period, such Disability to be determined by the
Committee upon receipt and reliance on competent medical advice from
one or more individuals, selected by the Committee, who are qualified
to give such professional medical advice.
(k) "EFFECTIVE DATE" means September 30, 2004.
(l) "EFFECTIVE DATE OF TERMINATION" means the date on which a Qualifying
Termination occurs.
(m) "EMPLOYER" means the Company or any Subsidiary, as the context may
require.
4
(n) "EXCHANGE ACT" means the United States Securities Exchange Act of
1934, as amended.
(o) "EXECUTIVE" means the individual identified in the first sentence, and
on the signature page, of this Agreement.
(p) "GOOD REASON" means, without the Executive's express written consent,
the occurrence of any one or more of the following:
(i) A material reduction in the nature or status of the Executive's
authorities, duties, and/or responsibilities, (when such
authorities, duties, and/or responsibilities are viewed in the
aggregate) from their level in effect on the day immediately
prior to the start of the Protected Period, other than an
insubstantial and inadvertent act that is remedied by the
Executive's Employer promptly after receipt of notice thereof
given by the Executive.
(ii) A reduction by the Executive's Employer in the Executive's Base
Salary as in effect on the Effective Date or as the same shall be
increased from time to time.
(iii) A material reduction by the Company or by Executive's Employer
of the Executive's aggregate welfare and/or incentive
opportunities under the Company's and/or the Executive's
Employer's welfare, short and/or long-term incentive programs, as
such opportunities exist on the Effective Date, or as such
opportunities may be increased after the Effective Date and when
viewed on an aggregate basis; provided, however, that a reduction
in the aggregate value shall not be deemed to be "Good Reason" if
the reduced value remains substantially consistent with the
average level of other employees who have positions commensurate
with the position held by the Participant immediately prior to
the reduction.
(iv) The failure of the Company to obtain a satisfactory agreement
from any successor to the Company to assume and agree to perform
this Agreement, as contemplated in Article 8.
(v) Any purported termination by the Executive's Employer of the
Executive's employment that is not effected pursuant to a Notice
of Termination satisfying the requirements of Section 3.8 and for
purposes of this Agreement, no such purported termination shall
be effective.
(vi) The Executive is informed by the Company or the Executive's
Employer that his or her principal place of employment for the
Executive's Employer will be relocated to a location that is
greater than fifty (50) miles away from the Executive's principal
place of employment for the Executive's Employer at the start of
the corresponding Protected Period; provided that, if the Company
or Executive's Employer communicates an intended effective date
for such relocation, in no event shall Good Reason
5
exist pursuant to this clause (vii) more than ninety (90) days
before such intended effective date.
The Executive's right to terminate employment for Good Reason shall
not be affected by the Executive's incapacity due to physical or
mental illness. The Executive's continued employment shall not
constitute a consent to, or a waiver of rights with respect to, any
circumstances constituting Good Reason herein.
(q) "QUALIFYING TERMINATION" has the meaning given to such term in Section
3.3(a).
(r) "SEVERANCE BENEFITS" means the payments and/or benefits provided in
Section 3.4.
(s) "SUBSIDIARY" means China Finance Online (Beijing) Co., Ltd. and any
other corporation or entity, a majority of whose outstanding voting
stock or voting power is beneficially owned, directly or indirectly,
by the Company.
ARTICLE 3. SEVERANCE BENEFITS
3.1. RIGHT TO SEVERANCE BENEFITS. Subject to Section 9.1, the Executive
shall be entitled to receive from the Company Severance Benefits, as described
in Section 3.4, if the Executive has incurred a Qualifying Termination.
The Executive shall not be entitled to receive Severance Benefits if his
employment terminates (regardless of the reason) before the Protected Period (as
such term is defined in Section 3.3(c)) corresponding to a Change in Control of
the Company or more than twenty-four (24) months after the date of a Change in
Control of the Company.
3.2. SERVICES DURING CERTAIN EVENTS. In the event a Person begins a tender
or exchange offer, circulates a proxy to stockholders of the Company, or takes
other steps seeking to effect a Change in Control, the Executive agrees that he
will not voluntarily leave the employ of his Employer and will continue to
render services until the later of (i) the date such Person has abandoned or
terminated his or its efforts to effect a Change in Control, and (ii) the date
that is six (6) months after a Change in Control has occurred. Notwithstanding
the foregoing, the Executive's Employer may terminate the Executive's employment
for Cause at any time, and the Executive may terminate his employment at any
time after the Change in Control for Good Reason.
3.3. QUALIFYING TERMINATION.
(a) Subject to Sections 3.3(d), 3.3(e), 3.5, 3.6 and 3.7, the occurrence
of any one or more of the following events within the Protected Period
corresponding to a Change in Control of the Company, or within
twenty-four (24) calendar months following the date of a Change in
Control of the Company shall constitute a "QUALIFYING TERMINATION":
(i) An involuntary termination of the Executive's employment by his
Employer for reasons other than Cause;
6
(ii) A voluntary termination of employment by the Executive for Good
Reason;
(iii) A successor company fails or refuses to assume by written
instrument the Company's obligations under this Agreement, as
required by Article 8; or
(iv) The Company or any successor company repudiates or breaches any
of the provisions of this Agreement.
(b) If more than one of the events set forth in Section 3.3(a) occurs,
such events shall constitute but a single Qualifying Termination and
the Executive shall be entitled to only a single payment of the
Severance Benefits.
(c) The "PROTECTED PERIOD" corresponding to a Change in Control of the
Company shall be a period of time determined in accordance with the
following:
(i) If the Change in Control is triggered by a tender offer for
shares of the Company's stock or by the offeror's acquisition of
shares pursuant to such a tender offer, the Protected Period
shall commence on the date of the initial tender offer and shall
continue through and including the date of the Change in Control;
provided that in no case will the Protected Period commence
earlier than the date that is six (6) months prior to the Change
in Control.
(ii) If the Change in Control is triggered by a reconstruction and
amalgamation, merger, consolidation, or reorganization of the
Company with or involving any other corporation, the Protected
Period shall commence on the date that serious and substantial
discussions first take place to effect the reconstruction and
amalgamation, merger, consolidation, or reorganization and shall
continue through and including the date of the Change in Control;
provided that in no case will the Protected Period commence
earlier than the date that is six (6) months prior to the Change
in Control.
(iii) In the case of any Change in Control not described in clause (i)
or (ii) above, the Protected Period shall commence on the date
that is six (6) months prior to the Change in Control and shall
continue through and including the date of the Change in Control.
(d) Notwithstanding anything else contained herein to the contrary, the
Executive's termination of employment on account of reaching mandatory
retirement age, as such age may be defined from time to time in
policies adopted by the Company prior to the commencement of the
Protected Period, and consistent with applicable law, shall not be a
Qualifying Termination.
(e) Notwithstanding anything else contained herein to the contrary, the
termination of the Executive's employment (or other events giving rise
to Good Reason) shall not constitute a Qualifying Termination if there
is objective evidence that, as of
7
the commencement of the Protected Period, the Executive had
specifically been identified by the Company or the Executive's
Employer as an employee whose employment would be terminated as part
of a corporate restructuring or downsizing program that commenced
prior to the Protected Period and such termination of employment was
expected at that time to occur within six (6) months.
(f) Notwithstanding anything else contained herein to the contrary (other
than those provisions that contain an express exception to this
Section 3.3(f)), the Executive's Severance Benefits under this
Agreement shall be reduced by the severance benefits (including,
without limitation, any other change-in-control severance benefits and
any other severance benefits generally) that the Executive may be
entitled to under any other plan, program, agreement or other
arrangement with the Company and/or his Employer (including, without
limitation, any such benefits provided for by an employment
agreement). For purposes of the foregoing, any cash severance benefits
payable to the Executive under any other plan, program, agreement or
other arrangement with the Company and/or his Employer shall offset
the cash severance benefits otherwise payable to the Executive under
this Agreement on a dollar-for-dollar basis. For purposes of the
foregoing, non-cash severance benefits to be provided to the Executive
under any other plan, program, agreement or other arrangement with the
Company and/or his Employer shall offset any corresponding benefits
otherwise to be provided to the Executive under this Agreement or, if
there are no corresponding benefits otherwise to be provided to the
Executive under this Agreement, the value of such benefits shall
offset the cash severance benefits otherwise payable to the Executive
under this Agreement on a dollar-for-dollar basis. If the amount of
other benefits to be offset against the cash severance benefits
otherwise payable to the Executive under this Agreement in accordance
with the preceding two sentences exceeds the amount of cash severance
benefits otherwise payable to the Executive under this Agreement, then
the excess may be used to offset other non-cash severance benefits
otherwise to be provided to the Executive under this Agreement on a
dollar-for-dollar basis. For purposes of this paragraph, the Company
shall reasonably determine the value of any non-cash benefits.
3.4. DESCRIPTION OF SEVERANCE BENEFITS. In the event that the Executive
becomes entitled to receive Severance Benefits, as provided in Sections 3.1 and
3.3, the Company shall pay to the Executive and provide him or her with the
following:
(a) An amount equal to the greater of:
(i) U.S.$2,000,000; or
(ii) three (3) times the sum of (A) the highest rate of the
Executive's annualized Base Salary in effect at any time up to
and including the Effective Date of Termination, and (B) the
highest Annual Bonus received by the Executive in any of the
three (3) full fiscal years prior to the date of the Change in
Control of the Company. For purposes of this Agreement,
8
the Executive's "ANNUAL BONUS" shall mean the sum of (X) the
amount of any cash bonus paid by the Company to the Executive for
the applicable fiscal year, (Y) the aggregate Fair Market Value
(determined as of the applicable grant date) of the shares of the
Company's stock granted to the Executive as a bonus, if any, for
the applicable fiscal year and (Z) the aggregate option spread
(determined as of the applicable grant date) with respect to the
options granted by the Company to the Executive as an incentive
during the applicable fiscal year. For purposes of clause (Z),
the option spread of an option shall equal the positive
difference, if any, determined by subtracting the applicable
exercise price of the option from the Fair Market Value of the
Company's stock on the date the option was granted. For purposes
of this Agreement, "FAIR MARKET VALUE" shall have the meaning
ascribed to such term in the Company's 2004 Stock Incentive Plan.
Notwithstanding the foregoing, special bonuses or bonus
enhancements that would otherwise be included for purposes of the
foregoing calculations of this Section 3.4(b), but that are
related to an amalgamation, merger, acquisition, consolidation,
reorganization, spin-off or similar event and that are not part
of the Company's customary on-going program of annual bonus plan
bonuses, if any, shall be excluded for purposes of such
calculation.
(b) To the extent that the Executive held stock options and restricted
stock awards previously granted and are otherwise unvested as of the
Effective Date of Termination, such awards shall be deemed fully
vested as of the Effective Date of Termination, otherwise the other
terms and conditions of such awards shall continue to apply.
3.5. TERMINATION FOR TOTAL AND PERMANENT DISABILITY. Termination of the
Executive's employment due to Disability is not a Qualifying Termination.
However, if immediately prior to the condition or event leading to, or the
commencement of, the Disability of the Executive, the Executive would have
experienced a Qualifying Termination if he had terminated at that time, then
upon termination of his employment for Disability he shall be entitled to the
benefits provided by this Agreement for a Qualifying Termination.
3.6. TERMINATION FOR RETIREMENT OR DEATH. Termination of the Executive's
employment due to death or retirement is not a Qualifying Termination. However,
if immediately prior to the Executive's retirement (but not death), the
Executive would have experienced a Qualifying Termination if he had terminated
at that time, then upon his retirement he shall be entitled to the benefits
provided by this Agreement for a Qualifying Termination.
3.7. TERMINATION FOR CAUSE OR BY THE EXECUTIVE OTHER THAN FOR GOOD REASON.
Termination of the Executive's employment by the Executive's Employer for Cause
or by the Executive other than for Good Reason does not constitute a Qualifying
Termination.
3.8. NOTICE OF TERMINATION. Any termination by the Executive's Employment
for Cause or by the Executive for Good Reason shall be communicated by a Notice
of Termination. For purposes of this Agreement, a "NOTICE OF TERMINATION" shall
mean a written notice which
9
shall indicate the specific termination provision in this Agreement relied upon,
and shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of the Executive's employment under the
provision so indicated.
ARTICLE 4. FORM AND TIMING OF SEVERANCE BENEFITS; TAX WITHHOLDING
4.1. FORM AND TIMING OF SEVERANCE BENEFITS. The Severance Benefits
described in Section 3.4(a), 3.4(b), and 3.4(c) shall be paid in cash to the
Executive in a single lump sum as soon as practicable following the Effective
Date of Termination, but in no event beyond thirty (30) days from such date.
4.2. WITHHOLDING OF TAXES. The Company and/or the Executive's Employer
shall be entitled to withhold from any amounts payable under or pursuant to this
Agreement all taxes as legally shall be required (including, without limitation,
any PRC taxes, United States Federal taxes, and any other national, state, city,
or local taxes).
ARTICLE 5. EXCISE TAX GROSS-UP
5.1. EQUALIZATION PAYMENT. To the extent that the Executive is subject to
taxation under the laws of the United States, then if upon or following a Change
in Control, the tax imposed by Section 4999 of the Code or any similar or
successor tax (the "EXCISE TAX") applies, solely because of the Change in
Control, to any payments, benefits and/or amounts received by the Executive as
Severance Benefits or otherwise, including, without limitation, any fees, costs
and expenses paid under Article 7 of this Agreement, the Company shall pay in
cash to the Executive or for the Executive's benefit as provided below an
additional amount or amounts (the "GROSS-UP PAYMENT(s)") such that the net
amount retained by the Executive after the deduction of any Excise Tax on such
payments, benefits and/or amounts so received and any Federal, state and local
income tax and Excise Tax upon the Gross-Up Payment(s) provided for by this
Section 5.1 shall be equal to such payments, benefits and/or amounts so received
had they not been subject to the Excise Tax. Such payment(s) shall be made by
the Company to the Executive or applicable taxing authority on behalf of the
Executive as soon as practicable following the receipt or deemed receipt of any
such payments, benefits and/or amounts so received, and may be satisfied by the
Company making a payment or payments on Executive's account in lieu of
withholding for tax purposes but in all events shall be made within thirty (30)
days of the receipt or deemed receipt by the Executive of any such payment,
benefit and/or amount.
5.2. CALCULATION OF GROSS-UP PAYMENT. The determination of whether a
Gross-Up Payment is required pursuant to this Article 5 and the amount of any
such Gross-Up Payment shall be determined in writing (the "DETERMINATION") by a
nationally-recognized certified public accounting firm selected by the Company
(the "ACCOUNTING FIRM"). The Accounting Firm shall provide its Determination in
writing, together with detailed supporting calculations and documentation and
any assumptions used in making such computation, to the Company and the
Executive within twenty (20) days of the Effective Date of Termination. Within
twenty (20) days following delivery of the Accounting Firm's Determination, the
Executive shall have the right, at the Company's expense, to obtain the opinion
of an "outside counsel," which opinion need not be unqualified, which sets
forth: (i) the amount of the Executive's "annualized includible compensation for
the base period" (as defined in Code Section 280G(d) (1)); (ii) the
10
present value of the Total Payments; (iii) the amount and present value of any
"excess parachute payment;" and (iv) detailed supporting calculations and
documentation and any assumptions used in making such computations. The opinion
of such outside counsel shall be supported by the opinion of a
nationally-recognized certified public accounting firm and, if necessary or
required by the Company, a firm of nationally-recognized executive compensation
consultants. The outside counsel's opinion shall be binding upon the Company and
the Executive and shall constitute the Determination for purposes of this
Article 5 instead of the initial determination by the Accounting Firm. The
Company shall pay (or, to the extent paid by the Executive, reimburse the
Executive for) the certified public accounting firm's and, if applicable, the
executive compensation consultant's reasonable and customary fees for rendering
such opinion. For purposes of this Section 5.2, "outside counsel" means a
licensed attorney selected by the Executive who is recognized in the field of
executive compensation and has experience with respect to the calculation of the
Excise Tax; provided that the Company must approve the Executive's selection,
which approval shall not be unreasonably withheld.
5.3. COMPUTATION ASSUMPTIONS. For purposes of determining whether any
payments, benefits and/or amounts, including amounts paid as Severance Benefits,
will be subject to Excise Tax, and the amount of any such Excise Tax:
(a) Any other payments, benefits and/or amounts received or to be received
by the Executive in connection with or contingent upon a Change in
Control of the Company or the Executive's termination of employment
(whether pursuant to the terms of this Agreement or any other plan,
arrangement or agreement with the Company or the Executive's Employer,
or with any Person whose actions result in a Change in Control of the
Company or any Person affiliated with the Company or such Persons)
shall be combined to determine whether the Executive has received any
"parachute payment" within the meaning of Section 280G(b)(2) of the
Code, and if so, the amount of any "excess parachute payments" within
the meaning of Section 280G(b)(1) that shall be treated as subject to
the Excise Tax, unless in the opinion of the person or firm rendering
the Determination, such other payments, benefits and/or amounts (in
whole or in part) do not constitute parachute payments, or such excess
parachute payments represent reasonable compensation for services
actually rendered within the meaning of Section 280G(b)(4) of the Code
in excess of the base amount within the meaning of Section 280G(b)(3)
of the Code, or are otherwise not subject to the Excise Tax;
(b) The value of any non-cash benefits or any deferred payment or benefit
shall be determined by the person or firm rendering the Determination
in accordance with the principles of Sections 280G(d)(3) and (4) of
the Code.
(c) The compensation and benefits provided for in Section 3.4 herein, and
any other compensation earned prior to the Effective Date of
Termination by the Executive pursuant to the Company's and/or his
Employer's compensation programs (if such payments would have been
made in the future in any event, even though the timing of such
payment is triggered by the Change in Control), shall for purposes of
the calculation pursuant to this Section 5.3 be deemed to be
reasonable; and
11
(d) The Executive shall be deemed to pay Federal income taxes at the
highest marginal rate of Federal income taxation in the calendar year
in which the Gross-Up Payment is to be made. Furthermore, the
computation of the Gross-Up Payment shall assume (and adjust for the
fact) that (i) there is a loss of miscellaneous itemized deductions
under Section 67 of the Code (or analogous federal or state
provisions) on account of the Gross-Up Payment and (ii) a loss of
itemized deductions under Section 68 of the Code (or analogous federal
or state provisions) on account of the Gross-Up Payment. The
computation of the Gross-Up Payment shall take into account any
reduction in the Gross-Up Payment due to the Executive's share of the
hospital insurance portion of FICA and any state withholding taxes
(other than any state withholding tax for income tax liability). The
computation of the state and local income taxes applicable to the
Gross-Up Payment shall be based on the highest marginal rate of
taxation in the state and locality of the Executive's residence on the
Effective Date of Termination, and shall take into account the maximum
reduction in Federal income taxes that could be obtained from the
deduction of such state and local taxes.
5.4. EXECUTIVE'S OBLIGATION TO NOTIFY COMPANY. The Executive shall promptly
notify the Company in writing of any claim by the Internal Revenue Service (or
any successor thereof) or any state or local taxing authority (individually or
collectively, the "TAXING AUTHORITY") that, if successful, would require the
payment by the Company of a Gross-Up Payment in excess of any Gross-Up Payment
as originally set forth in the Determination. If the Company notifies Executive
in writing that it desires to contest such claim, the Executive shall: (a) give
the Company any information reasonably requested by the Company relating to such
claim; (b) take such action in connection with contesting such claim as the
Company shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to such claim by
an attorney selected by the Company that is reasonably acceptable to Executive;
(c) cooperate with the Company in good faith in order to effectively contest
such claim; and (d) permit the Company to participate in any proceedings
relating to such claim; provided that the Company shall bear and pay directly
all attorneys fees, costs and expenses (including additional interest, penalties
and additions to tax) incurred in connection with such contest and shall
indemnify and hold the Executive harmless, on an after-tax basis, for all taxes
(including, without limitation, income and excise taxes), interest, penalties
and additions to tax imposed in relation to such claim and in relation to the
payment of such costs and expenses or indemnification. Without limitation on the
foregoing provisions of this Section 5.4, and to the extent its actions do not
unreasonably interfere with or prejudice the Executive's disputes with the
Taxing Authority as to other issues, the Company shall control all proceedings
taken in connection with such contest and, in its reasonable discretion, may
pursue or forego any and all administrative appeals, proceedings, hearings and
conferences with the Taxing Authority in respect of such claim and may, at its
sole option, either direct the Executive to pay the tax, interest or penalties
claimed and xxx for a refund or contest the claim in any permissible manner, and
the Executive agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and in one or more
appellate courts, as the Company shall determine; provided, however, that if the
Company directs the Executive to pay such claim and xxx for a refund, the
Company shall advance an amount equal to such payment to the Executive, on an
interest-free basis, and shall indemnify and hold the Executive harmless, on an
after-tax basis, from all taxes (including, without limitation, income and
excise
12
taxes), interest, penalties and additions to tax imposed with respect to such
advance or with respect to any imputed income with respect to such advance, as
any such amounts are incurred; and, further, provided, that any extension of the
statute of limitations relating to payment of taxes, interest, penalties or
additions to tax for the taxable year of the Executive with respect to which
such contested amount is claimed to be due is limited solely to such contested
amount; and, provided, further, that any settlement of any claim shall be
reasonably acceptable to the Executive and the Company's control of the contest
shall be limited to issues with respect to which a Gross-Up Payment would be
payable hereunder, and the Executive shall be entitled to settle or contest, as
the case may be, any other issue.
5.5. SUBSEQUENT RECALCULATION. In the event of a binding or uncontested
determination by the Taxing Authority that adjusts the computation set forth in
the Determination so that the Executive did not receive the greatest net benefit
required pursuant to Section 5.1, the Company shall reimburse the Executive as
provided herein for the full amount necessary to place the Executive in the same
after-tax position as he would have been in had no Excise Tax applied. In the
event of a binding or uncontested determination by the Taxing Authority that
adjusts the computation set forth in the Determination so that the Executive
received a payment or benefit in excess of the amount required pursuant to
Section 5.1, then the Executive shall promptly pay to the Company (without
interest) the amount of such excess
ARTICLE 6. THE COMPANY'S PAYMENT OBLIGATION
6.1. PAYMENT OF OBLIGATIONS ABSOLUTE. Except as provided in Section 4.2,
the Company's obligation to make the payments and the arrangements provided for
herein shall be absolute and unconditional, and shall not be affected by any
circumstances, including, without limitation, any offset, counterclaim,
recoupment, defense, or other right which the Company may have against the
Executive or anyone else. All amounts payable by the Company hereunder shall be
paid without notice or demand. Each and every payment made hereunder by the
Company shall be final, and the Company shall not seek to recover all or any
part of such payment from the Executive or from whomsoever may be entitled
thereto, for any reasons whatsoever, except as otherwise provided in Article 5
or Article 7.
The Executive shall not be obligated to seek other employment in mitigation
of the amounts payable or arrangements made under any provision of this
Agreement, and the obtaining of any such other employment shall in no event
effect any reduction of the Company's obligations to make the payments and
arrangements required to be made under this Agreement.
6.2. CONTRACTUAL RIGHT TO BENEFITS. This Agreement establishes and vests in
the Executive a contractual right to the benefits to which he or she is entitled
hereunder. The Company expressly waives any ability, if possible, to deny
liability for any breach of its contractual commitment hereunder upon the
grounds of lack of consideration, accord and satisfaction or any other defense.
In any dispute arising after a Change in Control as to whether the Executive is
entitled to benefits under this Agreement, there shall be a presumption that the
Executive is entitled to such benefits and the burden of proving otherwise shall
be on the Company. However, nothing herein contained shall require or be deemed
to require, or prohibit or be deemed to prohibit, the Company to segregate,
earmark, or otherwise set aside any funds or other assets, in trust or
otherwise, to provide for any payments to be made or required hereunder.
13
6.3. DUPLICATE BENEFITS. All payments, benefits and amounts provided under
this Agreement shall be in addition to and not in substitution for any pension
rights under any Company or Employer pension plan and any disability, workers'
compensation or other Company or Employer benefit plan distribution that the
Executive is entitled to at his or her Effective Date of Termination.
Notwithstanding the foregoing, this Agreement shall not create an inference that
any duplicate payments shall be required. No payments made pursuant to this
Agreement shall be considered compensation for purposes of any such benefit
plan; provided that any amount paid pursuant to Section 3.4(c) shall not be
subject to such limitation. Payment of the Executive's accrued and unpaid Base
Salary or vacation pay, if any, through the Executive's Effective Date of
Termination shall be deemed to not duplicate any benefit contemplated by this
Agreement and shall not result in an offset pursuant to Section 3.3(f). Any
acceleration of vesting, lapse of restrictions and/or payout occasioned by a
Change in Control pursuant to the provisions of any long-term incentive plan
and/or individual award agreement under such a long-term incentive plan shall be
deemed to not duplicate any benefit contemplated by this Agreement and shall not
result in an offset pursuant to Section 3.3(f).
ARTICLE 7. CLAIMS PROCEDURE
7.1. COMMITTEE REVIEW. The Executive or, in the event of the Executive's
death, the Executive's Beneficiary (as applicable, the "CLAIMANT") may deliver
to the Committee a written claim for a determination with respect to the amounts
distributable to such Claimant from this Agreement. Such claim shall be
delivered to the Committee care of the Company in accordance with the notice
provisions of Section 9.7. If such a claim relates to the contents of a notice
received by the Claimant, the claim must be made within sixty (60) days after
such notice was received by the Claimant. All other claims must be made within
two hundred and seventy (270) days of the date on which the event that caused
the claim to arise occurred. The claim must state with particularity the
determination desired by the Claimant.
7.2. NOTIFICATION OF DECISION. The Committee shall consider a Claimant's
claim pursuant to Section 7.1 within a reasonable time, but no later than ninety
(90) days after receiving the claim. If the Committee determines that special
circumstances require an extension of time for processing the claim, written
notice of the extension shall be furnished to the Claimant prior to the
termination of the initial ninety (90) day period. In no event shall such
extension exceed a period of ninety (90) days from the end of the initial
period. The extension notice shall indicate the special circumstances requiring
an extension of time and the date by which the Committee expects to render the
benefit determination. The Committee shall notify the Claimant in writing:
(e) that the Claimant's requested determination has been made, and that
the claim has been allowed in full; or
(f) that the Committee has reached a conclusion contrary, in whole or in
part, to the Claimant's requested determination, and such notice must
set forth in a manner calculated to be understood by the Claimant:
(i) the specific reason(s) for the denial of the claim, or any part
of it;
14
(ii) specific reference(s) to pertinent provisions of this Agreement
upon which such denial was based;
(iii) a description of any additional material or information
necessary for the Claimant to perfect the claim, and an
explanation of why such material or information is necessary;
(iv) a statement that the Claimant is entitled to receive, upon
request and free of charge, reasonable access to and copies of,
all documents, records and other information relevant to the
Claimant's claim for benefits; and
(v) a statement of the Claimant's right to seek arbitration pursuant
to Section 7.4.
7.3. PRE AND POST-CHANGE IN CONTROL PROCEDURES. With respect to claims made
prior to the occurrence of a Change in Control, a Claimant's compliance with the
foregoing provisions of this Article 7 is a mandatory prerequisite to a
Claimant's right to commence arbitration pursuant to Section 7.4 with respect to
any claim for benefits under this Agreement. With respect to claims made upon
and after the occurrence of a Change in Control, the Claimant may proceed
directly to arbitration in accordance with Section 7.4 and need not first
satisfy the foregoing provisions of this Article 7.
7.4. ARBITRATION OF CLAIMS.
(a) All claims or controversies arising out of or in connection with this
Agreement, that the Company may have against any Claimant, or that any
Claimant may have against the Company or against its officers,
directors, employees or agents acting in their capacity as such,
shall, subject to the initial review provided for in the foregoing
provisions of this Article 6 that are effective with respect to claims
brought prior to the occurrence of a Change in Control, be resolved
through arbitration upon the request of either Party to the dispute
with notice to the other Party.
(b) The arbitration shall be conducted in Hong Kong under the auspices of
the Hong Kong International Arbitration Centre (the "CENTRE"). There
shall be three arbitrators. Each Party shall choose one arbitrator,
which arbitrators shall in turn appoint a third. If either Party does
not appoint an arbitrator who has consented to participate within
thirty (30) days after a notice of arbitration or if a third
arbitrator has not been appointed who has consented to participate
within forty-five (45) days after the notice of arbitration, the
relevant appointment shall be made by the Secretary General of the
Centre.
(c) The arbitration proceedings shall be conducted in English and in
Chinese. The arbitration tribunal shall apply the Arbitration Rules of
the United Nations Commission on International Trade Law, as in effect
at the time of the arbitration. However, if such rules are in conflict
with the provisions of this Section 7.4, including the provisions
concerning the appointment of arbitrator, the provisions of this
sub-Clause (c) shall prevail.
15
(d) Each Party to an arbitration hereunder shall cooperate with the other
Party in making full disclosure of and providing complete access to
all information and documents requested by the other Party in
connection with such arbitration proceedings, subject only to any
confidentiality obligations binding on such Party.
(e) The award of the arbitration tribunal shall be final and binding upon
the Parties, and the prevailing Party may apply to a court of
competent jurisdiction for enforcement of such award.
(f) Either Party shall be entitled to seek preliminary injunctive relief,
if possible, from any court of competent jurisdiction pending the
constitution of the arbitral tribunal.
(g) The costs of arbitration shall be borne by the losing Party, unless
otherwise determined by the arbitration award.
During the course of the arbitration tribunal's adjudication of the
dispute, this Agreement shall continue to be performed except with respect to
the part in dispute and under adjudication.
ARTICLE 8. SUCCESSORS AND ASSIGNMENT
8.1. SUCCESSORS TO THE COMPANY. The Company will require any successor
(whether direct or indirect, by purchase, merger, consolidation, or otherwise)
of all or substantially all of the business and/or assets of the Company or of
any division or Subsidiary thereof (the business and/or assets of which
constitute at least fifty percent (50%) of the total business and/or assets of
the Company) to expressly assume and agree to perform the Company's obligations
under this Agreement in the same manner and to the same extent that the Company
would be required to perform them if such succession had not taken place.
Failure of the Company to obtain such assumption and agreement in a written
instrument prior to the effective date of any such succession shall be a breach
of this Agreement and shall entitle the Executive to compensation from the
Company in the same amount and on the same terms as he would be entitled to
hereunder if he had terminated his employment with his Employer voluntarily for
Good Reason. Except for the purpose of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed the Executive's
Effective Date of Termination if the Executive so elects, but any delay or
failure by the Executive to so elect shall not be a waiver or release of any
rights hereunder which may be asserted at any time.
8.2. ASSIGNMENT BY THE EXECUTIVE. This Agreement shall inure to the benefit
of and be enforceable by the Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees, and
legatees. If the Executive dies while any amount would still be payable to him
or her hereunder had he or she continued to live, all such amounts, unless
otherwise provided herein, shall be paid to the Executive's Beneficiary in
accordance with the terms of this Agreement. If the Executive has not named a
Beneficiary, then such amounts shall be paid to the Executive's devisee,
legatee, or other designee, or if there is no such designee, to the Executive's
estate.
16
ARTICLE 9. MISCELLANEOUS
9.1. RELEASE. Notwithstanding anything else contained herein to the
contrary, the Company's obligation to pay benefits to the Executive under this
Agreement is subject to the condition precedent that the Executive execute a
valid and effective release in the form approved by the Committee and such
executed release (a) is received by the Company no earlier than the effective
time of the Executive's Qualifying Termination (or such earlier time as the
Committee may provide) and no later than sixty (60) days after the Effective
Date of Termination and (b) is not revoked by the Executive or otherwise
rendered unenforceable by the Executive.
9.2. EMPLOYMENT STATUS. Except as may be provided under any other written
agreement between the Executive and the Executive's Employer, the employment of
the Executive by his Employer is "at will," and, prior to the effective date of
a Change in Control, may be terminated by either the Executive or the
Executive's Employer at any time, subject to applicable law.
9.3. BENEFICIARIES. The Executive may designate one or more persons or
entities as the primary and/or contingent Beneficiaries of any Severance
Benefits owing to the Executive under this Agreement. The Executive may make or
change such designation at any time, provided that any designation or change
thereto must be in the form of a signed writing acceptable to and received by
the Committee.
9.4. GENDER AND NUMBER. Except where otherwise indicated by the context,
any masculine term used herein also shall include the feminine, the plural shall
include the singular, and the singular shall include the plural.
9.5. SEVERABILITY. In the event any provision of this Agreement shall be
held illegal or invalid for any reason, the illegality or invalidity shall not
affect the remaining parts of this Agreement, and this Agreement shall be
construed and enforced as if the illegal or invalid provision had not been
included. Further, the captions of this Agreement are not part of the provisions
hereof and shall have no force and effect.
9.6. MODIFICATION. No provision of this Agreement may be modified, waived,
or discharged unless as to the Executive such modification, waiver, or discharge
is agreed to in writing and signed by each affected Executive and by an
authorized member of the Committee or its designee, or by the respective
parties' legal representatives and successors.
9.7. NOTICE. For purposes of this Agreement, notices, including a Notice of
Termination, and all other communications provided for in this Agreement shall
be in writing and shall be deemed to have been duly given when delivered or on
the date stamped as received by a recognized international courier (such as
FedEx), postage prepaid and addressed: (i) if to the Executive, to his latest
address as reflected on the records of the Company, and (ii) if to the Company:
China Finance Online Co., Limited, Xxxx 000X, Ping'an Mansion, Xx.00 Xxxxxxxxx
Xxxxxx, Xxxx Xxxxxxxx, Xxxxxxx 000000, PRC, Attn: [Xxx Xxxx] or to such other
address as the Company may furnish to the Executive in writing with specific
reference to this Agreement and the importance of the notice, except that notice
of change of address shall be effective only upon receipt.
17
9.8. APPLICABLE LAW. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York without regard to
conflict of law principles thereunder. Any statutory reference in this Agreement
shall also be deemed to refer to all applicable final rules and final
regulations promulgated under or with respect to the referenced statutory
provision.
[Remainder of Page Intentionally Left Blank]
18
IN WITNESS WHEREOF, the parties have executed this Agreement on this
___________ day of _________________________, _____________________.
China Finance Online Co., Limited Executive
By:__________________________________ _________________________________
Attest:_____________________________ Print Name:______________________
S-1
