Exhibit 4.(c).2
XXXXX.XXX CORPORATION LIMITED
AND
XX. XXXXXXX XXX-XXXX CH'IEN
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EXECUTIVE SERVICES AGREEMENT
(CHIEF EXECUTIVE OFFICER)
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THIS EXECUTIVE SERVICES AGREEMENT (CHIEF EXECUTIVE OFFICER) dated as of
March 2, 2005 between xxxxx.xxx Corporation Limited located at 00/X Xxxxxxxx
Xxxxxx, 00 Xxxxxxxxx Xxxx, Xxxxxxxx Xxx, Xxxx Xxxx (the "Company") and Xx.
Xxxxxxx Xxx-Xxxx Ch'ien located at c/o xxxxx.xxx Corporation Limited, 00/X
Xxxxxxxx Xxxxxx, 00 Xxxxxxxxx Xxxx, Xxxxxxxx Xxx, Xxxx Xxxx (the "Executive").
The Company and the Executive are collectively referred to as the "Parties" and
each, a "Party".
WHEREAS, effective as of April 27, 2004, the Company and the Executive had
entered into an Executive Services Agreement pursuant to which the Executive had
agreed to provide certain services to the Company as Executive Chairman on the
terms set forth therein (the "Original Executive Services Agreement").
WHEREAS, effective as of April 27, 2004, the Company and the Executive had
entered into Amendment No. 1 to the Original Executive Services Agreement
pursuant to which, among other things, the Executive agreed to serve as Acting
Chief Executive Officer of the Company until March 31, 2005 on the terms set
forth in such Amendment.
WHEREAS, the Company and the Executive desire for the Executive to
continue to provide certain services to the Company as both Executive Chairman
and Chief Executive Officer (the "CEO") of the Company.
WHEREAS, concurrently with entry into this Executive Services Agreement
(Chief Executive Officer), the Company and the Executive have agreed to enter
into an Amended and Restated Executive Services Agreement (Executive Chairman)
(the "Executive Chairman Services Agreement") which sets forth the terms
pursuant to which the Executive has agreed to provide services as Executive
Chairman of the Company.
WHEREAS, this Agreement sets forth the terms pursuant to which the
Executive has agreed to provide certain services to the Company as CEO.
WHEREAS, the terms of this Agreement have been approved by the Board (as
defined below) and the Agreement has been so ratified by the Board.
NOW, THEREFORE, in consideration of the foregoing mutual covenants and
agreements contained herein, the parties hereby agree effective as of the
Effective Date as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, the following words and expressions shall bear the
following meanings, unless the context otherwise requires:
"Appointment Date" means the Effective Date.
"Associated Company" means any corporation or other business entity or
entities that directly or indirectly controls, is controlled by, or is under
common control with the Company after the Appointment Date or all other entities
in the group of companies of such Associated Companies, and "Associated Company"
shall have a corresponding meaning.
"Board" means the board of directors of the Company from time to time.
"CEO" has the meaning set forth in the recitals above.
"Company" has the meaning set forth in the introductory paragraph above.
"Compensation Committee" means the compensation committee of the Board.
"Confidential Information" has the meaning set forth in Clause 7.2.
"Effective Date" means March 2, 2005.
"Employment Period" has the meaning set forth in Clause 2.2.
"Exchange Act" means the U.S. Securities Exchange Act of 1934, as amended.
"Executive" has the meaning set forth in the introductory paragraph above.
"Executive Chairman Services Agreement" has the meaning set forth in the
recitals above.
"Executive Committee" means the executive committee established by the
Board in accordance with the Company's Articles of Association.
"Executive Notice" has the meaning set forth in Clause 4.4.
"Hong Kong" means the Hong Kong Special Administration Region of the
People's Republic of China.
"Initial Term" has the meaning set forth in Clause 2.1.
"Original Executive Services Agreement" has the meaning set forth in the
recitals above.
"Parties" or "Party" has the meaning set forth in the introductory
paragraph above.
"PRC" means the People's Republic of China.
"Released Party" has the meaning set forth in Clause 3.1.
"Replacement CEO" has the meaning set forth in Clause 2.1.
"Review Committee" has the meaning set forth in Clause 4.4.
"Review Date" has the meaning set forth in Clause 4.4.
"Services" means the services rendered by the Executive to the Company as
described in Schedule 1 hereto.
"Two Year Period" has the meaning set forth in Clause 13.1.3.
"1999 Stock Option Plan" means the Company's stock option plan, which was
initially registered pursuant to a registration statement on Form S-8 with the
U.S. Securities and Exchange Commission in December 1999, as amended from time
to time.
1.2 Any reference in this Agreement to any ordinance or other enactment shall
be deemed also to refer to any statutory modification, amendment, codification
or re-enactment thereof or substitution therefore or regulations or guidelines
issued under any of the foregoing.
1.3 Any reference to a numbered clause or a numbered schedule shall be a
reference to the relevant clause, or as the case may be, the relevant schedule
of this Agreement.
1.4 The headings to the clauses of this Agreement shall not affect its
interpretation.
2. TERM OF APPOINTMENT AND TERMINATION OF AMENDMENT NO. 1 TO THE ORIGINAL
EXECUTIVE SERVICES AGREEMENT
2.1 The Company hereby engages the Executive, and the Executive accepts such
engagement, to render Services, including the services of the Executive as the
CEO of the Company effective the Appointment Date until March 31, 2007 (the
"Initial Term").
2.2 Upon the expiration of the Initial Term, the Executive's employment shall
automatically continue and the Executive shall be an employee of Company, still
subject to the terms of this Agreement, except for those provisions which
explicitly apply to the Initial Term only. The Initial Term together with any
subsequent employment term is referred to as the "Employment Period."
2.3 The Company and the Executive agree that this Agreement shall supersede
and replace the terms pursuant to which the Executive had acted as Acting CEO
pursuant to Amendment No. 1 to the Original Executive Services Agreement, and
that such Amendment No. 1 to the Original Executive Services Agreement is hereby
and forever terminated. The Executive hereby releases the Company from all
obligations or claims related to or arising under Amendment No. 1 to the
Original Executive Services Agreement.
2.4 For the avoidance of doubt, any action taken pursuant to Clause 2.1 hereto
relating to the termination of the Executive as the CEO shall not affect the
Company's engagement of the Executive as the Executive Chairman of the Company
pursuant to the terms of the Executive Chairman Services Agreement unless the
Executive is terminated in accordance with Section 12.1 of this Agreement.
2.6 The Executive shall be based in Hong Kong. In the performance of the
Services, the Executive may be required to undertake domestic and/or
international travel at the request of the Company. Such travel will be in
accordance with the Company's travel policies as they may be amended from time
to time during the term of this Agreement.
3. RIGHT TO NOMINATION AS DIRECTOR
3.1 For so long as the Executive serves as CEO pursuant to this Agreement, the
Executive shall have the right to be nominated to serve as a Director to the
Company's Board, subject to the approval of the shareholders of the Company. For
the avoidance of doubt, in the event the shareholders of the Company do not
approve the Executive to serve as a Director to the Company's Board, the
Executive, irrevocably and unconditionally releases and waives all claims,
causes of action or similar rights of any type arising under this Clause 3 that
the Executive has or may have against the Company, all current and former
parents, subsidiaries, related companies, partnerships, or joint ventures, and,
with respect to each of them, their predecessors and successors; and, with
respect to each such entity, all of its past, present and future employees,
officers, directors, shareholders, owners, representatives, assigns and any
other persons acting by, through, under or in concert with any of the persons or
entities listed in this clause, and their successors (each, a "Released Party").
4. CONSIDERATION
4.1 In consideration for the Services of the Executive to be provided to the
Company, the Company shall pay, provide or grant to the Executive (a) a salary
of US$1,500,000.00 per annum
and (b) the other benefits as set forth in Clause 6 hereof. Such salary shall be
inclusive of any income tax that any government may require the Company to
withhold from the Executive's payroll from time to time. The Executive's salary
shall be paid quarterly in arrears; provided, if the Executive does not provide
Services for the entire quarter, such salary shall be pro rated based upon the
actual number of days of the quarter the Executive provides Services (for
example, if the Effective Date is March 1, 2005, then the quarterly salary for
the quarter ended March 31, 2005 shall be pro rated at 31/90 of a quarter). The
Company will not be obliged to increase the Executive's salary at any time
during the Initial Term or the Employment Period.
4.2 To the extent reasonably practicable the Company shall cooperate with the
Executive to ensure that the consideration arrangements set forth in this
Agreement are structured in a tax efficient manner for all concerned parties.
The Executive agrees and warrants to the Company that he shall indemnify the
Company and any Associated Company, and hold the Company and any Associated
Company harmless against the Executive's non-payment of any income tax,
professional indemnity, and other national, provincial or local taxes or
assessments in connection with his consideration arrangements and benefits from
the Company and any Associated Company. In addition, the Executive specifically
represents, warrants and covenants to the Company that to the extent that he is
subject to any withholding or deduction under income tax laws of any
jurisdiction with respect to the consideration arrangements and benefits from
the Company and any Associated Company, that he will hold the Company and each
Associated Company harmless against any non-withholding or non-deduction in
connection with the consideration arrangements and benefits from the Company and
any Associated Company.
4.3 The Executive shall not be entitled to any fee as a director of the
Company or any Associated Company.
4.4 The consideration as set forth in Clause 4.1 hereof shall be reviewed at
the end of the Initial Term, and if this Agreement is renewed, at the beginning
of each calendar year thereafter (each such date, a "Review Date"). On each
Review Date, the consideration as set forth in Clause 4.1 hereof shall be
revised or amended by such amount as agreed by a review committee of the Board,
as designated from time to time (the "Review Committee") in the manner specified
by Clause 4 hereof. In addition, at any time after the date of this Agreement,
the Executive may, by written notice to the Company, call for a review of
consideration as set forth in Clause 4.1 hereof (an "Executive Notice"), which
shall require the Review Committee to review the Executive's compensation in the
manner specified by Clause 4.5 hereof; provided, however, that the Executive may
not deliver more than one Executive Notice between successive Review Dates.
4.5 The Review Committee shall convene on each Review Date or upon receiving
an Executive Notice. The Review Committee shall consist of members of the
Compensation Committee of the Board and not less than two independent Directors
of the Company. However, if the Executive shall be a member of the Compensation
Committee of the Board, the Executive shall not be a member of the Review
Committee. If the Review Committee determines that an increase in the
Executive's compensation and/or the reimbursements set forth in Clause 6.1
hereof is justified, the Executive's compensation and/or the reimbursements set
forth in Clause 6.1 hereof payable shall be increased accordingly subject to
ratification by the full Board (excluding the Executive).
5. [INTENTIONALLY OMITTED]
6. OTHER BENEFITS
6.1 Upon presentation of proper vouchers, receipts or other proof, the Company
shall reimburse the Executive with respect to reasonable expenses of the
Executive related to travel, entertaining and subscriptions, in accordance with
the policies of the Company, in each case reasonably incurred in
the performance of his Services. All reimbursable expenses in the amount of
$20,000 or less, shall be approved in writing by the then current chairman of
the Company, or in his absence or if the Executive is such chairman, by two
members of the executive management team comprised of the Chief Financial
Officer, General Counsel and Human Resources Director. All reimbursable expenses
in excess of $20,000, shall be approved in writing by a member of the Audit
Committee. The Executive understands and agrees that at no time will the
Executive approve his own reimbursable expenses. For the avoidance of doubt, the
Company or any of its Associated Companies shall not be required to reimburse
any cost associated with any motor vehicle, chauffeur or executive assistant
used or hired by the Executive during the term of this Agreement except with
respect to the administrative assistant currently employed by an Associated
Company on behalf of the Executive.
6.2 The Executive shall be eligible for participation in any insurance and
employee benefit plan of the Company that currently exists or may be adopted by
the Company (in the full discretion of the Company) from time to time with the
level of insurance and benefits being on a comparable basis as the rules of
eligibility currently in effect for chief executives of business units within
the Company (eg. the chief executives of Xxxx Systems, Inc. and Pivotal
Corporation) after taking into effect local jurisdiction statutory requirements.
Furthermore, the Executive (including spouse and immediate dependents) shall be
eligible for participation in medical insurance (including for major medical
incidents) and other insurance or benefits as determined by the Company from
time to time. While the Company will make reasonable best efforts to achieve the
above, the Executive acknowledges that differences in benefit packages will
exist due in large part to local jurisdiction statutory requirements and, as
such, the Company is not under the obligation to upgrade or match the
Executive's benefit package to be equal to the perceived "best" benefit package
of other employees within the Company.
6.3 The Parties acknowledge that in addition to this Agreement, the Parties
have entered into the Executive Chairman Services Agreement. For the avoidance
of the doubt, the Parties acknowledge that the "Other Benefits" provided for in
Section 6 of the Executive Chairman Services Agreement to the extent duplicative
of the benefits provided to the Executive hereunder (including, but not limited
to benefits with respect to reimbursement of expenses, participation in
insurance, employee benefit plans and medical insurance plans, and annual leave
entitlement) shall not be cumulated or aggregated, and that the Executive is
entitled to receive benefits under only the one agreement which provides more
favorable terms to such Executive with respect to such benefit.
7. CONFIDENTIAL INFORMATION
7.1 The Executive covenants and agrees not to use, other than for the benefit
of the Company and to keep confidential, during the term of this Agreement, all
information about the Company and all Associated Companies which the Company or
any of the Associated Company treats as confidential, including, but not limited
to, information about customers, marketing plans, marketing techniques,
technical information, and possible new products or services, except that the
Executive shall not be required to keep particular items of information
confidential after those items of information become generally available to the
public without a breach by the Executive of the obligations under this Clause.
7.2 The Executive covenants and agrees that, except during the performance of
the Services, he shall not, at any time, directly or indirectly, without the
prior written consent of the Company, use or disclose to any person any
confidential or proprietary information ("Confidential Information") obtained or
developed by the Executive, as the case may be, during the term of this
Agreement relating to the Company's business, except information which at the
time is (a) available to others in the same business as the Company or generally
known to the public other than as a result of disclosure by him not permitted
hereunder, (b) lawfully acquired from a third party who is not
obligated to the Company to maintain such information in confidence, or (c) used
in any dispute or proceedings between third parties and the Executive, as the
case may be, and is legally compelled disclosure; provided, the Executive shall
(i) assert the privileged and confidential nature of the Confidential
Information against the third party seeking disclosure, and (ii) cooperate fully
with the Company in protecting against any such disclosure and/or obtaining a
protective order narrowing the scope of such disclosure and/or use of the
Confidential Information. In the event that such protection against disclosure
is not obtained, the Executive shall be entitled to disclose the Confidential
Information, but only as and to the extent necessary to legally comply with such
compelled disclosure.
7.3 The Executive covenants and agrees to disclose promptly to the Company all
new discoveries, ideas, formulae, products, methods, processes, designs, trade
secrets, copyrightable material, patentable inventions, intellectual property or
other useful technical information or know-how and all improvements,
modifications or alterations of existing discoveries made, discovered or
developed by the Executive, either alone or in conjunction with any other person
during the term of this Agreement, or using the Company's or any Associated
Company's materials or facilities which discoveries or developments are based
on, derived from or make use of any information directly related to the business
disclosed to, or otherwise acquired by, the Executive from the Company or any
Associated Company during the term of this Agreement. The Executive covenants
and agrees that any copyright, patent, trademark or other proprietary rights in
any such discoveries shall be the sole and exclusive property of the Company,
and the Company need not account to the Executive for any revenue or profit
derived therefrom. If by operation of law or otherwise, any or all of the items
of this Clause 7.3 or any component or element thereof is considered to be the
intellectual property right of the Executive, the Executive covenants and agrees
to irrevocably assign to the Company, its successor and assigns, ownership of
all copyrights and all other intellectual property rights available with respect
to each such element or item. The Executive shall be deemed to have granted the
Company an irrevocable power of attorney to execute as its or his agent any and
all documents (including copyright registrations) deemed necessary by the
Company to perfect Company's intellectual property rights in and to each of the
items in this Clause.
8. NON-SOLICITATION
8.1 The Executive will not for a period of twenty four (24) months after the
termination of this Agreement either personally or by an agent directly or
indirectly, either on his own account or for any other person, firm or company,
or in association with or in the employment of any other person, firm or
company, solicit or serve or interfere with or endeavor to entice away from the
Company or any Associated Company any person, firm or company who within twenty
four (24) months prior to or at the date of such termination was a customer of
or in the habit of dealing with the Company or any Associated Company and with
whom the Executive had contact or about whom the Executive became aware or
informed in the course of this Agreement.
8.2 The Executive will not for a period of twenty four (24) months after the
termination of this Agreement with the Company either personally or by an agent
directly or indirectly, either on his own account or for any other person, firm
or company, solicit or interfere with or endeavor to entice away from the
Company or any Associated Company any person who within twenty four (24) months
prior to or at the date of such termination was an employee, director or
consultant of the Company or any Associated Company.
9. NON-COMPETITION
9.1 During the Agreement, except as otherwise permitted as an exception as
defined and described in Schedule 2, without the prior written consent of the
Company, the Executive shall not (unless otherwise agreed in writing by the
Company) undertake any other business or profession that
is in direct competition with the Company or be or become a director, employee
or agent of any other company (other than for an Associated Company), firm or
person that has a substantial portion of its business in direct competition with
the Company from time to time. The Executive may, however, hold or acquire by
way of bona fide investment only shares or other securities of any company in
compliance with Company policy unless the Company shall require him not to do so
in any particular case on the ground that such other company is or may be
carrying on a business competing or tending to compete with the business of the
Company or any Associated Company.
9.2 The Executive will not for a period of twenty four (24) months after the
termination of this Agreement either personally or by an agent directly or
indirectly either on his own account or for any other person, firm or company or
in association with or in the employment of any other person, firm or company be
engaged in or concerned directly or indirectly in any executive, technical or
advisory capacity in any business concern (of whatever kind) which is in
competition with the business of the Company or any Associated Company. This
clause shall not restrain the Executive from being engaged or concerned in any
business concern in so far as the Executive's duties or work shall relate
solely:
9.2.1 to geographical areas where the business concern is not in
competition with the Company or any Associated Company; or
9.2.2 to services or activities of a kind with which the Executive was not
concerned to a material extent during this Agreement.
10. RETURN OF PAPERS, RIGHT TO INJUNCTIVE RELIEF, ETC.
10.1 The Executive hereby acknowledges and agrees that all personal property,
including, without limitation, all emails, books, manuals, records, reports,
notes, contracts, lists, blueprints, and other documents or materials or copies
thereof, and equipment furnished to or prepared by the Executive in the course
of or incidental to him performing his duties hereunder, including, without
limitation, records and any other materials belonging to the Company or any
Associated Company, shall be promptly returned to the Company or such Associated
Company (as the case may be) upon termination of the Agreement. Deletion of the
Company's documents, including but not limited to emails, business proposals and
contracts, from the Executive's assigned computers (including desktops and
laptops) without the Company's consent is considered a violation of this clause
and a material breach of this Agreement.
10.2 The Executive acknowledges that the Company or an Associated Company may
suffer irreparable harm, which cannot readily be measured in monetary terms, if
the Executive breaches the obligations under Clauses 7, 8, 9 or 10 of this
Agreement. The Executive further acknowledges and agrees that the Company or an
Associated Company may obtain injunctive or other equitable relief against it or
him to prevent or restrain such breach causing such harm; provided, however,
that where such breach involves subject matter that is susceptible of being
cured, the Executive will cure such breach as promptly as practicable upon
notice of such breach to the Executive. Such injunctive relief shall be in
addition to any other remedies the Company might have under this Agreement or at
law.
10.3 IN CONNECTION WITH CLAUSES 8 AND 9, THE EXECUTIVE REPRESENTS THAT HIS
EXPERIENCE, CAPABILITIES AND CIRCUMSTANCES ARE SUCH THAT THESE PROVISIONS WILL
NOT PREVENT THE EXECUTIVE FROM EARNING A LIVELIHOOD AND THAT THE LIMITATIONS SET
FORTH THEREIN ARE REASONABLE AND PROPERLY REQUIRED FOR THE ADEQUATE PROTECTION
OF THE COMPANY.
11. [INTENTIONALLY OMITTED]
12. TERMINATION OF AGREEMENT
12.1 If the Executive:
12.1.1 shall be or become incapacitated from any cause whatsoever from
efficiently performing his duties hereunder for three (3) consecutive months in
aggregate in any period of twelve (12) consecutive months;
12.1.2 shall be or become prohibited by law from being a director;
12.1.3 is convicted of, pleads guilty to or does not contest a felony or a
crime of moral turpitude;
12.1.4 has been grossly negligent or acted dishonestly, in either case, to
the material detriment of the Company or any Associated Company;
12.1.5 has engaged in actions amounting to willful misconduct;
12.1.6 has materially breached any of the terms of this Agreement which
breach is not reasonably cured within 30 days after written notice to the
Executive from the Company;
12.1.7 refuses or negligently fails to comply with reasonable and lawful
instructions of the Company or the Company's written regulations, which failure
is not cured to the reasonable satisfaction of the Board within ten days after
written notice to the Executive from the Company;
12.1.8 shall fail, in the opinion of the Board, to perform his duties
competently or to perform the Services;
12.1.9 shall fail to comply with Clauses 7, 8, 9 or 10 of this Agreement;
12.1.10 shall become insolvent;
12.1.11 is not approved by the shareholders of the Company to serve as a
Director to the Company's Board pursuant to Clause 3.1;
12.1.12 shall cease to serve as Executive Chairman of the Company as a
result of termination of the Executive Chairman Services Agreement by the
Company pursuant to Clause 12 of such Executive Chairman Services Agreement; or
12.1.13 fails to comply with any of the provisions under the chinadotcom
corporation Code of Ethics and the Guidelines for Employee Conduct, as adopted
by the Company (which shall include the negligent misreporting of financial or
other operating results), as determined by the Board acting reasonably,
then the Company shall be entitled by notice in writing to the Executive to
terminate this Agreement. The Executive shall have no claim against the Company
by reason of such termination, subject in the case of termination pursuant to
Clause 12.1.11 to Clause 5.1.
12.2 Any delay or forbearance by the Company in exercising any right of
termination shall not constitute a waiver of it.
12.3
12.3.1 The Executive may terminate this Agreement by giving three (3)
months' advance written notice of termination or payment in lieu of notice;
provided that the Executive's insurance and benefits shall continue for not less
than such three (3) month period in which case the Company shall have no further
obligation to the Executive under the terms of this Agreement (including,
without limitation, payment of any additional salary beyond the three (3) month
notice period).
12.3.2 During the Initial Period, the Company may terminate this Agreement
upon the employment of a Replacement CEO, by giving six (6) months' advance
written notice of termination or payment in lieu of notice; provided that the
Executive's insurance and benefits shall continue for not less than such six (6)
month period in which case the Company shall have no further obligation to the
Executive under the terms of this Agreement (including, without limitation,
payment of any additional salary beyond the six (6) month notice period).
Subsequent to the Initial Period, the Company may terminate this Agreement by
giving three (3) months' advance written notice of termination or payment in
lieu of notice; provided that the Executive's insurance and benefits shall
continue for not less than such three (3) month period in which case the Company
shall have no further obligation to the Executive under the terms of this
Agreement (including, without limitation, payment of any additional salary
beyond the three (3) month notice period).
12.3.3. For the avoidance of doubt, at any time during the Employment
Period if the Board undertakes to locate a replacement CEO (the "Replacement
CEO"), (a) the Executive agrees to cooperate with the Board in all efforts
thereof (including assisting in good faith with the transition to such
Replacement CEO) and the Executive understands and agrees that if Company
terminates this Agreement in accordance with Clause 12.3.2, the Board may change
the Executive's title, position and Services during the applicable notice period
set forth in Clause 12.3.2, and (c) provided that the Company complies with
Clause 12.3.2, the Executive agrees to execute a written release in favor of the
Company and its affiliates.
12.4 In the event of the Executive's death during this Agreement, this
Agreement shall be deemed to have terminated on the last day of the calendar
month during which the Executive's death shall occur, and the Company shall (i)
pay to the Executive's estate, in full discharge of its obligations hereunder,
compensation for the Executive's services up to and including the last day of
the month in which the death occurred plus additional compensation in a pro rata
amount equal to six (6) months of the salary set forth pursuant to Clause 4.1
and (ii) reimburse the Executive's estate for any expenses properly incurred
prior to the termination of this Agreement. Thereafter, the Company's
obligations hereunder shall terminate.
12.5 In the event the Executive is unable to perform the normal duties by
reason of disability as the result of non-work-related injury, then at the
discretion of the Audit Committee acting reasonably, this Agreement may be
terminated by the Company by giving six (6) month advance written notice to the
Executive or payment in lieu of notice, and the Company shall: (i) pay to the
Executive the severance payment as required by applicable law and (ii) reimburse
the Executive for any expense properly incurred prior to the termination of this
Agreement; provided that the Executive's insurance and benefits shall continue
for not less than such six (6) month period in which case the Company shall have
no further obligation to the Executive under the terms of this Agreement
(including, without limitation, payment of any additional salary beyond the six
(6) month notice period). Thereafter, the Company's obligations hereunder shall
terminate. For purposes of this section, "disability" shall mean the inability
of the Executive to perform the normal duties under this Agreement for a 60
consecutive day period or more than 90 days in any 12-month period due to
illness, injury, incapacity or other disability, either physical or mental. If
required by either Party, a physician mutually agreed by the Executive and the
Company shall determine whether the Executive is so disabled.
13. COVENANTS UPON CEASING TO RENDER SERVICES
13.1 From such time as the Executive ceases to render Services hereunder
(whether upon expiration, failure to renew or termination of this Agreement, or
otherwise) the Executive will observe the covenants set forth below.
13.1.1 Cooperate with the Company and any Associated Company in the
completion or transfer of pending work on behalf of the Company,
and the orderly transfer of such work to other employees.
13.1.2 Be available via email and other forms of communications to speak
with senior management of the Company and any Associated Company.
13.1.3 For the period from the time that the Executive ceases to render
Services hereunder (whether upon expiration, failure to renew or
termination of this Agreement, or otherwise) until twenty-four (24)
months after such time (the "Two Year Period"), not grant
interviews or make statements regarding the Company, any Associated
Company or any of their respective directors, executive officers or
employees without the prior express written consent of the then
current CEO.
13.1.4 During the Two Year Period, other than as may be required by a
court order, not to disparage the Company or any Associated
Company, or any member of the board of directors, executive officer
or employee of the Company or any Associated Company.
13.1.5 For the period from the time that the Executive ceases to render
Services hereunder (whether upon expiration, failure to renew or
termination of this Agreement, or otherwise) until twelve (12)
months after such time, acknowledge that the Executive has or may
be deemed to have had under the relevant securities laws access to
confidential and/or price-sensitive information relating to the
Company and Associated Companies. The Executive agrees that he will
not and will use reasonable endeavors to cause immediate family and
associated companies not to trade in securities of the Company and
Associated Companies, and will take such actions or engage in such
conduct as advisable or necessary to avoid liability or violations
of "xxxxxxx xxxxxxx" rules under relevant securities laws,
including avoiding any conduct that would result in becoming a
"tipper" or "tippee" under the U.S. Securities Act of 1933, the
U.S. Securities Exchange Act of 1934, and the rules of the Stock
Exchange of Hong Kong Limited and the Securities and Futures
Commission of Hong Kong.
13.1.6 During the Two Year Period, cooperates with the Company and any
Associated Company in the initiation of a claim and/or counterclaim
of any action brought against any third party, as the case may be,
with respect to the Company or any Associated Company.
13.1.7 During the Two Year Period, cooperate with the Company and any
Associated Company in the defense of any action brought by any
third party against the Company or any Associated Company that
relates to any aspect of the Executive's employment with the
Company.
13.1.8 During the Two Year Period, the Executive shall take any action and
institute any proceedings, and give any information and assistance,
as the Company or any Associated Company may reasonably request to:
13.1.8.1 dispute, resist, appeal, compromise, defend, remedy or
mitigate any matter; or
13.1.8.2 enforce against a person (other than the Company or any
Associated Company) any of the Executive's rights in
relation to any matter; and
13.1.9 in connection with proceedings related to any matter (other than
against the Company or any Associated Company) use advisers
nominated by the Company and, if the Company requests, allow the
Company the exclusive conduct of the proceedings.
14. MISCELLANEOUS MATTERS
14.1 The Executive warrants and covenants that there is no other contract or
duty on his part that will be inconsistent with this Agreement.
14.2 The Executive agrees that he will not assign, sell, transfer, delegate or
otherwise dispose of, whether voluntarily or involuntarily, or by operation of
law, any rights or obligations under this Agreement, nor shall the Executive's
rights be subject to encumbrance or the claims of creditors. Any purported
assignment, transfer, or delegation shall be null and void. Nothing in this
Agreement shall prevent the consolidation of the Company with, or its merger
into, any other corporation, or the sale by the Company of all or substantially
all of its properties or assets, or the assignment by the Company of this
Agreement and the performance of its obligations hereunder to any successor in
interest or any Associated Company. Subject to the foregoing, this Agreement
shall be binding upon and shall inure to the benefit of the Parties and their
respective heirs, legal representatives, successors, and permitted assigns, and
shall not benefit any person or entity other than those enumerated above.
14.3 If any provision of this Agreement, or the application thereof to any
person, place, or circumstance, shall be held by a court of competent
jurisdiction to be invalid, unenforceable, or void, the remainder of this
Agreement and such provisions as applied to other persons, places, and
circumstances shall remain in full force and effect. It is the intention of the
Parties that the provisions contained in Clauses 7, 8, 9 and 10 shall be
enforced to the greatest extent (but to no greater extent) in time, area, and
degree of participation as is permitted by the law of that jurisdiction whose
law is found to be applicable to any acts allegedly in breach of these
provisions.
14.4 This Agreement may not be modified or amended, except by an instrument in
writing, signed by the Executive and by a duly authorized representative of the
Company. By an instrument in writing similarly executed, either Party may waive
compliance by the other Party with any provision of this Agreement that such
other Party was or is obligated to comply with or perform; provided, however,
that such waiver shall not operate as a waiver of, or estoppel with respect to,
any other or subsequent failure. No failure to exercise and no delay in
exercising any right, remedy or power hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, remedy or power
hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy or power provided herein or by law or in equity.
14.5 The terms of this Agreement are intended by the Parties to be the full and
final expression of their agreement and may not be contradicted by evidence of
any prior or contemporaneous agreement. The Parties further intend that this
Agreement shall constitute the complete and exclusive statement of its terms and
that no extrinsic evidence whatsoever may be introduced in any judicial,
administrative or other legal proceeding involving this Agreement. This
Agreement fully supersedes any prior oral or written agreement between the
Executive and the Company and/or any Associated Company.
14.6 The headings for the clauses of this Agreement are for convenience only
and are not part of this Agreement.
14.7 This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original and such counterparts together shall
constitute one and the same instrument.
14.8 The Parties acknowledge that (i) they have had the opportunity to consult
counsel in regard to this Agreement if they so desire; (ii) they have read and
understand the Agreement and they are fully aware of its legal effect; and (iii)
they are entering into this Agreement freely and voluntarily, and based on each
Party's own judgment and not on any representations or promises made by the
other Party, other than those contained in this Agreement.
15. NOTICES
All such notices and communications shall be effective (a) when sent by
FedEx or other overnight service of recognized standing, on the third business
day following the deposit with such service; and (b) when faxed during normal
business hours on a day on which the Company is open for business, upon
confirmation of receipt. The Parties shall be obligated to notify each other in
writing of any change of the below address. Notice of change of address shall be
effective only when done in accordance with this Clause. All notices, requests,
demands, consents, instructions or other communications required or permitted
hereunder shall be in writing and faxed or delivered via courier to each Party
as follows:
If to the Company:
Address: 34/F, Citicorp Centre
00 Xxxxxxxxx Xxxx
Xxxxxxxx Xxx, Xxxx Xxxx
Facsimile: (000) 0000-0000
Attention: General Counsel and Company Secretary
If to the Executive:
Address: c/o xxxxx.xxx Corporation Limited
00/X Xxxxxxxx Xxxxxx
00 Xxxxxxxxx Xxxx
Xxxxxxxx Xxx, Xxxx Xxxx
Facsimile: (000) 0000-0000
Attention: Xx. Xxxxxxx Xxx-Xxxx Ch'ien
16. GOVERNING LAW
This Agreement shall be governed by and construed under the law of Hong
Kong and each of the Parties hereby irrevocably agrees for the exclusive benefit
of the Company that the Courts of Hong Kong are to have exclusive jurisdiction
to settle any disputes which may arise out of or in connection with this
Agreement.
17. EFFECTIVE DATE
This Agreement shall become effective as of the Effective Date.
IN WITNESS whereof this Executive Services Agreement (Chief Executive
Officer) has been signed by or on behalf of the Parties hereto as of the date
first written above, and shall become effective as of the Effective Date.
SIGNED by )
Director )
on behalf of the xxxxx.xxx Corporation Limited)
Date:
SIGNED by Xx. Xxxxxxx Xxx-Xxxx Ch'ien )
Executive )
Date:
