Exhibit 4.(c).1
XXXXX.XXX CORPORATION LIMITED
AND
XX. XXXXXXX XXX-XXXX CH'IEN
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AMENDED AND RESTATED
EXECUTIVE SERVICES AGREEMENT
(EXECUTIVE CHAIRMAN)
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THIS AMENDED AND RESTATED EXECUTIVE SERVICES AGREEMENT (EXECUTIVE
CHAIRMAN) 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 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 of the Company.
WHEREAS, concurrently with entry into this Amended and Restated Executive
Services Agreement (Executive Chairman), the Company and the Executive have
agreed to enter into an Executive Services Agreement (Chief Executive Officer)
(the "CEO Services Agreement") which sets forth the terms pursuant to which the
Executive has agreed to provide services as Chief Executive Officer of the
Company.
WHEREAS, the Company and the Executive desire to amend and restate in its
entirety the terms pursuant to the Executive has agreed to provide certain
services to the Company as Executive Chairman.
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, pursuant to the terms of
the Original Executive Services Agreement (as amended) and in accordance with
Clause 14.6 thereof, to amend and restate in its entirety the Original Executive
Services Agreement, as amended by Amendment No. 1 to such Agreement, 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 April 27, 2004.
"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.
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"Average Trading Price" means the average of the per share closing price
of the Shares on the Nasdaq during the five consecutive trading days ending on
(and including) the trading day that is one trading day prior to such date.
"Board" means the board of directors of the Company from time to time.
"CEO Services Agreement" has the meaning set forth in the recitals above.
"Compensation Committee" means the compensation committee of the Board.
"Company" has the meaning set forth in the introductory paragraph above.
"Confidential Information" has the meaning set forth in Clause 7.2.
"Effective Date" means April 27, 2004.
"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 Committee" means the executive committee established by the
Board in accordance with the Company's Articles of Association.
"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.
"Option Term" has the meaning set forth in Clause 5.4.
"Options" has the meaning set forth in Clause 5.1.
"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.
"Prior Services Agreement" means the Executive Services Agreement dated as
of April 27, 2001 between the Parties and any and all amendments thereof.
"Released Party" has the meaning set forth in Clause 3.1.
"Services" means the services rendered by the Executive to the Company as
described in Schedule 1 hereto.
"Shares" has the meaning set forth in Clause 5.1.
"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.
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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 PRIOR 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
Executive Chairman of the Company effective the Appointment Date for a period of
thirty-six (36) months until April 27, 2007 (the "Initial Term").
2.2 This Agreement shall be automatically renewed for successive periods of one
(1) year after the expiry of the Initial Term unless either the Company or the
Executive informs the other Party in writing not less than three (3) months
prior to the expiration of the then-current term of its or his desire for this
Agreement to not be automatically renewed for the successive term.
2.3 The Company and the Executive agree that this Agreement shall supersede and
replace the Prior Services Agreement, and that the Prior Services Agreement is
hereby and forever terminated. The Company and the Executive agree that this
Agreement amends and restates in its entirety the Original Executive Services
Agreement effective as of April 27, 2004, as amended by Amendment No. 1 to such
Original Executive Services Agreement. The Executive hereby releases the Company
from all obligations or claims related to the Prior Services Agreement and the
Original Executive Services Agreement.
3. RIGHT TO NOMINATION AS DIRECTOR
3.1 For so long as the Executive serves as Executive Chairman of the Company
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. REMUNERATION
4.1 Effective the Appointment Date, the Company shall pay, provide or grant to
the Executive; (a) no basic salary; (b) additional options to purchase the
shares of the Company as described in Clause 5; and (c) the other benefits as
set forth in Clause 6 hereof. The Executive's remuneration shall be payable in
accordance with the usual practice of the Company as at the date hereof which
may be amended from time to time by the Company during the term of this
Agreement. The
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Company will not be obliged to increase the Executive's remuneration at any time
during the Initial Term or any renewed term.
4.2 To the extent reasonably practicable the Company shall cooperate with the
Executive to ensure that the remuneration 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 remuneration 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 remuneration 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 remuneration 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.
5. SHARE OPTIONS
5.1 Subject to the provisions of this Clause 5, the Executive shall be granted a
total of 800,000 share options under the 1999 Stock Option Plan ("Options") as
set forth in the option award agreement to purchase an equivalent number of the
Company's Class A Common Shares, par value US$0.00025 (the "Shares"). Such
Options shall be granted in three tranches. The first tranche of 300,000 Options
were granted to the Executive at such time as the Board ratified the Original
Executive Services Agreement with an exercise price of US$7.77 per Option, the
fair market value of the Shares on the date of such ratification. The second
tranche of an additional 250,000 Options will be granted to the Executive on the
first anniversary of the Appointment Date at an exercise price equal to the
higher of (i) Average Trading Price and (ii) the fair market value of the Shares
on such date. The third tranche of the remaining 250,000 Options will be granted
to the Executive on the second anniversary of the Appointment Date at an
exercise price equal to the higher of (i) the Average Trading Price and (ii) the
fair market value of the Shares on such date
5.2 The Options granted under Clause 5.1 shall vest over the course of the
Initial Term according to a vesting schedule as set forth in Schedule 2;
provided (a) the Executive remains at the Company to provide the Services on the
day the vesting of the relevant portion of those Options takes place and (b)
this Agreement has not otherwise been terminated. Except as otherwise provided
in this Clause 5, the Options granted shall be subject to the terms and
conditions of the 1999 Stock Option Plan.
5.3 If the Executive is terminated other than pursuant to Clause 12.1, 12.3,
12.4 or 12.5 of this Agreement, provided that the Executive executes a written
release in favor of the Company and its affiliates, the Company shall cause the
Executive's Options to accelerate and fully vest. In the event of such
termination other than pursuant to Clause 12.1 of this Agreement, the Executive
shall have a reasonable period of time following such termination to exercise
the Executive's Options, such period to be not less than ninety (90) days
following the date the Board determines the Executive is no longer in possession
of material non-public information such that the Executive may freely exercise
the Options in compliance with the Company's xxxxxxx xxxxxxx policy and
applicable law. Notwithstanding the above, if under Clauses 12.3, 12.4 or 12.5
the Executive is terminated or initiates the termination as a result of a death
or disability that is tangibly related to the performance of the duties by the
Executive for the Company hereunder, the Company shall cause the Executive's
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Options to accelerate and fully vest and the Executive or his successors or
assigns, as the case may be, shall have up to one year following such
termination to exercise the Executive's Options. For avoidance of doubt if under
Clauses 12.3, 12.4 or 12.5 the Executive is terminated or initiates the
termination as a result of a death or disability that is NOT tangibly related to
the performance of the duties by the Executive for the Company hereunder, the
Executive's Options shall not accelerate but the Executive or his successors or
assigns, as the case may be, shall have up to one year following such
termination to exercise the Executive's Options that had vested as of the date
of termination.
5.4 The Executive agrees that, without the prior written consent of the Company,
the Executive will not sell, offer to sell, contract to sell, grant any option
to purchase or otherwise dispose of any Options (whether vested or unvested), or
any securities convertible into, exercisable or exchangeable for such Options
(whether vested or unvested), including the Shares, or in any other manner
transfer all or a portion of the economic consequences associated with the
ownership of any Option (whether vested or unvested) until the expiration of the
"Option Term" which shall be the earlier of (A) the end of the Initial Term (and
any subsequent renewals thereof) or (B) termination of this Agreement; provided,
however, that the provisions of this Clause 5.4 shall not apply to the sale of
Shares received upon exercise of such Options in order to satisfy any tax
liability associated with a disposal permitted by this Clause 5.4. For the
avoidance of doubt, (A) any disposal made pursuant to this Clause 5.4 must also
comply with the provisions of the 1999 Stock Option Plan and any option award
agreement; the Executive may exercise his Options during the Option Term so long
as he complies with this Clause 5.4; and if the Executive's Options are
accelerated and fully vested as a result of Clause 5.3, this Clause 5.4 will no
longer apply.
5.5 The award of Options under this Agreement shall not affect the accrued
rights of the Executive in relation to other options on the shares of the
Company or any Associated Company held by the Executive.
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 So long as the Executive is also an executive of the Company, the Executive
shall not be entitled to receive director compensation from the Company.
6.3 The Parties acknowledge that in addition to this Agreement, the Parties have
entered into the CEO Services Agreement. For the avoidance of the doubt, the
Parties acknowledge that the "Other Benefits" provided for in Section 6 of the
CEO 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
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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, as the case may be,
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 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
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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 3, 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
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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 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;
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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 Chief Executive Officer of the Company as
a result of termination of the CEO Services Agreement by the
Company pursuant to Clause 12.1 of such CEO 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.
12.2 Any delay or forbearance by the Company in exercising any right of
termination shall not constitute a waiver of it.
12.3 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 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 subject to
Clause 5.3.
12.4 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 one (1) month notice to the Executive, and the Company
shall: (i) not pay to the Executive any severance payment unless required by
applicable law and (ii) reimburse the Executive for any expense properly
incurred prior to the termination of this Agreement. Thereafter, the Company's
obligations hereunder shall terminate subject to Clause 5.3. 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.
12.5 The Executive may terminate this Agreement by giving three (3) months'
advance written notice of termination or payment in lieu of notice, if
applicable; provided, the Executive's insurance and benefits shall continue for
not less than such three (3) month period. Thereafter, the Company's obligations
hereunder shall terminate.
12.6 The Company may terminate this Agreement by giving three (3) months'
advance written notice of termination. Thereafter, the Company's obligations
hereunder shall terminate subject to Clause 5.3.
13. COVENANTS UPON CEASING TO RENDER SERVICES
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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 chief executive officer of the
Company, or if the Executive is such chief executive officer, the
chairman of the Audit Committee of the Company.
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, cooperate with the Company and any
Associated Company in the initiation of a claim and/or
counterclaim of any action brought against any third party, as
the case may be, with respect to the Company or any Associated
Company.
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 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:
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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
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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
34/F, Citicorp Centre
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.
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IN WITNESS whereof this Amended and Restated Executive Services
Agreement (Executive Chairman) 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 xxxxx.xxx Corporation Limited )
Date:
SIGNED by Xx. Xxxxxxx Xxx-Xxxx Ch'ien )
Executive )
Date:
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