FIRST AMENDMENT
Exhibit 1.01
FIRST AMENDMENT
TO
AMENDED AND RESTATED
EXECUTIVE SERVICES (CEO) AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED EXECUTIVE SERVICES (CEO) AGREEMENT (“First Amendment”) effective as of March 11, 2009 (“Effective Date”) between CDC Corporation Limited located at 00/X Xxxxxxxx Xxxxxx, 00 Xxxxxxxxx Xxxx, Xxxxxxxx Xxx, Xxxx Xxxx (the “Company”) and Asia Pacific On-Line Limited located at Suite 3302,33/F., Hopewell Centre, 183 Queen’s Road East, Wanchai, Hong Kong (“APOL”). The Company and APOL are collectively referred to as the “Parties” and each, a “Party”.
WHEREAS, APOL and the Company have previously entered into an Amended and Restated Executive Services Agreement dated December 19, 2008 (the “Existing Services Agreement”) in which APOL has agreed to provide certain Services to the Company, including the services of Xx. Xxxxx Xxx (the “Executive”) as the Chief Executive Officer and Vice-Chairman of CDC Corporation on the terms set forth herein.
WHEREAS, the Company and APOL have agreed to amend the Existing Services Agreement in order to, among other things, revise the bonus compensation payable thereunder.
NOW, THEREFORE, in consideration of the foregoing mutual covenants and agreements contained herein, the Parties hereby agree as follows:
1. DEFINITIONS AND INTERPRETATION
| 1.1 | In this First Amendment, the capitalized words and expressions shall bear the same meaning as set forth in the Existing Services Agreement, unless the context otherwise requires. |
2. MILESTONE ADJUSTMENT
| 2.1 | The Company and APOL hereby agree to adjust and revise the milestone payment set forth in the first bullet point under the fourth bullet point of Section 4.2 (the “Convertible Debt Milestone”), by deleting the Convertible Debt Milestone in its entirety and inserting in lieu thereof a new paragraph pursuant to which the $350,000 bonus payout previously provided would be revised as follows: |
| • | $175,000 upon the achievement of at least $18.7 million in savings of interest charges that would otherwise have been payable to non affiliates as a result of purchases by the Company or its affiliates of its 3.75% Convertible Exchangeable Debentures due 2011 (the “Convertible Debt”), and another $175,000 upon the successful achievement of the payment, modification or discharge, outside of any proceeding seeking or obtaining protection against creditors, of the entire $168 million principal balance of Convertible Debt effective prior to November 10, 2009, such that the Holder Redemption Put Right (as defined in the Notes) is avoided or eliminated; and |
3. SOLE AMENDMENT
The foregoing amendment of the Executive Services Agreement shall be the sole amendment thereof, and except to the extent expressly set forth in this First Amendment, the Executive Services Agreement and all of the other terms and conditions thereof shall remain in full force and effect.
IN WITNESS WHEREOF, this First Amendment to Amended and Restated Executive Services (CEO) Agreement has been signed by or on behalf of the parties hereto and is effective as of the date first written above.
SIGNED by Xxxx Xxxx Xxxxxx Xxx |
) | /s/ Xxxx Xxxx Xxxxxx Xxx | ||||||
Chairman CDC Corporation Compensation Committee |
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On behalf of CDC Corporation Limited |
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In the presence of |
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Date:April 30, 2009 |
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SIGNED by Xx. Xxxxx Xxxxx Loi |
) | /s/ Xxxxx Xxxxx Loi | ||||||
Director Chinadotcom Secretarial Services Limited |
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On behalf of CDC Corporation Limited |
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In the presence of /s/ Xxxxxx Xxxxxx |
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Date: April 23, 2009 |
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SIGNED by Xxxxx Xxx |
) | /s/ Xxxxx Xxx | ||||||
Director |
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On behalf of Asia Pacific On-Line Limited |
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In the presence of /s/ Xxxxx Xx |
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Date: April 29, 2009
Acknowledged and agreed to by Xxxxx Xxx, as the Executive.
SIGNED by Xxxxx Xxx |
) | /s/ Xxxxx Xxx | ||||||||||
Executive |
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In the presence of |
/s/ Xxxxx Xx | ) | ||||||||||
Date: |
April 29, 2009 | |||||||||||
