Exhibit 10.9
Change of Control Severance Agreement between
AsiaInfo Holdings, Inc. and Xxxxx Xx dated May 30, 2003
This Agreement, dated as of May 30, 2003, is made and entered into by and
between AsiaInfo Holdings, Inc., a corporation organized under the laws of the
State of Delaware with its principal place of business at Zhongdian Information
Tower, Xx. 0 Xxxxxxxxxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxx'x Xxxxxxxx of China (the
"Company"), and Xxxxx Xx, Vice President for Human Resources and Administration
of the Company (the "Executive").
WHEREAS, the Company considers it essential to the best interests of
its stockholders to xxxxxx the continuous employment of key management
personnel, and recognizes that, as is the case with many publicly held
corporations, the possibility of a Change of Control (as defined below) may
exist from time to time and that such possibility, and the uncertainty and
questions which it may raise among management, may result in the distraction or
departure of management personnel to the detriment of the Company and its
stockholders; and
WHEREAS, the Board of Directors of the Company has determined that
appropriate steps should be taken to reinforce and encourage the Executive's
continued attention and dedication to the Executive's assigned duties without
distraction in the face of potentially disturbing circumstances arising from the
possibility of a Change of Control of the Company, although no such change is
presently known to be contemplated.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
Section 1
DEFINITIONS
Except as may otherwise be specified or as the context may otherwise
require, the following terms shall have the respective meanings set forth below
whenever used herein:
"Base Salary" shall mean the annual base rate of regular compensation
of the Executive immediately before a Change of Control, or if greater, the
highest such rate at any time during the 12-month period immediately preceding
the Change of Control.
"Board" shall mean the Board of Directors of the Company.
"Business Combination" shall mean a merger, consolidation, or sale of
all or substantially all of the Company's assets.
"Cause" shall mean (i) the willful and continued failure by the
Executive substantially to perform his duties with the Employer (other than any
such actual or anticipated failure after the issuance of a Notice of Termination
for Good Reason) or (ii) the willful engaging by the Executive in conduct which
is demonstrably and materially injurious to the Employer, monetarily or
otherwise. For purposes hereof, no act, or failure to act, on the Executive's
part, shall be deemed "willful" unless done, or omitted to be done, by the
Executive in the absence of good faith and without a reasonable belief that such
act or omission was in the best interest of the Employer.
"Change of Control" shall mean the first to occur, after the date
hereof, of any of the following:
(i) any Person (excluding the Company, any employee benefit plan of
the Company or a corporation controlled by the Company's stockholders) is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company (not including in the
securities beneficially owned by such Person any securities acquired directly
from the Company or its Subsidiaries) representing more than 45% of either the
then outstanding shares of Stock of the Company or the combined voting power of
the Company's then outstanding securities;
(ii) during any period of 12 consecutive months during the existence
of this Agreement commencing on or after the date hereof, the individuals who,
at the beginning of such period, constitute the Board (the "Incumbent
Directors") cease to constitute at least a majority thereof because of a vote of
the Company's stockholders, provided that a director who was not a director at
the beginning of such 12-month period shall be deemed to have satisfied such
12-month requirement (and be an Incumbent Director) if such director was elected
by, or on the recommendation of or with the approval of, at least two-thirds of
the directors who then qualified as Incumbent Directors either actually (because
they were directors at the beginning of such 12-month period) or by prior
operation of this clause (ii);
(iii) the consummation of a merger or consolidation of the Company
with any other corporation other than (A) a merger or consolidation which would
result in the voting securities of the Company outstanding immediately prior to
such merger or consolidation continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving entity
or any parent thereof) at least 60% of the combined voting power of the voting
securities of the Company or such surviving entity or any parent thereof
outstanding immediately after such merger or consolidation, or (B) a merger or
consolidation effected to implement a recapitalization of the Company (or
similar transaction) in which no Person is or becomes the beneficial owner, as
defined in clause (i), directly or indirectly, of securities of the Company (not
including in the securities beneficially owned by such Person any securities
acquired directly from the Company or its Subsidiaries) representing 45% or more
of either the then outstanding shares of Stock of the Company or the combined
voting power of the Company's then outstanding securities;
(iv) the stockholders of the Company or the Board approve a plan of
complete liquidation or dissolution of the Company; or
(v) there is consummated an agreement for the sale or disposition
by the Company of all or substantially all of the Company's assets, other than a
sale or disposition by the Company of all or substantially all of the Company's
assets to an entity, at least 60% of the combined voting power of the voting
securities of which are owned by Persons in substantially the same proportion as
their ownership of the Company immediately prior to such sale.
Upon the occurrence of a Change of Control as provided above, no subsequent
event or condition shall constitute a Change of Control for purposes of this
Agreement, with the result that there can be no more than one Change of Control
hereunder.
"Code" shall mean the United States Internal Revenue Code of
1986, as amended.
"Company" shall mean, subject to Section 5.1(a), AsiaInfo Holdings,
Inc., a corporation organized under the laws of the State of Delaware.
"Covered Termination" shall mean if, within the one-year period
immediately following a Change of Control, the Executive (i) is terminated by
the Employer without Cause (other than on account of death or Disability), or
(ii) terminates his employment with the Employer for Good Reason. The Executive
shall not be deemed to have terminated his employment with the Employer for
purposes of this Agreement merely because he ceases to be employed by the
Employer and becomes employed by a new employer involved in the Change of
Control; provided that such new employer shall be bound by this Agreement as if
it were the Employer hereunder with respect to the Executive. It is expressly
understood that no Covered Termination shall be deemed to have occurred merely
because, upon the occurrence of a Change of Control, the Executive ceases to be
employed by the Employer and does not become employed by a successor to the
Employer after the Change of Control if the successor makes an offer to employ
the Executive on terms and conditions which, if imposed by the Employer, would
not give the Executive a basis on which to terminate employment for Good Reason.
"Date of Termination" shall mean the date on which a Covered
Termination occurs.
"Disability" shall mean the occurrence after a Change of Control of
the incapacity of the Executive due to physical or mental illness, whereby the
Executive shall have been absent from the full-time performance of his duties
with the Employer for six consecutive months.
"Employer" shall mean the Company (if and for so long as the
Executive is employed thereby) and each Subsidiary which may now or hereafter
employ the Executive or, where the context so requires, the Company and such
Subsidiaries collectively. A subsidiary which ceases to be, directly or
indirectly, through one or more intermediaries, controlling, controlled by or
under common control with the Company prior to a Change of Control (other than
in connection with and as an integral part of a series of transactions resulting
in a Change of Control) shall, automatically and without any further action,
cease to be (or be part of) the Employer for purposes hereof.
"Exchange Act" shall mean the United States Securities Exchange Act
of 1934, as amended.
"Good Reason" shall mean, without the express written consent of the
Executive and except as a result of the Executive's failure to satisfy
applicable performance criteria, the occurrence after a Change of Control of any
of the following circumstances, unless such circumstances are fully corrected
prior to the Date of Termination specified in the Notice of Termination given in
respect thereof:
(i) assignment to the Executive of any duties inconsistent in any
materially adverse or diminutive respect with his position, authority, duties or
responsibilities from those in effect immediately prior to the Change of
Control;
(ii) a reduction in the Executive's Base Salary as in effect
immediately before the Change of Control, except for a reduction that applies in
equal proportion to all employees of the Company;
(iii) a material reduction in the Executive's aggregate compensation
opportunity, including (A) the Executive's Base Salary, (B) bonus opportunity,
if any, and (C) long-term or other incentive compensation opportunity, if any
(taking into account, in the case of such bonus and incentive opportunities,
without limitation, any target, minimum and maximum amounts payable and the
attainability and reasonability of any performance hurdles, goals and other
measures);
"Notice of Termination" shall mean a notice given by the Employer or
Executive, as applicable, which 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 provisions so indicated.
"Person" shall have the meaning ascribed thereto by Section 3(a)(9)
of the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof
(except that such term shall not include (i) the Company or any of its
Subsidiaries, (ii) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any of its Subsidiaries, (iii) an
underwriter temporarily holding securities pursuant to an offering of such
securities, (iv) a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportion as their
ownership of stock of the Company, or (v) such Executive or any "group" (as such
term is used in Sections 13(d) and 14(d) of the Exchange Act) which includes the
Executive.
"Stock" shall mean the common stock, $.01 par value per share, of the
Company.
"Stock Options" shall mean options issued by the Company to purchase
Stock.
"Subsidiary" shall mean any entity, directly or indirectly, through
one or more intermediaries, controlled by the Company.
"Target Annual Bonus" shall mean the Executive's annual bonus for the
Employer's fiscal year in which the Date of Termination occurs, which bonus
would be paid or payable if the Executive and the Employer were to satisfy all
conditions to the Executive's receiving the annual bonus at target (although not
necessarily the maximum annual bonus); provided that such amount shall be
annualized for any fiscal year consisting of less than 12 full months; and
provided, further, that, if
at the time of a Change of Control it is substantially certain that a bonus at a
level beyond target will be paid or payable for the fiscal year, then the bonus
which is substantially certain to be paid or payable, rather than the target
bonus, shall be used for these purposes.
Section 2
BENEFITS ACCRUING UPON A COVERED TERMINATION
2.1 If a Covered Termination occurs, then the Executive shall be
entitled hereunder to the following benefits, none of which shall be subject to
tax equalization:
(a) any unpaid portion of the Executive's Base Salary through the
Date of Termination;
(b) the product of (i) the Executive's Target Annual Bonus for the
year in which the Date of Termination occurs (or, if higher, as in effect at the
time of the Change of Control) and (ii) a fraction, the numerator of which is
the number of days that have elapsed in the current fiscal year through the Date
of Termination, and the denominator of which is 365;
(c) an amount equal to the sum of (i) the Executive's Base Salary for
the year in which the Date of Termination occurs (or, if higher, as in effect at
the time of the Change of Control) and (ii) the Executive's Target Annual Bonus
for the year in which the Date of Termination occurs (or, if higher, as in
effect at the time of the Change of Control);
(d) immediate vesting of 50% of any outstanding unvested Stock
Options held by the Executive as of the Date of Termination;
(e) the right to exercise all vested Stock Options (including any
Stock Options that become vested pursuant to the foregoing clause 2.1 (d)) for a
period of 18 months after the Date of Termination (notwithstanding anything to
the contrary otherwise provided under the terms and conditions of such Stock
Options);
(f) for a period of one year after the Date of Termination, the
Employer shall arrange to make available to the Executive medical benefits that
are at least at a level (and cost to the Company) that is substantially similar
in the aggregate to the level of such benefits that was available to the
Executive immediately prior to the Change of Control; provided that (i) the
Employer shall not be required to provide benefits under this Section 2.1(f)
upon and after the Change of Control that are in excess of those provided to a
majority of the executives of similar status who are employed by the Employer
from time to time upon and after the Change of Control, and (ii) no benefit
otherwise to be made available to the Executive pursuant to this Section 2.1(f)
shall be required to be made available to the extent that substantially
equivalent benefits are made available to the Executive by any subsequent
employer of the Executive; and
(g) for a period of six months after the Date of Termination, the
Employer shall continue to provide the Executive with any housing entitlement
(including any housing allowance and any contribution made by the Company
towards any government or Company housing scheme) he was entitled to as of the
Date of Termination (or, if higher, as in effect at the time of the Change of
Control).
2.2 (a) The cash payments provided for in Section 2.1(a), (b) and (c)
(except as otherwise expressly provided therein, as provided in Section 2.2(b)
or as otherwise expressly provided hereunder) shall be made as soon as
practicable, but in no event later than 30 days, following the Date of
Termination in the form of either (i) a lump sum cash payment or (ii) at the
Executive's request, monthly payments over no more than a 12 month period, by
check or wire transfer of immediately available funds.
(b) Notwithstanding any other provision of this Agreement to the
contrary, no payment or benefit otherwise provided for under or by virtue of the
foregoing provisions of this Agreement shall be paid or otherwise made available
unless and until the Employer shall have first received from the Executive (no
later than 60 days after the Employer has provided to the Executive estimates
relating to the payments to be made under this Agreement) a valid, binding and
irrevocable general release, in form and substance acceptable to the Employer in
its discretion; provided that the Employer shall be permitted to defer any
payment
or benefit otherwise provided for in this Agreement to the 15th day after its
receipt of such release and time at which it has become valid, binding and
irrevocable. The Employer may require that any such release contain an agreement
of the Executive to notify the Employer of any benefit made available by a
subsequent employer as contemplated by clause (ii) of the proviso to Section
2.1(f).
2.3 For the avoidance of doubt, an Executive who is terminated for
Cause shall not be entitled to any of the benefits and compensation provided for
in Section 2.1.
Section 3
BENEFITS ACCRUING UPON A CHANGE OF CONTROL
3.1 In the event of a Change of Control and regardless of whether or
not a Covered Termination occurs, if the Change of Control is not effected by a
Business Combination whereby the successor corporation assumes all of the
Executive's outstanding Stock Options or replaces such Stock Options with
options or similar incentives with a substantially equivalent economic value,
the Executive shall be entitled to immediate vesting of 50% of any outstanding
unvested Stock Options held by the Executive as of the date of such Change of
Control. Such newly vested Stock Options shall become exercisable on the date of
such Change of Control and shall remain exercisable thereafter in accordance
with their respective terms.
Section 4
TAX PROVISIONS
4.1 If all, or any portion, of the payments and benefits (as
determined by the Company) provided under this Agreement, if any, either alone
or together with other payments and benefits which the Executive receives or is
entitled to receive from the Company or its affiliates, would constitute an
excess "parachute payment" within the meaning of Section 280G of the Code
(whether or not under an existing plan, arrangement or other agreement) (each
such parachute payment, a "Parachute Payment"), and would result in the
imposition on the Executive of an excise tax under Section 4999 of the Code,
then such payments and benefits shall be subject to reduction by the Company if
and to the extent necessary to prevent any part of such payments and benefits
from constituting an excess "parachute payment".
4.2 The Executive shall be responsible for any income taxes on all
payments or benefits provided for by this Agreement and the Company shall be
entitled to withhold any amounts required by law.
Section 5
MISCELLANEOUS
5.1 (a) The Company shall require any successor entity in any
Business Combination expressly to assume and agree to perform the Company's
obligations under the terms of this Agreement in the same manner and to the same
extent that the Company and its affiliates would be required to perform it if no
such succession had taken place (provided that such a requirement to perform
which arises by operation of law shall be deemed to satisfy the requirements for
such an express assumption and agreement), and in such event the Company (as
constituted prior to such succession) shall have no further obligation under or
with respect to this Agreement. Failure of the Company to obtain such assumption
and agreement with respect to the Executive prior to the effectiveness of any
such succession shall be a breach of the terms of this Agreement with respect to
the Executive and shall entitle the Executive to compensation from the Employer
(as constituted prior to such succession) in the same amount and on the same
terms as the Executive would be entitled to hereunder were the Executive's
employment terminated for Good Reason following a Change of Control, except that
for purposes of implementing the foregoing, the date on which any such
succession becomes effective shall be deemed the Date of Termination. As used in
this Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor to its business or assets as aforesaid which assumes and agrees (or is
otherwise required) to perform this Agreement. Nothing in this Section 5.1(a)
shall be deemed to cause any event or condition which would otherwise constitute
a Change of Control not to constitute a Change of Control.
(b) Notwithstanding Section 5.1(a), the Company shall remain liable
to the Executive upon a Covered Termination after a Change of Control if (i) the
Executive is not offered continuing employment by a successor to the Employer or
(ii) the Executive declines such an offer and the Executive's resulting
termination of employment otherwise constitutes a Covered Termination hereunder.
(c) This Agreement, and the Executive's and the Company's rights and
obligations hereunder may not be assigned by the Executive or, except as
provided in Section 5.1(a), the Company, respectively; any purported assignment
by the Executive or the Company in violation hereof shall be null and void.
(d) The terms of this Agreement shall inure to the benefit of and be
enforceable by the personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees of the Executive. If the
Executive shall die while an amount would still be payable to the Executive
hereunder if he had continued to live, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this Agreement to
the Executive's devisee, legatee or other designee or, if there is no such
designee, the Executive's estate.
5.2 Except as expressly provided in Section 2.1, the Executive shall
not be required to mitigate damages or the amount of any payment provided for
under this Agreement by seeking other employment or otherwise, nor will any
payments or benefits hereunder be subject to offset in the event the Executive
does mitigate.
5.3 The Employer shall reimburse all legal fees and related expenses
incurred by the Executive in seeking to obtain or enforce any right or benefit
provided by this Agreement. The Company shall make advances to the Executive
with respect to such fees and expenses at the request of the Executive. Such
payments are to be made within five days after the Executive's request for
payment accompanied with such evidence of fees and expenses incurred as the
Employer reasonably may require; provided that if the Executive institutes a
proceeding and the judge or other decision-maker presiding over the proceeding
affirmatively finds that the Executive has failed to prevail substantially, the
Executive shall pay his own costs and expenses (and, if applicable, return any
amounts theretofore paid on the Executive's behalf under this Section 5.3).
5.4 (a) The Executive may file a claim for benefits under this
Agreement by written communication to the Board. A claim is not considered filed
until such communication is actually received by the Board. Within 90 days (or,
if special circumstances require an extension of time for processing, 180 days,
in which case notice of such special circumstances shall be provided within the
initial 90-day period) after the filing of the claim, the Board shall:
(i) approve the claim and take appropriate steps for satisfaction of
the claim; or
(ii) if the claim is wholly or partially denied, advise the Executive
of such denial by furnishing to him or his a written notice of such denial
setting forth (A) the specific reason or reasons for the denial; (B) specific
reference to pertinent provisions of this Agreement on which the denial is based
and, if the denial is based in whole or in part on any rule of construction or
interpretation adopted by the Board, a reference to such rule, a copy of which
shall be provided to the Executive; (C) a description of any additional material
or information necessary for the Executive to perfect the claim and an
explanation of the reasons why such material or information is necessary; and
(D) a reference to this Section 5.4.
5.5 For the purposes of this Agreement, notice and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when hand delivered or mailed by United States
certified or registered express mail, return receipt requested, postage prepaid,
if to the Executive, addressed to the Executive at his respective address on
file with the Secretary of the Company; if to the Company, addressed to AsiaInfo
Holdings, Inc., Zhongdian Information Tower, Xx.0 Xxxxxxxxxxxx Xxxxx Xxxxxx,
Xxxxxxx, Xxxxxx'x Xxxxxxxx of China, and directed to the attention of its Legal
Department; if to the Board, addressed to the Board of Directors, c/o AsiaInfo
Holdings, Inc., Zhongdian Information Tower, Xx.0 Xxxxxxxxxxxx Xxxxx Xxxxxx,
Xxxxxxx, Xxxxxx'x Xxxxxxxx of China, and directed to the Company's Legal
Department; or to such other address as any party may have furnished to the
others in writing in accordance herewith, except that notice of change of
address shall be effective only upon receipt.
5.6 Unless otherwise determined by the Employer in an applicable plan
or arrangement, no amounts payable hereunder upon a Covered Termination shall be
deemed salary or compensation for the purpose of computing benefits under any
employee benefit plan or other arrangement of the Employer for the benefit of
its employees unless the Employer shall determine otherwise.
5.7 This Agreement is the exclusive arrangement with the Executive
applicable to payments and benefits in connection with a Change of Control of
the Company (whether or not a Change of Control), and supersedes any prior
arrangements involving the Company or its predecessors or affiliates relating to
changes in control (whether or not Changes in Control). This Agreement shall not
limit any right of the Executive to receive any payments or benefits under an
employee benefit or executive compensation plan of the Employer, initially
adopted as of or after the date hereof, which are expressly contingent
thereunder upon the occurrence of a Change of Control (including, but not
limited to, the acceleration of any rights or benefits thereunder).
5.8 Any payments hereunder shall be made out of the general assets of
the Employer. The Executive shall have the status of general unsecured creditor
of the Employer, and this Agreement constitutes a mere promise by the Employer
to make payments under this Agreement in the future as and to the extent
provided herein.
5.9 Nothing in this Agreement shall confer on the Executive any right
to continue in the employ of the Employer or interfere in any way (other than by
virtue of requiring payments or benefits as may expressly be provided herein)
with the right of the Employer to terminate the Executive's employment at any
time.
5.10 Any controversy or claim arising out of or relating to this
Agreement or the breach of this Agreement that is not resolved by the Employer
and the Executive shall be submitted to arbitration in the Hong Kong Special
Administrative Region or the City of Beijing in the People's Republic of China,
in accordance with Delaware law and the procedures of UNCITRAL. The
determination of the arbitrator(s) shall be conclusive and binding on the
Employer and Executive and judgment may be entered on the arbitrator(s)' award
in any court having jurisdiction.
5.11 This Agreement may be amended, superseded, canceled, renewed or
extended, and the terms hereof may be waived, only by a written instrument
signed by the parties hereto or, in the case of a waiver, by the party waiving
compliance. No delay on the part of any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any waiver on
the part of any party of any such right, power or privilege nor any single or
partial exercise of any such right, power or privilege, preclude any other or
further exercise thereof or the exercise of any other such right, power or
privilege.
5.12 This Agreement shall become effective on the date first above
written and shall have an initial term of two years (the "Initial Term").
Following the Initial Term, this Agreement shall remain in full force and effect
unless and until terminated by the Board upon six months' prior written notice
to the Executive delivered after the Initial Term.
5.13 The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement which shall remain in full force and effect.
5.14 The use of captions in this Agreement is for convenience. The
captions are not intended to and do not provide substantive rights.
5.15 THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
DELAWARE.
IN WITNESS WHEREOF, the parties hereto have signed their names,
effective as of the date first above written.
ASIAINFO HOLDINGS, INC.
By: Xxxxx Xxxx
___________________________________
Name: Xxxxx Xxxx
Title: Chairman of the Board
XXXXX XX
Xxxxx Xx
________________________________________
