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EXHIBIT 10.49
SEPARATION AND GENERAL RELEASE AGREEMENT
This Separation and General Release Agreement (the "AGREEMENT"), dated
as of July 30, 2001 (the "EFFECTIVE DATE"), is entered into by and between
XXXX.xxx (the "COMPANY") and Xxxx Xxxxxxx (the "CONSULTANT").
In consideration of the general release of claims and promises set forth
below and other obligations under this Agreement, the Parties agree as follows:
1. SEPARATION EFFECTIVENESS. The Company and the Consultant acknowledge
and agree that the Consultant's employment relationship with the Company
terminated on June 1, 2001 (the "SEPARATION DATE").
2. POSITION. The Company and the Consultant also acknowledge and agree
that commencing on June 1, 2001, the Consultant will no longer serve as the
Company's Chief Executive Officer, President and Director and will resign or be
terminated from all positions held in the Company's subsidiaries including but
not limited to Beijing Xxxxx Xxxx Sigh Information Technology Co., Ltd., Rich
Sight Investment Limited, XXXX.xxx (Hong Kong) Limited and XXXX.xxx Online
(collectively referred to as "SINA SUBSIDIARIES"), as well as all positions held
in the Company's affiliated companies including Beijing SINA Interactive
Advertising Co., Ltd. ("AD COMPANY") and Beijing SINA Internet Information
Services Co., Ltd. ("ICP COMPANY") (all positions mentioned above collectively
referred to as the "POSITIONS").
3. TITLE AND RELATIONSHIP. Commencing on the Effective Date, the Company
grants the Consultant the title of "HONORARY CHIEF SINA" and the Consultant will
serve as a consultant to the Company. The Consultant will provide strategic
direction and suggestion to the Company, as reasonably requested by the Company
from time to time during the period of the consultant relationship beginning
from the Effective Date to July 29, 2002.
4. CONSULTING FEES. As consideration for the services to be provided by
the Consultant and other obligations set forth herein, the Company shall pay to
the Consultant a monthly amount of $22,916.66 ($275,000 on an annualized basis)
during the period of the consultant relationship beginning from the Effective
Date to July 29, 2002 in accordance with the Company's normal payment practices
for consultants. The Company will wire the monthly amount less any applicable
tax withholding to the account designated by the Consultant by the end of each
month beginning from August 2001 to July 2002. In addition, the Consultant and
the Company agree that the Company will forgive the loan under the Promissory
Note in accordance with the schedule set forth in Section 8(c) of this Agreement
as consideration for the services to be provided by the Consultant.
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5. DOCUMENTS. The Consultant shall deliver to the Company duly executed
termination letters for all Positions held by the Consultant and all other
necessary documents to effect such terminations and change of the registrations
of the Company, SINA Subsidiaries, Ad Company and ICP Company (collectively
referred to as the "SINA ENTITIES"), such documents as reasonably requested by
the Company from time to time but no later than the end of July 29, 2002.
6. INDEPENDENT CONTRACTOR. As of the Separation Date, the Consultant's
relationship with the Company will be that of an independent contractor and not
that of an employee.
(a) NO AUTHORITY TO BIND COMPANY. As of the Separation Date, neither
the Consultant, nor any partner, agent or employee of the
Consultant, has authority to enter into contracts that bind the
SINA Entities or create obligations on the part of the SINA
Entities, nor shall the Consultant use the title "Honorary Chief
SINA" to enter into any contract or business transaction without
the prior written authorization of the Company. Furthermore, the
Consultant agrees not to act as a representative, make any
statement, or take any action on behalf of the SINA Entities
without the prior written consent of the Company.
(b) WITHHOLDING; INDEMNIFICATION. As of the Separation Date, the
Consultant shall have full responsibility for applicable taxes
for all compensation paid to the Consultant, its partners,
agents or its employees under this Agreement, and for compliance
with all applicable labor and employment requirements with
respect to the Consultant's self-employment, sole proprietorship
or other form of business organization, and the Consultant's
partners, agents and employees. The Consultant agrees to
indemnify, defend and hold the Company harmless from any
liability for, or assessment of, any claims or penalties with
respect to such withholding taxes, labor or employment
requirements, including any liability for, or assessment of,
withholding taxes imposed on the Company by the relevant taxing
authorities with respect to any compensation paid to the
Consultant or the Consultant's partners, agents or its
employees.
(c) ASSISTANCE OF THE COMPANY. The Company and SINA Subsidiaries
hereby agree that they shall, upon the Consultant's reasonable
request from time to time, but no later than the end of July 29,
2002, to sign necessary documents and assist the Consultant to
transfer his labor and employment relationship with SINA
Subsidiaries in Hong Kong to entities designated by the
Consultant.
7. EFFECT ON STOCK OPTIONS.
(a) VESTED SHARES -- AUGUST OPTION. Pursuant to the terms of the
stock option granted to the Consultant on August 31, 1999 (the
"AUGUST OPTION"), the Consultant was granted an option to
purchase 429,238 shares of the Company's Ordinary Shares (the
"AUGUST SHARES") under the Company's 1999 Stock Plan,
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and the Consultant, pursuant to the Early Exercise Notice and
Restricted Shares Purchase Agreement dated September 27, 1999,
elected to purchase the total August Shares which have not yet
vested under the vesting schedule at the time of the purchase.
The Consultant and the Company acknowledge and agree that there
were 187,791 shares of the August Shares already vested as of
the Separation Date and the vesting of the August Option shall
accelerate such that 134,137 unvested shares of the August
Shares shall become immediately vested as of the Effective Date.
Accordingly, the Consultant shall be entitled to 321,928 shares
of the August Shares.
(b) REPURCHASE OF UNVESTED SHARES -- AUGUST OPTION. As of the
Effective Date, there are 107,310 shares of August Shares which
have not yet vested and the vesting have not been accelerated.
The Consultant and the Company acknowledge and agree that the
Company hereby repurchases these 107,310 shares from the
Consultant as of the Effective Date.
(c) OTHER OPTIONS. The Consultant and the Company acknowledge and
agree that any other unexercised options held by the Consultant
as of the Separation Date will automatically expire and be
cancelled in accordance with the terms of the respective
options, and the Consultant is not entitled to any additional
option or share vesting during the period of the consultant
relationship.
8. EFFECT ON PROMISSORY NOTE AND OTHER LOANS.
(a) PROMISSORY NOTE. On September 27, 1999, the Consultant has
delivered the Company two promissory notes in a total principal
amount of $429,238.50 (the "PROMISSORY NOTES") as the payment of
the exercise prices for the August Shares. As of the Effective
Date, total amount due under the Promissory Notes is $477,488.94
including the principal of $429,238.50 and the accrued interest
of $48,250.44.
(b) CANCELLATION OF $107,310 UNDER THE PROMISSORY NOTES. The
Consultant and the Company acknowledge and agree that the amount
of $107,310 under the Promissory Notes shall be cancelled on the
Effective Date as the purchase price paid by the Company to the
Consultant to repurchase the 107,310 share as set forth in the
Section 7(b) of the Agreement. After the cancellation, the total
outstanding due under the Promissory Notes as of the Effective
Date is $370,178.94.
(c) FORGIVENESS OF THE LOAN UNDER THE PROMISSORY NOTES. As
consideration for the services to be provided by the Consultant
and other obligations set forth herein, the Consultant and the
Company acknowledge and agree that the interest of the
Promissory Notes shall stop accruing immediately as of the
Effective Date and the outstanding amount of $370,178.94 will be
forgiven by the Company in 12
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monthly installment at the end of each month beginning from
August 2001 to July 2002.
(d) FORGIVENESS OF THE LOAN BORROWED FROM BSRS. The Consultant has
borrowed RMB 50,000 from Beijing Xxxxx Xxxx Sigh Information
Technology Co., Ltd. and such loan shall be assumed and forgiven
by the Company as of the Effective Date.
9. INTEREST IN SINA SUBSIDIARIES, AD COMPANY AND ICP COMPANY. The
Consultant acknowledges and agrees that he is not the beneficial owner and shall
not own any equity interest in SINA Subsidiaries, Ad Company, or ICP Company as
of the Effective Date. If there are any shares of SINA Subsidiaries, Ad Company,
or ICP Company standing in the Consultant's name in the books of such company,
the Consultant agrees and undertakes to transfer his interest in such company to
Xxx Xxxx and/or any other persons as designated by the Company. The Consultant
shall deliver to the Company duly executed documents to effect such transfer and
the change of the registrations, such documents as reasonably requested by the
Company from time to time. The Consultant hereby warrants that he didn't and
will not pledge, sell, contract to sell, grant any option, or otherwise transfer
or dispose of any shares of SINA Subsidiaries, Ad Company or ICP Company
standing in the Consultant's name in the books of such company as of the
Separation Date, except to the parties as designated by the Company.
10. BENEFITS. Except as required by applicable law, the Consultant shall
not be entitled to participate in any benefit plans or programs provided to
consultants of the Company and other SINA Entities following the Separation
Date.
11. NO OTHER PAYMENTS DUE. The Consultant and the Company agree that all
salary, accrued vacation and other sums due from the SINA Entities to the
Consultant are considered fully paid if the benefits in favor of the Consultant
provided under this Agreement are fully delivered. By executing this Agreement,
the Consultant hereby acknowledges that, in light of the payment by the Company
and other SINA Entities of all wages due to the Consultant, California Labor
Code Section 206.5 is not applicable to the Parties hereto. That section
provided in pertinent part as follows:
NO EMPLOYER SHALL REQUIRE THE EXECUTION OF ANY RELEASE OF ANY
CLAIM OR RIGHT ON ACCOUNT OF WAGES DUE, OR TO BECOME DUE, OR
MADE AS AN ADVANCE ON WAGES TO BE EARNED, UNLESS PAYMENT OF SUCH
WAGES HAS BEEN MADE.
12. CERTAIN BUSINESS COMBINATIONS. In the event it is determined by the
Board of Directors of the Company, upon consultation with Company management and
the Company's independent auditors, that the enforcement of any Section of this
Agreement, including, but not limited to, Section 7 hereof, would preclude
accounting for any proposed business combination of the Company involving a
Corporate Transaction as a pooling of interests, and the Board of Directors of
the Company otherwise desires to approve such a proposed business transaction
which requires as a condition to the closing of such transaction that it be
accounted for as a
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pooling of interests, then any such Section of this Agreement shall be null and
void. However, under such circumstance, the Company is obligated to make
appropriate arrangement to ensure that all benefits intended to be provided to
the Consultant under this Agreement shall be otherwise fully paid as scheduled.
13. RELEASE OF CLAIMS. The Consultant and the Company including all
other SINA Entities, on behalf of themselves, and their respective officers,
directors, consultants, investors, stockholders, administrators, predecessor and
successor corporations and assigns, hereby fully and forever release each other
and their respective officers, directors, consultants, investors, stockholders,
administrators, predecessor and successor corporations and assigns from claims,
demands, obligations, and causes of action of any nature whatsoever, whether in
tort (including, without limitation, acts of active negligence), contract or any
other theory of recovery in law, or equity, whether or not wrongful, whether for
compensatory or punitive damages, equitable relief or otherwise, and whether now
known or unknown, suspected or unsuspected, by reason of any matter or thing
arising from any cause relating to or arising from the Consultant's employment
or directorship relationship with any SINA Entitles or the termination of any of
such relationship or the Positions prior to the date of execution and delivery
of this Agreement.
The Company and the Consultant agree that the release set forth in this
Section 13 shall be and remain in effect in all respects as a complete general
release as to the matters released. This release does not extend to the
obligations of the Consultant and Company under this Agreement.
14. CIVIL CODE SECTION 1542. The Parties represent that they are not
aware of any claim(s) exist or suspect to exist up until and including the
Effective Date of this Agreement by either of them other than the claims that
are released by this Agreement. The Consultant and the Company acknowledge that
they are familiar with the provisions of California Civil Code Section 1542,
which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
The Consultant and the Company, being aware of such code section, agree
to waive any rights they may have thereunder, as well as under any other stature
or common law principles of similar effect.
15. CONFIDENTIALITY. Except as required to file with the US Securities
Exchange Commission in the Company's quarterly and annual report or required by
other appropriate government authorities, the Parties each agree to use their
best efforts to maintain in confidence the existence of this Agreement, the
contents and terms of this Agreement (excluding Section 3 of this Agreement),
and the consideration for this Agreement (hereinafter collectively referred to
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as "SEPARATION INFORMATION"). Unless otherwise provided herein, each Party
hereto agrees to take every reasonable precaution to prevent disclosure of any
Separation Information to third parties, and each agrees that there will be no
publicity, directly or indirectly, concerning any Separation Information. The
Parties agree to take every precaution to disclose Separation Information only
to those consultants, officers, directors, attorneys, accountants, governmental
entities, and family members who have a reasonable need to know of such
Separation Information.
16. NONDISCLOSURE OF CONFIDENTIAL AND PROPRIETARY INFORMATION. The
Consultant shall continue to maintain the confidentiality of all confidential
and proprietary information of the SINA Entities in accordance with the
employment agreement dated September 10, 1997 between the Consultant and Beijing
Xxxxx Xxxx Sigh Information Technology Co., Ltd. attached hereto as Exhibit A,
and the Deed dated September 12, 1997 between the Consultant and the Company
attached hereto as Exhibit B. The Consultant agrees that at all times hereafter,
the Consultant shall not intentionally divulge, furnish or make available to any
party any of the trade secrets, patent applications, price decisions or
determinations, inventions, customers, proprietary information or other
intellectual property rights of the Company, until after such time as such
information has become publicly known otherwise than by act or collusion of the
Consultant.
17. NON-COMPETITION AND NON-SOLICITATION COVENANT. In consideration for
the receipt of the benefits provided pursuant to this Agreement, the Consultant
hereby agrees that he shall not do any of the following without the prior
written consent of the Company's Board of Directors for a period of twelve (12)
months following the Effective Date:
(a) SOLICIT BUSINESS. Solicit or influence or attempt to
influence any client, customer, or other person, to direct his or its
purchase of the SINA Entities' products and/or services to any person,
firm, corporation, institution or other entity in competition with the
business of the SINA Entities or solicit any licensor to the SINA
Entities or licensee of the SINA Entities' products, in each case, that
are known to the Consultant, with respect to any business, products or
services that are competitive to the products or services offered by the
SINA Entities or under development as of the Effective Date.
(b) SOLICIT PERSONNEL. Solicit, induce, encourage or influence
or attempt to solicit, induce, encourage or influence, any person
employed or retained by the SINA Entitles ("SINA Staff") to terminate or
otherwise cease his or her employment, consulting or service
relationship with the SINA Entitles or become an consultant, consultant
or service provider of any competitor of the SINA Entitles, whether for
the Consultant or for any other person or entity. The Consultant agrees
to inform the Company immediately after consultant decides to hire any
SINA Staff who voluntarily leaves SINA.
(c) NON-COMPETITION. Engage, own beneficial interest, or be
employed in any business that is in direct competition with the SINA
Entities' business that is known to the Consultant as of the Effective
Date.
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18. NON-DISPARAGEMENT. Each Party agrees to refrain from any
disparagement, criticism, defamation, slander of the other, or tortious
interference with the contracts and relationships of the other. In response to
any requests for references, the Company shall respond in a writing containing
only the dates of the Consultant's employment, and, upon written request by the
Consultant, confirmation of the Consultant's salary as of the Separation Date.
19. NO REPRESENTATIONS. Each Party represents that it has carefully read
and understands the scope and effect of the provisions of this Agreement.
Neither Party has relied upon any representations or statements made by the
other Party which are not specifically set forth in this Agreement.
20. COSTS. The Parties shall each bear their own costs, attorneys' fees
and other fees incurred in connection with this Agreement.
21. SEVERABILITY. In the event that any provision hereof becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement shall continue in full force and effect without said
provision. However, under such circumstance, the Company is obligated to make
appropriate arrangement to ensure that all benefits intended to be provided to
the Consultant under this Agreement shall be otherwise fully paid as scheduled.
The Consultant expressly agrees that the character, duration and scope of the
provisions set forth in Section 17 of this Agreement are reasonable in light of
the circumstances as they exist on the date hereof. If any court of competent
jurisdiction determines that any covenant or provision contained in this
Agreement, including Section 17, or any part thereof, is invalid or
unenforceable because of the duration of such provision or the area covered
thereby, such court shall have the power to reduce the duration or area of such
provision and, in its reduced form, such provision shall then be enforceable and
shall be enforced.
22. ENTIRE AGREEMENT. Except for obligations which continue after
termination of the Consultant's employment relationship with the Company
pursuant to the Exhibit A and Exhibit B of this Agreement, this Agreement
represents the entire agreement and understanding between the Company and the
Consultant concerning the termination of the Consultant's employment
relationship and directorship with the Company and other SINA Entities, and
supersedes and replaces any and all prior agreements and understandings
concerning the Consultant's relationship with the Company and the Consultant's
compensation by the Company.
23. NO ORAL MODIFICATION. This Agreement may only be amended in a
writing signed by the Consultant and an officer of the Company.
24. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of California, without reference to its conflicts of law provisions.
25. COUNTERPARTS. This Agreement may be executed in counterparts, and
each counterpart shall have the same force and effect as an original and shall
constitute an effective, binding agreement on the part of each of the
undersigned.
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26. ARBITRATION. Any dispute or claim arising out of or in connection
with this Agreement will be finally settled by binding arbitration in the county
of San Mateo, California in accordance with the rules of the American
Arbitration Association by one arbitrator appointed in accordance with said
rules. The arbitrator shall apply California law, without reference to rules of
conflicts of law or rules of statutory arbitration, to the resolution of any
dispute. Judgment on enforcing the award rendered by the arbitrator may be
entered by any court having jurisdiction thereof. Notwithstanding the foregoing,
the Parties may apply to any court of competent jurisdiction for preliminary or
interim equitable relief, or to compel arbitration in accordance with this
paragraph, without breach of this arbitration provision. This Section 26 shall
not apply to the Section 16 of this Agreement. The Parties hereby waive any
rights they may have to trial by jury in regard to arbitrable claims.
27. BREACH OF THE AGREEMENT. The Consultant and the Company acknowledge
that upon breach of this Agreement, the non-breaching Party would sustain
irreparable harm from such breach, and, therefore, the breaching Party agrees
that in addition to any other remedies which the non-breaching Party may have
under this Agreement or otherwise, the non-breaching Party shall be entitled to
obtain equitable relief, including specific performance and injunctions,
restraining the breaching Party from committing or continuing any such violation
of the Agreement. The Consultant acknowledges and agrees that upon the
Consultant's material breach of the Agreement, in addition to any other remedies
the Company may have under this Agreement or otherwise, the Company's
obligations to provide benefits including the title "Honorary Chief SINA" to the
Consultant as described in this Agreement shall immediately terminate. The
Company acknowledges and agrees that upon the Company's delay in making payments
to the Consultant provided under this Agreement, in addition to any other
remedies the Company may have under this Agreement or otherwise, the Company
shall be liable to pay a penalty of 2% interests of the amount outstanding for
each month's delay until the full amount is paid.
28. AUTHORITY. The Company represents and warrants that the undersigned
has the authority to act on behalf of the Company and SINA Subsidiaries and to
bind the Company and SINA Subsidiaries and all who may claim through them to the
terms and conditions of this Agreement. The Consultant represents and warrants
that he has the capacity to act on his own behalf and on behalf of all who might
claim through him to bind them to the terms and conditions of this Agreement.
Each Party warrants and represents that there are no liens or claims of lien or
assignments in law or equity or otherwise of or against any of the claims or
causes of action released herein.
29. SUCCESSOR AND ASSIGNS. This Agreement and all rights hereunder are
personal to the Consultant and may not be transferred or assigned by the
Consultant at any time. The Company may assign its rights to any other successor
entity, provided that any such assignee assumes the Company's obligations
hereunder.
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30. VOLUNTARY EXECUTION OF AGREEMENT. This Agreement is executed
voluntarily and without any duress or undue influence on the part or behalf of
the Parties hereto, with the full intent of releasing all claims. THE PARTIES
ACKNOWLEDGE THAT:
(a) THEY HAVE READ THIS AGREEMENT;
(b) THEY HAVE BEEN REPRESENTED IN THE PREPARATION, NEGOTIATION AND
EXECUTION OF THIS AGREEMENT BY LEGAL COUNSEL OF THEIR OWN CHOICE
OR THAT THEY HAVE VOLUNTARILY DECLINED TO SEEK SUCH COUNSEL;
(c) THEY UNDERSTAND THE TERMS AND CONSEQUENCES OF THIS AGREEMENT AND
OF THE RELEASES IT CONTAINS; AND
(d) THEY ARE FULLY AWARE OF THE LEGAL AND BINDING EFFECT OF THIS
AGREEMENT.
The Parties have executed this Agreement on the respective dates set
forth below.
XXXX.XXX XXXXXXX XXXX
/S/ XXXXXX XXXXXX /S/ XXXXXXX XXXX
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(Signature) (Signature)
Xxxxxx Xxxxxx Date: August 13, 2001
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(Printed Name)
Chairman
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(Title)
Date: August 14, 2001
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EXHIBIT A
Employment Agreement Dated September 10, 1997
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EXHIBIT B
Deed Dated September 12, 1997 Deed Dated September 12, 1997
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