Exhibit 4.(c).5
CDC CORPORATION
AND
CDC CORPORATION LIMITED
AND
XX. XXXXXXX XXX-XXXX CH'IEN
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TERMINATION AND RELEASE
AGREEMENT
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THIS TERMINATION AND RELEASE AGREEMENT effective as of the Effective Date
between CDC Corporation Limited located at 00/X Xxxxxxxx Xxxxxx, 00 Xxxxxxxxx
Xxxx, Xxxxxxxx Xxx, Xxxx Xxxx (the "Employer"), CDC Corporation located at 00/X
Xxxxxxxx Xxxxxx, 00 Xxxxxxxxx Xxxx, Xxxxxxxx Xxx, Xxxx Xxxx (the "Parent"), 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 Employer, the Parent and the Executive are collectively referred to as the
"Parties" and each, a "Party".
WHEREAS, effective as of April 27, 2004, the Employer and the Executive
entered into an Executive Services Agreement pursuant to which the Executive
agreed to provide certain services to the Employer on the terms set forth
therein (the "Original Executive Services Agreement").
WHEREAS, effective as of April 27, 2004, the Employer and the Executive
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 Parent until March 31, 2005 on the terms set
forth in such amendment (the "Amendment No. 1 to the Original Executive Services
Agreement").
WHEREAS, dated March 2, 2005, the Employer and the Executive entered into
an Amended and Restated Executive Services Agreement (Executive Chairman)
pursuant to which the Employer and the Executive agreed to amend and restate in
its entirety the terms of the Original Executive Services Agreement and the
Amendment No.1 to the Original Executive Services Agreement (the "Executive
Chairman Services Agreement").
WHEREAS, effective as of March 2, 2005, the Employer and the Executed
entered into a CEO Services Agreement (Chief Executive Officer) pursuant to
which the Executive agreed to provide services as Chief Executive Officer of the
Parent (the "CEO Services Agreement").
WHEREAS, the Employer and the Executive desire to terminate the CEO
Services Agreement and the Executive Chairman Services Agreement pursuant to the
terms and conditions set forth herein.
WHEREAS, the Executive has been granted certain share options to purchase
an equivalent number of the Parent's Class A Common Shares, par value US$0.00025
per share as set forth in the option award agreements attached hereto under
Exhibit A to this Agreement.
WHEREAS, the terms of this Agreement have been approved by the board of
directors of the Parent (the "Board") and the form of this Agreement has been
ratified by the Board.
NOW, THEREFORE, in consideration of the foregoing mutual covenants and
agreements contained herein, the Parties hereby agree as follows as of and from
the Effective Date:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, the following words and expressions shall bear the
following meanings, unless the context otherwise requires:
"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 Parent on or
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after the Effective Date or all other entities in the group of companies of such
Associated Companies.
"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 meaning set forth in the recital above.
"CEO Services Agreement" has the meaning set forth in the recitals above.
"Effective Date" means August 30, 2005.
"Employer" has the meaning set forth in the introductory paragraph above.
"Executive" has the meaning set forth in the introductory paragraph above.
"Executive Options" means the certain share options granted to the
Executive to purchase an equivalent number of the Parent's Class A Common
Shares, par value US$0.00025 per share as set forth in Schedule B to this
Agreement.
"Hong Kong" means the Hong Kong Special Administration Region of the
People's Republic of China.
"New Options" has the meaning set forth in Clause 6.3.
"Parent" has the meaning set forth in the introductory paragraph above.
"Parties" or "Party" has the meaning set forth in the introductory
paragraph above.
"Shares" has the meaning set forth in Clause 6.3.
"Six Month Period" has the meaning set forth in Schedule A.
"1999 Stock Option Plan" means the Parent's stock option plan, which was
initially registered pursuant to a registration statement on Form S-8 with the
U.S. Securities and Exchange Commission in December 1999, as amended from time
to time.
1.2 Any reference in this Agreement to any ordinance or other enactment shall be
deemed also to refer to any statutory modification, amendment, codification or
re-enactment thereof or substitution therefore or regulations or guidelines
issued under any of the foregoing.
1.3 Any reference to a numbered clause or a numbered schedule shall be a
reference to the relevant clause, or as the case may be, the relevant schedule
of this Agreement.
1.4 The headings to the clauses of this Agreement shall not affect its
interpretation.
2. TERMINATION OF CEO SERVICES AGREEMENT & EXECUTIVE CHAIRMAN SERVICES
AGREEMENT
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2.1 Except as otherwise set out in Clause 4 of this Agreement, the Employer and
the Executive agree that the CEO Services Agreement and the Executive Chairman
Services Agreement is hereby and forever terminated.
3. CONFIDENTIAL INFORMATION
3.1 The Executive represents and warrants to the Employer and the Parent that it
has complied with the terms of Clauses 7 of the CEO Services Agreement and the
Executive Chairman Services Agreement relating to Confidential Information (as
defined in the CEO Services Agreement and the Executive Chairman Services
Agreement, respectively).
4. SURVIVAL OF NON-SOLICITATION & NON-COMPETITION
4.1 Notwithstanding anything in this Agreement to the contrary, each of the
Employer and the Executive acknowledge and agree that Clauses 8 and 9.2 of the
CEO Services Agreement and the Executive Chairman Services Agreement shall
survive termination provided that the twenty four (24) months period after
termination specified in Clauses 8 and 9.2 of the CEO Services Agreement and the
Executive Chairman Services Agreement shall be reduced to a period of twelve
(12) months after termination.
4.2 [INTENTIONALLY OMMITTED]
5. PAYMENT
5.1 Without any admission of liability and in consideration of the mutual
covenants and agreements contained herein, the Employer will pay the Executive
US$200,000 which relates to salary for July and August 2005 (the "Payment") less
any applicable tax and pension amount required to be deducted by law which shall
include all payments for salary, wages, payment in lieu of notice, leave
entitlements (including but not limited to annual leave), severance pay,
commission, bonus, incentives, pension payments, compensation, damages, long
service leave or anything else connected or associated with the CEO Services
Agreement and/or the Executive Chairman Services Agreement.
5.2 The Executive agrees that the Payment is the full amount that the Employer,
Parent or any Associated Company owes to the Executive.
6 AMENDMENT TO EXERCISEABILITY OF CERTAIN OPTIONS
6.1 The Parent agrees to use its reasonable best efforts, notwithstanding the
terms of the Parent's 1999 Stock Option Plan, to (i) cause the terms of the
option award agreements for the Executive Options set forth in Schedule B to
this Agreement to be modified and amended to permit the Executive to exercise
such options as long as the Executive remains a member of the Board and until
the Option Expiration Date set forth in Schedule B hereto; and (ii) cause the
terms of the option award agreements for the Executive Options set forth in
Schedule C to this Agreement to be modified and amended to permit the Executive
to exercise such options until December 31, 2005. For the avoidance of doubt,
all Executive Options which have a vesting date after August 30, 2005 are hereby
terminated and cancelled.
6.2 For the avoidance of doubt, in the event that the Executive ceases to be a
member of the Board, the Executive shall have until the earlier of (a) 90 days
after the Board determines that the Executive is no longer in possession of
material non-public information, such the Executive may
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freely transact the unexercised options in compliance with the Parent's xxxxxxx
xxxxxxx policy and applicable law or (b) the Option Expiration Date to exercise
such vested options set forth in Schedule B to this Agreement, at which time all
of such unexercised options shall expire.
6.3 The Parent agrees to grant the Executive a total of 45,000 share options
under the 1999 Stock Option Plan (the "New Options") to purchase an equivalent
number of the Parent's Class A Common Shares, par value US$0.00025 (the
"Shares"). The New Options shall be granted on January 1, 2006 and the exercise
price for the New Options shall be equal to the higher of (i) Average Trading
Price and (ii) the fair market value of the Shares on such date. The New Options
shall vest over a period of eighteen (18) months according to a vesting schedule
as set forth in Schedule D. The New Options will be subjected to Clause 6.2 and
except as otherwise provided for in this Agreement, the New Options granted
shall be subject to the terms and conditions of the 1999 Stock Option Plan.
7. HEALTH INSURANCE BENEFITS
7.1 For as long as the Executive serves as a director on the Board, the Employer
agrees that it will continue to maintain a health insurance policy for the
Executive (including spouse and immediate family) with terms and conditions
similar to that available to its other Hong Kong-based executives. The Executive
acknowledges that the adoption of a medical insurance program by the Employer
shall be within the full discretion of the Employer.
8. RETURN OF PAPERS
8.1 The Executive represents and warrants to the Employer and the Parent that he
has complied with the terms of Clauses 10 of the CEO Services Agreement and the
Executive Chairman Services Agreement relating to return of papers.
9. PROPRIETARY INVENTIONS
9.1 The Executive represents and warrants that he has disclosed promptly to the
Employer 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 the CEO Services Agreement and the Executive
Chairman Services Agreement, or using the Employer'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 Employer or any Associated
Company during the term of CEO Services Agreement and the Executive Chairman
Services 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 Employer, and the Employer 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 9.1 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 Employer, 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 Employer an
irrevocable power of attorney to execute as its agent any and all documents
(including copyright registrations) deemed necessary by the Employer to perfect
Employer's intellectual property rights in and to each of the items in this
clause.
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10. RIGHT TO INJUNCTIVE RELIEF
10.1 The Executive acknowledges that the Employer, the Parent or an Associated
Company may suffer irreparable harm, which cannot readily be measured in
monetary terms, if the Executive breaches its representations, warranties or
obligations under Clauses 3, 4, 8, or 9 of this Agreement. The Executive further
acknowledges and agrees that the Employer, the Parent or an Associated Company
may obtain injunctive or other equitable relief against it to prevent or
restrain such breach causing such harm; provided, however, that where such
breach involves subject matter that is susceptible of being cured, then 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 Employer or the Parent might have under this Agreement or at
law.
11. COVENANTS UPON CEASING TO RENDER SERVICES
11.1 The Executive agrees that in the event the Executive shall no longer serve
as a director on the Board he will observe the covenants set forth in Schedule A
to this Agreement.
12. MISCELLANEOUS MATTERS
12.1 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 3, 4, 8 and 9 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.
12.2 This Agreement may not be modified or amended, except by an instrument in
writing, signed by a duly authorized representative of the Executive and the
Employer. By an instrument in writing similarly executed, any 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.
12.3 The terms of this Agreement are intended by the Parties to be the full and
final expression of their agreement and may not be contradicted by evidence of
any prior or contemporaneous agreement. The Parties further intend that this
Agreement shall constitute the complete and exclusive statement of its terms and
that no extrinsic evidence whatsoever may be introduced in any judicial,
administrative or other legal proceeding involving this Agreement. This
Agreement fully supersedes any prior oral or written agreement between the
Parties.
12.4 The headings for the clauses of this Agreement are for convenience only and
are not part of this Agreement.
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12.5 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.
12.6 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 Parties, other than those contained in this Agreement.
13. NOTICE
13.1 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 Employer 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 Employer or the Parent:
Address: 34/F, Citicorp Centre
00 Xxxxxxxxx Xxxx
Xxxxxxxx Xxx, Xxxx Xxxx
Facsimile: 000-0000-0000
Attention: Mr. Xxxxxx Xxxx
If to the Executive:
Address: c/o Crown Motors Limited
22/F, Citicorp Centre
00 Xxxxxxxxx Xxxx
Xxxxxxxx Xxx, Xxxx Xxxx
Facsimile: 000-0000-0000
Attention: Xx. Xxxxxxx Xxx-Xxxx Ch'ien
14. GOVERNING LAW
14.1 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 Employer 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.
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IN WITNESS whereof this Termination and Release Agreement has been signed
by or on behalf of the Parties hereto and is effective as of the Effective Date.
SIGNED by /s/ Wang Cheung Xxx Xxxx )
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Wang Cheung Xxx Xxxx, Director )
on behalf of CDC Corporation )
in the presence of )
/s/ Xxxxx Xxxx
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SIGNED by /s/ Xxxxxxx Xxx-Xxxx Ch'ien )
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Xx. Xxxxxxx Xxx-Xxxx Ch'ien )
in the presence of )
/s/ Fion Cjam
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SCHEDULE A
The Executive agrees in the event he shall no longer serve as a director on the
Board, to observe the covenants set forth below:
1. For the period from the date of this Agreement until six (6) months after the
Executive ceases to serve as a director on the Board (the "Six Month Period"),
not grant interviews or make statements regarding the Parent, any Associated
Company or any of their respective directors, executive officers or employees
without the prior express written consent of the then current CEO.
2. During the Six Month Period, other than as may be required by a court order,
not to disparage the Parent or any Associated Company, or any member of the
board of directors, executive officer or employee of the Parent or any
Associated Company.
3. For the period from the date of this Agreement until six (6) months after the
Executive ceases to serve as a director on the Board, acknowledge that the
Executive and/or 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 Parent and Associated Companies. The Executive
agrees that he will not and will use reasonable endeavors to cause immediate
family and associated companies (including, but not limited to the Executive)
not to trade in securities of the Parent 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. The Company will render
reasonable assistance to the Executive to enable any restricted shares or
options of the Company that he owns to become freely tradeable.
4. During the Six Month Period, cooperate with the Parent 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 Parent or any
Associated Company.
5. During the Six Month Period, cooperate with the Parent and any Associated
Company in the defense of any action brought by any third party against the
Parent or any Associated Company that relates to any aspect of the Executive's
employment with the Employer.
6. In connection with proceedings related to covenants 4 and 5 above (other than
against the Parent or any Associated Company) use advisers nominated by the
Parent and, if the Parent requests, allow the Parent the exclusive conduct of
the proceedings provided that it is not detrimental to the Executive's interest
and the Executive may retain his own counsel at reasonable expense that is not
to exceed that of the Company's counsel to advise him on such proceedings.
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SCHEDULE B
OPTION AWARDS GRANTED TO THE EXECUTIVE WHICH HAVE VESTED
UP TO AUGUST 30, 2005 AND WHICH SURVIVE TERMINATION AND WILL NOT
EXPIRE AS LONG AS THE EXECUTIVE REMAINS
ON THE BOARD OR UNTIL THE OPTION TERMINATION DATE SUBJECT
TO CLAUSES 6.1 AND 6.2.
Vested Options up to
Grant date August 30, 2005 Strike Price Option Expiration Date
---------- -------------------- ------------ ----------------------
June 22, 1999 66,667 US$3.3750 June 21, 2009
October 17, 2000 100,000 US$6.8125 October 16, 2010
January 9, 2001 30,000 US$4.2813 January 8, 2011
April 27, 2001 220,000 US$2.7400 April 26, 2011
July 13, 2001 400,000 US$2.9700 July 12, 2011
April 27, 2005 62,500 US$2.6860 April 26, 2015
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SCHEDULE C
OPTION AWARDS GRANTED TO THE EXECUTIVE WHICH HAVE VESTED
UP TO AUGUST 30, 2005 AND WHICH SURVIVE TERMINATION AND WILL NOT
EXPIRE UNTIL DECEMBER 31, 2005 SUBJECT
TO CLAUSES 6.1 AND 6.2.
Vested Options up to
Grant date August 30, 2005 Strike Price Option Expiration Date
---------- -------------------- ------------ ----------------------
May 11, 2004 300,000 US$7.7700 May 10, 2014
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SCHEDULE D
VESTING SCHDULE FOR NEW OPTIONS
Amount of Options Vested Vesting Date
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15,000 July 1, 2006
15,000 January 1, 2007
15,000 July 1, 2007
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EXHIBIT A
[INSERT OPTION AWARD AGREEMENTS]
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