Master Executive Employment Agreement - AsiaInfo Holdings Inc. and Ying Han
Master Executive Employment Agreement between
AsiaInfo Holdings, Inc. and Ying Han dated May 30, 2003
Dear Ying:
This Master Executive Employment Agreement, dated as of May 30, 2003 (this
"Agreement"), is made and entered into by and between you and AsiaInfo Holdings,
Inc., a Delaware corporation (the "Company"). For purposes of this Master
Agreement, "Group" means the Company and any direct or indirect subsidiaries of
the Company.
1. PURPOSE OF THIS AGREEMENT AND THE SUPPLEMENTARY AGREEMENTS
1.1 The purpose of this Agreement is to set forth certain principal terms
and conditions that apply to all of the employment services you render
to the Company and other members of the Group, either directly or
pursuant to secondments or similar arrangements. Your employment shall
also be governed from time to time by certain additional written
agreements entered into between you and the Company or other members of
the Group (hereinafter "Supplementary Agreements"), as well as the
written policies of the Company and the Group. The term of your
employment, along with your salary and benefits and the provisions
relevant to the termination of your employment by you or the Group are
set forth in the Supplementary Agreements. Any of the Supplementary
Agreements may be terminated, modified or amended from time to time in
accordance with their respective terms. In the event of any conflict
between the terms of any such Supplementary Agreement and the terms
hereof, the terms hereof shall govern.
1.2 Currently, the Supplementary Agreements in effect between you and the
Company are as follows:
1.2.1 the letter agreement between you and the Company, dated June 1,
1998 (the "Letter Agreement");
1.2.2 the Labor Contract between AsiaInfo Technologies (China), Inc.,
a company organized under the laws of the People's Republic of
China ("AsiaInfo Technologies") and you, dated January 1, 2002
(the "Labor Contract"); and
1.2.3 the Change of Control Agreement between you and the Company
dated as of the date hereof.
2. CONFIDENTIAL INFORMATION AND INVENTIONS
You agree to comply strictly with the confidentiality and invention
assignment provisions attached to this Agreement as Appendix I.
3. NON-COMPETITION
3.1 You acknowledge that:
3.1.1 you possess skills that are special, unique or extraordinary;
3.1.2 the level of compensation and the provisions in the
Supplementary Agreements for compensation are partly in
consideration of and conditioned upon your not competing with
the Group;
3.1.3 the provisions of this Clause 3 are essential to protect the
business and goodwill of the Group.
3.2 You agree that during your employment with the Group, and for a period
of six (6) months thereafter (the "Covenant Period") you will not render
services for any organization, or engage directly or indirectly in any
other employment,
<PAGE>
business, or business related activity unless you receive the prior
written approval of the Company's Board of Directors (the "Board") to
hold such outside employment or engage in such business or activity.
Such written approval will not be unreasonably withheld if such outside
employment, business or activity would not in any way be competitive
with the business or proposed business of the Group or otherwise
conflict with or adversely affect in any way your performance of your
employment obligations to the Group.
3.3 You agree that, during your employment, you shall devote substantially
all your business efforts and time to the Group. You further agree that,
during your employment, you will not actively engage in any other
employment, occupation or consulting activity for any direct or indirect
remuneration without the prior approval of the Board; provided, however,
that you may:
3.3.1 serve in any capacity with any professional, community,
industry, civic, educational or charitable organization;
3.3.2 serve as a member of corporate boards or directors on which you
currently serve and, with the consent of the Board (which consent
shall not be unreasonably withheld or delayed), other corporate
boards of directors; and
3.3.3 manage your personal investments and legal affairs so long as
such activities do not materially interfere with the discharge of
your duties to the Group.
3.4 You agree that during your employment and the Covenant Period, except
as provided below, you will not:
3.4.1 accept employment with or render services or advice to any
organization, or engage, directly or indirectly in any business
that competes with the business of the Group in any province in
the People's Republic of China (the "PRC") where the Group is
physically located or in which it generates more than 5% of its
China revenues, as well as all areas of Hong Kong, Macau and
Taiwan;
3.4.2 become an owner of any company which provides products or
services that are competitive with those offered or planned by
the Group, including, but not limited to, companies offering
system integration services or telecommunications infrastructure
software products in the PRC, Hong Kong, Macau or Taiwan (the
business activities referred to in this paragraph will
hereinafter be referred to as the "Business"); or
3.4.3 directly or indirectly disrupt, damage or interfere with the
operation or business of the Group by soliciting, recruiting,
diverting, taking away or otherwise interfering with any
customers or clients of the Group; or
3.4.4 directly or indirectly solicit or encourage any employee or
consultant of the Group to terminate his or her employment or
engagement, or to accept employment or an engagement with any
other company.
3.5 Notwithstanding the foregoing, you may own, directly or indirectly,
solely as an investment, up to, but not more than, one percent (1%) of
any class of "publicly traded securities" of any company engaged in the
Business. The term "publicly traded securities" shall mean securities
that are traded on an internationally-recognized securities exchange.
3.6 If any restriction set forth in this Clause is found by a court or
arbitrator to be unenforceable by reason of its extent, duration,
geographical scope or for any other reason, then you agree, and hereby
submit, to the reduction and limitation of such prohibition to such
extent, duration, geographical scope or other provision as shall be
deemed enforceable.
3.7 You acknowledge that irreparable harm will be suffered by the Company
in the event of the breach by you of any of your obligations under this
Agreement, and that the Company will be entitled, by reason of such
breach or any threatened breach, to enforce by an injunction or decree
of specific performance the obligations set forth in this Agreement, in
addition to the
<PAGE>
Company's other rights. Any claims asserted by you against the Company
shall not constitute a defense in any injunction action brought by the
Company to obtain specific enforcement.
4. ARBITRATION
4.1 You agree that any dispute or controversy arising out of or in any way
concerning this Agreement or your employment with the Company or any other
member of the Group, shall be submitted to a single arbitrator appointed by
the Hong Kong International Arbitration Center. The arbitration shall be
conducted in Hong Kong in accordance with the then applicable arbitration
rules of the United Nations Commission on International Trade Law and the
language used in the arbitral proceedings shall be English. The arbitration
award shall be final, conclusive and binding on the parties to the
arbitration. Judgement may be entered on the arbitration award in any court
having jurisdiction. The Company and you shall each pay one-half of the
costs and expenses of such arbitration, and each party shall separately pay
its counsel's fees and expenses. Notwithstanding this arbitration clause,
the parties may apply for injunctive relief to any court with jurisdiction.
4.2 You understand that each party's promise to resolve claims by arbitration
in accordance with the provisions of this Agreement, rather than through
the courts, is consideration for the other party's like promise.
5. MISCELLANEOUS PROVISIONS
This Agreement and the Supplemental Agreements represent the entire
agreement among you, the Company and the other members of the Group relating to
your employment and the additional matters provided for herein and therein. This
Agreement may be amended or altered only in a writing signed by you and the
Company.
This agreement shall be construed and interpreted in accordance with the
laws of the State of Delaware. Each provision of this Agreement is severable
from the others, and if any provision hereof shall be to any extent
unenforceable it and the other provisions shall continue to be enforceable to
the full extent allowable, as if such offending provision had not been a part of
this Agreement.
Sincerely,
ASIAINFO HOLDINGS, INC.
By: James Ding
_________________________
Name: James Ding
Title: Chairman of the Board
I agree to and accept the terms and conditions of this Agreement.
YING HAN
Ying Han
_________________________________
<PAGE>
APPENDIX I
CONFIDENTIAL INFORMATION AND INVENTIONS
For purposes of this Appendix, the "Company" means AsiaInfo Holdings, Inc.,
a Delaware corporation, and the "Group" means the Company and any direct or
indirect subsidiary of the Company.
1. Confidential Information.
(a) Company Information. I agree at all times during the term of my
employment and thereafter, to hold in strictest confidence, and not to use,
except for the benefit of the Company or the benefit of the Group, or to
disclose to any person, firm or corporation without written authorization of the
Board of Directors of the Company, any Confidential Information (as hereafter
defined). I understand that "Confidential Information" means any proprietary
information, technical data, trade secrets or know-how, including, but not
limited to, research, product plans, products, services, customer lists and
customers (including, but not limited to, customers of the Company and/or any
other member of the Group on whom I called or with whom I became acquainted
during the term of my employment), partners, markets, software, developments,
inventions, processes, formulas, technology, designs, drawings, engineering,
hardware configuration information, yield data, equipment modifications,
pricing, marketing, finances or other business information of the Group
disclosed to me by or obtained by me from the Company and/or any other member of
the Group either directly or indirectly in writing, orally or by drawings or
observation of parts or equipment. I further understand that Confidential
Information does not include any of the foregoing items which has become
publicly known and made generally available through no wrongful act of mine or
of others who were under confidentiality obligations as to the item or items
involved.
(b) Former Employer Information. I agree that I will not, during my
employment with the Company, improperly use or disclose any proprietary
information or trade secrets of any former or concurrent employer or other
person or entity and that I will not bring onto the premises of the Company
and/or any other member of the Group any unpublished document or proprietary
information belonging to any such employer, person or entity unless consented to
in writing by such employer, person or entity. I agree to indemnify the Company
and/or any other member of the Group and hold it or them harmless from all
claims, liabilities, damages and expenses, including reasonable attorneys fees
and costs of litigation, arising out of or in connection with any violation or
claimed violation of a third party's rights resulting from any use by the
Company and/or any other member of the Group of such proprietary information or
trade secrets improperly used or disclosed by me.
(c) Third Party Information. I recognize that the Company and other members
of the Group have received and in the future will receive from third parties
their confidential or proprietary information subject to a duty on the Company's
part or the part of other members of the Group to maintain the confidentiality
of such information and to use it only for certain limited purposes. I agree to
hold all such confidential or proprietary information in the strictest
confidence and not to disclose it to any person, firm or corporation or to use
it except as necessary in carrying out my work for the Company consistent with
the Company's agreement with such third party.
2. Inventions.
(a) Assignment of Inventions. I agree that I will promptly make full
written disclosure to the Company, will hold in trust for the sole right and
benefit of the Company, and hereby assign to the Company, or its designee, all
my right, title, and interest in and to any and all inventions, original works
of authorship, developments, concepts, improvements, designs, discoveries,
ideas, trademarks or trade secrets, processes, copyright works, know-how, any
other work's information or matter which gives rise or may give rise to any
intellectual property of whatsoever nature, whether or not patentable or
registrable under any law of any country, which I may solely or jointly conceive
or develop or reduce to practice, or cause to be conceived or developed or
reduced to practice, during the period of time I am in the employ of the Company
(collectively referred to as "Inventions"), except as provided
<PAGE>
in Section 2(e) below. I acknowledge that the Company, or its designee, has the
absolute title, right or interest in and to any and all original inventions or
works of authorship which are made by me, as an employee, (solely or jointly
with others) within the scope of and during the period of my employment with the
Company. I understand and agree that the decision whether or not to
commercialize or market any invention developed by me solely or jointly with
others is within the Company' sole discretion and for the sole benefit of the
Company and/or any other member of the Group, and that no royalty will be due to
me as a result of the Company's efforts (or the efforts of any member of the
Group) to commercialize or market any such Invention.
(b) Maintenance of Records. I agree to keep and maintain adequate and
current written records of all Inventions made by me (solely or jointly with
others) during the term of my employment with the Company. The records will be
in the form of notes, sketches, drawings, and any other format that may be
specified by the Company. The records will be available to and remain the sole
property of the Company at all times.
(c) Patent and Copyright Registrations. I agree to assist the Company, or
its designee, at the Company's expense, in every proper way to secure the
Company's (or its designee's) rights in the Inventions and any copyrights,
patents, mask work rights or other intellectual property rights relating thereto
in any and all countries, including the disclosure to the Company of all
pertinent information and data with respect thereto, the execution of all
applications, specifications, oaths, assignments and all other instruments which
the Company shall deem necessary in order to apply for and obtain such rights
and in order to assign and convey to the Company, its successors, assigns, and
nominees the sole and exclusive rights, title and interest in and to such
Inventions, and any copyrights, patents, mask work rights or other intellectual
property rights relating thereto. I further agree that my obligation to execute
or cause to be executed, when it is in my power to do so, any such instrument or
papers shall continue after the termination of my employment with the Group for
any reason. If the Company or its designee is unable because of my mental or
physical incapacity or for any other reason to secure my signature to apply for
or to pursue any application for any United States or foreign patents or
copyright registrations covering Inventions or original works of authorship
assigned to the Company as above, then I hereby irrevocably designate and
appoint the Company and its duly authorized officers and agents as my agent and
attorney in fact, to act for and in my behalf and stead to execute and file any
such applications and to do all other lawfully permitted acts to further the
prosecution and issuance of letters patent or copyright registrations thereon
with the same legal force and effect as if executed by me.
3. Returning Company Documents.
I agree that, at the time of leaving the employ of the Company, I will
deliver to the Company (and will not keep in my possession, recreate or deliver
to anyone else) any and all devices, records, data, notes, reports, proposals,
lists, correspondence, specifications, drawings blueprints, sketches, materials,
equipment, other documents or property, or reproductions of any aforementioned
items developed by me pursuant to my employment with the Company or otherwise
belonging to the Company and/or any other member of the Group.