Transition and Stock Vesting Agreement - chinadotcom corp., CDC Software Holdings Inc., Ross Systems Inc. and J. Patrick Tinley
TRANSITION AND STOCK VESTING AGREEMENT
This Transition and Stock Vesting Agreement (this "Agreement") is made
and entered into as of September 4, 2003 by and among chinadotcom corporation, a
Cayman Islands corporation ("Parent"), CDC Software Holdings, Inc., a Delaware
corporation and a wholly-owned subsidiary of Parent ("Merger Sub"), Ross
Systems, Inc., a Delaware corporation (the "Company") and J. Patrick Tinley
(the "Employee"). Capitalized terms not otherwise defined herein shall have the
meanings ascribed to such terms in that certain Agreement and Plan of Merger
among Parent, Merger Sub and the Company, dated as of the date hereof (the
"Merger Agreement").
WITNESSETH:
WHEREAS, the Employee is currently employed by the Company pursuant to
that certain Executive Compensation Agreement between the Company and the
Employee dated as of January 7, 1999, as renewed and amended from time to time
(the "ECA");
WHEREAS, Parent, the Company and Merger Sub have entered into the
Merger Agreement, pursuant to which (and subject to the terms and conditions set
forth therein) Merger Sub will merge with and into the Company at the Effective
Time;
WHEREAS, effective upon the consummation of the Merger, Parent and the
Employee intend to terminate the ECA subject to the terms and conditions set
forth in this Agreement;
WHEREAS, the Surviving Corporation and the Employee will enter into an
employment agreement on the terms and conditions set forth in this Agreement
(the "New Employment Agreement"); and
WHEREAS, to induce the Employee to enter into the New Employment
Agreement, Parent desires to (i) issue to the Employee a certain number of
Parent's Class A Common Shares, par value U.S.$.00025 per share (the "Common
Shares") in accordance with Section 2 of this Agreement, and (ii) grant to the
Employee a certain number of Common Shares subject to the restrictions set forth
in Section 3 of this Agreement;
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
SECTION 1. SEVERANCE
1.1 Termination of the ECA. At the Effective Time, subject to the
provisions of this Agreement, the ECA shall be automatically terminated, each
party to the ECA shall release the other party and the Surviving Corporation
from all liabilities arising thereunder, and neither the
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Company, the Surviving Corporation nor the Employee shall have any further
obligations under the ECA.
1.2 Severance Payment. Parent hereby agrees to make a severance
payment to the Employee in a gross amount (before any withholding for taxes)
equal to U.S.$1,417,500 (the "Severance Payment"). The Severance Payment shall
be made by Parent to the Employee at the Effective Time by a wire transfer of
immediately available federal funds to a bank account designated in writing by
the Employee at least two (2) days prior to the Effective Time. The Employee
acknowledges that the Severance Payment shall be in full satisfaction of all
obligations of the Company under Sections 6(c) and (d) of the ECA.
SECTION 2. ISSUANCE OF COMMON SHARES
2.1 Treatment of Employee Stock Options. All unvested Options held
by the Employee immediately prior to the Effective Time with an exercise price
at or below $19.00 per share (the "Employee Stock Options") shall be
automatically accelerated and shall be vested and exercisable at the Effective
Time.
2.2 Net Cash Value. The "Net Cash Value" of the Employee Stock
Options shall be equal to (a) the product of (i) $19.00, multiplied by (ii) the
number of Employee Stock Options, minus (b) the aggregate exercise price with
respect to such Employee Stock Options.
2.3 Issued Shares. Parent hereby agrees to issue to the Employee,
at the Effective Time, a number of Common Shares equal to (a) 50% of the Net
Cash Value, divided by (b) the closing sales price of the Common Shares on the
Nasdaq for the last trading day prior to the date of the Effective Time (such
Common Shares, the "Issued Shares"). The issuance of the Issued Shares to the
Employee is for and in consideration of the Employee's agreement to terminate
the Employee Stock Options and to enter into the New Employment Agreement.
2.4 Registration. The Issued Shares will be registered under the
Securities Act pursuant to the registration statement under the Securities Act
that Parent will file on Form F-4 in connection with the registration of the
shares of Parent Common Stock to be issued to the stockholders of the Company
pursuant to the Merger.
SECTION 3. RESTRICTED STOCK GRANT
3.1 Grant. Subject to the terms and conditions of this Section 3,
Parent hereby grants to the Employee, effective as of the Effective Time, a
number of Common Shares equal to (a) 50% of the Net Cash Value, divided by (b)
the closing sales price of the Common Shares on the Nasdaq for the last trading
day prior to the date of the Effective Time (such Common Shares, the "Restricted
Shares"). The grant of the Restricted Shares to the Employee is for and in
consideration of the Employee's agreement to terminate the Employee Stock
Options and to enter into the New Employment Agreement.
3.2 Dividends and Voting. The Employee will have all voting rights
and rights to dividends paid in cash with respect to the Restricted Shares. If
the Employee forfeits any Restricted Shares pursuant to Section 3.4(b), the
Employee will forfeit all such voting rights and
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rights to dividends paid in cash with respect to such forfeited Restricted
Shares. Parent will retain any dividends paid in stock with respect to unvested
Restricted Shares, and the Employee's rights to receive such stock dividends
will vest at the same time as the Restricted Shares to which such stock
dividends are attributable.
3.3 Holding and Transfer of Stock Certificate. Parent will issue
the Restricted Shares in the name of the Employee; however, Parent will hold the
Restricted Shares until such Restricted Shares either vest or are forfeited, in
each case as described in Section 3.4. As the Restricted Shares vest, Parent
will transfer physical custody of vested shares to the Employee free of any
forfeiture restrictions on the date of such vesting (or on the next business
date if such Restricted Shares vest on a date that is not a business day). The
Employee will have no right to transfer or otherwise alienate or assign his
interest in any of the Restricted Shares, except through the laws of descent and
distribution, before such Restricted Shares vest and physical custody of such
Restricted Shares is transferred to the Employee. All transfers of Restricted
Shares must be made in accordance with all applicable laws, and Parent may
require an opinion of counsel reasonably satisfactory to Parent or other
evidence of compliance with such laws prior to giving effect to any transfer in
the stock transfer records of Parent.
3.4 Vesting and Forfeiture.
(a) In General. The Employee's right to the remaining
Restricted Shares will remain subject to forfeiture until the Restricted Shares
vest in accordance with this Section 3.4. Subject to Sections 3.4(b) and (c),
the Restricted Shares will vest and will no longer be subject to forfeiture in
accordance with the following schedule:
<TABLE>
<CAPTION>
Anniversary of the date of the Percentage of
Effective Time Shares Vested
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<S> <C>
First 33.3%
Second 66.6%
Third 100.0%
</TABLE>
(b) Effect of Termination. If the Employee's employment
with the Surviving Corporation is terminated by the Surviving Corporation for
any reason other than for Cause (as defined below), or is terminated due to the
death or disability of the Employee, any Restricted Shares not previously vested
will vest automatically and completely. If the Employee voluntarily terminates
the Employee's employment with the Surviving Corporation or the Surviving
Corporation terminates the Employee's employment with the Surviving Corporation
for Cause, the Employee will forfeit completely the Employee's interest in any
unvested Restricted Shares (and will receive no consideration from Parent or the
Surviving Corporation on account of such forfeiture). Forfeited Restricted
Shares will revert automatically back to Parent.
(c) For purposes of this Section 3.4(b), "Cause" shall
mean:
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(i) A willful act by the Employee which
constitutes fraud and which is injurious to
the Surviving Corporation; or
(ii) Conviction of, or a plea of "guilty" or "no
contest" to, a felony; or
(iii) Employee's continuing repeated willful
failure or refusal to perform his material
duties required by the New Employment
Agreement which is injurious to the
Surviving Corporation.
No act, or failure to act, by the Employee shall be considered
"willful" unless committed without good faith and without a
reasonable belief that the act or omission was in the
Surviving Corporation's best interest. The Employee's
employment with the Surviving Corporation may not be
terminated for Cause unless Employee has first been given the
opportunity, together with his counsel, to be heard before the
Board of Directors of the Surviving Corporation or Parent.
(d) Change of Control. In the event of a Change of
Control (as defined below) of Parent, any Restricted Shares not previously
vested will vest automatically and completely. A "Change of Control", with
respect to a Person, will be deemed to occur (i) upon the sale by such Person of
all or substantially all of its assets, the consolidation of such Person with
another Person, or the merger of such Person as a result of which such Person is
not the surviving entity, or (B) if any other Person or group of affiliated
Persons acquires, directly or indirectly, Beneficial Ownership of more than 50%
of the voting power with respect to the outstanding securities of such Person.
"Beneficial Ownership" shall have the meaning provided in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended. The affiliation of persons or
entities will be determined by reference to the definition of "Affiliate" set
forth in Rule 405 under the Securities Act of 1933, as amended.
SECTION 4. LIMITATION ON PAYMENTS.
4.1 Application.
(a) This Section 4 shall apply to the Employee only if,
after the application of this Section 4, the present value of his aggregate
payments or property transfers from the Company or the Surviving Corporation, as
applicable, will be greater than the present value of his payments or property
transfers from the Company or the Surviving Corporation, as applicable, would
have been if:
(i) This Section 4 did not apply; and
(ii) Such present value had been reduced by the
amount of the excise tax described in
section 4999 of the Code.
(b) In all other cases, this Section 4 shall not apply to
the Employee. All
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determinations under Section 4.1(a) shall be made by the independent auditors
retained by the Company or the Surviving Corporation most recently prior to a
Change in Control of the Company or the Surviving Corporation, as applicable
(the "Auditors").
4.2 Basic Rule. Any provision of this Agreement other than Section
4.1 above to the contrary notwithstanding, in the event that the Auditors
determine that any payment or transfer by the Company or the Surviving
Corporation, as applicable, to or for the benefit of the Employee, whether paid
or payable (or transferred or transferable) pursuant to the terms of this
Agreement or otherwise (a "Payment"), would be nondeductible by the Company or
the Surviving Corporation, as applicable, for federal income tax purposes
because of the provisions concerning "excess parachute payments" in section 280G
of the Code, then the aggregate present value of all Payments shall be reduced
(but not below zero) to the Reduced Amount. For purposes of this Section 4, the
"Reduced Amount" shall be the amount, expressed as a present value, which
maximizes the aggregate present value of the Payments without causing any
Payment to be nondeductible.
4.3 Reductions. If the amount of the aggregate payments or
property transfers to the Employee must be reduced under this Section 4, then
the Company or the Surviving Corporation, as applicable, shall direct in which
order the payments or transfers are to be reduced, but no change in the timing
of any payment or transfer shall be made without the Employee's consent. As a
result of uncertainty in the application of sections 280G and 4999 of the Code
at the time of an initial determination by the Auditors hereunder, it is
possible that a payment will have been made by the Company or the Surviving
Corporation, as applicable, that should not have been made (an "Overpayment") or
that an additional payment that will not have been made by the Company or the
Surviving Corporation, as applicable, could have been made (an "Underpayment").
In the event that the Auditors, based upon the assertion of a deficiency by the
Internal Revenue Service against the Company, the Surviving Corporation or the
Employee that the Auditors believe has a high probability of success, determine
that an Overpayment has been made, such Overpayment shall be treated for all
purposes as a loan to the Employee that he shall repay to the Company or the
Surviving Corporation, as applicable, together with interest at the applicable
federal rate specified in section 7872(f)(2) of the Code; provided, however,
that no amount shall be payable by the Employee to the Company or the Surviving
Corporation if and to the extent that such payment would not reduce the amount
that is nondeductible under section 280G of the Code or is subject to an excise
tax under section 4999 of the Code. In the event that the Auditors determine
that an Underpayment has occurred, such Underpayment shall promptly be paid or
transferred by the Company or the Surviving Corporation, as applicable, to, or
for the benefit of, the Employee, together with interest at the applicable
federal rate specified in section 7872(f)(2) of the Code.
SECTION 5. NEW EMPLOYMENT AGREEMENT
5.1 In General. The Company, and the Employee agree that, as of
the Effective Time, the Employee will enter into the New Employment Agreement
with the Surviving Corporation in substantially the form attached hereto as
Exhibit A. The parties hereto hereby acknowledge that the issuance of the Issued
Shares and the grant of the Restricted Shares by Parent to the
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Employee constitute an inducement essential to the Employee's willingness to
enter into the New Employment Agreement.
5.2 Terms. The New Employment Agreement will include the following
terms:
(a) Base salary of U.S.$236,250 per year.
(b) Targeted annual bonus of U.S.$236,250 to be paid in
quarterly bonus payments in accordance with a bonus plan mutually agreed upon by
the Employee and Parent consistent with the terms set forth in Section 5.2(c)
below.
(c) The Employee will be eligible for an annual
performance bonus (the "Performance Bonus") based on mutually agreed targets.
The Performance Bonus plan will pay a target of 100% of the Employee's base
salary based on the extent to which the Employee has achieved those targets. The
Performance Bonus for the year-to-date period will be paid quarterly at such
time as the parties shall mutually agree. The Surviving Corporation shall have
the right to adjust current period Performance Bonus payments in the event of a
restatement of prior quarter, year to date or the most recent prior year audited
financial results of Parent, due to a material error or misrepresentation in
reported financial results of the Surviving Corporation after the Effective
Time; provided, however, that in the event any such adjustment to the current
period Performance Bonus is inadequate in relation to any such restatement of
Parent's financial results, the Surviving Corporation shall have the right to
adjust Performance Bonus payments for subsequent periods as necessary and
appropriate in light of such restatement. The Surviving Corporation will reset
the mutually agreed targets each year. In the event of a Change of Control of,
or a merger, acquisition or similar transaction by, the Surviving Corporation,
or if the Employee is employed by an Affiliate of the Surviving Corporation, the
targets for that year may be reset, provided that the Employee will be paid the
Performance Bonus, if any, on a prorated basis according to the portion of the
year elapsed prior to such Change of Control, transaction or employment, as
applicable, and the actual performance of the Surviving Corporation for that
time period. In the event of termination of employment, the Employee will be
eligible to receive any outstanding Performance Bonus payment for completed
quarterly accounting periods only.
(d) No severance payments due upon a Change of Control of
Parent.
SECTION 6. MISCELLANEOUS
6.1 Representation of Parent. Parent represents and warrants to
the Employee that:
(a) The issuance and delivery of the Issued Shares and
the Restricted Shares in accordance with this Agreement has been, or will be as
of the Effective Time, duly authorized by all necessary corporate action on the
part of Parent, and the Issued Shares and the Restricted Shares have been duly
reserved for issuance; and
(b) The Issued Shares and the Restricted Shares will be,
as of the Effective Time, validly issued, fully paid and nonasssessable.
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6.2 Binding Effect. This Agreement shall be binding upon Parent,
Merger Sub, the Company and the Employee and their respective heirs, executors,
administrators and successors.
6.3 Governing Law. This Agreement shall be governed by the laws of
the State of New York.
6.4 Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
6.5 Entire Agreement. This Agreement is intended by the parties
hereto to be the final expression of their Agreement with respect to the subject
matter hereof and is the complete and exclusive statement thereof
notwithstanding any prior representation or statements to the contrary. This
Agreement may be modified only by written instrument signed by each of the
parties hereto.
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IN WITNESS WHEREOF, the parties have executed this Transition and Stock
Vesting Agreement, as of the date first written above.
CHINADOTCOM CORPORATION
By: /s/ Daniel Widdicombe
-----------------------------------
Name: Daniel Widdicombe
--------------------------------
Title: Chief Financial Officer
--------------------------------
CDC SOFTWARE HOLDINGS, INC.
By: /s/ Daniel Widdicombe
-----------------------------------
Name: Daniel Widdicombe
--------------------------------
Title: Director
--------------------------------
ROSS SYSTEMS, INC.
By: /s/ J. Patrick Tinley
-----------------------------------
Name: J. Patrick Tinley
--------------------------------
Title: Chief Executive Officer
--------------------------------
EMPLOYEE
/s/ J. PATRICK TINLEY
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J. PATRICK TINLEY