Employment Agreement - Hurray! Holding Co. Ltd. and Jesse Liu
================================================================================
EMPLOYMENT AGREEMENT
By and between
Jesse Liu
And
HURRAY! HOLDING CO., LTD.
Dated as of May 5th, 2004
================================================================================
<PAGE>
THIS EMPLOYMENT AGREEMENT ("Agreement")
is made and entered into this
May 5th, 2004
(the "Effective Date")
by and between
Jesse Liu
(the "Employee")
and
HURRAY! HOLDING CO., LTD. (the Company)
BACKGROUND
WHEREAS the Employee and Hurray! Solutions Ltd. (a corporation incorporated
pursuant to the laws of the People's Republic of China), an Affiliate (as
defined below) of the Company, have entered into an Employment Agreement dated
June 10, 2001 (the "Original Employment Agreement") and desire to terminate such
agreement.
WHEREAS the Employee and the Company desire to enter into this Agreement for the
purpose of retaining the services of the Employee, and wishes to provide the
Employee with an inducement to remain with the Company;
WHEREAS the Employee has been employed by the Company.
NOW, THEREFORE, intending to be legally bound, and in consideration of the
premises and the mutual promises set forth in this Agreement and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and Employee agree as follows:
DEFINITIONS
"Affiliate" shall mean with respect to any Person directly or indirectly
Controlling, Controlled by, or under common Control with such Person.
"Board" shall mean Board of Directors.
"Cause" shall mean (i) Employee commits a crime involving dishonesty, breach of
trust, or physical harm to any person; (ii) Employee willfully engages in
conduct that is in bad faith and materially injurious to the Company, including
but not limited to, misappropriation of trade secrets, fraud or embezzlement;
(iii) Employee commits a material breach of this Agreement, which breach is not
cured within twenty (20) days after written notice to Employee from the Company;
(iv) Employee willfully refuses to implement or follow a reasonable and lawful
policy or directive of the Company, which breach is not cured within twenty (20)
days after written notice to Employee from the
2
<PAGE>
Company; or (v) Employee engages in malfeasance demonstrated by a pattern of
failure to perform job duties diligently and professionally.
"Change in Control" shall be as defined in Section 4.3.2.
"Company" shall be as defined in Preamble.
"Control" (including the terms "Controlled by" and "under common Control with")
shall mean the possession, directly or indirectly or as a trustee or executor,
of the power to direct or cause the direction of the management of a Person,
whether through the ownership of stock, as a trustee or executor, by contract or
credit agreement or otherwise.
"Effective Date" shall be as defined in Preamble.
"Employee" shall be as defined in Preamble.
"Employee Resignation" shall be as defined in Section 3.1.2.
"Employee Resignation Date" shall be as defined in Section 3.1.2.
"Employment Capacity" shall be Chief Financial Officer reporting to the Board of
the Company.
"Employment Change of Control Termination Date" shall mean the later of (i) 6
months from the date of a Change of Control; or (ii) the date on which either
the Company or the Employee elects not to extend the Agreement further by giving
written notice to the other party.
"Employment Contract Termination Date" shall mean the later of the second
anniversary of the Effective Date or the date on which either the Company or the
Employee elects not to extend the Agreement further by giving written notice to
the other party.
"Employment Final Termination Date" shall mean the date upon which the
Employee's employment with the Company ceases for any reason.
"Employment Term" shall be as defined in Section 1.1.
"Exchange Act" shall mean the Securities and Exchange Act of 1934, as amended.
"Good Reason" in the context of the employee's resignation shall mean (a) a
change in the employees position which materially reduces the employee's level
of responsibilities, duties or stature; or (b) reduction in the employee's
compensation.
"Person" shall mean an individual, corporation, partnership, limited liability
company, limited partnership, association, trust, unincorporated organization or
other entity or group (as defined in Section 13(d)(3) of the Securities and
Exchange Act of 1934, as amended).
"Qualified Public Transaction" shall mean an underwritten public offering of
Ordinary Shares of the Company at a public offering price that values the
Company as a whole at no less than US $150,000,000 and yields gross proceeds to
the Company in excess of US$30,000,000.
"Subsidiary" shall mean, with respect to any Person, any entity which securities
or other ownership interests having ordinary voting power to elect a majority of
the Board of Directors or other persons
3
<PAGE>
performing similar functions are at the time directly or indirectly owned by
such Person.
ARTICLE I. EMPLOYMENT AND TERM
The Company employs Employee and the Employee hereby agrees to such employment
by the Company during the Employment Term to serve as the Chief Financial
Officer of the Company, with the customary duties, authorities and
responsibilities of such position and such other duties, authorities and
responsibilities relative to the Company that may from time to time be delegated
to Employee by the Board of the Company. Employee shall perform such duties and
responsibilities as are normally related to such position in accordance with the
standards of the industry and any additional duties now or hereafter assigned to
Employee by the Board. Employee shall abide by the Company's rules, regulations,
and practices as they may from time-to-time be adopted or modified.
1.1 Employment Term. The Employment Term of this Agreement shall commence on
the Effective Date and shall continue until the earlier of the Employment
Contract Termination Date or the Employment Final Termination Date, except
in the event that a Change in Control occurs prior to the Employment
Contract Termination Date.
1.2 Full Working Time. During the Employment Term, the Employee shall devote
Employee's attention, experience and efforts during normal business hours
to the proper performance of Employee's duties hereunder and to the
business and affairs of the Company.
1.3 Change in Control. If a Change in Control occurs prior to the Employment
Contract Termination Date, then the terms outlined in Section 4.3 shall
apply.
ARTICLE 2. COMPENSATION PACKAGE AMOUNT
2.1 Compensation Package Amount plus Benefits in Kind. During the Employment
Term, Employee should be paid the annual compensation set forth on Exhibit
A, or such greater compensation as may from time to time be approved by the
Board.
2.2 Benefits in Kinds. During the Employment Term, the Employee will be paid
the Benefits and Benefits in Kind set forth on Exhibit A.
2.3 Vacation. The Employee shall be entitled to the amount of vacation each
calendar year of the Employment Term set forth in Exhibit A, which must be
taken in accordance with the Company's vacation policy then in effect.
2.4 Expenses. The Company shall pay or reimburse the Employee for reasonable
business expenses actually incurred or paid by the Employee during the
Employment Term, in the performance of her services hereunder.
ARTICLE 3. TERMINATION
3.1 General.
3.1.1 Company Right to Terminate. The Company shall have the right to
terminate the employment of the Employee at any time with or without
Cause but the relative rights and
4
<PAGE>
obligations of the parties in the event of any such termination or
resignation shall be determined under this Agreement.
3.1.2 Employee Right to Terminate. The Employee shall have the right to
resign for any reason with 30 days notice to the Company, but the
relative rights and obligations of the parties in the event of any
such resignation shall be determined under this agreement ("Employee
Resignation", and the date of notice by the Employee to the Company of
which shall be the "Employee Resignation Date").
3.2 Termination Under Certain Circumstances.
3.2.1 Termination Without Severance Benefits. In the event the Employee's
employment with the Company is terminated prior to the expiration of
the Employment Term by reason of (i) the Employee's resignation other
than for Good Reason, or (ii) the Employee's discharge by the Company
for Cause or gross negligence, as determined by a majority of the
Board, this Agreement shall terminate including, without limitation,
the Company's obligations to provide any compensation, benefits or
severance to the Employee under Article 2 of this Agreement or
otherwise, other than the Standard Termination Entitlements as defined
in Section 4.1.
3.2.2 Termination Without Cause or Resignation for Good Reason. Except in
the event of a Change in Control, the Company will be obligated to
provide the Standard Termination Entitlements as defined in Section
4.1 and Severance Benefits as defined in Section 4.2, if either the
Company terminates the employee's employment without Cause or the
Employee resigns for Good Reason, subject to the Employee's compliance
with Articles 5, 8, 9 and 10:
3.2.3 Termination upon a Change in Control. In the event of a Change in
Control, the terms of Section 4.3 shall apply.
ARTICLE 4. Standard Termination Entitlements; Severance Benefits.
4.1 Standard Termination Entitlements. For all purposes of this Agreement, the
Employee's "Standard Termination Entitlements" shall mean and include,
subject to the provisions of Article 8: (a) the Employee's earned but
unpaid compensation (including, without limitation, salary, bonus, and all
other items which constitute wages under applicable law) as of the date of
Employee's termination of employment. This payment shall be made at the
time and in the manner prescribed by law applicable to the payment of wages
but in no event later than 30 days after the date of the Employee's
termination of employment; and (b) the benefits, if any, due to the
Employee (and the Employee's estate, surviving dependents or her designated
beneficiaries) under the employee benefit plans and programs and
compensation plans and programs maintained for the benefit of the employees
of the Company and in which the Employee participated as an Employee. The
time and manner of payment or other delivery of these benefits and the
recipients of such benefits shall be determined according to the terms and
conditions of the applicable plans and programs.
4.2 Severance Benefits. For all purposes of this Agreement, the Employee's
"Severance Benefits" shall mean and include the payment of a lump sum
amount equal to 6 multiplied by the Employee's monthly rate of annual gross
base salary in effect immediately prior to Employee's termination of
employment.
5
<PAGE>
4.3 Change in Control
4.3.1 Change in Control Adjustments and Compensation. The "Change in
Control Adjustments and Compensation" shall mean the following:
4.3.1.1 Change in Control Employment Term. If a Change in Control
occurs prior to the Employment Contract Termination Date, then
the Employment Term shall continue until the earlier of the
Employment Final Termination Date or the Employment Change of
Control Termination Date.
4.3.1.2 Change in Control Severance Payment Amount. If a Change in
Control occurs prior to the Employment Contract Termination Date,
and the Company terminates the employee's employment without
Cause or the Employee resigns for Good Reason, then the Employee
shall receive Severance Benefits as defined in Section 4.2 and
the Company shall be obligated to provide the Standard
Termination Entitlements as defined in Section 4.1 subject to the
Employee's compliance with Articles 5, 8, 9 and 10.
4.3.2 Definition. Change in Control shall mean any one of the following:
4.3.2.1 the consummation of a reorganization, merger or consolidation
of the Company with one or more other persons, other than a
transaction following which:
at least 49% of the equity ownership interests of the entity
resulting from such transaction are beneficially owned (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) in
substantially the same relative proportions by persons who,
immediately prior to such transaction, beneficially owned (within
the meaning of Rule 13d-3 promulgated under the Exchange Act)
100% of the outstanding equity ownership interests in the
Company; and
at least 49% of the securities entitled to vote generally in the
election of directors of the entity resulting from such
transaction are beneficially owned (within the meaning of Rule
13d-3 promulgated under the Exchange Act) in substantially the
same relative proportions by persons who, immediately prior to
such transaction, beneficially owned (within the meaning of Rule
13d-3 promulgated under the Exchange Act) 100% of the securities
entitled to vote generally in the election of directors of the
Company.
4.3.2.2 a complete liquidation or dissolution of the Company; or
4.3.2.3 the occurrence of any event if, immediately following such
event, at least 49% of the members of the Board of Directors of
the Company do not belong to any of the following groups: (a)
individuals who were members of the Board of Directors of the
Company on the date hereof; or (b) individuals who first became
members of the Board of Directors of the Company after the date
hereof either: (i) upon election to serve as a member of the
Board of Directors of the Company by affirmative vote of
three-quarters of the
6
<PAGE>
members of such board, or of a nominating committee thereof, in
office at the time of such first election; or (ii) upon election
by the stockholders of the Company to serve as a member of such
board, but only if nominated for election by affirmative vote of
three-quarters of the members of the Board of Directors of the
Company, or of a nominating committee thereof, in office at the
time of such first nomination; provided, however, that such
individual's election or nomination did not result from an actual
or threatened contest for the election of directors or other
actual or threatened solicitation of proxies or consents other
than by or on behalf of the Board of Directors of the Company.
4.3.2.4 In no event, however, shall a Change in Control be deemed to
have occurred as a result of (i) any acquisition of securities or
assets of the Company or any subsidiary thereof, by the Company
or any subsidiary thereof, or by any employee benefit plan
maintained by the Company or any subsidiary thereof or (ii) any
Qualified Public Transaction of the securities of the Company.
For purposes of this section, the term "person" shall have the
meaning assigned to it under sections 13(d)(3) or 14(d)(2) of the
Exchange Act.
ARTICLE 5. NON-COMPETITION AND NON-SOLICITATION; PROPRIETARY INFORMATION
The Employee shall enter into a Key Employee Invention Assignment and
---------------------------------
Confidentiality Agreement attached herein as Exhibit B and a Non-Compete
-----------
Agreement attached herein as Exhibit C and shall act in accordance with the
---------
terms of such agreements. The Employee agrees that the provisions of this
Article 5, Exhibit B and Exhibit C are necessary to protect the interests of the
Company or its Subsidiaries or Affiliates and are reasonable and valid in
geographical and temporal scope and in all other respects. If any court
determines that the provisions of this Article 5 or any part thereof are
unenforceable because of the duration or geographical scope of such provision,
such court will have the power to reduce the duration or scope of such
provision, as the case may be, and, in its reduced form, such provision will be
enforceable.
ARTICLE 6. ORIGINAL EMPLOYMENT AGREEMENT
The Company and the Employee shall cause the Original Employment Agreement to be
terminated as of the Effective Date.
ARTICLE 7. THIS ARTICLE INTENTIONALLY OMITTED
ARTICLE 8. REMEDIES
8.1 Remedies for Certain Breaches. If the Employee commits a breach, or
threatens to commit a breach, of any of the provisions of Article 5, the
Company shall have the following rights and remedies: forfeiture of stock
options, forfeiture of any severance or other termination benefits and
damages associated with the Breach, each of which rights and remedies shall
be independent of the others, and shall be severally enforceable, and all
of which rights and remedies shall be in addition to, and not in lieu of,
any other rights and remedies available under law or in equity to the
Company, the right and remedy to have the
7
<PAGE>
provisions of Article 5 enforced by any court in the State of New York,
USA, it being acknowledged and agreed that any breach or threatened breach
of Article 5 hereof by the Employee will cause irreparable injury to the
Company and that money damages will not provide an adequate remedy to the
Company.
ARTICLE 9. DISPUTE RESOLUTION
9.1 Dispute Resolution. Any dispute, controversy or claim, at any time arising
out of this or relating to this Agreement, or the breach, termination or
invalidity thereof (other than any dispute, controversy or claim pursuant
to Article 5 hereof, which may, at the option of the Company, be submitted
to any court having jurisdiction), shall be referred to the Hong Kong
courts for final and binding arbitration. Any arbitral award may be
enforced through a judgment rendered in any court of competent
jurisdiction.
ARTICLE 10. GENERAL PROVISIONS
10.1 Notices. All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be given (and shall be deemed to
have been duly received if so given) by hand delivery, telegram, telex, or
telecopy, or facsimile transmission, or by mail (registered or certified
mail, postage prepaid, return receipt requested) or by any courier service,
providing proof of delivery. All communications hereunder shall be
delivered to the respective parties at the following addresses or to such
other address as the party to whom notice is given may have previously
furnished to the other parties hereto in writing in the manner set forth
above:
If to the Employee: Jesse Liu
Rm. 305-306, China Resources Building,
No.8, Jian Guo Men Bei Avenue,
Dongcheng District, Beijing, 100005
P.R.C.
If to the Company: Hurray! Holding Co., Ltd.
Rm. 305-306, China Resources Building,
No.8, Jian Guo Men Bei Avenue,
Dongcheng District, Beijing, 100005
P.R.C.
10.2 Entire Agreement. This Agreement, including the provisions of Exhibit A and
the agreements on Exhibit B and Exhibit C, shall constitute the entire
agreement between the Employee and the Company with respect to the
Company's employment of the Employee and supersedes any and all prior
agreements and understandings.
10.3 Amendments and Waivers. Any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or
in a particular
8
<PAGE>
instance and either retroactively or prospectively), only by an instrument
in writing and signed by the party against whom such amendment or waiver is
sought to be enforced.
10.4 Successors and Assigns. The personal services of the Employee are the
subject of this Agreement and no part of the Employee's or the Company's
rights or obligations hereunder may be assigned, transferred, pledged or
encumbered by the Employee or the Company. This Agreement shall inure to
the benefit of, and be binding upon (a) the parties hereto, (b) the heirs,
administrators, executors and personal representatives of the Employee and
(c) the successors and assigns of the Company as provided herein.
10.5 Governing Law and Venue. This Agreement, including the validity hereof and
the rights and obligations of the parties hereunder, and all amendments and
supplements hereof and all waivers and consents hereunder, shall be
construed in accordance with and governed by the laws of the State of New
York, USA, without giving effect to any conflicts of law provisions or
rule, that would cause the application of the laws of any other
jurisdiction.
10.6 Severability. If any provisions of this Agreement, as applied to any part
or to any circumstance, shall be adjudged by a court to be invalid or
unenforceable, the same shall in no way affect any other provision of this
Agreement, the application of such provision in any other circumstances or
the validity or enforceability of this Agreement.
10.7 Survival. The rights and obligations of the Company and Employee pursuant
to Articles 3, 4, 5, 8 and 9 shall survive the termination of the
Employee's employment with the Company and the expiration of the Employment
Term.
10.8 Captions. The headings and captions used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting
this Agreement.
10.9 Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
9
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
EMPLOYEE
By: /s/ Jesse Liu
------------------------------------
Name: Jesse Liu
Title: Chief Financial Officer
COMPANY
By: /s/ Qindai Wang
------------------------------------
Name: Qindai Wang
Title: Chairman of Board of Directors
and Chief Executive Officer
ATTEST
By: /s/ Hongbin Wei
------------------------------------
Name: Hongbin Wei
Address:
Rm. 305-306, China Resources Building,
No.8, Jian Guo Men Bei Avenue,
Dongcheng District, Beijing, 100005
P.R.C.
10
<PAGE>
Exhibit A
Compensation
------------
Annual Base Salary
------------------
US$120,000 (SAY ONE HUNDRED AND TWENTY THOUSAND UNITED STATES DOLLARS ONLY)
Annual Target Bonus
-------------------
As determined by the Board of Directors of the Company.
Commission
----------
As determined by the Board of Directors of the Company.
Health Insurance
----------------
As provided in the Company's standard insurance policy for executive officers
Annual Paid Vacation
--------------------
20 days
Other Compensation
------------------
As determined by the Board of Directors of the Company.
11
<PAGE>
Exhibit B
Key Employee Invention Assignment and Confidentiality Agreement
In consideration of, and as a condition of my continued employment with
Hurray! Holding Co., Ltd., a Cayman Islands company (as contemplated in the
employment agreement between Hurray! Holding Co. Ltd. and me (the "Employment
Agreement")), or with any of its Subsidiaries or Affiliates (as defined in the
Employment Agreement, Hurray! Holding Co., Ltd. and its Subsidiaries and
Affiliates, collectively, the "Company"), I hereby represent to, and agree with,
the Company as follows:
I hereby represent to, and agree with the Company as follows:
1. Purpose of Agreement. I understand that the Company is engaged in a
continuous program of research, development, production and marketing in
connection with its business and that it is critical for the Company to
preserve and protect its Proprietary Information (as defined in Section 3
below), its rights in Inventions (as defined in Section 2 below) and in any
other intellectual property rights. Accordingly, I am entering into this
Employee Invention Assignment and Confidentiality Agreement (this
"Agreement") as a condition of my continued employment with the Company,
whether or not I am expected to create inventions of value for the Company.
2. Disclosure of Inventions. I will promptly disclose in confidence to the
Company all inventions, improvements, designs, original works of
authorship, derivative works, formulas, processes, compositions of matter,
techniques, know-how, computer software programs, databases, mask works and
trade secrets (the "Inventions") that I make or conceive or first reduce to
practice or create, either alone or jointly with others, during the period
of my employment, whether or not in the course of my employment, and
whether or not such Inventions are patentable, copyrightable or protectible
as trade secrets or mask works.
3. Proprietary Information. I understand that my employment by the Company
creates a relationship of confidence and trust with respect to any
information of a confidential or secret nature that may be disclosed to me
by the Company that relates to the business of the Company or to the
business of any parent, subsidiary, affiliate, customer or supplier of the
Company or any other party with whom the Company agrees to hold information
of such party in confidence (the "Proprietary Information"). Such
Proprietary Information includes but is not limited to any confidential
and/or proprietary knowledge, data or information, any past, present or
future Inventions, marketing plans, product plans, business strategies,
financial information (including budgets and unpublished financial
statements), licenses, prices and costs, forecasts, personal information,
suppliers, customers and lists of either, information, trade secrets,
patents, mask works, ideas, confidential knowledge, data or other
proprietary information relating to new and existing products, processes,
know-how, designs, formulas, developmental or experimental work,
improvements, discoveries, designs and techniques, computer programs, data
bases, other original works of authorship, employee information including
the skills and compensation of other employees of Company, or other subject
matter pertaining to any business of Company. I agree that Company may from
time to time create a list of specific Proprietary Information and I will
acknowledge any such lists in writing upon request.
12
<PAGE>
4. Confidentiality. At all times, both during my employment and after its
termination, I will keep and hold all such Proprietary Information in
strict confidence and trust. I will not use or disclose any Proprietary
Information without the prior written consent of the Company, except as may
be necessary to perform my duties as an employee of the Company for the
benefit of the Company. Upon termination of my employment with the Company,
I will promptly deliver to the Company all documents and materials of any
nature pertaining to my work with the Company. I will not take with me any
documents or materials or copies thereof containing any Proprietary
Information.
5. Work for Hire; Assignment of Inventions. I acknowledge and agree that any
copyrightable works prepared by me either alone or jointly with others,
within the scope of my employment are "works for hire" under the United
States Copyright Act and that the Company will be considered the author and
owner of such copyrightable works. In the event that any such copyrightable
works are not deemed to be "works made for hire," I hereby irrevocably
assign all of my right, title and interest in and to such copyrightable
works to Company. I agree that all Inventions that (i) are developed using
equipment, supplies, facilities or trade secrets of the Company, (ii)
result from work performed by me for the Company, or (iii) relate to the
Company's business or current or anticipated research and development
(collectively, "Company Inventions"), will be the sole and exclusive
property of the Company and are hereby irrevocably assigned by me to the
Company.
6. Assignment of Other Rights. In addition to the foregoing assignment of
Company Inventions to the Company, I hereby irrevocably transfer and assign
to the Company: (i) all worldwide patents, patent applications, copyrights,
mask works, trade secrets and other intellectual property rights in any
Company Invention; and (ii) any and all Moral Rights (as defined below)
that I may have in or with respect to any Company Invention. I also hereby
forever waive and agree never to assert any and all Moral Rights I may have
in or with respect to any Company Invention, even after termination of my
work on behalf of the Company. "Moral Rights" mean any rights to claim
authorship of a Company Invention, to object to or prevent the modification
of any Company Invention, or to withdraw from circulation or control the
publication or distribution of any Company Invention, and any similar
right, existing under judicial or statutory law of any country in the
world, or under any treaty, regardless of whether or not such right is
denominated or generally referred to as a "moral right".
7. Assistance. For no consideration in addition to my salary or wages during
my employment, I agree to assist the Company in every proper way to obtain
for the Company and enforce patents, copyrights, mask work rights, trade
secret rights and other legal protections for the Company's Inventions in
any and all countries. I will execute any documents that the Company may
reasonably request for use in obtaining or enforcing such patents,
copyrights, mask work rights, trade secrets and other legal protections. My
obligations under this paragraph will continue beyond the termination of my
employment with the Company, provided that the Company will compensate me
at a reasonable rate after such termination for time or expenses actually
spent by me at the Company's request on such assistance. I appoint the
Secretary of the Company as my attorney-in-fact to execute documents on my
behalf for this purpose. I hereby waive and quitclaim to Company any and
all claims, of any nature whatsoever, which I now or may hereafter have for
infringement of any proprietary rights assigned hereunder to Company.
8. No Breach of Prior Agreement. I represent that my performance of all the
terms of this
13
<PAGE>
Agreement and my duties as an employee of the Company will not breach any
invention assignment, proprietary information, confidentiality or similar
agreement with any former employer or other party. I represent that I did
not bring with me to the Company or use in the performance of my duties for
the Company any documents or materials or intangibles of a former employer
or third party that are not generally available to the public or have not
been legally transferred to the Company.
9. Efforts; Duty Not to Compete. I understand that my employment with the
Company requires my undivided attention and effort during normal business
hours. While I am employed by the Company, I will not, without the
Company's express prior written consent, provide services to, or assist in
any manner, any business or third party which compete with the current or
planned business of the Company.
10. Notification. I hereby authorize the Company to notify my actual or future
employers of the terms of this Agreement and my responsibilities hereunder.
11. Non-Solicitation of Employees/Consultants. During my employment with the
Company and for a period of one (1) year thereafter, I will not directly or
indirectly solicit away employees or consultants of the Company for my own
benefit or for the benefit of any other person or entity. "Solicit" shall
not include the placement of an advertisement in a publication of general
circulation.
12. Non-Solicitation of Suppliers/Customers. During my employment with the
Company and after termination of my employment, I will not directly or
indirectly solicit or take away suppliers or customers of the Company if
the identity of the supplier or customer or information about the supplier
or customer relationship is a trade secret or is otherwise deemed
confidential information within the meaning of Chinese law.
13. Injunctive Relief. I understand that in the event of a breach or threatened
breach of this Agreement by me the Company may suffer irreparable harm and
will therefore be entitled to injunctive relief to enforce this Agreement,
without prejudice to any other rights or remedies that Company may have for
a breach of this Agreement.
14. Governing Law; Severability. This Agreement will be governed by and
construed in accordance with the laws of New York, without giving effect to
that body of laws pertaining to conflict of laws. If any provision of this
Agreement is determined by any court or arbitrator of competent
jurisdiction to be invalid, illegal or unenforceable in any respect, such
provision will be enforced to the maximum extent possible given the intent
of the parties hereto. If such clause or provision cannot be so enforced,
such provision shall be stricken from this Agreement and the remainder of
this Agreement shall be enforced as if such invalid, illegal or
unenforceable clause or provision had (to the extent not enforceable) never
been contained in this Agreement. Notwithstanding the forgoing, if the
value of this Agreement based upon the substantial benefit of the bargain
for any party is materially impaired, which determination as made by the
presiding court or arbitrator of competent jurisdiction shall be binding,
then this Agreement will not be enforceable against such affected party and
both parties agree to renegotiate such provision(s) in good faith.
15. Counterparts. This Agreement may be executed in any number of counterparts,
each of which when so executed and delivered will be deemed an original,
and all of which together shall constitute one and the same agreement.
14
<PAGE>
16. Titles and Headings. The titles, captions and headings of this Agreement
are included for ease of reference only and will be disregarded in
interpreting or construing this Agreement. Unless otherwise specifically
stated, all references herein to "sections" and "exhibits" will mean
"sections" and "exhibits" to this Agreement.
17. Entire Agreement. This Agreement and the documents referred to herein
constitute the entire agreement and understanding of the parties with
respect to the subject matter of this Agreement, and supersede all prior
understandings and agreements, whether oral or written, between or among
the parties hereto with respect to the specific subject matter hereof.
18. Amendment and Waivers. This Agreement may be amended only by a written
agreement executed by each of the parties hereto. No amendment of or waiver
of, or modification of any obligation under this Agreement will be
enforceable unless set forth in a writing signed by the party against which
enforcement is sought. Any amendment effected in accordance with this
section will be binding upon all parties hereto and each of their
respective successors and assigns. No delay or failure to require
performance of any provision of this Agreement shall constitute a waiver of
that provision as to that or any other instance. No waiver granted under
this Agreement as to any one provision herein shall constitute a subsequent
waiver of such provision or of any other provision herein, nor shall it
constitute the waiver of any performance other than the actual performance
specifically waived.
19. Successors and Assigns; Assignment. Except as otherwise provided in this
Agreement, this Agreement, and the rights and obligations of the parties
hereunder, will be binding upon and inure to the benefit of their
respective successors, assigns, heirs, executors, administrators and legal
representatives. The Company may assign any of its rights and obligations
under this Agreement. No other party to this Agreement may assign, whether
voluntarily or by operation of law, any of its rights and obligations under
this Agreement, except with the prior written consent of the Company.
20. Further Assurances. The parties agree to execute such further documents and
instruments and to take such further actions as may be reasonably necessary
to carry out the purposes and intent of this Agreement.
21. Not Employment Contract. I understand that this Agreement does not
constitute a contract of employment or obligate the Company to employ me
for any stated period of time.
15
<PAGE>
This Agreement shall be effective as of Effective Date.
Company Employee:
By: /s/ Qindai Wang /s/ Jesse Liu
---------------------------------------- ---------------------------------
Name: Qindai Wang Name: Jesse Liu
Position: Chairman of Board of Directors and Position: Chief Financial Officer
Chief Executive Officer
16
<PAGE>
Exhibit C
Non-Compete Agreement
---------------------
Dear Jesse Liu,
As an employee of Hurray! Holding Co., Ltd., a Cayman Islands company (as
contemplated in the employment agreement between Hurray! Holding Co. Ltd. and
you (the "Employment Agreement")), or with any of its Subsidiaries and
Affiliates (as defined in the Employment Agreement, Hurray! Holding Co., Ltd.
and its Subsidiaries and Affiliates, collectively, the "Company"), you must
-------
execute and deliver a covenant not to compete with the Company during your
employment and for 12 months thereafter. The terms and conditions set forth
below, as applicable, shall, upon your acceptance thereof, become an agreement
between you and the Company.
Covenant Not to Compete
It is hereby agreed that, from the date hereof and so long as you are an
employee, consultant or serve in a similar capacity with the Company, you shall
devote substantially all of your professional time to the Company and shall not
participate in any manner in the management or operation of any business other
than that of the Company or serving on the board of directors of the Company.
If you are no longer employed by or acting as a consultant for the Company,
you shall not be employed by or participate in any manner in the management or
operation of any business or entity that is or may reasonably become a
competitor of the Company until 12 months after the date of termination of
employment with the Company.
Company Rights if You Violate this Agreement
In the event that you do not comply with the terms of this Agreement, any
profit sharing or stock options to which you would otherwise be entitled will be
forfeited.
In the event you do not comply with the terms of this Agreement, we also
reserve the right to discharge you as an employee. Furthermore, we reserve the
right to recover monetary damages from you, and we may also recover punitive
damages to the extent permitted by law. In the event that monetary damages are
an inadequate remedy for any harm suffered by us as a result of a breach of this
Agreement by you, we may also seek other relief, including an order of specific
performance or injunctive relief. You will not seek, and you agree to waive any
requirement for, the securing or posting of a bond in connection with our
seeking or obtaining such relief.
You further agree to indemnify and hold us harmless from any damages,
losses, costs or liabilities (including legal fees and the costs of enforcing
this indemnity agreement) arising out of or resulting from your failure to abide
by the terms of this Agreement.
17
<PAGE>
At-Will Employment
You agree and understand that, except as may be provided in any employment
agreement between you and the Company, your employment with the Company is
"at-will," meaning that it is not for any specified period of time and can be
terminated by you or by the Company at any time, with or without advance notice,
and for any or no particular reason or cause. You agree and understand that it
also means that job duties, title and responsibility and reporting level,
compensation and benefits, as well as the Company's personnel policies and
procedures, may be changed at any time at-will by the Company. You understand
and agree that nothing about the fact or the content of this Agreement is
intended to, nor should be construed to, alter the at-will nature of your
employment with the Company. You also understand and agree that the at-will
nature of employment with the Company can only be changed by the Board of
Directors of the Company in an express writing signed and dated by the Board of
Directors and by you.
Acknowledgment
You agree that, in light of the substantial benefits you will receive as
our employee, the terms contained in this Agreement are necessary and reasonable
in all respects and that the restrictions imposed on you are reasonable and
necessary to protect our legitimate business interests. Additionally, you hereby
acknowledge and agree that the restrictions imposed on you by this Agreement
will not prevent you from obtaining employment in your field of expertise or
cause you undue hardship.
Governing Law
This Agreement shall be governed by and construed in accordance with the
laws of the New York, without regard to any conflicts of laws provision thereof.
By accepting this Agreement, you acknowledge that, given the nature of the
Company's business, the provisions contained in this Agreement contain
reasonable limitations as to time, geographical area and scope of activity to be
restrained, and do not impose a greater restraint than is necessary to protect
and preserve the Company and to protect the Company's legitimate interests. If,
however, the provisions of this Agreement are determined by any court of
competent jurisdiction or any arbitrator to be unenforceable by reason of its
extending for too long a period of time or over too large a geographic area or
by reason of its being too extensive in any other respect, or for any other
reason, it will be interpreted to extend only over the longest period of time
for which it may be enforceable and over the largest geographical area as to
which it may be enforceable and to the maximum extent in all other aspects as to
which it may be enforceable, all as determined by such court or arbitrator in
such action.
Please confirm your agreement with the foregoing by signing and returning
directly to the undersigned the duplicate copy of this letter enclosed herewith.
18
<PAGE>
Very truly yours,
COMPANY
By: /s/ Qindai Wang
-----------------------------
Name: Qindai Wang
Position: Chairman of Board of
Directors and Chief
Executive Officer
Accepted and Agreed to as
of the date first above written:
By: /s/ Jesse Liu
-------------------------------------
Employee
Name: Jesse Liu
Position: Chief Financial Officer
19