Share Options. 5.1 Previously, and subject to the provisions of this Clause 5, Executive and/or APOL have been granted under the Agreement dated of April 12, 2006 an aggregate of 2,400,000 share options to purchase CDC common shares, $0.00025 par value oper share (the “Shares”) under the 1999 Stock Option Plan (“Existing Options”). All of such Options have been subject to Board-approved cancellation and regrants effective, respectively, on August 18, 2008 and November 26, 2008, pursuant to which such Options are now deemed to be granted to APOL with an exercise price of US$0.87 per Option, the closing price of the Shares on November 26, 2008, the effective date of APOL’s acceptance of the latest cancellation and regrant. In addition to the foregoing, APOL has been granted an additional one-time award on the Effective Date of additional options to purchase 900,000 Shares (the “New Options”) under the 1999 Stock Option Plan at an exercise price of $1.29 per common share, which options shall vest in equal quarterly installments over an eighteen (18) month period from the Effective Date. 5.2 The Existing Options and the New Options shall vest over the course of the Term according to a vesting schedule as set forth in Schedule 2; provided that, notwithstanding anything herein to the contrary: (a) the Executive remains at CDC Corporation to provide the Services on the day vesting of the relevant portion of those Options takes place and (b) this Agreement has not otherwise been terminated. Except as otherwise provided in this Clause 5, the Existing Options and the New Options shall be subject to the terms and conditions of the 1999 Stock Option Plan. Details regarding the Existing Options and New Options are set forth on Schedule 2 hereto. 5.3 In addition to the Existing Options and the New Options, APOL has also been granted (a) 2,000,000 share options; and (b) 399,999 share options (collectively “Contingent Options”), as set forth in the option award agreement(s) which allow APOL to purchase the same number of CDC Corporation’s Shares. These 2,399,999 Contingent Options have been subject to Board-approved cancellation and regrants effective, respectively, on August 18 2008 and November 26, 2008, pursuant to which such Options are now deemed to be granted to APOL on the Effective Date with an exercise price of US$0.87 per Contingent Option, the closing price of the Shares on November 26, 2008, the effective date of APOL’s acceptance of the latest cancellation and regrant. 5.4 The Contingent Option shall vest in accordance with Schedule 3 hereof; provided that: (a) the Executive remains at CDC Corporation to provide the Services on the day vesting of the Contingent Options takes place and (b) this Agreement has not otherwise been terminated. Except as otherwise provided in this Clause 5, the Contingent Options granted shall be subject to the terms and conditions of the 1999 Stock Option Plan. Details regarding the Contingent Options are set forth on Schedule 3 hereto. (a) If this Agreement is terminated other than pursuant to Clauses 12.1, 12.2, 12.4 or 12.5 hereof, provided that the Executive executes a written release, in favour of the Company and its Associated Companies, of any and all claims or potential claims, suits, liabilities or any other obligations that are or may be asserted by or owed to, Executive, APOL or any affiliate thereof, then the Company shall cause the Executive’s Options to accelerate and fully vest. In the event of such termination other than pursuant to Clause 12.1 and 12.2 of this Agreement, the Executive shall have a reasonable period of time not in excess of ninety (90) days following such termination to exercise the Executive’s Options that had vested as of the date of termination. (b) Notwithstanding the matters set out in the forgoing sub-clause (a), if under Clauses 12.4 or 12.5 hereof the Executive is terminated or initiates the termination as a result of a death or disability that is tangibly related to the performance of the duties by the Executive for the Company hereunder, the Company shall cause the Executive’s Options to accelerate and fully vest and the Executive or his successors or assigns, as the case may be, shall have up to one year following such termination to exercise the Executive’s Options. (c) For avoidance of doubt if under Clauses 12.4 or 12.5 hereof the Executive is terminated or initiates the termination as a result of a death or disability that is NOT related to the performance of the duties by the Executive for the Company hereunder, the Executive’s Options shall not accelerate but the Executive or his successors or assigns, as the case may be, shall have up to one year following such termination to exercise the Executive’s Options that had vested as of the date of termination. (d) To the extent any provision in the forgoing sub-clauses (a), (b) and (c) relates to any time period during which the Options may become exercisable, the same provision shall also apply to the Contingent Options such that they shall be subject to the same time period during which they may become exercisable. For avoidance of doubt, to the extent any provision in the forgoing sub-clauses (a), (b) and (c) relates to acceleration of vesting of the Options, the same shall NOT apply to the Contingent Options. 5.6 If there is a Change of Control and within one year from the Change of Control date, the Company (or its successor) terminates the Services provided by APOL for any reason other than in accordance with Clause 12 hereof, as of the date of termination (the “Termination Date”), all unexercised Options and Contingent Options held by APOL shall immediately vest and APOL shall have the right to exercise such Options and Contingent Options on and as of the Termination Date; provided that this Clause 5.6 shall not apply if a Change of Control shall have occurred and the services of APOL with respect to the Services provided by the Executive are retained and the Executive remains in good standing with CDC Corporation (or its successor) during the one year from the Change of Control date, in which case, Clause 5.7 hereof shall apply. 5.7 If there is a Change of Control and the Services provided by APOL with respect to the services provided by the Executive are retained and the Executive remains in good standing with the Company (or its successor), then at the one year anniversary date of the Change of Control date (the “Anniversary Date”), all unexercised Options and Contingent Options held by APOL shall immediately vest and APOL shall have the right to exercise such Options and Contingent Options as of the Anniversary Date up to the last day upon which the Services of APOL with respect to the services provided by the Executive are in effect whether pursuant to this Agreement or a successor agreement; provided that during the course of the one year period prior to the Anniversary Date, APOL’s Options and Contingent Options shall vest in accordance with the vesting schedule as set forth in the APOL option award agreement(s). 5.8 The Parties agree that except as provided for in the CEO Options Transfer Agreement or otherwise pursuant to the prior written consent of the Company, APOL will not sell, offer to sell, contact to sell, grant any option to purchase or otherwise dispose of any Options (whether vested or unvested) or any Contingent Options, or any securities convertible into exercisable or exchangeable for such Options (whether vested or unvested) or Contingent Options, including the Company’s Shares, or in any other manner transfer all or a portion of the economic consequences associated with the ownership of any such Options (whether vested or unvested) or any Contingent Options during the term of this Agreement. 5.9 Any award of options under this Agreement shall not affect the accrued rights of the Executive in relation to other options on the securities of CDC Corporation or any Associated Company held by the Executive and or APOL.
Appears in 2 contracts
Sources: Executive Services Agreement (CDC Corp), Executive Services Agreement (CDC Software CORP)
Share Options. 5.1 PreviouslyEmployee will be granted options (the “Options”) to purchase 500,000 of the Company’s Common Shares of Beneficial Interest, par value $.04 per share (“Shares”), pursuant to the Company’s 2002 Omnibus Share Plan (the “2002 Plan”). To the maximum extent possible, such Options shall be “incentive stock options” within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”), and otherwise shall be non-qualified stock options. The Options will be (or have been) granted subject to the provisions general terms of this Clause 5, Executive and/or APOL the 2002 Plan and the share option agreement thereunder.
(i) Such Options will be granted in three tranches as follows: (A) 300,000 of such Options (the “2005 Options”) have been granted under as of February 8, 2005 and have a exercise price of $71.275 per Share; and (B) the Agreement dated of April 12remaining 200,000 will be granted, in one or two tranches, in 2006 an aggregate of 2,400,000 share options or 2007 as the Employee may determine and in such proportion as the Employee may determine. If the Employee elects to purchase CDC common shareshave Options be granted in 2006, $0.00025 par value oper share then such Options (the “Shares2006 Options”) under will be granted on such date in 2006 as the 1999 Stock Option Plan Compensation Committee or other authorized party grants equity interests in the Company generally to employees of the Company (the “Company-Wide Grant Date”) and will have an exercise price per Share as is determined by such authorized party based on the market value of the Shares on such date (“Existing OptionsGrant Date Market Price”). All of If the Employee elects to have Options be granted in 2007, then such Options (the “2007 Options”) will be granted on the Company-Wide Grant Date in 2007 and have been subject an exercise price per Share equal to Board-approved cancellation the then applicable Grant Date Market Price.
(ii) Each of the 2005 Options, the 2006 Options and regrants effectivethe 2007 Options will vest and become exercisable at a rate of 331/3% of the applicable number of Options granted in 2005, 2006 and 2007, respectively, on August 18, 2008 and November 26, the Annual Vesting Date with respect to 2008, pursuant to which such Options are now deemed to be granted to APOL with an exercise price of US$0.87 per Option, the closing price of the Shares on November 26, 2008, the effective date of APOL’s acceptance of the latest cancellation 2009 and regrant. In addition to the foregoing, APOL has been granted an additional one-time award on the Effective Date of additional options to purchase 900,000 Shares (the “New Options”) under the 1999 Stock Option Plan at an exercise price of $1.29 per common share, which options shall vest in equal quarterly installments over an eighteen (18) month period from the Effective Date.
5.2 The Existing Options and the New Options shall vest over the course of the Term according to a vesting schedule as set forth in Schedule 2; provided that, notwithstanding anything herein to the contrary: (a) the Executive remains at CDC Corporation to provide the Services on the day vesting of the relevant portion of those Options takes place and (b) this Agreement has not otherwise been terminated. Except as otherwise provided in this Clause 5, the Existing Options and the New Options shall be subject to the terms and conditions of the 1999 Stock Option Plan. Details regarding the Existing Options and New Options are set forth on Schedule 2 hereto.
5.3 In addition to the Existing Options and the New Options, APOL has also been granted (a) 2,000,000 share options; and (b) 399,999 share options (collectively “Contingent Options”), as set forth in the option award agreement(s) which allow APOL to purchase the same number of CDC Corporation’s Shares. These 2,399,999 Contingent Options have been subject to Board-approved cancellation and regrants effective, respectively, on August 18 2008 and November 26, 2008, pursuant to which such Options are now deemed to be granted to APOL on the Effective Date with an exercise price of US$0.87 per Contingent Option, the closing price of the Shares on November 26, 2008, the effective date of APOL’s acceptance of the latest cancellation and regrant.
5.4 The Contingent Option shall vest in accordance with Schedule 3 hereof; provided that: (a) the Executive remains at CDC Corporation to provide the Services on the day vesting of the Contingent Options takes place and (b) this Agreement has not otherwise been terminated. Except as otherwise provided in this Clause 5, the Contingent Options granted shall be subject to the terms and conditions of the 1999 Stock Option Plan. Details regarding the Contingent Options are set forth on Schedule 3 hereto.
(a) If this Agreement is terminated other than pursuant to Clauses 12.1, 12.2, 12.4 or 12.5 hereof, provided that the Executive executes a written release2010, in favour each case provided Employee remains an employee of the Company and its Associated Companieson such respective dates. “Annual Vesting Date” means January 20th of each applicable year, of any and all claims or potential claims, suits, liabilities or any other obligations that are or may be asserted by or owed to, Executive, APOL or any affiliate thereof, then the Company shall cause the Executive’s Options to accelerate and fully vest. In the event of if such termination other than pursuant to Clause 12.1 and 12.2 of this Agreementdate is not a business day, the Executive shall have a reasonable period of time not in excess of ninety (90) days following such termination to exercise the Executive’s Options that had vested as of the date of termination.
(b) Notwithstanding the matters set out in the forgoing sub-clause (a)next succeeding business day; provided however, if under Clauses 12.4 this Agreement terminates on or 12.5 hereof the Executive is terminated or initiates the termination as a result of a death or disability that is tangibly related after January 1, 2010 but prior to the performance of the duties by the Executive for the Company hereunderJanuary 20, 2010, the Company shall cause the Executive’s Options to accelerate and fully vest and the Executive or his successors or assigns, as the case may be, shall have up to one year following such termination to exercise the Executive’s Options.
(c) For avoidance of doubt if under Clauses 12.4 or 12.5 hereof the Executive is terminated or initiates the termination as a result of a death or disability that is NOT related to the performance of the duties by the Executive for the Company hereunder, the Executive’s Options shall not accelerate but the Executive or his successors or assigns, as the case may be, shall have up to one year following such termination to exercise the Executive’s Options that had vested as of the date of termination.
(d) To the extent any provision in the forgoing sub-clauses (a), (b) and (c) relates to any time period during which the Options may become exercisable, the same provision shall also apply to the Contingent Options such that they shall be subject to the same time period during which they may become exercisable. For avoidance of doubt, to the extent any provision in the forgoing sub-clauses (a), (b) and (c) relates to acceleration of vesting of the Options, the same shall NOT apply to the Contingent Options.
5.6 If there is a Change of Control and within one year from the Change of Control date, the Company (or its successor) terminates the Services provided by APOL for any reason other than in accordance with Clause 12 hereof, as of the date of termination (the “Termination Date”), all unexercised Options and Contingent Options held by APOL shall immediately vest and APOL shall have the right to exercise such Options and Contingent Options on and as of the Termination Date; provided that this Clause 5.6 shall not apply if a Change of Control shall have occurred and the services of APOL Annual Vesting Date with respect to the Services provided by the Executive are retained and the Executive remains in good standing with CDC Corporation (or its successor) during the one year from the Change of Control date, in which case, Clause 5.7 hereof shall apply.
5.7 If there is a Change of Control and the Services provided by APOL with respect to the services provided by the Executive are retained and the Executive remains in good standing with the Company (or its successor), then at the one year anniversary date of the Change of Control date (the “Anniversary Date”), all unexercised Options and Contingent Options held by APOL shall immediately vest and APOL shall have the right to exercise such Options and Contingent Options as of the Anniversary Date up to 2010 will be the last business day upon which preceding the Services of APOL with respect to the services provided by the Executive are in effect whether pursuant to this Agreement or a successor agreement; provided that during the course of the one year period prior to the Anniversary Date, APOL’s Options and Contingent Options shall vest in accordance with the vesting schedule as set forth in the APOL option award agreement(s).
5.8 The Parties agree that except as provided for in the CEO Options Transfer Agreement or otherwise pursuant to the prior written consent of the Company, APOL will not sell, offer to sell, contact to sell, grant any option to purchase or otherwise dispose of any Options (whether vested or unvested) or any Contingent Options, or any securities convertible into exercisable or exchangeable for such Options (whether vested or unvested) or Contingent Options, including the Company’s Shares, or in any other manner transfer all or a portion of the economic consequences associated with the ownership of any such Options (whether vested or unvested) or any Contingent Options during the term termination of this Agreement.
5.9 Any award of options under this Agreement shall not affect the accrued rights of the Executive in relation to other options on the securities of CDC Corporation or any Associated Company held by the Executive and or APOL.
Appears in 1 contract
Share Options. 5.1 Previously8.1 BPP shall send letters to all Award Holders at the same time as, or as soon as reasonably practicable after, the Scheme Document is sent to BPP Shareholders, informing Award Holders of Apollo’s proposals and supplying them with the documents required to take advantage of such proposals. Apollo agrees to co-operate in the production of the letters to Award Holders and, in particular, to provide any reasonable information required in relation to the letters as soon as reasonably practicable.
8.2 The Parties agree that:
8.2.1 awards under the PSP and the SMP shall vest, to the extent determined by the BPP remuneration committee, upon Court sanction of the Scheme. BPP shall use its reasonable endeavours to procure that the Trustee shall appoint beneficial ownership in the BPP Shares subject to such Awards immediately following Court sanction and before the Scheme Record Time;
8.2.2 options under the ▇▇▇▇ Scheme shall become exercisable with effect from the Effective Date for a period of six months, during which period option holders may continue to make savings under the ▇▇▇▇ Scheme, following which any unexercised ▇▇▇▇ options shall lapse. The letters to be sent to ▇▇▇▇ option holders shall offer the opportunity to either: (a) exercise with effect shortly before the lapse date; or (b) exercise with effect immediately following the Effective Date, and, in either case, sell the resulting BPP Shares to Apollo immediately following exercise; and
8.2.3 options under the ESOS will, in the case of all such options other than those granted on 18 August 2006, have vested and will therefore already be exercisable by the date of Court sanction. The letters to be sent to ESOS option holders shall offer the opportunity to exercise any vested options (or accept net settlement in accordance with clause 8.4 below (“Net Settlement”)) with effect immediately following Court sanction and to exercise those options granted on 18 August 2006 immediately upon the Scheme becoming effective, or, if the optionholders could exercise free of income tax on 19 August 2009, on such date. To the extent ESOS option holders exercise (or Net Settle) with effect immediately following Court sanction, BPP shall use its reasonable endeavours to procure that the Trustee shall transfer the resulting BPP Shares, or appoint beneficial ownership in such shares to Award Holders immediately following Court sanction and before the Scheme Record Time. To the extent ESOS option holders exercise (or Net Settle) immediately after the Effective Date or at a later date they shall be offered the opportunity to sell the resulting BPP Shares to Apollo immediately following exercise.
8.3 Apollo agrees that any Award Holders who are able to exercise options free of income tax shall be permitted to transfer the BPP Shares issued pursuant to the exercise of such options to their spouse or civil partner before such BPP Shares are acquired by Apollo (whether pursuant to the Scheme, the amended articles of association of BPP or otherwise).
8.4 Apollo agrees that Award Holders exercising options under the ESOS will not be required to finance the exercise, subject in the case of Approved Options to confirmation from HMRC that Approved Options may be exercised in such a manner free of income tax. Subject to (i) confirmation from Scheme Counsel that this approach may be used and (ii) the agreement of the Trustee, BPP may offer the holders of Unapproved Options the opportunity, as an alternative to exercise, to Net Settle, i.e, to receive such number of BPP Shares as has a value equal to the gain which would arise on exercise, without having to pay the exercise price in respect of their options. For the holders of Approved Options (and, if Net Settlement is not used for any reason, Unapproved Options), subject in the case of Approved Options to confirmation from HMRC that Approved Options may be exercised in such a manner free of income tax, arrangements will be put in place whereby the exercise price will be deducted from the consideration due on the sale of the BPP Shares and paid to the Trustee or BPP in satisfaction of the exercise price (cashless exercise). If necessary BPP shall, with the consent of HMRC, amend the rules of the ESOS to provide for cashless exercise.
8.5 BPP agrees that no steps will be undertaken to effect the cessation of trading of the ordinary shares in BPP on the Official List without the written consent of Apollo. The parties agree that, if possible and reasonably practicable, and subject to the provisions requirements of this Clause 5the Listing Rules, Executive and/or APOL have been granted under it is intended that the Agreement dated listing will be maintained until August 19 2009.
8.6 Apollo agrees that BPP may make cash payments to the individuals to whom BPP proposed to make the Postponed Awards not exceeding in aggregate £1,064,365. BPP may, subject to giving Apollo not less than two days prior written notice of April 12their intention to do so, 2006 as an alternative, grant some or all of the Postponed Awards in which case the amount above shall be reduced by the aggregate amount received by the individuals pursuant to the Scheme for the BPP Shares they receive pursuant to the Postponed Awards.
8.7 Apollo agrees that BPP may pay to certain individuals an aggregate amount not exceeding £372,844 by way of 2,400,000 share options to purchase CDC common sharespartial payment in respect of their annual bonuses for the financial year ending 31 December 2009. For the avoidance of doubt, $0.00025 par value oper share (the “Shares”) under the 1999 Stock Option Plan (“Existing Options”). All balance of such Options have been subject annual bonuses (if any) will become payable to Board-approved cancellation such individuals in due course in accordance with their terms and regrants effective, respectively, on August 18, 2008 and November 26, 2008, pursuant to which such Options are now deemed to be granted to APOL with an exercise price of US$0.87 per Option, BPP acknowledges that the closing price payment of the Shares on November 26sum set out in this clause 8.7 is not confirmation that any further payment will be made in respect of such annual bonuses.
8.8 To the extent possible, 2008Awards shall be satisfied, the effective date of APOL’s acceptance of the latest cancellation and regrant. In addition prior to the foregoingScheme Record Time, APOL has been granted an additional one-time award on by means of appointment or transfer of beneficial ownership in BPP Shares held by the Effective Date of additional options to purchase 900,000 Shares (the “New Options”) under the 1999 Stock Option Plan at an exercise price of $1.29 per common shareTrustee, failing which options shall vest in equal quarterly installments over an eighteen (18) month period from treasury shares or, following the Effective Date, new issue BPP Shares shall be used. Any BPP Shares held by the Trustee as at the Scheme Record Time will be Scheme Shares.
5.2 The Existing Options 8.9 Apollo and BPP agree that BPP shareholders will be asked at the New Options shall vest over General Meeting to pass a special resolution to amend the course articles of association of BPP by the Term according adoption and inclusion of a new article under which any BPP Shares issued or transferred to a vesting schedule as set forth in Schedule 2; provided that, notwithstanding anything herein Award Holders after the Scheme Record Time would be automatically transferred to the contrary: (a) the Executive remains at CDC Corporation to provide the Services on the day vesting of the relevant portion of those Options takes place and (b) this Agreement has not otherwise been terminated. Except as otherwise provided in this Clause 5, the Existing Options and the New Options shall be subject to the terms and conditions of the 1999 Stock Option Plan. Details regarding the Existing Options and New Options are set forth on Schedule 2 hereto.
5.3 In addition to the Existing Options and the New Options, APOL has also been granted (a) 2,000,000 share options; and (b) 399,999 share options (collectively “Contingent Options”), as set forth in the option award agreement(s) which allow APOL to purchase Apollo for the same number of CDC Corporation’s Shares. These 2,399,999 Contingent Options have been subject to Board-approved cancellation and regrants effective, respectively, on August 18 2008 and November 26, 2008, pursuant to which such Options are now deemed to be granted to APOL on amount payable under the Effective Date with an exercise price of US$0.87 per Contingent Option, the closing price of the Shares on November 26, 2008, the effective date of APOL’s acceptance of the latest cancellation and regrant.
5.4 The Contingent Option shall vest in accordance with Schedule 3 hereof; provided that: Scheme (a) the Executive remains at CDC Corporation to provide the Services on the day vesting of the Contingent Options takes place and (b) this Agreement has not otherwise been terminated. Except as otherwise provided in this Clause 5, the Contingent Options granted shall be subject to the terms and conditions of the 1999 Stock Option Plan. Details regarding the Contingent Options are set forth on Schedule 3 hereto.
(a) If this Agreement is terminated other than pursuant to Clauses 12.1, 12.2, 12.4 or 12.5 hereof, provided that the Executive executes new article will permit the Award Holder to transfer them first to a written release, in favour of the Company and its Associated Companies, of any and all claims spouse or potential claims, suits, liabilities or any other obligations that are or may be asserted by or owed to, Executive, APOL or any affiliate thereof, then the Company shall cause the Executive’s Options to accelerate and fully vest. In the event of such termination other than pursuant to Clause 12.1 and 12.2 of this Agreement, the Executive shall have a reasonable period of time not in excess of ninety (90) days following such termination to exercise the Executive’s Options that had vested as of the date of terminationcivil partner).
(b) Notwithstanding 8.10 Apollo agrees to indemnify the matters set out holders of ▇▇▇▇ Options granted in the forgoing sub2007 and/or 2008 on a grossed-clause (a), if under Clauses 12.4 or 12.5 hereof the Executive is terminated or initiates the termination up basis against any income tax for which they become liable as a result of a death or disability exercising options under the ▇▇▇▇ Scheme up to an aggregate maximum value in respect of all such option holders of £350,000, provided that is tangibly related (and to the performance extent that) the giving of such indemnity does not cause the income tax relief which may be available in respect of options granted under the ▇▇▇▇ Scheme to be lost and provided that (and to the extent that) such indemnity will not be in breach of the duties by the Executive for the Company hereunder, the Company shall cause the Executive’s Options to accelerate and fully vest and the Executive or his successors or assigns, as the case may be, shall have up to one year following such termination to exercise the Executive’s OptionsCode.
(c) 8.11 For avoidance of doubt if under Clauses 12.4 or 12.5 hereof the Executive is terminated or initiates the termination as a result of a death or disability that is NOT related to the performance of the duties by the Executive for the Company hereunder, the Executive’s Options shall not accelerate but the Executive or his successors or assigns, as the case may be, shall have up to one year following such termination to exercise the Executive’s Options that had vested as of the date of termination.
(d) To the extent any provision in the forgoing sub-clauses (a), (b) and (c) relates to any time period during which the Options may become exercisable, the same provision shall also apply to the Contingent Options such that they shall be subject to the same time period during which they may become exercisable. For avoidance of doubt, to should the extent any provision in the forgoing sub-clauses (a), (b) and (c) relates to acceleration acquisition proceed by way of vesting a takeover offer rather than a scheme of the Optionsarrangement, the same shall NOT apply to the Contingent Options.
5.6 If there is a Change of Control and within one year from the Change of Control date, the Company (or its successor) terminates the Services provided by APOL for any reason other than in accordance with Clause 12 hereof, as of the date of termination (the “Termination Date”), all unexercised Options and Contingent Options held by APOL shall immediately vest and APOL shall have the right to exercise such Options and Contingent Options on and as of the Termination Date; provided that this Clause 5.6 shall not apply if a Change of Control shall have occurred and the services of APOL with respect to the Services provided by the Executive are retained and the Executive remains in good standing with CDC Corporation (or its successor) during the one year from the Change of Control date, in which case, Clause 5.7 hereof shall apply.
5.7 If there is a Change of Control and the Services provided by APOL with respect to the services provided by the Executive are retained and the Executive remains in good standing with the Company (or its successor), then at the one year anniversary date of the Change of Control date (the “Anniversary Date”), all unexercised Options and Contingent Options held by APOL shall immediately vest and APOL shall have the right to exercise such Options and Contingent Options as of the Anniversary Date up to the last day upon which the Services of APOL with respect to the services provided by the Executive are in effect whether pursuant to this Agreement or a successor agreement; provided that during the course of the one year period prior to the Anniversary Date, APOL’s Options and Contingent Options shall vest in accordance with the vesting schedule as set forth in the APOL option award agreement(s).
5.8 The Parties agree that except as provided for in the CEO Options Transfer Agreement or otherwise pursuant to the prior written consent of the Company, APOL will not sell, offer to sell, contact to sell, grant any option to purchase or otherwise dispose of any Options (whether vested or unvested) or any Contingent Options, or any securities convertible into exercisable or exchangeable for such Options (whether vested or unvested) or Contingent Options, including the Company’s Shares, or in any other manner transfer all or a portion of the economic consequences associated with the ownership of any such Options (whether vested or unvested) or any Contingent Options during the term provisions of this Agreementclause 8 shall apply mutatis mutandis.
5.9 Any award of options under this Agreement shall not affect the accrued rights of the Executive in relation to other options on the securities of CDC Corporation or any Associated Company held by the Executive and or APOL.
Appears in 1 contract
Share Options. 5.1 Previously, and subject Subject to the provisions of this Clause 5, the Executive and/or APOL have been shall be granted under the Agreement dated a total of April 12, 2006 an aggregate of 2,400,000 800,000 share options to purchase CDC common shares, $0.00025 par value oper share (the “Shares”) under the 1999 Stock Option Plan (“Existing "Options”") as set forth in the option award agreement to purchase an equivalent number of the Company's Class A Common Shares, par value US$0.00025 (the "Shares"). All of such Such Options have been subject to Board-approved cancellation and regrants effective, respectively, on August 18, 2008 and November 26, 2008, pursuant to which such Options are now deemed to shall be granted in three tranches. The first tranche of 300,000 Options were granted to APOL the Executive at such time as the Board ratified the Original Executive Services Agreement with an exercise price of US$0.87 7.77 per Option, the closing price fair market value of the Shares on November 26, 2008, the effective date of APOL’s acceptance such ratification. The second tranche of an additional 250,000 Options will be granted to the Executive on the first anniversary of the latest cancellation and regrant. In addition to the foregoing, APOL has been granted an additional one-time award on the Effective Appointment Date of additional options to purchase 900,000 Shares (the “New Options”) under the 1999 Stock Option Plan at an exercise price equal to the higher of $1.29 per common share, which options shall vest in (i) Average Trading Price and (ii) the fair market value of the Shares on such date. The third tranche of the remaining 250,000 Options will be granted to the Executive on the second anniversary of the Appointment Date at an exercise price equal quarterly installments over an eighteen to the higher of (18i) month period from the Effective Date.Average Trading Price and (ii) the fair market value of the Shares on such date
5.2 The Existing Options and the New Options granted under Clause 5.1 shall vest over the course of the Initial Term according to a vesting schedule as set forth in Schedule 2; provided that, notwithstanding anything herein to the contrary: (a) the Executive remains at CDC Corporation the Company to provide the Services on the day the vesting of the relevant portion of those Options takes place and (b) this Agreement has not otherwise been terminated. Except as otherwise provided in this Clause 5, the Existing Options and the New Options shall be subject to the terms and conditions of the 1999 Stock Option Plan. Details regarding the Existing Options and New Options are set forth on Schedule 2 hereto.
5.3 In addition to the Existing Options and the New Options, APOL has also been granted (a) 2,000,000 share options; and (b) 399,999 share options (collectively “Contingent Options”), as set forth in the option award agreement(s) which allow APOL to purchase the same number of CDC Corporation’s Shares. These 2,399,999 Contingent Options have been subject to Board-approved cancellation and regrants effective, respectively, on August 18 2008 and November 26, 2008, pursuant to which such Options are now deemed to be granted to APOL on the Effective Date with an exercise price of US$0.87 per Contingent Option, the closing price of the Shares on November 26, 2008, the effective date of APOL’s acceptance of the latest cancellation and regrant.
5.4 The Contingent Option shall vest in accordance with Schedule 3 hereof; provided that: (a) the Executive remains at CDC Corporation to provide the Services on the day vesting of the Contingent Options takes place and (b) this Agreement has not otherwise been terminated. Except as otherwise provided in this Clause 5, the Contingent Options granted shall be subject to the terms and conditions of the 1999 Stock Option Plan. Details regarding the Contingent Options are set forth on Schedule 3 hereto.
(a) 5.3 If this Agreement the Executive is terminated other than pursuant to Clauses Clause 12.1, 12.212.3, 12.4 or 12.5 hereofof this Agreement, provided that the Executive executes a written release, release in favour favor of the Company and its Associated Companiesaffiliates, of any and all claims or potential claims, suits, liabilities or any other obligations that are or may be asserted by or owed to, Executive, APOL or any affiliate thereof, then the Company shall cause the Executive’s 's Options to accelerate and fully vest. In the event of such termination other than pursuant to Clause 12.1 and 12.2 of this Agreement, the Executive shall have a reasonable period of time not in excess of ninety (90) days following such termination to exercise the Executive’s Options that had vested as of 's Options, such period to be not less than ninety (90) days following the date the Board determines the Executive is no longer in possession of termination.
(b) material non-public information such that the Executive may freely exercise the Options in compliance with the Company's ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy and applicable law. Notwithstanding the matters set out in the forgoing sub-clause (a)above, if under Clauses 12.3, 12.4 or 12.5 hereof the Executive is terminated or initiates the termination as a result of a death or disability that is tangibly related to the performance of the duties by the Executive for the Company hereunder, the Company shall cause the Executive’s 's Options to accelerate and fully vest and the Executive or his successors or assigns, as the case may be, shall have up to one year following such termination to exercise the Executive’s 's Options.
(c) . For avoidance of doubt if under Clauses 12.3, 12.4 or 12.5 hereof the Executive is terminated or initiates the termination as a result of a death or disability that is NOT tangibly related to the performance of the duties by the Executive for the Company hereunder, the Executive’s 's Options shall not accelerate but the Executive or his successors or assigns, as the case may be, shall have up to one year following such termination to exercise the Executive’s 's Options that had vested as of the date of termination.
(d) To the extent any provision in the forgoing sub-clauses (a)5.4 The Executive agrees that, (b) and (c) relates to any time period during which the Options may become exercisable, the same provision shall also apply to the Contingent Options such that they shall be subject to the same time period during which they may become exercisable. For avoidance of doubt, to the extent any provision in the forgoing sub-clauses (a), (b) and (c) relates to acceleration of vesting of the Options, the same shall NOT apply to the Contingent Options.
5.6 If there is a Change of Control and within one year from the Change of Control date, the Company (or its successor) terminates the Services provided by APOL for any reason other than in accordance with Clause 12 hereof, as of the date of termination (the “Termination Date”), all unexercised Options and Contingent Options held by APOL shall immediately vest and APOL shall have the right to exercise such Options and Contingent Options on and as of the Termination Date; provided that this Clause 5.6 shall not apply if a Change of Control shall have occurred and the services of APOL with respect to the Services provided by the Executive are retained and the Executive remains in good standing with CDC Corporation (or its successor) during the one year from the Change of Control date, in which case, Clause 5.7 hereof shall apply.
5.7 If there is a Change of Control and the Services provided by APOL with respect to the services provided by the Executive are retained and the Executive remains in good standing with the Company (or its successor), then at the one year anniversary date of the Change of Control date (the “Anniversary Date”), all unexercised Options and Contingent Options held by APOL shall immediately vest and APOL shall have the right to exercise such Options and Contingent Options as of the Anniversary Date up to the last day upon which the Services of APOL with respect to the services provided by the Executive are in effect whether pursuant to this Agreement or a successor agreement; provided that during the course of the one year period prior to the Anniversary Date, APOL’s Options and Contingent Options shall vest in accordance with the vesting schedule as set forth in the APOL option award agreement(s).
5.8 The Parties agree that except as provided for in the CEO Options Transfer Agreement or otherwise pursuant to without the prior written consent of the Company, APOL the Executive will not sell, offer to sell, contact contract to sell, grant any option to purchase or otherwise dispose of any Options (whether vested or unvested) or any Contingent Options), or any securities convertible into into, exercisable or exchangeable for such Options (whether vested or unvested) or Contingent Options), including the Company’s Shares, or in any other manner transfer all or a portion of the economic consequences associated with the ownership of any such Options Option (whether vested or unvested) until the expiration of the "Option Term" which shall be the earlier of (A) the end of the Initial Term (and any subsequent renewals thereof) or any Contingent Options during the term (B) termination of this Agreement.
5.9 Any award ; provided, however, that the provisions of options under this Agreement Clause 5.4 shall not affect apply to the accrued rights sale of the Executive Shares received upon exercise of such Options in relation order to other options on the securities of CDC Corporation or satisfy any Associated Company held tax liability associated with a disposal permitted by the Executive and or APOLthis Clause 5.
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Share Options. 5.1 Previously, and subject Subject to the provisions of this Clause 5, Executive and/or APOL have been shall be granted under the Agreement dated of April 12, 2006 an aggregate of 2,400,000 share options to purchase CDC common shares, $0.00025 par value oper share (the “Shares”) under the 1999 Stock Option Plan (“Existing Options”) as set forth in the option award agreement which allows APOL to purchase an equivalent number of CDC Corporation’s Class A Common Shares, par value US$0.00025 (the “Shares”). All of such Such Options have been subject to Board-approved cancellation and regrants effective, respectively, on August 18, 2008 and November 26, 2008, pursuant to which such Options are now shall be deemed to be granted to APOL on the Appointment Date with an exercise price of US$0.87 3.99 per Option, the closing price of the Shares on November 26, 2008, the effective date of APOL’s acceptance of day before the latest cancellation and regrant. In addition to the foregoing, APOL has been granted an additional one-time award on the Effective Date of additional options to purchase 900,000 Shares (the “New Options”) under the 1999 Stock Option Plan at an exercise price of $1.29 per common share, which options shall vest in equal quarterly installments over an eighteen (18) month period from the Effective Appointment Date.
5.2 The Existing Options and the New Options granted under Clause 5.1 shall vest over the course of the Initial Term according to a vesting schedule as set forth in Schedule 2; provided that, notwithstanding anything herein to the contrary: (a) the Executive remains at CDC Corporation to provide the Services on the day vesting of the relevant portion of those Options takes place and (b) this Agreement has not otherwise been terminated. Except as otherwise provided in this Clause 5, the Existing Options and the New Options granted shall be subject to the terms and conditions of the 1999 Stock Option Plan. Details regarding the Existing Options and New Options are set forth on Schedule 2 hereto.
5.3 In addition to the Existing Options and granted under Clause 5.1, under the New Options, 1999 Stock Option Plan APOL has shall also been be granted (a) 2,000,000 share options; and (b) 399,999 share options (collectively “Contingent Options”), as set forth in the option award agreement(s) which allow APOL to purchase the same number of CDC Corporation’s Shares. These 2,399,999 Contingent Options have been subject to Board-approved cancellation and regrants effective, respectively, on August 18 2008 and November 26, 2008, pursuant to which such Options are now shall be deemed to be granted to APOL on the Effective Appointment Date with an exercise price of US$0.87 3.99 per Contingent Option, the closing price of the Shares on November 26, 2008, the effective date of APOL’s acceptance of day before the latest cancellation and regrantAppointment Date.
5.4 The Of the 2,000,000 Contingent Option Options granted under Clause 5.3(a), 500,000 shall vest in APOL upon the occurrence of an Event as more particularly described in Schedule 3 and in accordance with that Schedule 3; and of the 399,999 Contingent Options granted under Clause 5.3(b), 133,333 shall vest upon the occurrence of an Event as more particularly described in Schedule 3 hereofand in accordance with that Schedule 3; provided that: (a) the Executive remains at CDC Corporation to provide the Services on the day vesting of the Contingent Options takes place and (b) this Agreement has not otherwise been terminated. Except as otherwise provided in this Clause 5, the Contingent Options granted shall be subject to the terms and conditions of the 1999 Stock Option Plan. Details regarding the Contingent Options are set forth on Schedule 3 hereto.
(a) If this Agreement is terminated other than pursuant to Clauses 12.1, 12.2, 12.4 or 12.5 hereof, provided that the Executive executes a written release, release in favour of the Company and its Associated Companies, of any and all claims or potential claims, suits, liabilities or any other obligations that are or may be asserted by or owed to, Executive, APOL or any affiliate thereof, then the Company shall cause the Executive’s Options to accelerate and fully vest. In the event of such termination other than pursuant to Clause 12.1 and 12.2 of this Agreement, the Executive shall have a reasonable period of time not in excess of ninety (90) days following such termination to exercise the Executive’s Options that had vested as of the date of termination, such period to be not less than ninety (90) days following the date the Board determines the Executive is no longer in possession of material non-public information such that the Executive may freely exercise the Options in compliance with the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy and applicable law.
(b) Notwithstanding the matters set out in the forgoing sub-clause (a), if under Clauses 12.4 or 12.5 hereof the Executive is terminated or initiates the termination as a result of a death or disability that is tangibly related to the performance of the duties by the Executive for the Company hereunder, the Company shall cause the Executive’s Options to accelerate and fully vest and the Executive or his successors or assigns, as the case may be, shall have up to one year following such termination to exercise the Executive’s Options.
(c) For avoidance of doubt if under Clauses 12.4 or 12.5 hereof the Executive is terminated or initiates the termination as a result of a death or disability that is NOT tangibly related to the performance of the duties by the Executive for the Company hereunder, the Executive’s Options shall not accelerate but the Executive or his successors or assigns, as the case may be, shall have up to one year following such termination to exercise the Executive’s Options that had vested as of the date of termination.
(d) To the extent any provision in the forgoing sub-clauses (a), (b) and (c) relates to any time period during which the Options may become exercisable, the same provision shall also apply to the Contingent Options such that they shall be subject to the same time period during which they may become exercisable. For avoidance of doubt, to the extent any provision in the forgoing sub-clauses (a), (b) and (c) relates to acceleration of vesting of the Options, the same shall NOT not apply to the Contingent Options.
5.6 If there is a Change of Control and within one year from the Change of Control date, the Company (or its successor) terminates the Services provided by APOL for any reason other than in accordance with Clause 12 hereof, as of the date of termination (the “Termination Date”), all unexercised Options and Contingent Options held by APOL shall immediately vest and APOL shall have the right to exercise such Options and Contingent Options on and as of the Termination Date; provided that this Clause 5.6 shall not apply if a Change of Control shall have occurred and the services of APOL with respect to the Services provided by the Executive are retained and the Executive remains in good standing with CDC Corporation (or its successor) during the one year from the Change of Control date, in which case, Clause 5.7 hereof shall apply.
5.7 If there is a Change of Control and the Services provided by APOL with respect to the services provided by the Executive are retained and the Executive remains in good standing with the Company (or its successor), then at the one year anniversary date of the Change of Control date (the “Anniversary Date”), all unexercised Options and Contingent Options held by APOL shall immediately vest and APOL shall have the right to exercise such Options and Contingent Options as of the Anniversary Date up to the last day upon which the Services of APOL with respect to the services provided by the Executive are in effect whether pursuant to this Agreement or a successor agreement; provided that during the course of the one year period prior to the Anniversary Date, APOL’s Options and Contingent Options shall vest in accordance with the vesting schedule as set forth in the APOL option award agreement(s).
5.8 The Parties agree that except as provided for in the CEO Options Transfer Agreement or otherwise pursuant to the prior written consent of the Company, APOL will not sell, offer to sell, contact to sell, grant any option to purchase or otherwise dispose of any Options (whether vested or unvested) or any Contingent Options, or any securities convertible into exercisable or exchangeable for such Options (whether vested or unvested) or Contingent Options, including the Company’s Shares, or in any other manner transfer all or a portion of the economic consequences associated with the ownership of any such Options (whether vested or unvested) or any Contingent Options during the term of this Agreement. .
5.9 Any award of options under this Agreement shall not affect the accrued rights of the Executive in relation to other options on the securities of CDC Corporation or any Associated Company held by the Executive and or APOL.
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