EXHIBIT 4.6
EMPLOYMENT AGREEMENT
This Employment Agreement, dated October 1, 2004, is between Linktone
Ltd., a Cayman Islands exempted company (the "Company") and XIN YE
("Executive").
1. POSITION AND RESPONSIBILITIES
1.1 POSITION. Executive is employed by the Company to render services to
the Company in the position of Chief Technology Officer. Executive 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 Executive by the Company. Executive shall abide by the
rules, regulations, and practices as adopted or modified from time to time in
the Company's sole discretion.
1.2 OTHER ACTIVITIES. Executive shall devote his/her full business time,
attention and skill to perform any assigned duties, services and
responsibilities while employed by the Company, for the furtherance of the
Company's business, in a diligent, loyal and conscientious manner. Except upon
the prior written consent of the Company, Executive will not, during the term of
this Agreement, (i) accept any other employment, or (ii) engage, directly or
indirectly, in any other business activity (whether or not pursued for pecuniary
advantage) that might interfere with Executive's duties and responsibilities
hereunder or create a conflict of interest with the Company.
1.3 NO CONFLICT. Executive represents and warrants that Executive's
execution of this Agreement, Executive's employment with the Company, and the
performance of Executive's proposed duties under this Agreement shall not
violate any obligations Executive may have to any other employer, person or
entity, including any obligations with respect to proprietary or confidential
information of any other person or entity.
2. COMPENSATION AND BENEFITS
2.1 CASH COMPENSATION. During the term of this Agreement, as compensation
for services hereunder and subject to the performance of his obligations
hereunder, the Executive shall be paid the cash compensation (the "Cash
Compensation"), which consists of the following:
i. Base Salary: base salary in the amount of RMB 1,324,800 (which is
equivalent as of the date hereof to One Hundred and Sixty Thousand U.S. Dollars
(US$160,000)) payable in twelve monthly installments ("Monthly Base Salary") and
pro rated for the number of days actually worked by Executive in any month in
which the termination of the employment occurs;
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ii. Annual Performance Incentive Cash Bonus: an annual performance
incentive cash bonus, payable on or before April 30 of the following calendar
year, subject to the Executive's achievement of the annual performance targets
set forth in Exhibit A hereto ("Performance Targets"), such performance as
verified and approved by the compensation committee (the "Compensation
Committee") of the board of directors of the Company (the "Board") in accordance
with Section 2.7 and the formula set forth below, with the Target Variable of
RMB 496,800 (which is equivalent as of the date hereof to Sixty Thousand US
Dollars (US$60,000)) for the calendar year 2004:
Percentage of Target
Percentage of Achievement of Performance Targets Variable Payable
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Between 80% and 100% (Exclusive) 50%
100% or above 100%
The Executive is not entitled to any annual incentive cash bonus mentioned
above unless he has been employed by the Company for the full calendar year.
iii. One-time bonus: a one-time bonus in the amount of RMB 248,400 [(which
is equivalent as of the date hereof to Thirty Thousand US Dollars (US$30,000))
payable by the Company in lump sum to the Executive in the fourth quarter of
2004 or any other date as determined by the Company at its discretion.
The Cash Compensation shall be payable in RMB. The Executive may elect, at
his own foreign exchange risk and expense, to receive a percentage of such Cash
Compensation in foreign currencies, under which circumstances the Company will
pay such amount in the foreign currencies as designated by the Executive at the
exchange rate made available to the Company by any financial institution
selected by the Company which provides foreign currency exchange services for
the Company.
2.2 BENEFITS. During the terms of the employment under this Agreement, as
compensation for services hereunder, the Executive shall be entitled to the
following benefits ("Benefits") as follows:
i. Housing Allowance: housing allowance in the aggregate amount of up to
RMB 20,700 (which is equivalent as of the date hereof to Two Thousand Five
Hundred US Dollars (US$2,500)) per month.
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ii. Insurance: health and life insurance providing international standard
coverage as determined by the Compensation Committee after consultation with the
Executive, with insurance premiums per individual family member in the amount of
up to RMB 41,400 (which is equivalent as of the date hereof to Five Thousand US
Dollars (US$5,000)) per year.
iii. Education Reimbursement: reimbursement of education cost incurred for
child living in China, up to RMB 124,200 (which is equivalent to as of the date
hereof Fifteen Thousand US Dollars (US$15,000)) per child per year through
secondary school.
iv. Company Car: use of car (Buick sedan class) and driver as provided by
the Company.
v. Travel Allowance: business class air fare for spouse accompanying
Executive on one overseas business trip per year.
vi. Tax Advisory Services: reimbursement for actual tax advisory service
fees incurred, up to RMB 11,600 (which is equivalent to as of the date hereof
One Thousand Four Hundred US Dollars (US$1,400)) per year.
All reimbursements will be paid subject to Executive's delivery of actual
expense receipts/invoices documenting the relevant reimbursement requested.
2.3 INDIVIDUAL INCOME TAX. The Executive shall be responsible for paying
his own individual income tax in respect of the compensation received hereunder,
and Executive will certify in writing annually to the Board that he has
accurately reported and timely paid all income tax due in connection with such
compensation. The Company will make all required tax and statutory withholdings
according to the PRC taxation laws and the tax amount will be deducted from the
Executive's Monthly Base Salary, which deduction Executive hereby consents to.
2.4 ANNUAL LEAVE. The Executive shall be entitled to four weeks of annual
leave with pay during each calendar year of the Employment Term, which must be
taken in accordance with the Company's vacation policy then in effect.
2.5 TRAVEL EXPENSES REIMBURSEMENT. The Company shall pay or reimburse the
Executive for reasonable business expenses actually incurred or paid by the
Executive during the Employment Term, in the performance of his services
hereunder.
2.6 EMPLOYEE STOCK OPTION AWARD. The Company has granted to Executive a
qualified stock options, LT-2003-11-01-03-L362 and LT2003-072104-L362, under the
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Company's 2003 Stock Incentive Plan , the latter which stock option has the key
terms set forth in Exhibit B which is attached hereto.
2.7 ANNUAL REVIEW. The terms of the compensation package provided under
this Agreement and the Executive's recommendations in connection therewith shall
be reviewed by the Compensation Committee and/or the Board from time to time. At
a minimum, the Company's Compensation Committee will review in the second
quarter of each calendar year or at such other time as the Company and Executive
shall agree, (a) the compensation package of the Executive, including approval
of the annual performance incentive cash bonus payable, if any, based on
achievement of the prior calendar year's Performance Targets and (b) the
approval of Performance Targets (with specific qualitative and quantitative
performance factors) and Target Variable for determining the annual incentive
bonus payouts for the current calendar year. Except for agreed changes, if any,
pursuant to clause (b) of the preceding sentence, any amendment agreed upon by
the Board or the Compensation Committee and the Executive to the terms of the
Executive's compensation package will not be retroactive and shall take effect
from the time such amendment is made. The parties hereto agree that, as a
general principle, amendments to the compensation package of the Executive shall
not be made to, directly or indirectly, address changes in applicable law
(including tax laws) and other regulatory developments which affect the
Executive.
3. TERMINATION OF EMPLOYMENT
3.1 GENERAL.
3.1.1 COMPANY'S RIGHT TO TERMINATE. The Company shall have the right
to terminate the employment of the Executive at any time with or without
Cause, but the relative rights and obligations of the parties in the event
of any such termination or resignation shall be determined under this
Agreement.
3.1.2 EXECUTIVE'S RESIGNATION RIGHT. The Executive shall have the
right to resign for any reason with 30 days prior 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.
3.2 TERMINATION UNDER CERTAIN CIRCUMSTANCES.
3.2.1 TERMINATION FOR CAUSE. In the event the Company terminates the
Executive's employment for Cause, subject to the Executive's compliance
with Articles 5, 6 and 7, the Company will be obliged to pay only the
Standard Termination Entitlements as defined in Section 3.4, and the
Executive's right to exercise the Employee Stock
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Options described under Section 2.6 shall be determined pursuant to the
applicable stock option agreements and stock incentive plan governing such
options.
3.2.2 RESIGNATION FOR ANY REASON OTHER THAN GOOD REASON. In the
event the Executive resigns for any reason other than Good Reason, subject
to the Executive's compliance with Articles 5, 6 and 7:
i. the Company will be obliged to pay the Standard Termination
Entitlements as defined in Section 3.4 and
ii. a portion of the Employee Stock Options described under
Section 2.6 which are unvested on such date shall vest in
accordance with the option agreements (as amended) governing
those options.
3.2.3 TERMINATION WITHOUT CAUSE OR RESIGNATION FOR GOOD REASON.
Except in the event of a Change in Control or a Corporate Transaction, in
the event that the Company terminates the Executive's employment without
Cause or the Executive resigns for Good Reason, subject to the Executive's
compliance with Articles 5, 6 and 7:
i. the Company will be obligated to pay the Standard Termination
Entitlements as defined in Section 3.4 and the Severance
Benefits as defined in Section 3.4; provided that Executive's
eligibility for Severance Benefits is conditioned on Executive
having first signed a release certificate in the form attached
as Exhibit C, and
ii. a portion of the Employee Stock Options described under
Section 2.6 which are unvested on such date shall vest in
accordance with the option agreements (as amended) governing
those options.
3.2.4 TERMINATION UPON A CHANGE IN CONTROL. In the event of a Change
in Control or Corporate Transaction, the terms outlined in Article 4 shall
apply.
3.3 LIQUIDATED DAMAGES. The Company and Executive hereby stipulate that
the damages which may be incurred by the Executive as a consequence of any such
termination of employment are not capable of accurate measurement as of the date
of this Agreement and that the liquidated damages payments provided for in this
Agreement constitute a reasonable estimate under the circumstances of, and are
in full satisfaction of, all damages sustained as a consequence of any such
termination of employment.
3.4 DEFINITIONS.
"Cause" means (i) the Executive commits a crime involving dishonesty, breach of
trust, or physical harm to any person; (ii) the Executive willfully engages in
conduct that is in bad faith and materially injurious to the Company, including
but not limited to, misappropriation of trade
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secrets, fraud or embezzlement; (iii) the Executive commits a material breach of
this Agreement or the Proprietary Information Agreement (as defined below),
which breach is not cured within twenty (20) days after written notice to the
Executive from the Company; (iv) the Executive 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 the Executive from
the Company; or (v) the Executive engages in malfeasance demonstrated by a
pattern of failure to perform job duties diligently and professionally.
"Change in Control" means a change in ownership or control of the Company
effected through either of the following transactions: (i) the direct or
indirect acquisition by any person or related group of persons (other than an
acquisition from or by the Company or by a Company-sponsored Executive benefit
plan or by a person that directly or indirectly controls, is controlled by, or
is under common control with, the Company) of beneficial ownership (within the
meaning of Rule 13d-3 of the U.S. Securities Exchange Act of 1934, as amended,
the "Exchange Act") of securities possessing more than fifty percent (50%) of
the total combined voting power of the Company's outstanding securities pursuant
to a tender or exchange offer made directly to the Company's shareholders which
a majority of the Continuing Directors who are not Affiliates or Associates of
the offeror do not recommend such shareholders accept, or (ii) a change in the
composition of the Board over a period of thirty-six (36) months or less such
that a majority of the Board members (rounded up to the next whole number)
ceases, by reason of one or more contested elections for Board membership, to be
comprised of individuals who are Continuing Directors. The "Continuing
Directors" means members of the Board who either (i) have been Board members
continuously for a period of at least thirty-six (36) months or (ii) have been
Board members for less than thirty-six (36) months and were elected or nominated
for election as Board members by at least a majority of the Board members
described in clause (i) who were still in office at the time such election or
nomination was approved by the Board. "Associate" has the meaning ascribed to
such term in Rule 12b(2) promulgated under the Exchange Act. "Affiliate" in this
context means with respect to any Person directly or indirectly Controlling,
Controlled by, or under common Control with such Person. "Person" means 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) and Section 14(d)(2) of the Exchange Act).
"Control" (including the terms "Controlled by" and "under common Control with")
means 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.
"Corporate Transaction" means any of the following transactions: (i) a merger or
consolidation in which the Company is not the surviving entity, except for a
transaction the principal purpose of which is to change the state in which the
Company is incorporated; (ii) the sale, transfer or other disposition of all or
substantially all of the assets of the Company; (iii) the complete liquidation
or dissolution of the Company; (iv) any reverse merger or series of related
transactions culminating in a reverse merger (including, but not limited to, a
tender offer followed by a reverse merger) in which the Company is the surviving
entity but (A) the Ordinary Shares outstanding immediately prior to such merger
are converted or exchanged by virtue of the merger into other property, whether
in the form of securities, cash or otherwise, or (B) in which securities
possessing more than fifty percent (50%) of the total combined voting power of
the Company's outstanding securities are transferred to a person or persons
different from
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those who held such securities immediately prior to such merger or the initial
transaction culminating in such merger, but excluding any such transaction or
series of related transactions that the Administrator determines shall not be a
Corporate Transaction; or (v) acquisition in a single or series of related
transactions by any person or related group of persons (other than the Company
or by a Company-sponsored employee benefit plan) of beneficial ownership (within
the meaning of Rule 13d-3 of the Exchange Act) of securities possessing more
than fifty percent (50%) of the total combined voting power of the Company's
outstanding securities but excluding any such transaction or series of related
transactions that the Administrator determines shall not be a Corporate
Transaction. "Administrator" means the Compensation Committee or the Board who
administer the Employee Stock Options under applicable stock option agreements
or stock incentive plans or schemes. "Ordinary Shares" means the ordinary shares
of the Company.
"Employee Stock Options" shall be the right given by the Company to the
Executive on specific vesting dates during the employment term to purchase a
specific number of Ordinary Shares or other securities of the Company at a
specific exercise price, as set forth in Section 2.6, with more detailed terms
and conditions provided in the relevant employee stock option plan or scheme or
stock option award agreements thereunder.
"Employment Final Termination Date" means the date upon which the Executive's
employment with the Company ceases for any reason.
"Good Reason" in the context of the Executive's resignation is defined as (a) a
change in the Executive's position which materially reduces the Executive's
level of responsibilities, duties or stature; (b) a reduction in the Executive's
Monthly Base Salary or (c) a relocation of the Executive's principal place of
employment by more than 50 miles.
"Severance Benefits" means:
i. the payment of a lump sum amount equal to (i) three (3) plus
the total number of years between November 18, 2003 (the "Date
of Hire") and the Employment Final Termination Date,
multiplied by (ii) the Employee's Monthly Base Salary in
effect immediately prior to his termination of employment; if
the Employment Final Termination Date occurs six months or
more after an anniversary of the Date of Hire, such half-year
period after the anniversary shall be included in the number
of years referenced above (e.g., if the Employment Final
Termination Date is two years and ten months after the Date of
Hire, then the total number which the Employee's Monthly Base
Salary would be multiplied by for purposes of this subsection
would be 5.5); and
(1) for a period of six months after the Employee's termination of
employment, direct payment by the Company to the carrier of
the premiums due for any health insurance continuation
coverage elected by the Employee under the Company group
health plans pursuant to the Consolidated Budget
Reconciliation of 1985.
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"Standard Termination Entitlements" means and includes:
i. the Executive'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 his termination of
employment. This payment shall be made at the time and in the manner
prescribed by law applicable to the payment of compensation but in
no event later than 30 days after the date of the Executive's
termination of employment;
ii. the benefits, if any, due to the Executive (and the Executive's
estate, surviving dependents or his designated beneficiaries) under
the Executive benefit plans and programs and compensation plans and
programs (including stock option plans) maintained for the benefit
of the Executives of the Company; and
iii. all of the Executive's Employee Stock Options that have been deemed
to have vested at or prior to the Employment Final Termination Date
under the terms of applicable stock option agreements and stock
incentive plans.
4. CHANGE IN CONTROL/CORPORATE TRANSACTION.
4.1 SEVERANCE PAYMENT AMOUNT. If a Change in Control or Corporate
Transaction occurs and the Company terminates the Executive's employment without
Cause or the Executive resigns for Good Reason, then the Executive will be
entitled to (a) a payment equal to the greater of (x) 6 times the Monthly Base
Salary or (y) 12 months' Monthly Base Salary less any compensation paid to the
Executive during the period between the Change in Control or Corporate
Transaction and Employment Final Termination Date, and (b) subject to the
Executive's compliance with Articles 5, 6 and 7, the Standard Termination
Entitlements as defined in Section 3.4.1.
4.2 HEALTH AND LIFE INSURANCE BENEFITS. If a Change in Control or
Corporate Transaction occurs, then the Executive will be entitled to
Company-paid contributions for health and life insurance premiums for the
greater of six months or the number of months between the Employment Final
Termination Date and the first anniversary of the Change in Control or Corporate
Transaction.
4.3 SECTION 280G. In order to avoid the payment of excise tax imposed by
Section 4999 of the Internal Revenue Code of 1986 (the "Code"), the Company may
reduce the payments or benefits to the Executive (within the meaning of Section
280G(b)(2) of the Code). Such reduction may apply to cash payments, vesting
acceleration of Employee Stock Options and other benefits received by the
Executive, which could result in the acceleration of vesting of only a portion
or none of then unvested Employee Stock Options. In no event shall any payment
be made under this Agreement if it would result in an excess parachute payment
under section 280G of the Internal Revenue Code of 1986.
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5. INVENTIONS AND PROPRIETARY INFORMATION; PROHIBITION ON THIRD PARTY
INFORMATION
5.1 PROPRIETARY RIGHTS AND INFORMATION AGREEMENT. Executive agrees to sign
and be bound by the terms of the Proprietary Rights and Information Agreement,
which is attached as Exhibit D ("Proprietary Information Agreement").
5.2 NON-DISCLOSURE OF THIRD PARTY INFORMATION. Executive represents and
warrants and covenants that Executive shall not disclose to the Company, or use,
or induce the Company to use, any proprietary information or trade secrets of
others at any time, including but not limited to any proprietary information or
trade secrets of any former employer, if any; and Executive acknowledges and
agrees that any violation of this provision shall be grounds for Executive's
immediate termination and could subject Executive to substantial civil
liabilities and criminal penalties. Executive further specifically and expressly
acknowledges that no officer or other employee or representative of the Company
has requested or instructed Executive to disclose or use any such third party
proprietary information or trade secrets.
5.3 CERTIFICATE REGARDING CONFIDENTIAL AND TRADE SECRET INFORMATION.
Executive agrees to sign and be bound by the terms of the Certificate Regarding
Confidential and Trade Secret Information, which is attached as Exhibit E.
6. LIMITED AGREEMENT NOT TO COMPETE OR SOLICIT
6.1 NON-COMPETITION. Employee acknowledges that the Company's
relationships with its customers, clients, vendors, employees and other entities
are valuable business assets, and that there is a substantial likelihood that if
Employee directly compete with the Company, it would result in the unauthorized
use or disclosure of proprietary information or interfere with the Company's
relationship with its customers, clients, vendors, employees and other entities,
which use or disclosure of proprietary information would be extremely difficult
to detect or prove. Therefore, and in consideration for my employment with the
Company, Employee agrees that during the period of his employment with the
Company and for a period of 1 year after termination of his employment with
Company, he shall not, directly or indirectly engage or participate in the
development, marketing or distribution of wireless media, entertainment and
communication services in China in three major categories: personalized media,
games and entertainment, and information and communication.
6.2 NON-SOLICITATION. Employee acknowledges that because of his position
in the Company, he will have access to the Company's confidential information
and trade secrets. Employee agrees that during his employment with the Company
and for a period of 2 years after termination of his employment with the
Company, Employee shall not directly or indirectly, (i) divert or attempt to
divert from the Company (or any Affiliate) any business of any kind, including
without limitation the solicitation of or interference with any of its
customers, clients,
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members, business partners or suppliers or (ii) solicit, induce, recruit or
encourage any person employed by the Company to terminate his or her employment.
7. ARBITRATION
Executive agrees to sign and be bound by the terms of the Arbitration Agreement,
which is attached as Exhibit F.
8. AMENDMENTS; WAIVERS; REMEDIES
This Agreement may not be amended or waived except by a writing signed by
Executive and by a duly authorized representative of the Company. Failure to
exercise any right under this Agreement shall not constitute a waiver of such
right. Any waiver of any breach of this Agreement shall not operate as a waiver
of any subsequent breaches. All rights or remedies specified for a party herein
shall be cumulative and in addition to all other rights and remedies of the
party hereunder or under applicable law.
9. ASSIGNMENT; BINDING EFFECT
9.1 ASSIGNMENT. The performance of Executive is personal hereunder, and
Executive agrees that Executive shall have no right to assign and shall not
assign or purport to assign any rights or obligations under this Agreement. This
Agreement may be assigned or transferred by the Company; and nothing in this
Agreement shall prevent the consolidation, merger or sale of the Company or a
sale of any or all or substantially all of its assets.
9.2 BINDING EFFECT. Subject to the foregoing restriction on assignment by
Executive, this Agreement shall inure to the benefit of and be binding upon each
of the parties; the affiliates, officers, directors, agents, successors and
assigns of the Company; and the heirs, devisees, spouses, legal representatives
and successors of Executive.
10. NOTICES
Any notice under this Agreement must be in writing and addressed to the Company
or to Executive at the corresponding address below. Notices under this Agreement
shall be effective upon (a) hand delivery, when personally delivered; (b)
written verification of receipt, when delivered by overnight courier or
certified or registered mail; or (c) acknowledgment of receipt of electronic
transmission, when delivered via electronic mail or facsimile. Executive shall
be obligated to notify the Company in writing of any change in Executive's
address. Notice of change of address shall be effective only when done in
accordance with this paragraph.
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Company's Notice Address:
Linktone Ltd
▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇.,
▇▇▇▇▇▇▇▇ 200001, People's Republic of China
Executive's Notice Address:
Xin ▇▇
▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇.,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, People's Republic of China
11. SEVERABILITY
If any provision of this Agreement shall be held by a court or arbitrator to be
invalid, unenforceable, or void, such provision shall be enforced to the fullest
extent permitted by law, and the remainder of this Agreement shall remain in
full force and effect. In the event that the time period or scope of any
provision is declared by a court or arbitrator of competent jurisdiction to
exceed the maximum time period or scope that such court or arbitrator deems
enforceable, then such court or arbitrator shall reduce the time period or scope
to the maximum time period or scope permitted by law.
12. TAXES
All amounts paid under this Agreement (including without limitation Base Salary)
shall be reduced by all applicable state and federal tax withholdings and any
other withholdings required by any applicable jurisdiction.
13. GOVERNING LAW
The validity, interpretation, enforceability, and performance of this Agreement
shall be governed by and construed in accordance with the laws of the State of
New York, without regard to New York conflict of laws principles.
14. INTERPRETATION
This Agreement shall be construed as a whole, according to its fair meaning, and
not in favor of or against any party. Sections and section headings contained in
this Agreement are for reference purposes only, and shall not affect in any
manner the meaning or interpretation of this Agreement. Whenever the context
requires, references to the singular shall include the plural and the plural the
singular.
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15. OBLIGATIONS SURVIVE TERMINATION OF EMPLOYMENT
Executive agrees that any and all of Executive's obligations under this
agreement, including all the Exhibits, shall survive the termination of
employment and the termination of this Agreement.
16. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original of this Agreement, but all of which together shall
constitute one and the same instrument.
17. AUTHORITY
Each party represents and warrants that such party has the right, power and
authority to enter into and execute this Agreement and to perform and discharge
all of the obligations hereunder; and that this Agreement constitutes the valid
and legally binding agreement and obligation of such party and is enforceable in
accordance with its terms.
18. ENTIRE AGREEMENT
This Agreement (including the Exhibits attached hereto, which are incorporated
herein by reference) is the final, complete and exclusive agreement of the
parties with respect to the subject matter hereof and supersedes and merges all
prior or contemporaneous representations, discussions, proposals, negotiations,
conditions, communications and agreements, whether written or oral, between the
parties relating to the subject matter hereof and all past courses of dealing or
industry custom.
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EXECUTIVE ACKNOWLEDGES EXECUTIVE HAS HAD THE OPPORTUNITY TO CONSULT LEGAL
COUNSEL CONCERNING THIS AGREEMENT, THAT EXECUTIVE HAS READ AND UNDERSTANDS THE
AGREEMENT, THAT EXECUTIVE IS FULLY AWARE OF ITS LEGAL EFFECT, AND THAT EXECUTIVE
HAS ENTERED INTO IT FREELY BASED ON EXECUTIVE'S OWN JUDGMENT AND NOT ON ANY
REPRESENTATIONS OR PROMISES OTHER THAN THOSE CONTAINED IN THIS AGREEMENT.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date
first written above.
EMPLOYEE
By: /s/ Xin Ye
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Xin Ye
COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: CEO
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EXHIBIT A
2004 Annual Performance Targets
Financial Targets (representing 50% of the total annual target for the
Executive):
- Gross revenue and net income for fiscal year 2004 of at least US$56
million and US$16 million, respectively;
- The Company does not receive a sanction or service suspension from
China Mobile or China Unicom either (i) on a nationwide basis or
(ii) from one or more provinces or municipalities that are material
to the Company's business, as determined by the Company's
independent directors.
Non-Financial Targets (representing 50% of the total annual target of the
Executive):
- Leadership of the development and integration of a senior management
team that formulates and implements mid-term and long-term corporate
strategies, as discussed below. Such leadership includes at a
minimum:
- taking responsibility for the portions of the corporate strategies
which are applicable to the Executive's departments and
affirmatively working with other members of management to reach a
consensus on the appropriate strategies.
- Establishment and maintenance of a defined "Linktone culture" which
is focused on: (i) total compliance with all Company policies and
procedures (including, without limitation, the Company's Code of
Business Conduct, Amended and Restated Pre-clearance and Blackout
Policy and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Policy), and applicable laws, (ii)
teamwork in implementing the Company's corporate strategies at all
levels of the Company and (iii) striving to achieve a continuous
improvement in the Company's business, financial condition and
results of operations. The creation of this culture includes at a
minimum:
- setting a tone from the top regarding compliance with Company
policies and procedures and applicable law, which includes promptly
taking appropriate remedial measures against Executives who violate
the foregoing and reporting violations or suspected violations to
the Chief Executive Officer and/or the Board of Directors in a
timely manner; and
- ensuring that employees within the Executive's departments receive
periodic training on the foregoing and other issues applicable to
public companies under U.S. securities laws and Nasdaq rules.
- Develop specific mid-term and long-term corporate strategies with
other members of management which are extensively discussed with,
and approved by, the Board of Directors prior to implementation.
This includes at a minimum:
- regularly reporting to the Board of Directors on his understanding
of the strategies and how he will facilitate their implementation;
- maintaining the Company's wireless value-added services technology
platform so that service errors and service interruptions are
eliminated or minimized to the greatest extent possible. At a
minimum, the Executive must ensure that problems with the Company's
technology platform do not result in a cancellation of an agreement
with the national, provincial or local offices of China Mobile or
China Unicom, or an amendment to such agreements that adversely
affects the Company's financial condition and results of operations
(e.g., a reduction of the Company's revenue share percentage
resulting from service delivery errors due to the Company's
technology platform);
- materially and tangibly enhancing the scalability, reliability and
performance of the Company's technology platform, including at a
minimum, launching a new version (free of material defects and
operating in accordance with specifications approved by the Chief
Executive Officer) of the Company's user management system with
business intelligence functions to support customer research and
customer support departments;
- continually devoting resources to the development of new,
innovative products, including specifically live launches of new
IVRS products for the networks of China Unicom and local PHS mobile
operators in China;
- rolling out new products and services in accordance with the
milestones developed by the Chief Executive Officer, including the
following:
- enhanced WAP content management system which supports China
Unicom's WAP 2.0 system (to be launched in the stages and according
to the time frame in which China Unicom rolls out its system);
- enhanced WAP 2.0 system which supports China Mobile's WAP
2.0 system (to be launched in the stages and according to the time
frame in which China Mobile rolls out its system); and
- materially and tangibly enhancing the Company's websites,
with improved SMS, MMS and IVRS channels that allow users to
reliably and quickly access the Company's services and a user
management system; the Company's websites must have a minimum of [ ]
page views for the months of November and December 2004 in the
aggregate.
EXHIBIT B
Key Terms of New Stock Grant
Plan under Which Granted: 2003 Stock Incentive Plan
Grant Date: July 19, 2004
Vesting Commencement Date: July 19, 2004
Exercise Price per Ordinary Share: US$1.04
Total number of Ordinary Shares
subject to the Option: 100,000
Total Exercise Price: US$104,000
Expiration Date: July 18, 2014
Type of Option: Incentive
Post-Termination Exercise Period: Three months
Vesting Schedule: 25% of the Shares subject
to the Option shall vest twelve
months after the Vesting
Commencement Date, and 1/48 of the
Shares subject to the Option shall
vest on each monthly anniversary of
the Vesting Commencement Date
thereafter.
EXHIBIT C
Form of Release Certificate
______________ ("You") and Linktone Ltd. (the "Company") have agreed to
enter into this Release Certificate on the following terms:
Within ten (10) days after you sign this Release Certificate (which you
may sign no sooner than the last day of your employment with the Company), you
will become eligible to receive severance benefits in accordance with the terms
of your Employment Agreement dated [date] ("Agreement").
In return for the consideration described in the Agreement, you and your
representatives completely release Linktone Ltd., its affiliated, related,
parent or subsidiary corporations, and its and their present and former
directors, officers, and employees (the "Released Parties") from all claims of
any kind, known and unknown, which you may now have or have ever had against any
of them, or arising out of your relationship with any of them, including all
claims arising from your employment or the termination of your employment,
whether based on contract, tort, statute, local ordinance, regulation or any
comparable law in any jurisdiction ("Released Claims"). By way of example and
not in limitation, the Released Claims shall include any claims arising under
Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act,
the Worker Adjustment and Retraining Notification Act, the Age Discrimination in
Employment Act, and the New York Human Rights Law, or any comparable law of any
other jurisdiction or nation, as well as any claims asserting wrongful
termination, breach of contract, breach of the covenant of good faith and fair
dealing, negligent or intentional misrepresentation, and defamation and any
claims for attorneys' fees. You also agree not to initiate or cause to be
initiated against any of the Released Parties any lawsuit, compliance review,
administrative claim, investigation or proceedings of any kind which pertain in
any manner to the Released Claims.
You acknowledge that the release of claims under the Age Discrimination in
Employment Act ("ADEA") is subject to special waiver protection. Therefore, you
acknowledge the following: (a) you have had 21 days to consider this Release
Certificate (but may sign it at any time beforehand if you so desire); (b) you
can consult an attorney in doing so; (c) you can revoke this Release Certificate
within seven (7) days of signing it by sending a certified letter to that effect
to [name and address]; and that (d) notwithstanding the foregoing, the portion
of this Release Certificate that pertains to the release of claims under the
ADEA shall not become effective or enforceable and no funds shall be exchanged
until the 7-day revocation period has expired, but that all other provisions of
this Release Certificate will become effective upon its execution by the
parties.
The parties agree that this Release Certificate and the Agreement contain
all of our agreements and understandings with respect to their subject matter,
and may not be
contradicted by evidence of any prior or contemporaneous agreement, except to
the extent that the provisions of any such agreement have been expressly
referred to in this Release Certificate or the Agreement as having continued
effect. It is agreed that this Release Certificate shall be governed by the laws
of the State of New York. If any provision of this Release Certificate or its
application to any person, place, or circumstance is held by a court of
competent jurisdiction to be invalid, unenforceable, or void, the remainder of
this Release Certificate and such provision as applied to other person, places,
and circumstances will remain in full force and effect.
Please note that this Release Certificate may not be signed before the
last day of your employment with the Company, and that your eligibility for
severance benefits is conditioned upon meeting the terms set forth in the
Agreement.
_______________________________ Date: ___________________
[Employee]
_______________________________ Date: ___________________
[Company Signatory]
EXHIBIT D
PROPRIETARY RIGHTS AND INFORMATION AGREEMENT
In consideration of my employment by Linktone Ltd. (the "Company"),
I hereby agree to the following restrictions and obligations placed on my use
and development of information, technology, ideas, inventions and other
materials:
1. PROPRIETARY INFORMATION
a. RESTRICTIONS ON PROPRIETARY INFORMATION. I agree that, during my
employment and at all times thereafter, I will hold the Proprietary Information
of the Company in strict confidence and will neither use the information for the
benefit of myself or any other third party nor disclose it to anyone, except to
the extent necessary to carry out my responsibilities as an employee of the
Company or as specifically authorized in writing by a duly authorized officer of
the Company other than me. I understand that "Proprietary Information" means all
information pertaining in any manner to the business of the Company or its
affiliates, consultants, customers, business associates or members, unless (i)
the information is or becomes generally known to the public through lawful means
and through no fault of mine; (ii) the information was part of my general
knowledge prior to the initial disclosure of the information by the Company or
any person under a duty of confidentiality; or (iii) the information is
disclosed to me without restriction by a third party who rightfully possesses
the information and is under no duty of confidentiality. This definition of
"Proprietary Information" includes but is not limited to any and all (a)
technical or non-technical information, know-how, computer software (whether in
source code or object code form), programs, tools, data, research, designs,
drawings, diagrams, plans, specifications, trade secrets, inventions, concepts,
structures, improvements, products, patents pending, prototypes, processes,
formulas, algorithms, methods, techniques, hardware, devices, schematics, works
in process, systems, technologies or applications; (b) financial and other
information about costs, profits, markets, sales and pricing structures,
customers, subscribers, members, and bids; (c) plans, forecasts and strategies
for business, marketing, future development and new product concepts; and (d)
employee personnel files and information about employee compensation and
benefits; in any form and whether or not labeled or identified as confidential
or proprietary. I agree that I will have the burden of proving the applicability
of any of the foregoing exceptions.
b. LOCATION AND REPRODUCTION. I agree to maintain at my work station
and/or any other place under my control only such Proprietary Information as I
have a current "need to know." I agree to return to the appropriate person or
location or otherwise properly dispose of Proprietary Information once that need
to know no longer exists. I also agree that I will make copies and otherwise
reproduce Proprietary Information solely to the extent necessary to carry
out my responsibilities as an employee of the Company or as specifically
authorized by a duly authorized officer of the Company other than me.
c. PRIOR ACTIONS AND KNOWLEDGE. Except as disclosed on Schedule A to this
Agreement, I have no knowledge about the Company's business or Proprietary
Information, other than information I have learned from the Company in the
course of being hired and employed.
d. THIRD-PARTY INFORMATION. I recognize that the Company has received and
will receive confidential or proprietary information from third parties. I will
hold all such information in the strictest confidence and will not use the
information or disclose it to anyone (except as necessary in carrying out my
work for the Company consistent with the Company's agreement with such third
party).
e. NON-SOLICITATION. I acknowledge that because of my position in the
Company, I will have access to the Company's confidential information and trade
secrets. I agree that during my employment with the Company and for a period of
2 years after termination of my employment with the Company, I shall not
directly or indirectly (i) divert or attempt to divert from the Company (or any
affiliate) any business of any kind, including without limitation the
solicitation of or interference with any of its customers, clients, members,
business partners or suppliers or (ii) solicit, induce, recruit or encourage any
person employed by the Company to terminate his or her employment.
f. NON-COMPETITION. I acknowledge that the Company's relationships with
its customers, clients, vendors, employees and other entities are valuable
business assets, and that there is a substantial likelihood that if I directly
compete with the Company, it would result in the unauthorized use or disclosure
of Proprietary Information or interfere with the Company's relationship with its
customers, clients, vendors, employees and other entities, which use or
disclosure of Proprietary Information would be extremely difficult to detect or
prove. Therefore, and in consideration for my employment with the Company, I
agree that during the period of my employment with the Company and for a period
of 1 year after termination of my employment with Company, I shall not, directly
or indirectly engage or participate in the development, marketing or
distribution of wireless media, entertainment and communication services in
China in three major categories: personalized media, games and entertainment,
and information and communication. I acknowledge that a portion of the salary I
receive during my employment with the Company constitutes due consideration for
my obligations hereunder.
2. INNOVATIONS
a. INNOVATIONS. "Innovations" collectively means any and all ideas,
concepts, inventions, discoveries, developments, software, content, textual or
artistic works, video, graphics, sound recordings, know-how, structures,
designs, formulas, algorithms, methods, products, processes, systems and
technologies in any stage of development that are conceived, created, developed
or reduced to practice by me alone or with others; any and all patents, patents
pending, copyrights, moral rights, trademarks and any other intellectual
property rights therein; and any and all improvements, modifications, derivative
works from, other rights in and claims related to any of the foregoing under the
laws of any jurisdiction; except Innovations excluded in Schedule A.
b. OWNERSHIP OF INNOVATIONS. I hereby agree and acknowledge that all
Innovations shall be deemed to be "works made for hire" belonging to Company. To
the extent that any such Innovations, under applicable law, may not be
considered work made for hire by me for Company, or to the extent that such
Innovation is a patentable invention under Title 35 of the United States Code, I
agree to assign, and upon creation automatically assign, and transfer to the
Company, without further consideration, my entire right, title and interest
(throughout the United States and in all other countries or jurisdictions), free
and clear of all liens and encumbrances, in and to all Innovations, including
all intellectual property rights in such Innovations, as well as any extensions
and renewals thereof. Such assignment and transfer to the Company shall be
continuous during my employment as of the relevant time of development of each
such Innovation. The Company may, in its sole discretion, agree to provide
consideration for certain Innovations through a written agreement between the
Company and the undersigned which specifically provides for such consideration;
in all other cases, no consideration shall be paid. The Innovations shall be the
sole property of the Company, whether or not copyrightable or patentable or in a
commercial stage of development.
c. MORAL RIGHTS. To the extent allowed by law, this assignment of
Innovations includes all rights of paternity, integrity, disclosure and
withdrawal and any other rights that may be known as or referred to as "moral
rights," "artist's rights," or the like (collectively "Moral Rights"). To the
extent I retain any such Moral Rights under applicable law, I hereby ratify and
consent to any action that may be taken with respect to such Moral Rights by or
authorized by the Company and agree not to assert any Moral Rights with respect
thereto. I will confirm any such ratifications, consents and agreements from
time to time as requested by the Company.
d. LICENSE FOR OTHER INNOVATIONS. I agree not to incorporate into any
Company property any work or invention owned by me or in which I have an
interest without obtaining Company's prior written consent. If, after receiving
such consent, in the course of my
employment with the Company, I incorporate into Company property a work or
invention owned by me or in which I have an interest, I hereby grant to the
Company a worldwide, nonexclusive, royalty-free, irrevocable, perpetual,
transferable and sublicenseable (through multiple tiers) license to make, use,
import, offer for sale, sell, copy, distribute, publicly display, perform
publicly and by means of a digital audio transmission such work or invention as
part of and in connection with the Company property.
e. ASSIST WITH REGISTRATION AND PROTECTION. In the event any Innovation
shall be deemed by the Company to be copyrightable, patentable or otherwise
registrable, I will assist the Company (at its expense) in every way deemed
necessary or desirable by Company to protect the Innovations throughout the
world, including without limitation, performing acts necessary for obtaining,
maintaining and enforcing patent or other applicable registrations and vesting
the Company, or any of its affiliates, with full title. Should the Company be
unable to secure my signature on any document necessary to apply for, prosecute,
obtain, or enforce any patent, copyright, or other right or protection relating
to any Innovation, due to my incapacity or any other cause, I hereby irrevocably
designate and appoint the Company and each of its duly authorized officers and
agents as my agent and attorney-in-fact to do all lawfully permitted acts to
further the prosecution, issuance, and enforcement of patents, copyrights, or
other rights or protection with the same force and effect as if executed and
delivered by me.
f. DISCLOSURE. I agree to maintain current and adequate written records on
the development of all Innovations, and to disclose promptly to the Company all
such Innovations and records. I further agree to disclose promptly to the
Company any idea that I do not believe to be an Innovation, but which is
conceived, developed, or reduced to practice by me (alone or with others) while
I am employed by the Company, I will disclose the idea, along with all
information and records pertaining to the idea, and the Company will examine the
disclosure in confidence to determine if in fact it is an Innovation subject to
this Agreement.
3. FORMER OR CONFLICTING AGREEMENTS
a. FORMER AGREEMENTS. I represent and warrant that my performance of the
terms of this Agreement will not breach any agreement to keep in confidence
proprietary information acquired by me prior to my employment by the Company. I
have listed in Schedule A all other agreements concerning proprietary
information or inventions to which I am a party and attached copies of any
agreements in my possession. To the best of my knowledge, there is no other
contract between me and any other person or entity that is in conflict with this
Agreement or concerns proprietary information, inventions or assignment of
ideas.
b. PROHIBITION ON USE OF THIRD PARTY INFORMATION. I represent and warrant
and covenant that I will not disclose to the Company, or use, or induce the
Company to use, any proprietary information or trade secrets of others at any
time, including but not limited to any proprietary information or trade secrets
of any former employer, if any. I acknowledge and agree that any violation of
this provision shall be grounds for my immediate termination and could subject
me to substantial civil liabilities and criminal penalties. I further
specifically and expressly acknowledge that no officer or other employee or
representative of the Company has requested or instructed me to disclose or use
any such third party proprietary information or trade secrets.
4. TERMINATION
a. RETURN OF THE COMPANY'S PROPERTY. I agree to promptly return to the
Company upon termination of my employment all Proprietary Information, including
all tangible embodiments of such Proprietary Information in my possession, and
all personal property furnished to or prepared by me in the course of or
incident to my employment. Following my termination, I will not retain any
written or other tangible material containing any Proprietary Information or
information pertaining to any Innovation.
b. TERMINATION CERTIFICATE. In the event of the termination of my
employment, I agree, if requested by the Company, to sign and deliver the
Termination Certificate attached as Schedule B.
c. SUBSEQUENT EMPLOYERS. I agree that after the termination of my
employment with the Company, I will not enter into any agreement that conflicts
with my obligations under this Agreement and will inform any subsequent
employers of my obligations under this Agreement.
5. NO IMPLIED EMPLOYMENT RIGHTS
I recognize that nothing in this Agreement shall be construed to
imply that my employment is guaranteed for any period of time. Unless stated in
a written agreement signed by a duly authorized officer of the Company, my
employment is for an indefinite duration and at-will, and either the Company or
I can terminate our employment relationship at any time, without notice and for
any reason or no reason, with or without cause.
6. REMEDIES
I recognize that nothing in this Agreement is intended to limit any
remedy of the Company under any federal or state law concerning trade secrets. I
recognize that my violation of this Agreement could cause the Company
irreparable harm and agree that the Company shall have the right to apply to any
court of competent jurisdiction for an order restraining any breach or
threatened breach of this Agreement.
7. ASSIGNMENT
I acknowledge and agree that my performance is personal hereunder,
and that I shall have no right to assign and shall not assign or purport to
assign any rights or obligations under this Agreement. This Agreement may be
assigned or transferred by the Company. Subject to the foregoing restrictions on
assignment, this Agreement shall inure to the benefit of the Company and its
affiliates, officers, directors, agents, successors and assigns; and shall be
binding on me and my heirs, devisees, spouses, agents, legal representatives and
successors.
8. GOVERNING LAW AND ARBITRATION
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York without reference to conflicts of law
principles. Any dispute arising out of this Agreement that the Company and I
cannot settle amicably shall be resolved exclusively by arbitration before one
neutral arbitrator in the City of New York and administered by the American
Arbitration Association ("AAA") in accordance with its Employment Dispute
Arbitration Rules. The arbitrator shall be an attorney selected by mutual
agreement of the Company and me; however, if we cannot agree on the selection of
an arbitrator within fifteen (15) days following the delivery by either party to
the other of a demand for arbitration, the arbitrator shall be selected by or in
accordance with the Employment Dispute Arbitration Rules of the AAA.
9. SEVERABILITY
If any provision of this Agreement, or application thereof to any
person, place, or circumstance, shall be held by a court of competent
jurisdiction to be unenforceable, such provision shall be enforced to the
greatest extent permitted by law and the remainder of this Agreement shall
remain in full force and effect.
10. AMENDMENT; WAIVERS
This Agreement may not be amended or waived except by a writing
signed by me and by a duly authorized representative of the Company other than
me. Failure to exercise any right under this Agreement shall not constitute a
waiver of such right. Any waiver of any breach of this Agreement shall not
operate as a waiver of any subsequent breaches. All rights or
remedies specified for a party herein shall be cumulative and in addition to all
other rights and remedies of the party hereunder or under applicable law.
11. INTERPRETATION
This Agreement shall be construed as a whole, according to its fair
meaning, and not in favor of or against any party. Sections and section headings
contained in this Agreement are for reference purposes only, and shall not
affect in any manner the meaning of interpretation of this Agreement. Whenever
the context requires, references to the singular shall include the plural and
the plural the singular and any gender shall include any other gender.
12. ENTIRE AGREEMENT
The terms of this Agreement are the final expression of my agreement
with respect to the subject matter hereof and may not be contradicted by
evidence of any prior or contemporaneous agreement. This Agreement shall
constitute the complete and exclusive statement of its terms. I acknowledge that
the Company has not made any other representations or warranties concerning the
subject matter of this Agreement. The termination of any employment or other
agreement between the Company and me shall not terminate this Agreement and each
and all of the terms and conditions hereof shall survive and remain in full
force and effect.
I HEREBY ACKNOWLEDGE THAT I HAVE READ THIS AGREEMENT CAREFULLY AND
UNDERSTAND THE LEGAL EFFECT OF ITS TERMS. I HAVE HAD THE OPPORTUNITY TO CONSULT
WITH INDEPENDENT LEGAL COUNSEL AND AM ENTERING INTO THIS AGREEMENT FREELY BASED
ON MY OWN JUDGMENT. I HAVE COMPLETELY NOTED ON SCHEDULE A TO THIS AGREEMENT ANY
PROPRIETARY INFORMATION, INVENTIONS, IDEAS, PROCESSES, INNOVATIONS, TECHNOLOGY,
WRITINGS, PROGRAMS, DESIGNS, FORMULAS, DISCOVERIES, PATENTS, COPYRIGHTS, OR
TRADEMARKS, OR IMPROVEMENTS, RIGHTS, OR CLAIMS RELATING TO THE FOREGOING, THAT I
DESIRE TO EXCLUDE FROM THIS AGREEMENT.
Date: October 1, 2004
Xin Ye
Employee Name
/s/ Xin Ye
------------------
Employee Signature
SCHEDULE A
EMPLOYEE'S DISCLOSURE
1. PROPRIETARY INFORMATION. Except as set forth below, I acknowledge that at
this time I know nothing about the business or Proprietary Information of
Linktone Ltd. (the "Company"), other than information I have learned from
the Company in the course of being hired: _______________________________
_________________________________________________________________________
_________________________________________________________________________
2. PRIOR INNOVATIONS. Except as set forth below, there are no ideas,
concepts, inventions, discoveries, developments, know-how, structures,
designs, formulas, algorithms, methods, products, processes, systems and
technologies in any stage of development that are conceived, developed or
reduced to practice by me alone or with others; any patents, patents
pending, copyrights, moral rights, trademarks and any other intellectual
property rights therein; or any improvements, modifications, derivative
works from, other rights in and claims related to any of the foregoing
under the laws of any jurisdiction, that I wish to exclude from the
operation of this Agreement: ____________________________________________
_________________________________________________________________________
_________________________________________________________________________
_________________________________________________________________________
_________________________________________________________________________
3. PRIOR AGREEMENTS. Except as set forth below, I am aware of no prior
agreements between me and any other person or entity concerning
proprietary information or inventions (attach copies of all agreements in
your possession): _______________________________________________________
_________________________________________________________________________
_________________________________________________________________________
_________________________________________________________________________
_________________________________________________________________________
Date: October 1, 2004
Xin Ye
Employee Name
/s/ Xin Ye
------------------
Employee Signature
SCHEDULE B
TERMINATION CERTIFICATE CONCERNING
COMPANY PROPRIETARY INFORMATION
This is to certify that I have returned all property of Linktone
Ltd. (the "Company"), including, without limitation, all source code listings,
books, manuals, records, models, drawings, reports, notes, contracts, lists,
blueprints, and other documents and materials, Proprietary Information, and
equipment furnished to or prepared by me in the course of or incident to my
employment with the Company, and that I did not make or distribute any copies of
the foregoing.
I further certify that I have reviewed the Company's Proprietary
Information Agreement ("Agreement") signed by me and that I have complied with
and will continue to comply with each and all of its terms and conditions,
including without limitation: (i) the reporting of any and all ideas, concepts,
inventions, discoveries, developments, know-how, structures, designs, formulas,
algorithms, methods, products, processes, systems and technologies; any and all
patents, patents pending, copyrights, moral rights, trademarks and any other
intellectual property rights therein; and any and all improvements,
modifications, derivative works from, other rights in and claims related to any
of the foregoing under the laws of any jurisdiction, conceived or developed by
me alone or with others and covered by the Agreement and (ii) the preservation
as confidential all Proprietary Information pertaining to the Company. This
certificate in no manner limits my responsibilities or the Company's rights
under the Agreement.
On termination of my employment with the Company, I will be employed
by _____________________ [Name of New Employer] [in the ______________ division]
and I will be working in connection with the following projects:
[generally describe the projects]
________________________________________________________________________________
________________________________________________________________________________
Date:________
Xin Ye
Employee Name
___________________________
Employee Signature
EXHIBIT E
CERTIFICATE REGARDING CONFIDENTIAL
AND TRADE SECRET INFORMATION
I understand that Linktone Ltd. (the "Company") has hired me because of my job
experience and qualifications, and not because it wants to obtain trade secrets
or other confidential or proprietary information from my previous employers.
Accordingly, I hereby certify that:
1. I have returned all property provided to me, or obtained by me, from my
previous employers including, without limitation: all books, manuals, records,
models, drawings, reports, notes, contracts, customer lists and other lists,
blueprints, equipment, and other documents and materials. In addition, I did not
make or distribute any copies of the foregoing, except as authorized by my
previous employers.
2. Listed on Schedule "A" are all non-disclosure, non-competition, and
non-solicitation agreements that I signed with previous employers. I have also
attached copies of all such agreements in my possession. To the best of my
knowledge, there are no other agreements between me and any other person or
entity concerning non-disclosure of proprietary information, non-competition, or
non-solicitation. I have reviewed the agreements listed on Schedule "A," and I
have complied with and will continue to comply with all of the lawful terms of
these agreements, including the preservation as confidential of all trade secret
and confidential information pertaining to my previous employers.
3. My performance of my job duties for the Company will not breach any agreement
to keep in confidence confidential, proprietary, and trade secret information
that I may have acquired during my previous employment.
4. During my employment with the Company, I will not disclose to the Company any
confidential, proprietary, or trade secret information of any of my previous
employers; I will not bring such information to the Company's attention; and I
will not use such information in my own employment by the Company.
Date: October 1, 2004
/s/ Xin Ye
-------------------------
Xin Ye
SCHEDULE "A"
PRIOR AGREEMENTS. Below is a list of all non-disclosure,
non-competition, and non-solicitation agreements between me and any other entity
that I have signed or that may apply to me in any way:
1. ___________________________________________________________________________
2. ___________________________________________________________________________
3. ___________________________________________________________________________
4. ___________________________________________________________________________
5. ___________________________________________________________________________
6. ___________________________________________________________________________
7. ___________________________________________________________________________
8. ___________________________________________________________________________
9. ___________________________________________________________________________
10. __________________________________________________________________________
Please attach copies of all agreements in your possession, unless
confidentiality provisions prohibit you from attaching the agreements.
EXHIBIT F
ARBITRATION AGREEMENT
Linktone Ltd. (the "Company") and Employee hereby agree that, to the
fullest extent permitted by law, any and all claims or controversies between
them (or between Employee and any present or former officer, director, agent, or
employee of the Company or any parent, subsidiary, or other entity affiliated
with the Company) relating in any manner to the employment or the termination of
employment of Employee shall be resolved by final and binding arbitration.
Except as specifically provided herein, any arbitration proceeding shall be
conducted in accordance with the National Rules for the Resolution of Employment
Disputes of the American Arbitration Association ("the AAA Rules").
Claims subject to arbitration shall include, without limitation: contract
claims, tort claims, claims relating to compensation and stock options, as well
as claims based on any federal, state, or local law, statute, or regulation.
A neutral and impartial arbitrator shall be chosen by mutual agreement of
the parties; however, if the parties are unable to agree upon an arbitrator
within a reasonable period of time, then a neutral and impartial arbitrator
shall be appointed in accordance with the arbitrator nomination and selection
procedure set forth in the AAA Rules. The arbitrator shall prepare a written
decision containing the essential findings and conclusions on which the award is
based so as to ensure meaningful judicial review of the decision. The arbitrator
shall apply the same substantive law, with the same statutes of limitations and
same remedies, that would apply if the claims were brought in a court of law.
Either the Company or Employee may bring an action in court to compel
arbitration under this Agreement and to enforce an arbitration award. Otherwise,
neither party shall initiate or prosecute any lawsuit of claim in any way
related to any arbitrable claim. Nothing in this Agreement, however, precludes a
party from filing an administrative charge before an agency that has
jurisdiction over an arbitrable claim.
All arbitration hearings under this Agreement shall be conducted in New
York, unless otherwise agreed by the parties. The arbitration provisions of this
Arbitration Agreement shall be governed by the Federal Arbitration Act. In all
other respects, this Arbitration Agreement shall be construed in accordance with
the laws of the State of New York, without reference to conflicts of law
principles.
Each party shall pay its own costs and attorney's fees, unless a party
prevails on a statutory claim, and the statute provides that the prevailing
party is entitled to payment of its attorneys' fees. In that case, the
arbitrator may award reasonable attorneys' fees and costs to the prevailing
party as provided by law.
This Agreement does not alter Employee's at-will employment status.
Accordingly, Employee understands that the Company may terminate Employee's
employment, as well as discipline or demote Employee, at any time, with or
without prior notice, and with or without cause. The parties also understand
that Employee is free to leave the Company at any time and for any reason, with
or without cause and with or without advance notice.
If any provision of this Agreement shall be held by a court or the
arbitrator to be invalid, unenforceable, or void, such provision shall be
enforced to the fullest extent permitted by law, and the remainder of this
Agreement shall remain in full force and effect. The parties' obligations under
this Agreement shall survive the termination of Employee's employment with the
Company and the expiration of this Agreement.
The Company and Employee understand and agree that this Arbitration
Agreement contains a full and complete statement of any agreements and
understandings regarding resolution of disputes between the parties, and the
parties agree that this Arbitration Agreement supersedes all previous
agreements, whether written or oral, express or implied, relating to the
subjects covered in this agreement. The parties also agree that the terms of
this Arbitration Agreement cannot be revoked or modified except in a written
document signed by both Employee and an officer of the Company.
THE PARTIES ALSO UNDERSTAND AND AGREE THAT THIS AGREEMENT CONSTITUTES A WAIVER
OF THEIR RIGHT TO A TRIAL BY JURY OF ANY CLAIMS OR CONTROVERSIES COVERED BY THIS
AGREEMENT. THE PARTIES AGREE THAT NONE OF THOSE CLAIMS OR CONTROVERSIES SHALL BE
RESOLVED BY A JURY TRIAL.
THE PARTIES FURTHER ACKNOWLEDGE THAT THEY HAVE BEEN GIVEN THE OPPORTUNITY TO
DISCUSS THIS AGREEMENT WITH THEIR LEGAL COUNSEL AND HAVE AVAILED THEMSELVES OF
THAT OPPORTUNITY TO THE EXTENT THEY WISH TO DO SO.
Date: October 1, 2004
Signed: /s/ Xin Ye
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Xin Ye
Date: _________________________________________
Signed: _______________________________________
By:
Position: