Exhibit 10.2
CHANGE-OF-CONTROL
SEVERANCE
AGREEMENT
This Agreement, dated as of
June 10, 2009, is made and entered into by and between
AsiaInfo Holdings, Inc., a corporation organized under the laws of
the State of Delaware with its principal place of business at
Zhongdian Information Tower, No. 6 Zhongguancun South Street,
Beijing, People’s Republic of China (the
“Company”), and Li Jie, Vice President and General
Manager of Human Resources & Administration (the
“Executive”).
WHEREAS, the Company considers it
essential to the best interests of its stockholders to foster the
continuous employment of key management personnel, and recognizes
that, as is the case with many publicly held corporations, the
possibility of a Change of Control (as defined below) may exist
from time to time and that such possibility, and the uncertainty
and questions which it may raise among management, may result in
the distraction or departure of management personnel to the
detriment of the Company and its stockholders; and
WHEREAS, the Board of Directors of
the Company has determined that appropriate steps should be taken
to reinforce and encourage the Executive’s continued
attention and dedication to the Executive’s assigned duties
without distraction in the face of potentially disturbing
circumstances arising from the possibility of a Change of Control
of the Company, although no such change is presently known to be
contemplated.
NOW, THEREFORE, in consideration of
the mutual covenants and agreements hereinafter contained and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as
follows:
Section 1
DEFINITIONS
Except as may otherwise be specified
or as the context may otherwise require, the following terms shall
have the respective meanings set forth below whenever used
herein:
“Base Salary” shall mean
the annual base rate of regular compensation of the Executive
immediately before a Change of Control, or if greater, the highest
such rate at any time during the 12-month period immediately
preceding the Change of Control.
“Board” shall mean the
Board of Directors of the Company.
“Business Combination”
shall mean a merger, consolidation, or sale of all or substantially
all of the Company’s assets.
“Cause” shall mean
(i) the willful and continued failure by the Executive
substantially to perform his duties with the Employer (other than
any such actual or anticipated failure after the issuance of a
Notice of Termination for Good Reason) or (ii) the willful
engaging by the Executive in conduct which is demonstrably and
materially injurious to the Employer, monetarily or otherwise. For
purposes hereof, no act, or failure to act, on the
Executive’s part, shall be deemed “willful”
unless done, or omitted to be done, by the Executive in the absence
of good faith and without a reasonable belief that such act or
omission was in the best interest of the Employer.
“Change of Control”
shall mean the first to occur, after the date hereof, of any of the
following:
(i) any Person (excluding the
Company, any employee benefit plan of the Company or a corporation
controlled by the Company’s stockholders) is or becomes the
“beneficial owner” (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company
(not including in the securities beneficially owned by such Person
any securities acquired directly from the Company or its
Subsidiaries) representing more than 45% of either the then
outstanding shares of Stock of the Company or the combined voting
power of the Company’s then outstanding
securities;
(ii) during any period of 12
consecutive months during the existence of this Agreement
commencing on or after the date hereof, the individuals who, at the
beginning of such period, constitute the Board (the
“Incumbent Directors”) cease to constitute at least a
majority thereof because of a vote of the Company’s
stockholders, provided that a director who was not a director at
the beginning of such 12-month period shall be deemed to have
satisfied such 12-month requirement (and be an Incumbent Director)
if such director was elected by, or on the recommendation of or
with the approval of, at least two-thirds of the directors who then
qualified as Incumbent Directors either actually (because they were
directors at the beginning of such 12-month period) or by prior
operation of this clause (ii);
(iii) the consummation of a merger
or consolidation of the Company with any other corporation other
than (A) a merger or consolidation which would result in the
voting securities of the Company outstanding immediately prior to
such merger or consolidation continuing to represent (either by
remaining outstanding or by being converted into voting securities
of the surviving entity or any parent thereof) at least 60% of the
combined voting power of the voting securities of the Company or
such surviving entity or any parent thereof outstanding immediately
after such merger or consolidation, or (B) a merger or
consolidation effected to implement a recapitalization of the
Company (or similar transaction) in which no Person is or becomes
the beneficial owner, as defined in clause (i), directly or
indirectly, of securities of the Company (not including in the
securities beneficially owned by such Person any securities
acquired directly from the Company or its Subsidiaries)
representing 45% or more of either the then outstanding shares of
Stock of the Company or the combined voting power of the
Company’s then outstanding securities;
(iv) the stockholders of the Company
or the Board approve a plan of complete liquidation or dissolution
of the Company; or
(v) there is consummated an
agreement for the sale or disposition by the Company of all or
substantially all of the Company’s assets, other than a sale
or disposition by the Company of all or substantially all of the
Company’s assets to an entity, at least 60% of the combined
voting power of the voting securities of which are owned by Persons
in substantially the same proportion as their ownership of the
Company immediately prior to such sale.
Upon the occurrence of a Change of
Control as provided above, no subsequent event or condition shall
constitute a Change of Control for purposes of this Agreement, with
the result that there can be no more than one Change of Control
hereunder.
“Code” shall mean the
United States Internal Revenue Code of 1986, as amended.
“Company” shall mean,
subject to Section 5.1(a), AsiaInfo Holdings, Inc., a
corporation organized under the laws of the State of
Delaware.
“Covered Termination”
shall mean if, within the one-year period immediately following a
Change of Control, the Executive (i) is terminated by the
Employer without Cause (other than on account of death or
Disability), or (ii) terminates his employment with the
Employer for Good Reason. The Executive shall not be deemed to have
terminated his employment with the Employer for purposes of this
Agreement merely because he ceases to be employed by the Employer
and becomes employed by a new employer involved in the Change of
Control; provided that such new employer shall be bound by this
Agreement as if it were the Employer hereunder with respect to the
Executive. It is expressly understood that no Covered Termination
shall be deemed to have occurred merely because, upon the
occurrence of a Change of Control, the Executive ceases to be
employed by the Employer and does not become employed by a
successor to the Employer after the Change of Control if the
successor makes an offer to employ the Executive on terms and
conditions which, if imposed by the Employer, would not give the
Executive a basis on which to terminate employment for Good
Reason.
“Date of Termination”
shall mean the date on which a Covered Termination
occurs.
“Disability” shall mean
the occurrence after a Change of Control of the incapacity of the
Executive due to physical or mental illness, whereby the Executive
shall have been absent from the full-time performance of his duties
with the Employer for six consecutive months.
“Employer” shall mean
the Company (if and for so long as the Executive is employed
thereby) and each Subsidiary which may now or hereafter employ the
Executive or, where the context so requires, the Company and such
Subsidiaries collectively. A subsidiary which ceases to be,
directly or indirectly, through one or more intermediaries,
controlling, controlled by or under common control with the Company
prior to a Change of Control (other than in connection with and as
an integral part of a series of transactions resulting in a Change
of Control) shall, automatically and without any further action,
cease to be (or be part of) the Employer for purposes
hereof.
“Exchange Act” shall
mean the United States Securities Exchange Act of 1934, as
amended.
“Good Reason” shall
mean, without the express written consent of the Executive and
except as a result of the Executive’s failure to satisfy
applicable performance criteria, the occurrence after a Change of
Control of any of the following circumstances, unless such
circumstances are fully corrected prior to the Date of Termination
specified in the Notice of Termination given in respect
thereof:
(i) assignment to the Executive of
any duties inconsistent in any materially adverse or diminutive
respect with his position, authority, duties or responsibilities
from those in effect immediately prior to the Change of
Control;
(ii) a reduction in the
Executive’s Base Salary as in effect immediately before the
Change of Control, except for a reduction that applies in equal
proportion to all employees of the Company;
(iii) a material reduction in the
Executive’s aggregate compensation opportunity, including
(A) the Executive’s Base Salary, (B) bonus
opportunity, if any, and (C) long-term or other incentive
compensation opportunity, if any (taking into account, in the case
of such bonus and incentive opportunities, without limitation, any
target, minimum and maximum amounts payable and the attainability
and reasonability of any performance hurdles, goals and other
measures);
“Notice of Termination”
shall mean a notice given by the Employer or Executive, as
applicable, which shall indicate the specific termination provision
in this Agreement relied upon and shall set forth in reasonable
detail the facts and circumstances claimed to provide a basis for
termination of the Executive’s employment under the
provisions so indicated.
“Person” shall have the
meaning ascribed thereto by Section 3(a)(9) of the Exchange
Act, as modified and used in Sections 13(d) and 14(d) thereof
(except that such term shall not include (i) the Company or
any of its Subsidiaries, (ii) a trustee or other fiduciary
holding securities under an employee benefit plan of the Company or
any of its Subsidiaries, (iii) an underwriter temporarily
holding securities pursuant to an offering of such securities,
(iv) a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportion as
their ownership of stock of the Company, or (v) such Executive
or any “group” (as such term is used in Sections 13(d)
and 14(d) of the Exchange Act) which includes the
Executive.
“Stock” shall mean the
common stock, $.01 par value per share, of the Company.
“Stock Options” shall
mean options issued by the Company to purchase Stock.
“Subsidiary” shall mean
any entity, directly or indirectly, through one or more
intermediaries, controlled by the Company.
“Target Annual Bonus”
shall mean the Executive’s annual bonus for the
Employer’s fiscal year
