This excerpt taken from the NTES 20-F filed Jun 26, 2008.
This Agreement shall be governed by and construed in accordance with the laws of the New York, without regard to any conflicts of laws provision thereof.
By accepting this Agreement, you acknowledge that, given the nature of the Companys business, the provisions contained in this Agreement contain reasonable limitations as to time, geographical area and scope of activity to be restrained, and do not impose a greater restraint than is necessary to protect and preserve the Company and to protect the Companys legitimate interests. If, however, the provisions of this Agreement are determined by any court of competent jurisdiction or any arbitrator to be unenforceable by reason of its extending for too long a period of time or over too large a geographic area or by reason of its being too extensive in any other respect, or for any other reason, it will be interpreted to extend only over the longest period of time for which it may be enforceable and over the largest geographical area as to which it may be enforceable and to the maximum extent in all other aspects as to which it may be enforceable, all as determined by such court or arbitrator in such action.
Please confirm your agreement with the foregoing by signing and returning directly to the undersigned the duplicate copy of this letter enclosed herewith.
Accepted and Agreed to as
of the date first above written:
Form of Release Certificate
Choi Onward (You) and NetEase.com, Inc. (the Company) have agreed to enter into this Release Certificate on the following terms:
1. Within ten (10) business 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 July 1st 2007 (the Agreement).
2. In return for the consideration described in the Agreement, you and your representatives completely release NetEase.com, Inc., 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.
3. 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.
4. You agree to immediately return to the Company all Company documents (and all copies thereof) and other Company property which you have had in your possession or control at any time, including, but not limited to, the items set forth in Exhibit 1 to this Release Certificate, and all Company mobile phones in your possession, your laptop computer and the Blackberry or similar personal digital assistant provided by the Company, the Companys files, notes, drawings, records, business plans and forecasts, financial information, specifications, computer-recorded information, tangible property, credit cards, entry cards, identification badges and keys, and any materials of any kind which contain or embody any proprietary or confidential information of the Company (and all reproductions thereof).
5. You understand and agree that you shall remain bound by the terms of that certain Key Employee Invention Assignment and Confidentiality Agreement between you and NetEase.com, Inc. dated July 1st 2007, attached as Exhibit 2 to this Release Certificate (the Confidentiality Agreement), and the Non-Compete Agreement between you and NetEase.com, Inc., attached hereto as Exhibit 3 to this Release Certificate (the Non-Compete Agreement), both of which shall each be considered a part of this Release Certificate.
6. You further agree to be bound by a customary lock-up agreement in a form and substance determined by the Company, in its sole discretion, whereby you agree, for a period of [1 year] following your last day of employment with the Company (the Lock-up Period), not to sell or otherwise transfer or dispose of any of the Companys (a) American Depositary Shares (ADSs), (b) ordinary shares or securities convertible into or exercisable or exchangeable for ordinary shares, (c) securities of the same class as the ADSs or ordinary shares or (d) other instruments representing interests in securities of the same class as ADSs or ordinary shares (collectively, the Securities); provided, however, during any 30-day period during the Lock-up Period, you may sell up to one-twelfth of the total number of Securities of the Company held by you as of your last day of employment with the Company. All sales or other transactions consummated pursuant to this paragraph shall be subject to Rule 144 of the Securities Act of 1933, as amended (including without limitation the volume restrictions thereunder). In furtherance of the foregoing, the Company, its transfer agent and registrar and the depositary for the ADSs are hereby authorized to decline to make any transfer of ADSs or ordinary shares or issue any stop orders if such transfer would constitute a violation or breach of the Agreement or any of the Exhibits referenced thereto.
7. You acknowledge and agree that the Company shall have no obligation to assist or facilitate in any way the deposit of any ordinary shares owned by you (including shares received upon the exercise of stock options) into the Companys American Depositary Receipt program unless and until you deliver a certificate to the Company in a form satisfactory to the Company, to the effect that you are not then in possession of any material nonpublic information regarding the Company and the Company and its Board of Directors conclude it is reasonable to rely on such certificate.
8. You agree to hold in strictest confidence the circumstances of your separation from the Company and the provisions of this Release Certificate, and not to publicize or disclose such information in any manner whatsoever; provided, however, that you may disclose this Agreement to your immediate family, your attorney and tax advisors, or as otherwise required by law. You also agree not to, either by yourself or indirectly through others, disparage, defame, otherwise speak negatively about the Company or any of the Released Parties in any manner, or take or cause to be taken any other action that is, likely to be harmful to them or their business, business reputation or personal reputation in any way, provided that you shall respond accurately and fully to any question, inquiry or request for information when instructed by the Company or otherwise required by legal process.
9. 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. By you signature below, you acknowledge that (a) you have read this Release Certificate or have been afforded every opportunity to do so; (b) you are fully aware of this Release Certificates contents and legal effect; (c) you have had an opportunity to consult with an attorney of your choosing prior to signing this Release Certificate; and (d) you have chosen to sign this Release Certificate freely, without coercion, and based upon your own judgment and not in reliance upon any promises made by the Company other than those contained in this Release Certificate.
[Property to be returned]