-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, SlF9z0DvuLyK5enpzK/3WOIlK2+bxiZL77FbCBDm9QlIugIfImDlMWycCiGCyguz piYs0qiTJcJKvbC///ZFaA== 0001145549-06-001442.txt : 20061011 0001145549-06-001442.hdr.sgml : 20061011 20061011060850 ACCESSION NUMBER: 0001145549-06-001442 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 8 FILED AS OF DATE: 20061011 DATE AS OF CHANGE: 20061011 GROUP MEMBERS: NICOLA CHU MING NGA GROUP MEMBERS: PETER YIP FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: ASIA PACIFIC ONLINE LTD CENTRAL INDEX KEY: 0001206143 IRS NUMBER: 000000000 STATE OF INCORPORATION: E9 FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: SC 13D/A MAIL ADDRESS: STREET 1: ROOM 4302, 43/F, CHINA RESOURCES BLDG. STREET 2: 26 HARBOUR RD, HONG KONG CITY: HONG KONG STATE: K3 ZIP: 00000 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: CDC CORP CENTRAL INDEX KEY: 0001076770 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 000000000 STATE OF INCORPORATION: K3 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-58465 FILM NUMBER: 061139087 BUSINESS ADDRESS: STREET 1: 33/F CITICORP CENTRE 18 WHITFIELD RD STREET 2: CAUSEWAY BAY CITY: HONG KONG STATE: K3 ZIP: 00000 BUSINESS PHONE: 8522893820 MAIL ADDRESS: STREET 1: 33/F CITICORP CENTRE 18 WHITFIELD RD STREET 2: CAUSEWAY BAY CITY: HONG KONG STATE: K3 ZIP: 00000 FORMER COMPANY: FORMER CONFORMED NAME: CHINADOTCOM CORP DATE OF NAME CHANGE: 20000830 FORMER COMPANY: FORMER CONFORMED NAME: CHINA COM CORP DATE OF NAME CHANGE: 19990113 SC 13D/A 1 h00801sc13dza.txt CDC CORPORATION UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934 (AMENDMENT NO. 2)* CDC Corporation (NAME OF ISSUER) Class A Common Shares (TITLE OF CLASS OF SECURITIES) G2022L106 (CUSIP NUMBER) c/o CDC Corporation 33/F Citicorp Centre 18 Whitfield Road Causeway Bay, Hong Kong Attn: Company Secretary (852) 2893-8200 (NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE NOTICES AND COMMUNICATIONS) October 6, 2006 (DATE OF EVENT WHICH REQUIRES FILING OF THIS STATEMENT) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. [ ] NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Section 240.13d-7 for other parties to whom copies are to be sent. * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). - -------------------------------------------------------------------------------- 1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only). N/A Asia Pacific Online Limited - -------------------------------------------------------------------------------- 2. Check the Appropriate Box if a Member of a Group (See Instructions) (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 3. SEC Use Only - -------------------------------------------------------------------------------- 4. Source of Funds (See Instructions) PF - -------------------------------------------------------------------------------- 5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6. Citizenship or Place of Organization Cayman Islands - -------------------------------------------------------------------------------- 7. Sole Voting Power 13,092,651* NUMBER ------------------------------------------------------------------ OF 8. Shared Voting Power SHARES BENEFICIALLY 0 OWNED ------------------------------------------------------------------ BY 9. Sole Dispositive Power EACH REPORTING 13,092,651* PERSON ------------------------------------------------------------------ WITH 10. Shared Dispositive Power 0 - -------------------------------------------------------------------------------- 11. Aggregate Amount Beneficially Owned by Each Reporting Person 13,092,651* - -------------------------------------------------------------------------------- 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] N/A - -------------------------------------------------------------------------------- 13. Percent of Class Represented by Amount in Row (11) 11.62%** - -------------------------------------------------------------------------------- 14. Type of Reporting Person (See Instructions) CO - -------------------------------------------------------------------------------- * Includes vested options to acquire 1,164,998 Class A Common Shares within 60 days. On October 6, 2006, the transfer agent recorded a transfer an aggregate of 1,881,442 vested options to the C.W. Chu Foundation, a non-profit organization that serves the public interest in Hong Kong, pursuant to the terms of an Option Transfer Agreement effective as of July 15, 2005 among CDC Corporation, Asia Pacific On-line Limited and Mr. Peter Yip. ** The calculation of the foregoing percentage is based on 112,655,055 Class A Common Shares outstanding as of September 15, 2006, as reported by CDC Corporation. - -------------------------------------------------------------------------------- 1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only). N/A Peter Yip - -------------------------------------------------------------------------------- 2. Check the Appropriate Box if a Member of a Group (See Instructions) (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 3. SEC Use Only - -------------------------------------------------------------------------------- 4. Source of Funds (See Instructions) PF - -------------------------------------------------------------------------------- 5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6. Citizenship or Place of Organization USA - -------------------------------------------------------------------------------- 7. Sole Voting Power 190,000* NUMBER ------------------------------------------------------------------ OF 8. Shared Voting Power SHARES BENEFICIALLY 0 OWNED ------------------------------------------------------------------ BY 9. Sole Dispositive Power EACH REPORTING 190,000* PERSON ------------------------------------------------------------------ WITH 10. Shared Dispositive Power 0 - -------------------------------------------------------------------------------- 11. Aggregate Amount Beneficially Owned by Each Reporting Person 190,000* - -------------------------------------------------------------------------------- 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] N/A - -------------------------------------------------------------------------------- 13. Percent of Class Represented by Amount in Row (11) 0.17%** - -------------------------------------------------------------------------------- 14. Type of Reporting Person (See Instructions) IN - -------------------------------------------------------------------------------- * Includes vested options to acquire 190,000 Class A Common Shares within 60 days. ** The calculation of the foregoing percentage is based on 112,655,055 Class A Common Shares outstanding as of September 15, 2006, as reported by CDC Corporation. - -------------------------------------------------------------------------------- 1. Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only). N/A Nicola Chu Ming Nga - -------------------------------------------------------------------------------- 2. Check the Appropriate Box if a Member of a Group (See Instructions) (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 3. SEC Use Only - -------------------------------------------------------------------------------- 4. Source of Funds (See Instructions) PF - -------------------------------------------------------------------------------- 5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6. Citizenship or Place of Organization Hong Kong - -------------------------------------------------------------------------------- 7. Sole Voting Power 4,442,015* NUMBER ------------------------------------------------------------------ OF 8. Shared Voting Power SHARES BENEFICIALLY 0 OWNED ------------------------------------------------------------------ BY 9. Sole Dispositive Power EACH REPORTING 4,442,015* PERSON ------------------------------------------------------------------ WITH 10. Shared Dispositive Power 0 - -------------------------------------------------------------------------------- 11. Aggregate Amount Beneficially Owned by Each Reporting Person 4,442,015* - -------------------------------------------------------------------------------- 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] N/A - -------------------------------------------------------------------------------- 13. Percent of Class Represented by Amount in Row (11) 3.94%** - -------------------------------------------------------------------------------- 14. Type of Reporting Person (See Instructions) IN - -------------------------------------------------------------------------------- * Nicola Chu Ming Nga has entered into the following Rule 10b5-1 Trading Plans: (1) Trading Plan between Nicola Chu Ming Nga and Merrill Lynch, Pierce, Fenner & Smith Incorporated dated June 16, 2005 to dispose up to 350,000 Class A Common Shares. (2) Trading Plan between Nicola Chu Ming Nga and Merrill Lynch, Pierce, Fenner & Smith Incorporated dated September 12, 2005 to dispose up to 2,290,000 Class A Common Shares. (3) Trading Plan between Nicola Chu Ming Nga and Merrill Lynch, Pierce, Fenner & Smith Incorporated dated April 25, 2006 to dispose up to 875,000 Class A Common Shares. (4) Trading Plan between Nicola Chu Ming Nga and Merrill Lynch, Pierce, Fenner & Smith Incorporated dated September 8, 2006 to dispose up to 510,000 Class A Common Shares. (5) Trading Plan between Nicola Chu Ming Nga and Redwine & Company dated April 12, 2006 to acquire up to 1,650,000 Class A Common Shares. Revised trading plan between Nicola Chu Ming Nga and Redwine & Company dated June 6, 2006 to acquire up to 530,000 Class A Common Shares. ** The calculation of the foregoing percentage is based on 112,655,055 Class A Common Shares outstanding as of September 15, 2006, as reported by CDC Corporation. ITEM 1. SECURITY AND ISSUER This constitutes Amendment No. 2 to the Statement on Schedule 13D, dated December 19, 2003, relating to the Class A Common Shares, par value $0.00025 per share, (the "Class A Common Shares") of CDC Corporation, a company organized under the laws of the Cayman Islands ("CDC"), with its principal executive offices located at 33/F Citicorp Centre, 18 Whitfield Road, Causeway Bay, Hong Kong. ITEM 2. IDENTITY AND BACKGROUND (a) This Schedule 13D is being filed by each of the following persons (collectively, the "Reporting Persons" and, individually, a "Reporting Person"): a. Asia Pacific Online Limited ("APOL"), a company organized under the laws of the Cayman Islands, owned by Ms. Nicola Chu Ming Nga, the spouse of Mr. Peter Yip who is the chief executive officer of CDC, and a trust established for the benefit of Ms. Chu and Mr. Yip's children. b. Peter Yip ("Mr. Yip"), the chief executive officer of CDC. c. Ms. Nicola Chu Ming Nga ("Ms. Chu"), the spouse of Mr. Yip who is the chief executive officer of CDC. (b) The business address for each Reporting Person is as follows: a. For APOL: Scotia Centre, 4/F P.O. Box 2804 George Town Grand Cayman, Cayman Islands b. For Mr. Yip: c/o CDC Corporation 33/F Citicorp Centre 18 Whitfield Road Causeway Bay, Hong Kong c. For Ms. Chu: c/o CDC Corporation 33/F Citicorp Centre 18 Whitfield Road Causeway Bay, Hong Kong (c) Present Principal Occupation or Employment: a. For APOL: Not applicable b. For Mr. Yip: Chief Executive Officer of CDC c. For Ms. Chu: Investor (d) Conviction in Criminal Proceedings: No Reporting Person has been, during the last five years, convicted in any criminal proceeding (excluding traffic violations or similar misdemeanors). (e) Party to Civil Proceeding: No Reporting Person has been, during the last five years, a party to a civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which he/she/it was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. (f) Citizenship: a. For APOL: organized under the laws of the Cayman Islands b. For Mr. Yip: USA c. For Ms. Chu: Hong Kong ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION (1) For Ms. Chu: Ms. Chu has entered into the following Rule 10b5-1 Trading Plans for the disposal of Class A Common Shares: (a) Trading Plan between Ms. Chu and Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch") dated June 16, 2005 to dispose up to 350,000 Class A Common Shares. (b) Trading Plan between Ms. Chu and Merrill Lynch dated September 12, 2005 to dispose up to 2,290,000 Class A Common Shares. (c) Trading Plan between Ms. Chu and Merrill Lynch dated April 25, 2006 to dispose up to 875,000 Class A Common Shares. (d) Trading Plan between Ms. Chu and Merrill Lynch dated September 8, 2006 to dispose up to 510,000 Class A Common Shares. (2) For Ms. Chu: Ms. Chu has entered into the following Rule 10b5-1 Trading Plans for the acquisition of Class A Common Shares: (a) Trading Plan between Nicola Chu Ming Nga and Redwine & Company dated April 12, 2006 to acquire up to 1,650,000 Class A Common Shares. Revised trading plan between Nicola Chu Ming Nga and Redwine & Company dated June 6, 2006 to acquire up to 530,000 Class A Common Shares. The source of funds to be used in connection with making purchases under the trading plans listed above will be the personal funds of Ms. Chu. ITEM 4. PURPOSE OF TRANSACTION Except as otherwise described in this Item 4, no Reporting Person has any individual plans or proposals which relate to or would result in: (a) the acquisition or disposition of additional securities of CDC, or any of its subsidiaries; (b) an extraordinary corporate transaction, such as merger, reorganization or liquidation, involving CDC and any of its subsidiaries; (c) a sale or transfer of a material amount of assets of CDC or any of its subsidiaries; (d) any change in the present board of directors or management of CDC, including any plans or proposals to change the number or term of directors to fill any existing vacancies on the board; (e) any material change in the present capitalization or dividend policy of CDC; (f) any other material change in CDC's business or corporate structure; (g) changes in CDC's memorandum and articles, of association or instruments corresponding thereto or other actions which may impede the acquisition of control of CDC by any person; (h) causing a class of securities of CDC to cease to be authorized to be quoted in from the Nasdaq National Market; (i) a class of equity securities of CDC becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Securities Exchange Act of 1934; or (j) any action similar to any of those enumerated above. For APOL and Mr. Yip: Effective July 15, 2005, CDC entered into an Option Transfer Agreement with APOL and Mr. Yip which permitted APOL and Mr. Yip to transfer approximately 3 million options granted to APOL and Mr. Yip with exercise prices ranging from $2.82 to $23.00 to approved non-profit organizations. For Ms. Chu: Ms. Chu has entered into the following Rule 10b5-1 Trading Plans for the acquisition and disposal of Class A Common Shares: (a) Trading Plan between Ms. Chu and Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch") dated June 16, 2005 to dispose up to 350,000 Class A Common Shares. (b) Trading Plan between Ms. Chu and Merrill Lynch dated September 12, 2005 to dispose up to 2,290,000 Class A Common Shares. (c) Trading Plan between Ms. Chu and Merrill Lynch dated April 25, 2006 to dispose up to 875,000 Class A Common Shares. (d) Trading Plan between Ms. Chu and Merrill Lynch dated September 8, 2006 to dispose up to 510,000 Class A Common Shares. (e) Trading Plan between Nicola Chu Ming Nga and Redwine & Company dated April 12, 2006 to acquire up to 1,650,000 Class A Common Shares. Revised trading plan between Nicola Chu Ming Nga and Redwine & Company dated June 6, 2006 to acquire up to 530,000 Class A Common Shares. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER (a) For APOL: APOL is the direct beneficial owner of 11,927,653 Class A Common Shares and holds options to acquire 1,164,998 Class A Common Shares which it has the right to acquire within 60 days. Together, this represents 11.62% of the outstanding Class A Common Shares. For Mr. Yip: Mr. Yip holds options to acquire 190,000 Class A Common Shares which he has the right to acquire within 60 days. This represents 0.17% of the outstanding Class A Common Shares. For Ms. Chu: Ms. Chu is the direct beneficial owner of 4,442,015 Class A Common Shares. This represents 3.94% of the outstanding Class A Common Shares. (b) For APOL: APOL has the sole power to vote and dispose of the options and Class A Common Shares described in Item 5(a). Decisions with respect to the voting and disposal of such options and Class A Common Shares are made by the directors of APOL who are Ms. Chu, Nicola Investment Holdings Limited, which is controlled by Ms. Chu, and U.S.-Asian Investment Corporation, a trust operated by HSBC International Trustee Limited for the benefit of Ms. Chu and Mr. Yip's children. For Mr. Yip: Mr. Yip has the sole power to vote and dispose of the options described in Item 5(a). For Ms. Chu: Ms. Chu has the sole power to vote and dispose of the Class A Common Shares described in Item 5(a). (c) Other than as described below, no transactions in the Class A Common Shares were effected during the past 60 days by any Reporting Person. For APOL: On October 6, 2006, the transfer agent recorded a transfer an aggregate of 1,881,442 vested options to the C.W. Chu Foundation, a non-profit organization that serves the public interest in Hong Kong, pursuant to the terms of an Option Transfer Agreement effective as of July 15, 2005 among CDC Corporation, Asia Pacific Online Limited and Mr. Peter Yip. For Ms. Chu: Ms. Chu has entered into the following Rule 10b5-1 Trading Plans for the acquisition and disposal of Class A Common Shares: (1) Trading Plan between Ms. Chu and Redwine & Company dated April 12, 2006 to acquire up to 1,650,000 Class A Common Shares and the revised trading plan between Ms. Chu and Redwine & Company dated June 6, 2006 to acquire up to 530,000 Class A Common Shares. Since August 1, 2006, Ms. Chu has acquired a total of 40,000 Class A Common Shares pursuant to such trading plan and the revised trading plan on the dates and at the prices indicated below.
DATE SHARES PRICE ---- ------------ ------- August 7, 2006 5,000 shares $4.6100 August 8, 2006 5,000 shares $4.6220 August 9, 2006 5,000 shares $4.5500 August 10, 2006 5,000 shares $4.5100 August 11, 2006 5,000 shares $4.5300 August 14, 2006 5,000 shares $4.5200 August 15, 2006 5,000 shares $4.5100 August 16, 2006 5,000 shares $4.5500
(2) Trading Plan between Ms. Chu and Lynch, Pierce, Fenner & Smith Incorporated dated September 12, 2005 to dispose up to 2,290,000 Class A Common Shares. Since August 1, 2006, Ms. Chu has disposed a total of 86,134 Class A Common Shares pursuant to such trading plan on the dates and at the prices indicated below:
DATE SHARES PRICE ---- ------------- ------- August 22, 2006 4,500 shares $5.5090 August 28, 2006 1,834 shares $5.5000 August 29, 2006 10,000 shares $5.6118 August 30, 2006 10,000 shares $5.6652 August 31, 2006 10,000 shares $5.5786 September 1, 2006 10,000 shares $5.5605 September 5, 2006 10,000 shares $5.5784 September 7, 2006 10,000 shares $5.5102 September 8, 2006 10,000 shares $5.5636 September 11, 2006 9,800 shares $5.5348
(3) Trading Plan between Ms. Chu and Lynch, Pierce, Fenner & Smith Incorporated dated April 25, 2006 to dispose up to 875,000 Class A Common Shares. Since August 1, 2006, Ms. Chu has disposed a total of 154,687 Class A Common Shares pursuant to such trading plan on the dates and at the prices indicated below:
DATE SHARES PRICE ---- ------------- ------- August 17, 2006 10,000 shares $5.1300 August 18, 2006 10,000 shares $5.0900 August 21, 2006 10,000 shares $5.1700 August 22, 2006 9,000 shares $5.5090 August 22, 2006 10,000 shares $5.4600 August 23, 2006 10,000 shares $5.2700 August 28, 2006 3,669 shares $5.5000 August 29, 2006 20,000 shares $5.6118 August 30, 2006 20,000 shares $5.6652 August 31, 2006 20,000 shares $5.5786 September 1, 2006 20,000 shares $5.5605 September 5, 2006 7,331shares $5.5784 September 21, 2006 4,687 shares $6.0255
(4) Trading Plan between Ms. Chu and Lynch, Pierce, Fenner & Smith Incorporated dated September 8, 2006 to dispose up to 510,000 Class A Common Shares. Since August 1, 2006, Ms. Chu has disposed a total of 241,513 Class A Common Shares pursuant to such trading plan on the dates and at the prices indicated below:
DATE SHARES PRICE ---- ------------- ------- September 11, 2006 8,400 shares $5.5227 September 12, 2006 10,000 shares $5.6271 September 13, 2006 10,000 shares $5.6530 September 14, 2006 10,000 shares $5.5993
September 15, 2006 10,000 shares $5.6061 September 18, 2006 10,000 shares $5.6275 September 19, 2006 10,000 shares $5.5723 September 20, 2006 22,500 shares $5.7803 September 21, 2006 10,000 shares $5.9259 September 21, 2006 12,500 shares $5.9227 September 21, 2006 2,813 shares $6.0255 September 22, 2006 21,400 shares $5.7989 September 25, 2006 12,500 shares $5.7678 September 25, 2006 10,000 shares $5.7188 September 26, 2006 10,000 shares $5.6938 September 26, 2006 2,300 shares $5.7622 September 27, 2006 10,000 shares $5.6801 September 28, 2006 10,000 shares $5.6824 September 29, 2006 10,000 shares $5.6647 October 2, 2006 1,600 shares $5.6500 October 4, 2006 12,500 shares $5.7684 October 5, 2006 12,500 shares $5.8398 October 6, 2006 12,500 shares $5.7887
(d) No other person is known to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, any of Class A Common Shares beneficially owned by the Reporting Persons. (e) Not applicable. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER Except for the agreements described under Item 4 above which are filed as exhibits to this Amendment No. 2, there are no contracts, arrangements, understandings, or relationships (legal or otherwise) between the Reporting Persons and any other person with respect to any securities of CDC. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION - ----------- ----------- 1.1 Joint Filing Agreement dated October 6, 2006, by and among each of the Reporting Persons. 1.2 Option Transfer Agreement among Asia Pacific On-Line Limited, Mr. Peter Yip and CDC Corporation effective as of July 15, 2005. 1.3 Trading Plan between Ms. Chu and Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch") dated June 16, 2005 to dispose up to 350,000 Class A Common Shares. 1.4 Trading Plan between Ms. Chu and Merrill Lynch dated September 12, 2005 to dispose up to 2,290,000 Class A Common Shares. 1.5 Trading Plan between Ms. Chu and Merrill Lynch dated April 25, 2006 to dispose up to 875,000 Class A Common Shares. 1.6 Trading Plan between Ms. Chu and Merrill Lynch dated September 8, 2006 to dispose up to 510,000 Class A Common Shares.
1.7 Trading Plan between Nicola Chu Ming Nga and Redwine & Company dated April 12, 2006 to acquire up to 1,650,000 Class A Common Shares. Revised trading plan between Nicola Chu Ming Nga and Redwine & Company dated June 9, 2006 to acquire up to 530,000 Class A Common Shares.
SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. October 10, 2006 ASIA PACIFIC ONLINE LIMITED By: /s/ Nicola Chu Ming Nga ------------------------------------ Name: NICOLA CHU MING NGA Title: DIRECTOR After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. October 10, 2006 /s/ Peter Yip ---------------------------------------- PETER YIP After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. October 10, 2006 /s/ Nicola Chu Ming Nga ---------------------------------------- NICOLA CHU MING NGA EX-1.1 2 h00801exv1w1.txt EX-1.1 JOINT FILING AGREEMENT DATED OCT 6, 2006 EXHIBIT 1.1 JOINT FILING AGREEMENT This Joint Filing Agreement (this "Agreement") is made as of October 6, 2006 among Asia Pacific Online Limited, a corporation organized under the laws of the Cayman Islands, Mr. Peter Yip and Ms. Nicola Chu Ming Nga (collectively, the "Joint Filers"). BACKGROUND INFORMATION Pursuant to Rule 13d-1(k)(1) under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), the Joint Filers desire to satisfy any filing obligation under Section 13(d) of the Exchange Act by a single joint filing. STATEMENT OF AGREEMENT The Joint Filers hereby acknowledge the accuracy of the foregoing Background Information and hereby agree as follows: 1. The Schedule 13D with respect to the Class A Common Shares, par value $0.00025 per share, of CDC Corporation (to which this Joint Filing Agreement is an exhibit) is filed on behalf of each of the Joint Filers. 2. Each of the Joint Filers is eligible to use Schedule 13D for the filing of information therein contained. 3. Each of the Joint Filers is responsible for the timely filing of Schedule 13D and any amendments thereto, and for the completeness and accuracy of the information concerning such person contained therein; provided, however, that each such person is not responsible for the completeness or accuracy of the information concerning the other persons making the filing, unless such person knows or has reason to believe that such information is inaccurate. ASIA PACIFIC ONLINE LIMITED By /s/ Peter Yip ------------------------------------- Name: Peter Yip Title: Director /s/ Peter Yip ---------------------------------------- Peter Yip /s/ Nicola Chu Ming Nga ---------------------------------------- Nicola Chu Ming Nga EX-1.2 3 h00801exv1w2.txt EX-1.2 OPTION TRANSFER AGREEMENT DATED JUL 15, 2005 Exhibit 1.2 CDC CORPORATION, ASIA PACIFIC ONLINE LIMITED, AND PETER YIP ---------- OPTION TRANSFER AGREEMENT ---------- THIS OPTION TRANSFER AGREEMENT effective as of the Effective Date among CDC Corporation (formerly, chinadotcom corporation) located at 34/F Citicorp Centre, 18 Whitfield Road, Causeway Bay, Hong Kong (the "Company"), Asia Pacific Online Limited located at Suite 4302, 43/F China Resources Building, Wanchai, Hong Kong ("APOL") and Peter Yip of c/o APOL, Suite 4302, 43/F China Resources Building, Wanchai, Hong Kong ("Mr. Yip"). The Company, APOL and Mr. Yip are collectively referred to as the "Parties" and each, a "Party". WHEREAS, APOL has been granted certain share options (together, the "APOL Options") to purchase an equivalent number of the Company's Class A Common Shares, par value US$0.00025 per share (the "Common Shares") as set forth in Schedule A to this Agreement and copies of which option award agreements are attached hereto under Exhibit A to this Agreement. WHEREAS, Mr. Yip has been granted certain share options (together, the "Mr. Yip Options") to purchase an equivalent number of the Company's Common Shares as set forth in Schedule B to this Agreement and copies of which option award agreements are attached hereto under Exhibit B to this Agreement: WHEREAS, the Company is willing to agree to permit APOL and Mr. Yip to transfer certain of the APOL Options and Mr. Yip Options to certain non-profit organizations pursuant to the terms and conditions set forth herein. WHEREAS, the terms of this Agreement have been approved by the Board of Directors of the Company (the "Board") and the form of this Agreement has been ratified by the Board. NOW, THEREFORE, in consideration of the foregoing mutual covenants and agreements contained herein, the Parties hereby agree as follows: 1. ACCELERATION AND VESTING OF CERTAIN OPTIONS 1.1 The Company agrees that it shall use its reasonable best efforts to cause the acceleration and immediate vesting of the APOL Options set forth in Schedule C-1. As a result, none of the APOL Options or Mr. Yip Options shall remain unvested. 2. TRANSFER OF CERTAIN OPTIONS 2.1 Subject to the provisions set forth in Clauses 2.2 through 2.5 herein, the Company agrees that it shall use its reasonable best efforts to permit APOL and Mr. Yip, or a duly authorized alternate or representative identified to the Company, to transfer the APOL Options and Mr. Yip Options set forth in Schedule C-2, in whole or in part, to Permitted Transferees (as defined below). 2.2 APOL and Mr. Yip agree that prior to or simultaneously with any transfer of APOL Options or Mr. Yip Options set forth in Schedule C-2 to a Permitted Transferee, such Permitted Transferee shall have executed and delivered to the Company an acknowledgement in form and substance reasonably satisfactory to the Company (which may be substantially in the form attached hereto as Exhibit C) that the Permitted Transferee (a) qualifies as a non-profit organization under the tax laws of the jurisdiction of its formation, (b) will comply with the terms of the Company's 1999 Stock Option Plan and the terms of the relevant option award agreement applicable to APOL or Mr. Yip (as the case may be), (c) agrees not to transfer such options or any portion of the economic consequences associated with ownership of any such transferred options to any other party; provided, however, that if the Permitted Transferee is the CW Chu Foundation or another trust formed by Mr. Yip and designated as a Permitted Transferee, such Permitted Transferee may transfer such options to another Permitted Transferee (the "Second Permitted Transferee"), provided that such Second Permitted Transferee satisfies all of the provisions of this Agreement as if such Second Permitted Transferee was the original Permitted Transferee, which provisions shall include, but not be limited to, delivery of the acknowledgement form set forth in Clause 2.2 hereto, (d) will represent, warrant and covenant to the Company that it shall hold, exercise and use any proceeds from such options solely and exclusively to advance legitimate causes of such Permitted Transferee which qualify such Permitted Transferee as a tax exempt, non-profit organization that serves the public interest, such as charitable, educational, scientific, religious or literary purposes, and (e) shall dispose of any Class A Common Shares of the Company received as a result of the exercise of any such transferred options (the "Underlying Shares") in an orderly manner which shall be intended not to cause any excessive movement in the price of the Company's Class A Common Shares or creating the perception of an overhang in the Company's Class A Common Shares. For the purposes of effectuating an orderly disposal, (1) the Permitted Transferee shall dispose of the Underlying Shares in a manner consistent with the "Manner of Sale" provisions of Rule 144(f) promulgated under the Securities Act of 1933, as amended, and (2) the amount of Underlying Shares which may be disposed of, together with disposals of all other Underlying Shares within the preceding ten trading days, shall not exceed 5% of the average daily trading volume of the Company's Class A Common Shares on the Nasdaq National Market (or other market on which such shares are then listed) during the ten trading days immediately preceding the date of such sale. 2.3 Simultaneously with any transfer of APOL Options or Mr. Yip Options set forth in Schedule C-2 to a Permitted Transferee, APOL or Mr. Yip, as the case may be, shall be deemed to have represented and warranted to the Company as follows: (a) The Permitted Transferee qualifies as a non-profit organization under the tax laws of the jurisdiction of its formation; (b) To the best knowledge of APOL and Mr. Yip, the Permitted Transferee shall hold, exercise and use any proceeds from such options solely and exclusively to advance legitimate causes of such Permitted Transferee which qualify such Permitted Transferee as a tax exempt, non-profit organization that serves the public interest, such as charitable, educational, scientific, religious or literary purposes. 2.4 Upon any transfer of APOL Options or Mr. Yip Options set forth in Schedule C-2 to a Permitted Transferee, each of APOL and Mr. Yip covenants to promptly make any and all filings with the U.S. Securities and Exchange Commission, National Association of Securities Dealers, and any other governmental or self-regulatory organization which may be prudent or necessary in connection therewith (including, but not limited to, any Form 13D or Form 13G). 2.5 APOL agrees and, upon any transfer of APOL Options or Mr. Yip Options to the CW Chu Foundation as a Permitted Transferee, APOL and Mr. Yip agree to use their best efforts to cause the CW Chu Foundation to agree, to permit representatives of the Company, at the expense of the Company and upon reasonable prior notice to APOL or the CW Chu Foundation, as the case may be, to visit the principal offices of such entity, to discuss the affairs, finances and accounts of such entity with the Company, to examine all their respective books of account, records, reports and other papers, to make copies and extracts therefrom and to permit the Company to discuss their respective affairs, finances and accounts with their respective accountants, for the purposes of confirming and verifying that such entity qualifies as a legitimate non-profit organization under the tax laws of the jurisdiction of its formation, and in the case of the CW Chu Foundation, is a legitimate tax exempt, non-profit organization that serves the public interest, such as charitable, educational, scientific, religious or literary purposes. 3. AMENDMENT TO EXERCISEABILITY OF CERTAIN OPTIONS 3.1 (a) The Company agrees to use its reasonable best efforts, notwithstanding the terms of the Company's 1999 Stock Option Plan, to cause the terms of the option award agreements for the APOL Options and Mr. Yip Options set forth in Schedule C-3 to be modified and amended (i) to permit APOL or Mr. Yip (as the case may be) to exercise such options until the Option Expiration Date for such respective options set forth in Schedule A or Schedule B hereto (subject at all times to Clause 3.1(b)) and (ii) to permit the Permitted Transferee to exercise such options until the Option Expiration Date for such respective options set forth in Schedule A or Schedule B hereto (subject at all times to Permitted Transferee satisfying all of the terms set forth in the acknowledgement form provided by such Permitted Transferee pursuant to Clause 2.2 of this Agreement). Prior to permitting any such exercise pursuant to this Clause 3.1, the Company shall be permitted to require the Permitted Transferee to provide, upon request, such reasonable information as the Company may request to confirm that the Permitted Transferee satisfies such terms set forth in the acknowledgement form provided pursuant to Clause 2.2 of this Agreement. (b) In the event that Mr. Yip ceases to be a member of the Company's Board, APOL or Mr. Yip (as the case may be) shall have until the earlier of (a) six (6) months from the date Mr. Yip ceases to be a member of the Board or (b) the Option Expiration Date to exercise such vested options set forth in Schedule C-3, at which time all of such unexercised options shall expire. 4. INDEMNITY FOR TAX LIABILITY 4.1 APOL agrees and warrants to the Company that it shall indemnify the Company and any Associated Company, and hold the Company and any Associated Company harmless against the non-payment of any income tax, professional indemnity, and other national, provincial or local taxes or assessments by APOL in connection with the APOL Options, any transfer of such APOL Options, or any exercise of such APOL Options by any such transferee. In addition, APOL specifically represents, warrants and covenants to the Company that to the extent that APOL is subject to any withholding or deduction under income tax laws of any jurisdiction with respect to the APOL Options, any transfer of such APOL Options, or any exercise of such APOL Options by any such transferee, that it will hold the Company and each Associated Company harmless against any such non-withholding or non-deduction in connection therewith. 4.2 Mr. Yip agrees and warrants to the Company that he shall indemnify the Company and any Associated Company, and hold the Company and any Associated Company harmless against the non-payment of any income tax, professional indemnity, and other national, provincial or local taxes or assessments by Mr. Yip in connection with the Mr. Yip Options, any transfer of such Mr. Yip Options, or any exercise of such Mr. Yip Options by any such transferee. In addition, Mr. Yip specifically represents, warrants and covenants to the Company that to the extent that Mr. Yip is subject to any withholding or deduction under income tax laws of any jurisdiction with respect to Mr. Yip Options, any transfer of such Mr. Yip Options, or any exercise of such Mr. Yip Options by any such transferee, that he hold the Company and each Associated Company harmless against any such non-withholding or non-deduction in connection therewith. 5. MISCELLANEOUS MATTERS 5.1 If any provision of this Agreement, or the application thereof to any person, place, or circumstance, shall be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement and such provisions as applied to other persons, places, and circumstances shall remain in full force and effect. 5.2 This Agreement may not be modified or amended, except by an instrument in writing, signed by APOL, Mr. Yip and a duly authorized representative of the Company. By an instrument in writing similarly executed, any Party may waive compliance by the other Parties with any provision of this Agreement that such other Party was or is obligated to comply with or perform; provided, however, that such waiver shall not operate as a waiver of, or estoppel with respect to, any other or subsequent failure. No failure to exercise and no delay in exercising any right, remedy or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy or power hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy or power provided herein or by law or in equity. 5.3 The terms of this Agreement are intended by the Parties to be the full and final expression of their agreement and may not be contradicted by evidence of any prior or contemporaneous agreement. The Parties further intend that this Agreement shall constitute the complete and exclusive statement of its terms and that no extrinsic evidence whatsoever may be introduced in any judicial, administrative or other legal proceeding involving this Agreement. This Agreement fully supersedes any prior oral or written agreement between the Parties. 5.4 The headings for the clauses of this Agreement are for convenience only and are not part of this Agreement. 5.5 This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and such counterparts together shall constitute one and the same instrument. 5.6 The Parties acknowledge that (i) they have had the opportunity to consult counsel in regard to this Agreement if they so desire; (ii) they have read and understand the Agreement and they are fully aware of its legal effect; and (iii) they are entering into this Agreement freely and voluntarily, and based on each Party's own judgment and not on any representations or promises made by the other Parties, other than those contained in this Agreement. 6. NOTICE 6.1 All such notices and communications shall be effective (a) when sent by FedEx or other overnight service of recognized standing, on the third business day following the deposit with such service; and (b) when faxed during normal business hours on a day on which the Company is open for business, upon confirmation of receipt. The Parties shall be obligated to notify each other in writing of any change of the below address. Notice of change of address shall be effective only when done in accordance with this Clause. All notices, requests, demands, consents, instructions or other communications required or permitted hereunder shall be in writing and faxed or delivered via courier to each Party as follows: If to the Company: Address: 34/F, Citicorp Centre 18 Whitfield Road Causeway Bay, Hong Kong Facsimile: (852) 2893-5245 Attention: Dr. Raymond Ch'ien If to APOL or Mr. Yip: Address: Suite 4302 43/F China Resources Building 26 Harbour Road Wanchai, Hong Kong Facsimile: (852) 2827-0098 Attention: Mr. Peter Yip 7. GOVERNING LAW 7.1 This Agreement shall be governed by and construed under the law of Hong Kong and each of the Parties hereby irrevocably agrees for the exclusive benefit of the Company that the Courts of Hong Kong are to have exclusive jurisdiction to settle any disputes which may arise out of or in connection with this Agreement. 8. DEFINITIONS 8.1 "Associated Company" means any corporation or other business entity or entities that directly or indirectly controls, is controlled by, or is under common control with the Company after the Effective Date or all other entities in the group of companies of such Associated Companies. 8.2 "Effective Date" means July 15, 2005 8.3 "Permitted Transferee" means those non-profit organizations (a) set forth on a list submitted to the Company by APOL and Mr. Yip from time to time (the "List") and (b) approved by the Board as a Permitted Transferee in its absolute and sole discretion including the Permitted Transferees set forth on Schedule D to this Agreement. For the avoidance of doubt, (i) no transfer of APOL Options or Mr. Yip Options is permitted to any party that is not a Permitted Transferee, and (ii) a Permitted Transferee shall not be permitted to further transfer any such APOL Options, Mr. Yip Options or any of the economic consequences thereof to any other party; provided, however, that if the Permitted Transferee is the CW Chu Foundation or another trust formed by Mr. Yip and designated as a Permitted Transferee, such Permitted Transferee may transfer such options to a Second Permitted Transferee, provided that such Second Permitted Transferee satisfies all of the provisions of this Agreement as if such Second Permitted Transferee was the original Permitted Transferee, which provisions shall include, but not be limited to, delivery of the acknowledgement form set forth in Clause 2.2 hereto and any such transfer shall be made on or prior to the date twelve months from the Effective Date of this Agreement. 9. EFFECTIVE DATE 9.1 This Agreement shall become effective as of the Effective Date. IN WITNESS whereof this Option Transfer Agreement has been signed by or on behalf of the Parties hereto and is effective as of the Effective Date. SIGNED by Simon Wong ) /s/ Simon Wong ---------------------------) --------------------------------------- Director ) on behalf of the CDC Corporation ) in the presence of Alice Hwu ) /s/ Alice Hwu --------------------------------------- Date: ------------------------------- SIGNED by /s/ Peter Yip ) ---------------------------) Director ) on behalf of Asia Pacific Online ) Limited in the presence of Karen Wu ) /s/ Karen Wu --------------------------------------- Date: ------------------------------- SIGNED by Peter Yip ) in the presence of Karen Wu ) /s/ Karen Wu --------------------------------------- /s/ Peter Yip - ------------------------------------- Date: Dec 12 2005 SCHEDULE A CERTAIN OPTION AWARDS GRANTED TO APOL
Unvested Total Options as of Outstanding Termination Grant date Options Strike Price Date Option Expiration Date - ---------- ----------- ------------ ------------- ------------------------------------- Jul 12, 1999 1,881,442 US$5.0000 0 Jul 11, 2009 ("7/12/99 APOL Options") Jun 6, 2002 200,000 US$2.8200 0 Jun 5, 2012 ("6/6/02 APOL Options") Jun 3, 2003 200,000 US$4.9500 0 Jun 2, 2013 ("6/3/03 APOL Options") Jun 16, 2003 100,000 US$5.1600 25,000 Jun 15, 2013 ("6/16/03 APOL Options") Mar 25, 2004 600,000 US$8.2500 500,000 Mar 24, 2014 ("3/25/04 APOL Options")
SCHEDULE B CERTAIN OPTION AWARDS GRANTED TO MR. YIP
Unvested Total Options as of Outstanding Termination Grant date Options Strike Price Date Option Expiration Date - ---------- ----------- ------------ ------------- ---------------------------------------- Jun 22, 1999 60,000 US$3.3750 0 Jun 21, 2009 ("6/22/99 Mr. Yip Options") May 29, 2000 100,000 US$23.0000 0 May 28, 2010 ("5/29/00 Mr. Yip Options") Jan 9, 2001 30,000 US$4.2813 0 Jan 8, 2011 ("1/9/01 Mr. Yip Options")
SCHEDULE C SCHEDULE C-1 The APOL Options the Company agrees to use its reasonable best efforts to cause the acceleration and immediate vesting of: 25,000 of the 6/16/03 APOL Options (as defined in Schedule A); and 500,000 of the 3/25/04 APOL Options (as defined in Schedule A). SCHEDULE C-2 APOL Options and Mr. Yip Options the Company agrees that it shall use its reasonable best efforts to permit Mr. Yip to transfer, in whole or in part, to Permitted Transferees, subject to Clause 2: The 7/12/99 APOL Options (as defined in Schedule A); The 6/6/02 APOL Options (as defined in Schedule A); The 6/3/03 APOL Options (as defined in Schedule A); The 6/16/03 APOL Options (as defined in Schedule A); The 3/25/04 APOL Options (as defined in Schedule A); and The 5/29/00 Mr. Yip Options (as defined in Schedule B). SCHEDULE C-3 Options to be modified and amended to permit APOL or Mr. Yip (as the case may be) and the Permitted Transferee (if any) to exercise such options until the Option Expiration Date for such respective options set forth in Schedule A or Schedule B (subject at all times to Clause 3.1(b)): The 7/12/99 APOL Options (as defined in Schedule A); The 6/6/02 APOL Options (as defined in Schedule A); The 6/3/03 APOL Options (as defined in Schedule A); The 6/16/03 APOL Options (as defined in Schedule A); The 3/25/04 APOL Options (as defined in Schedule A); and The 5/29/00 Mr. Yip Options (as defined in Schedule B). SCHEDULE D PERMITTED TRANSFEREES 1. CW Chu Foundation 2. University of Pennsylvania 3. St. Paul's Co-educational College 4. LaSalle College of Hong Kong EXHIBIT A [INSERT APOL OPTION AWARD AGREEMENTS] EXHIBIT B [INSERT MR. YIP OPTION AWARD AGREEMENTS] EXHIBIT C ACKNOWLEDGEMENT FORM FROM [INSERT NAME OF PERMITTED TRANSFEREE] (THE "PERMITTED TRANSFEREE") Reference is hereby made to the Option Transfer Agreement dated as of the Effective Date among CDC Corporation (formerly, chinadotcom corporation) located at 34/F Citicorp Centre, 18 Whitfield Road, Causeway Bay, Hong Kong (the "Company"), Asia Pacific Online Limited located at Suite 4302, 43/F China Resources Building, Wanchai, Hong Kong ("APOL") and Peter Yip of c/o APOL, Suite 4302, 43/F China Resources Building, Wanchai, Hong Kong ("Mr. Yip") (the "Agreement"). Capitalized terms used herein without definition shall have the meaning given to such term in the Agreement. The undersigned Permitted Transferee hereby acknowledges, represents, warrants and covenants (as the case may be) to the Company as follows: (1) [Mr. Yip/APOL] has indicated that [he/it] desires to transfer [INSERT NUMBER] [Mr. Yip Options/APOL Options] (the "Transferred Options") to the Permitted Transferee. (2) This Acknowledgement Form is being delivered to the Company in compliance with Clause 2.2 of the Agreement. (3) It is a condition precedent to the Company permitting [Mr. Yip/APOL] to transfer the Transferred Options to the Permitted Transferee that the acknowledgements, representations, warranties and covenants of the Permitted Transferee be accurate and complete. (4) The Permitted Transferee qualifies as a non-profit organization under the tax laws of the jurisdiction of its formation. (5) The Permitted Transferee will comply with the terms of the Company's 1999 Stock Option Plan and the terms of the relevant option award agreement applicable to the Transferred Options. (6) The Permitted Transferee agrees not to transfer the Transferred Options or any portion of the economic consequences associated with ownership of any such Transferred Option to any other party [; provided, however, that if the Permitted Transferee is the CW Chu Foundation or another trust formed by Mr. Yip and designated as a Permitted Transferee, such Permitted Transferee may transfer such options to another Permitted Transferee (the "Second Permitted Transferee"), provided that such Second Permitted Transferee satisfies all of the provisions of the Agreement as if such Second Permitted Transferee was the original Permitted Transferee, which provisions shall include, but not be limited to, delivery of the acknowledgement form set forth in Clause 2.2 of the Agreement and any such transfer shall be made on or prior to the date twelve months from the Effective Date of the Agreement.] [INCLUDE ONLY IF PERMITTED TRANSFEREE IS THE CW CHU FOUNDATION OR ANOTHER TRUST FORMED BY MR YIP AND DESIGNATED AS A PERMITTED TRANSFEREE] (7) The Permitted Transferee will hold, exercise and use any proceeds from such options solely and exclusively to advance legitimate causes of such Permitted Transferee which qualify such Permitted Transferee as a tax exempt, non-profit organization that serves the public interest, such as charitable, educational, scientific, religious or literary purposes. (8) Upon the disposal of any Underlying Shares, the Permitted Transferee will undertake an orderly disposal of such Underlying Shares which shall be intended not to cause any excessive movement in the price of the Company's Class A Common Shares or creating the perception of an overhang in the Company's Class A Common Shares. For the purposes of effectuating an orderly disposal, (1) the Permitted Transferee shall dispose of the Underlying Shares in a manner consistent with the "Manner of Sale" provisions of Rule 144(f) promulgated under the Securities Act of 1933, as amended, and (2) the amount of Underlying Shares which may be disposed of, together with disposals of all other Underlying Shares within the preceding ten trading days, shall not exceed 5% of the average daily trading volume of the Company's Class A Common Shares on the Nasdaq National Market (or other market on which such shares are then listed) during the ten trading days immediately preceding the date of such sale. (9) The Permitted Transferee acknowledges and agrees that prior to permitting the Permitted Transferee to exercise Transferred Options, the Company may request the Permitted Transferee to provide reasonable information to confirm the representations, warranties and covenants contained herein. [NAME OF PERMITTED TRANSFEREE] By ------------------------------------- Name: ---------------------------------- Title: --------------------------------- EX-1.3 4 h00801exv1w3.txt EX-1.3 TRADING PLAN DATED JUN 16, 2005 Exhibit 1.3 CLIENT'S NAME: NICOLA CHU MING NGA ISSUER'S NAME: CDC CORPORATION TYPE OF SECURITIES: COMMON STOCK ACCOUNT NUMBER: IBM - 10015 MAXIMUM # OF SHARES TO SELL UNDER THE PLAN: 350,000 RULE 10B5-1 SALES PLAN AND CLIENT REPRESENTATIONS I, Nicola Chu Ming Nga, as of the date below, establish this Sales Plan ("Plan") in order to sell shares of the common stock ("Shares") of CDC Corporation ("Issuer") pursuant to the requirements of Rule 10b5-1 under the Securities Exchange Act of 1934, as amended ("Exchange Act"). I request that Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch") execute the Plan as follows: 1. SALES INSTRUCTIONS FOR SALES/EXERCISES STARTING ON JUNE 17, 2005, AND ENDING ON JUNE 30, 2006, 1.1. For securities other than employee stock options, you are authorized to execute the transactions indicated by the checked box below: [X] Merrill Lynch shall effect a sale (each a "SALE") of 25,000 shares of Common Stock on the MONDAY, WEDNESDAY and FRIDAY of every week commencing on June 15, 2005, in which the Common Stock is trading on the Nasdaq National Market at a price as follows: 125,000 shares at US$3.00 or above per share; 125,000 shares at US$4.00 or above per share; 100,000 shares at US$5.00 or above per share [ ] SELL Shares pursuant to the following table:
SALE PRICE START DATE END DATE SHARE QUANTITY "LIMIT" OR "MARKET" - ---------- -------- -------------- ------------------- TOTAL
[X] IMPLEMENT CARRYFORWARD PROVISION. (OPTIONAL) Under this provision, any Shares not sold as specified above because the parameters (e.g., specified sale price) under the Plan were not met, will carry forward to the next aforementioned trading day until sold. 1.2 For employee stock options, you are authorized to EXERCISE MY OPTIONS AND execute the transactions in respect of the underlying Shares indicated by the checked box below: [ ] EXERCISE ___________________ [number] stock options and sell the underlying Shares every ______________ [insert time period (day, week, month, quarter, day/date of month, etc.)], provided the price per underlying Share is at or above $_____________ [dollar amount] on the Exchange. [ ] EXERCISE stock options pursuant to the following table: 1
NUMBER OF OPTIONS TO BE EXERCISED AND UNDERLYING SHARES SALE PRICE TO BE SOLD UNDER GRANT NO. -"LIMIT" OR START DATE END DATE THE PLAN GRANT DATE EXERCISE PRICE "MARKET" - ---------- -------- ----------------- ---------- -------------- ----------- TOTAL
[ ] IMPLEMENT CARRYFORWARD PROVISION. Under this provision, any options not exercised and underlying Shares not sold as specified above because the parameters (e.g., specified sale price) under the Plan were not met, will carry forward to future ____________ [time periods] until the options are exercised and the underlying Shares are sold. For purposes of this section 1.2: 1. Merrill Lynch will not exercise any stock option unless its exercise price is less than the market price of the underlying Shares. 2. Merrill Lynch first will exercise those stock options (select one): [ ] with the earliest expiration date or [ ] with the lowest exercise price. 3. Merrill Lynch will deduct from the proceeds of each stock option exercised and the underlying Shares sold the sum of the exercise price and any withholding tax. The resulting amount will be then remitted to the Issuer. 4. Check which of the following apply: [ ] The Issuer of the Shares has executed a servicing agreement with Merrill Lynch for stock option services for the Issuer and its optionees. [ ] The Issuer of the Shares has not executed a servicing agreement with Merrill Lynch for stock option services for the Issuer and its optionees and therefore I hereby agree to and authorize the following: In connection with the exercise of my employee stock options under the Plan I authorize and instruct the Issuer to register or cause its agent(s) to register, the Shares to be issued upon the exercise of my stock option(s) in the name of Merrill Lynch (or its designated nominee), which is my agent and nominee (or in the event that is not permissible, in my name). I also authorize and instruct the Issuer to deliver, or cause its agent(s) to deliver within three business days, the Shares issued pursuant to the stock option exercise to Merrill Lynch in exchange for funds from Merrill Lynch representing the exercise price (plus any applicable taxes). I cannot revoke or rescind this authorization and instruction under any circumstance while the Plan is in effect. I hereby grant a security interest to Merrill Lynch in the Shares to be issued pursuant to the exercise of my employee stock option(s). This security interest will not terminate even if the securities are delivered to me contrary to these instructions. 2 If I am selling all or some of the Shares to be issued pursuant to the exercise of my employee stock option, I agree that I am responsible for any and all dividends, rights or payments of any kind that are or may become payable to any purchaser of the Shares prior to the registration of the Shares in the name of Merrill Lynch and, if I am holding all or some of these Shares, I agree that I shall not be entitled to such dividends, rights or payments prior to the issuance of the Shares. I agree to pay or deliver to Merrill Lynch upon demand, any and all funds, securities, dividends or distributions due to it, if, for any reason, the Shares to be issued pursuant to the exercise of my employee stock option are not promptly delivered to Merrill Lynch. 2. EXECUTION, AVERAGE PRICING AND PRO RATA ALLOCATION OF SALES 2.1. I agree and acknowledge that: 1. If my order to sell Shares pursuant to the Plan, whether market or limit, is handled by a Merrill Lynch trading desk, my order shall be handled as "not held". A "not held" or "working order" permits a Merrill Lynch trader to use reasonable brokerage judgment, exercising price and time discretion, as to when to execute the order. 2. Merrill Lynch may execute my order: (a) in a single transaction or multiple transactions during the course of the trading day, or (b) it may aggregate my order with other orders for other sellers of the Issuer's securities that may or may not have been accepted pursuant to a Rule 10b5-1 sales plan, execute them as a block or in multiple smaller transactions, and allocate an average price to each seller. 3. When orders are aggregated, Merrill Lynch shall allocate the proceeds of shares sold pro rata among the sellers, based on the ratio of (x) the shares to be sold and (y) the sum of the proceeds of all shares sold, and Merrill Lynch will provide each seller an "average price confirmation" that identifies the amount of securities sold for the applicable seller together with an average price for sales. 3. STOCK SPLITS/ REINCORPORATION/REORGANIZATIONS 3.1 In the event of a stock split or reverse stock split, the quantity and price at which the Shares are to be sold will be automatically adjusted proportionately. 3.2 In the event of a reincorporation or other corporate reorganization resulting in an automatic share-for-share exchange of new shares for the Shares subject to the Plan, then the new shares will automatically replace the Shares originally specified in the Plan. 4. ACCOUNT CREDIT 4.1 In the event any scheduled sale of Shares or exercise of stock options and sale of the underlying Shares is not executed as provided in Section 1 (or Section 7, if applicable) of the Plan, my account will be credited as if such sale or exercise had taken place as scheduled or provided in Section 7. 5. COMPLIANCE WITH RULE 144 AND RULE 145 5.1 I understand and agree that if I am an affiliate or control person for purposes of Rule 144 under the Securities Act of 1933, as amended ("Securities Act"), or if the Shares subject to the Plan are restricted securities subject to limitations under Rule 144 or eligible for resale under Rule 145, then all sales of Shares under the Plan will be made in accordance with the applicable provisions of Rule 144. 3 5.2 I request and authorize Merrill Lynch to complete and file on my behalf any Forms 144 (pre-signed by me) necessary to effect sales under the Plan. 5.3 If appropriate, I understand and agree that, upon my prompt signature and delivery to Merrill Lynch of Form 144, Merrill Lynch will either: (a) make one Form 144 filing at the beginning of each three-month period commencing with the date of the first sale made in connection with the Plan or (b) file Form 144 for each sale made in connection with the Plan. 5.4 Each Form 144 shall state the following: "This proposed sale is made pursuant to a plan intended to comply with Rule 10b5-1(c), previously entered into on [insert plan adoption date], at which time I was not aware of material nonpublic information." 5.5 Merrill Lynch will conduct sales pursuant to Rule 144 or Rule 145 if appropriate, including applying Rule 144 volume limitations as if the sales under the Plan were the only sales subject to the volume limitations. 5.6. I agree not to take any action or to cause any other person or entity to take any action that would require me to aggregate sales of Shares pursuant to Rule 144; and not to take any action that would cause the sales of Shares under the Plan not to comply with Rule 144 or Rule 145. 6. REPRESENTATIONS, WARRANTIES AND COVENANTS In consideration of Merrill Lynch accepting orders to sell securities under this Plan, I make the following representations, warranties and covenants: 6.1 I have established the Plan in good faith, in compliance with the requirements of Rule 10b5-1, and at a time when I was not aware of material nonpublic information about the Shares or the Issuer. 6.2 I have consulted with legal counsel and other advisors in connection with my decision to enter into the Plan and have confirmed that the Plan meets the criteria set forth in Rule 10b5-1. I have not received or relied on any representations by Merrill Lynch regarding the Plan's compliance with Rule 10b5-1. 6.3 I have provided, or caused the Issuer to provide, Merrill Lynch with a certificate completed by the Issuer, substantially in the form of Annex A hereto ("Issuer Certificate"). 6.4. I own all Shares that are subject to the Plan free and clear of liens or encumbrances of any kind. I will own any Shares acquired under employee stock options exercised pursuant to the Plan free and clear of liens or encumbrances, except for any liens or encumbrances in favor of Merrill Lynch. There are no restrictions imposed on me, the Shares or the Issuer that would prevent Merrill Lynch or me from complying with the Plan. 6.5. While the Plan is in effect, except as provided in the Plan, I will not engage in offsetting or hedging transactions in violation of Rule 10b5-1; and I will notify Merrill Lynch in advance of any sales or purchases of, or derivative transactions on, any of the Issuer's securities initiated by me. 6.6. While the Plan is in effect, I will not disclose to any employee of Merrill Lynch, including my Private Wealth Advisor or Financial Advisor, any material nonpublic information concerning the Shares or the Issuer. 4 6.7. While the Plan is in effect, I will not attempt to exercise any influence over how, when or whether to effect sales of Shares. 6.8. The Plan does not violate the Issuer's insider trading policies. 6.9. I agree to make or cause to be made all filings required under the Securities Act and/or the Exchange Act, including under Rule 144 and pursuant to Section 13 and Section 16 of the Exchange Act, and any other filings necessary. 6.10. As to delivery requirements: 1. For securities other than stock options, prior to the date of execution of any sales specified under the Plan, I agree to have delivered into the custody of Merrill Lynch the total amount of the Shares that may be sold pursuant to the Plan, together with all transfer documents and other authorizations required for Merrill Lynch to effect settlement of sales of such Shares on my behalf. 2. For employee stock options, the number of options granted to me by the Issuer that are vested, exercisable and registered is equal to or greater than the number of options to be exercised and the underlying Shares to be sold under the Plan. I agree to provide to Merrill Lynch all necessary documentation, properly executed, to effect the timely exercise of the stock options and the subsequent sale and settlement of the Shares. 3. I agree that Merrill Lynch's obligation to execute sales under the Plan is conditioned on the satisfaction of the foregoing delivery requirements. 6.11. I agree to inform Merrill Lynch as soon as possible of any of the following: 1. any subsequent restrictions imposed on me due to changes in the securities (or other) laws or of any contractual restrictions imposed on the Issuer that would prevent Merrill Lynch or me from complying with the Plan, and 2. the occurrence of any event as set forth in the Plan that would cause the Plan to be suspended or terminated under Section 7 or Section 8 of the Plan, respectively. 7. SUSPENSION 7.1 Sales pursuant to Section 1 above shall be suspended where: 1. trading of the Shares on the Exchange is suspended for any reason; 2. there is insufficient demand for any or all of the Shares at or above the specified price (e.g., the specified price met but all Shares could not be sold at or above the specified price); 3. Merrill Lynch, in its sole discretion, determines that there is a legal, regulatory or contractual reason why it cannot effect a sale of Shares; 4. Merrill Lynch is notified in writing by the Issuer that a sale of Shares should not be effected due to legal, regulatory or contractual restrictions applicable to the Issuer or to me (including without limitation, Regulation M); 5. Merrill Lynch is notified in writing by the Issuer that (i) in the case of Shares being sold pursuant to a registration statement filed under the Securities Act, the registration statement has terminated, been suspended, expired or is otherwise unavailable; or (ii) a public announcement of a public offering of securities by the Issuer has been made. 5 7.2 Merrill Lynch will resume sales in accordance with the Plan as promptly as practicable after (a) Merrill Lynch receives notice in writing from the Issuer that it may resume sales in accordance with Section 1 of the Plan in the case of the occurrence of an Event described in 7.1.4 or 7.1.5 above or (b) Merrill Lynch determines, in its sole discretion, that it may resume sales in accordance with the Plan in the case of the occurrence of an Event described in 7.1.1, 7.1.2 or 7.1.3 above. 7.3 Shares allocated under the Plan for sale during a period that has elapsed due to a suspension under this Section will be carried forward to be sold with the next amount of shares to be sold in accordance with Section 1 of the Plan. 7.4 In the event Section 1 of the Plan provides for an amount of Shares to be sold during a given period pursuant to a limit order, Shares that would otherwise be permitted to be sold during that period, shall, upon lapse of the suspension, nonetheless be carried forward to be sold with the next amount of Shares to be sold in accordance with Section 1 of the Plan. 7.5 Merrill Lynch is released from all liability in connection with any suspension of sales, including, but not limited to, liability for the expiration of stock options or loss of market value. 8. TERMINATION 8.1 The Plan shall terminate on the earliest to occur of the following: 1. the termination date listed above; 2. the completion of all sales contemplated in Section 1 of the Plan; 3. my or Merrill Lynch's reasonable determination that: (a) the Plan does not comply with Rule 10b5-1 or other applicable securities laws; (b) I have not complied with the Plan, Rule 10b5-1 or other applicable securities laws; or (c) I have made misstatements in my representations or warranties in Section 6, above; 4. receipt by Merrill Lynch of written notice from the Issuer or me of: (a) the filing of a bankruptcy petition by the Issuer; (b) the public announcement of a merger, recapitalization, acquisition, tender or exchange offer, or other business combination or reorganization resulting in the exchange or conversion of the Shares of the Issuer into shares of a company other than the Issuer; or (c) the conversion of the Shares into rights to receive fixed amounts of cash or into debt securities and/or preferred stock (whether in whole or in part); 5. receipt by Merrill Lynch of written notice of my death; or 6. receipt by Merrill Lynch of written notice of termination from me. 9. INDEMNIFICATION 9.1 I agree to indemnify and hold harmless Merrill Lynch and its directors, officers, employees and affiliates from and against all claims, losses, damages and liabilities, including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such claim, arising out of or attributable to Merrill Lynch's actions taken in compliance with the Plan, any breach by me of the Plan, or any violation by me of applicable 6 federal or state laws or regulations. This indemnification shall survive termination of the Plan. 9.2 Merrill Lynch agrees to indemnify and hold me harmless from and against all claims, losses, damages and liabilities including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim, arising out of or attributable to Merrill Lynch's gross negligence or willful misconduct in connection with the Plan. 10. MODIFICATION AND AMENDMENT 10.1 The Plan may be modified or amended only upon (a) the written agreement of me and Merrill Lynch; (b) the receipt by Merrill Lynch of a certificate signed by me to the effect that the representations, warranties and covenants contained in Section 6 above, are true as of the date of such certificate; and (c) the receipt by Merrill Lynch of an Issuer Certificate. 11. COUNTERPARTS The Plan may be signed in counterparts, each of which will be an original. 12. ENTIRE AGREEMENT The Plan, including the representations, warranties and covenants in Section 6, constitutes the entire agreement between me and Merrill Lynch regarding the Plan and supersedes any prior agreements or understandings regarding the Plan. 13. NOTICES 13.1 All notices given by the parties under the Plan will be as follows: If to Merrill Lynch: Managing Director and Administrative Manager Merrill Lynch, Pierce, Fenner & Smith, Incorporated 15/F., St. George's Building 2 Ice House Street, Central Hong Kong If to me: Nicola Chu Ming Nga Room 4302,43/F China Resources Building, 26 Harbour Road, Wanchai Hong Kong IF SELLER IS SUBJECT TO THE REPORTING REQUIREMENTS OF SECTION 16 OF THE EXCHANGE ACT, COMPLETE THE FOLLOWING TO HAVE TRANSACTION INFORMATION FOR OPEN MARKET TRANSACTIONS UNDER THE PLAN FORWARDED TO A DESIGNATED THIRD PARTY. 7 14 OFFICER & DIRECTOR EQUITY SERVICE 14.1 I authorize Merrill Lynch to transmit transaction information via facsimile and/or email regarding open market transactions under the Plan to: Name: Ms Clara Lau Name: __________________________________ Title: Senior Accountant Title: _________________________________ Organization: _______________________ Organization: __________________________ Fax: (852) 2116 1078 Fax: ___________________________________ Tel: (852) 2116 8518 Tel: ___________________________________ e-mail: claralau3@gmail.com e-mail: ________________________________ 14.2 I understand that reasonable efforts will be made to transmit transaction information for open market transactions under the Plan (purchase or sale) by the close of business on the day of the purchase or sale, but no later than the close of business on the first trading day following the purchase or sale. 14.3 I acknowledge that Merrill Lynch (a) has no obligation to confirm receipt of any email or faxed information by the designated contact and (b) has no responsibility or liability for filing a Form 4 with the SEC or for compliance with Section 16 of the Exchange Act. 14.4 If any of the above contact information changes, or I would like to terminate this authorization, I will promptly notify Merrill Lynch in writing. I further authorize Merrill Lynch to transmit transaction information to a third party service provider who will make the information available to my designated representative(s) listed above. 8 15. GOVERNING LAW This Plan will be governed by and construed in accordance with the laws of the State of New York. By: /s/ Nicola Chu Ming Nga ------------------------------------ Name: Nicola Chu Ming Nga Date: ---------------------------------- Acknowledged and Agreed this 16 day of June, 2005: Merrill Lynch, Pierce, Fenner & Smith Incorporated By: /s/ Beatriz Shek --------------------------------- Name: ------------------------------- Title: Administrative Manager Acknowledged: CDC Corporation By: /s/ Steven Chan --------------------------------- Name: Steven Chan Title: General Counsel and Corporate Secretary 9 ANNEX A - ISSUER CERTIFICATE THIS ANNEX A MAY NOT BE AMENDED EXCEPT IN ACCORDANCE WITH THE PLAN. 1. CDC Corporation, (the "Issuer") certifies that it has approved, and retained a copy of, the Sales Plan dated ___________, 200_ (the "Plan") between Nicola Chu Ming Nga ("Seller") and Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch") relating to the common stock of the Issuer (the "Shares"). 2. The Plan is consistent with Issuer's insider trading policies, and, to the best of Issuer's knowledge, there are no legal, contractual or regulatory restrictions applicable to Seller as of the date of this representation that would prohibit Seller from entering into the Plan or effecting any sale of Shares pursuant to the Plan. 3. While the Plan is effective, Issuer agrees to provide notice as soon as practicable to Merrill Lynch in the event of: a. the selling of the Shares pursuant to a registration statement or the termination, expiration, suspension or unavailability of the registration statement; b. a public announcement of a public offering of securities by the Issuer; c. a legal, regulatory or contractual restriction applicable to Seller or Seller's affiliates, including without limitation, under Regulation M, that would prohibit any sale pursuant to the Plan (other than any such restriction relating to Seller's possession or alleged possession of material nonpublic information about the Issuer or its securities) (the notice merely stating that a restriction applies to Seller without specifying the reasons for the restriction); d. the filing of a bankruptcy petition by the Issuer; e. the public announcement of a merger, recapitalization, acquisition, tender or exchange offer, or other business combination or reorganization resulting in the exchange or conversion of the Shares of the Issuer into shares of a company other than the Issuer; or f. the conversion of the Shares into rights to receive fixed amounts of cash or into debt securities and/or preferred stock (whether in whole or in part). The notice shall be provided by facsimile to [_____________], Merrill Lynch, at [_________________] and shall indicate the anticipated duration of the restriction but shall not include any other information about the nature of the restriction or its applicability to Seller. In any event, the Issuer shall not communicate any material nonpublic information about Issuer or its securities to Merrill Lynch with respect to the Plan. 4. To avoid delays in connection with transfers of stock certificates and settlement of transactions under the Plan, and in acknowledgment of Merrill Lynch's agreement in Section 5 of the Plan that sales of Shares under the Plan will be effected in compliance with Rule 144, the Issuer agrees that it will, immediately upon Seller's directing delivery of Shares into an account at Merrill Lynch in the name of and for the benefit of Seller, instruct its transfer agent to process the transfer of Shares and issue a new certificate to Seller that does not bear any legend or statement restricting its transferability to a buyer. A-1 5. If the Plan covers options, Issuer acknowledges that Seller has authorized Merrill Lynch to serve as Seller's agent and attorney-in-fact to exercise certain stock options to purchase the Shares from time to time pursuant to the Plan. Issuer agrees to accept, acknowledge and effect the exercise of such stock options by Merrill Lynch and the delivery of the underlying Shares to Merrill Lynch, free of any legend or statement restricting their transferability to a buyer. By signing below and upon delivery of funds representing the exercise price (plus any applicable taxes), the Issuer, for itself and its agents, acknowledges: (1) the security interest of Merrill Lynch in the underlying Shares and (2) that prior to delivery to Merrill Lynch, the Issuer holds the underlying Shares as bailee for Merrill Lynch. Dated: June 17, 2005 By: /s/ Steven Chan --------------------------------- Steven Chan General Counsel and Corporate Secretary A-2 CLIENT'S NAME: NICOLA CHU MING NGA ISSUER'S NAME: CDC CORPORATION TYPE OF SECURITIES: COMMON STOCK ACCOUNT NUMBER: ________________ RULE 10B5-1 CLIENT REPRESENTATION LETTER Merrill Lynch, Pierce, Fenner & Smith Incorporated 15/F., St. George's Building 2 Ice House Street, Central Hong Kong Attn: _______________________ Gentlemen: In consideration of Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch") accepting orders to sell securities under a written plan (the "Plan") that I, Nicola Chu Ming Nga, have established to meet the requirements of Rule 10b5-1 under the Securities and Exchange Act of 1934, as amended (the "Exchange Act"), I make the following representations, warranties and covenants: 1. I established the Plan in good faith, in compliance with the requirements of Rule 10b5-1, and at a time when I was not in possession of material nonpublic information about CDC Corporation (the "Issuer"), whose securities are the subject of the Plan. 2. I have consulted with legal counsel and other advisors in connection with my decision to enter into the Plan and have confirmed that the Plan meets the criteria set forth in Rule 10b5-1. 3. I own all shares that are subject to the Plan free and clear of liens or encumbrances of any kind (except for shares underlying options). 4. Except as provided in the Plan and while the Plan is in effect, I confirm that: a. I will not engage in offsetting or hedging transactions in violation of Rule10b5-1; and b. I will notify Merrill Lynch in advance of any sales or purchases of, or derivative transactions on, any of the Issuer's securities. 5. I further confirm my understanding that while this Plan is in effect, I may not disclose to the persons at Merrill Lynch effecting sales under the Plan for me any information concerning the Issuer that might influence the execution of the Plan. 6. Compliance with insider trading policies. a. The Plan does not violate the Issuer's insider trading policies. b. I have informed the Issuer of the existence and provisions of the Plan, and, if necessary under the Issuer's insider-trading policies, authorized representatives of the Issuer have approved the Plan and have been provided with a copy of the plan. 7. Compliance with Rule 144 and Rule 145 a. I understand and agree that if I am an affiliate or control person for purposes of Rule 144 under the Securities Act of 1933, as amended (the "Securities Act"), or if the securities subject to the Plan are restricted securities subject to limitations under Rule 144 or eligible for resale under Rule 145, then all sales of securities under the Plan will be in accordance with the applicable provisions of Rule 144. b. I agree: (i) to promptly sign and deliver to Merrill Lynch the Forms 144 that Merrill Lynch may request in connection with the Plan and to note on such Forms that "This proposed sale is made pursuant to a plan intended to comply with Rule 10b5-1(c), previously adopted on ________________________ [date], when I was not in possession of material nonpublic information"; (ii) not to take any action or to cause any other person or entity to take any action that would require me to aggregate sales of securities pursuant to Rule 144; and not to take any action that would cause the sales of securities under the Plan not to comply with Rule 144 or Rule 145. 8. I agree to make or cause to be made all necessary filings, including Rule 144 filings, filings pursuant to Section 13 and Section 16 of the Exchange Act, and any other filings necessary pursuant to the Securities Act and/or the Exchange Act. 9. Delivery requirements. a. For securities other than stock options, prior to the date of execution of any sales specified under the Plan, I agree to have delivered into the custody of Merrill Lynch certificates representing that number of securities that may be sold pursuant to the Plan (or other appropriate evidence thereof), together with all transfer documents and other authorizations required for Merrill Lynch to effect settlement of sales of such securities on my behalf. b. For stock options, I agree to provide to Merrill Lynch all necessary documentation, properly executed, to effect the timely exercise of the stock option and the subsequent sale and settlement of the securities. 2 c. I agree that Merrill Lynch's obligation to execute sales under the Plan is conditioned on the satisfaction of the foregoing delivery requirements. 10. I agree to inform Merrill Lynch as soon as possible of (a) any subsequent restrictions imposed on me due to changes in the securities (or other) laws or of any contractual restrictions imposed on the Issuer that would prevent Merrill Lynch or me from complying with the Plan and (b) the occurrence of any event as set forth in the Plan that would cause the Plan to end or be suspended under paragraph 2 or paragraph 3 of the Plan. 11. Attached is a true and accurate copy of the Plan. Very truly yours, By: /s/ Nicola Chu Ming Nga ------------------------------------ Name: Nicola Chu Ming Nga Date: 16 June 2005 3 EX-1.4 5 h00801exv1w4.txt EX-1.4 TRADING PLAN DATED SEP 12, 2005 Exhibit 1.4 CLIENT'S NAME: NICOLA CHU MING NGA ISSUER'S NAME: CDC CORPORATION TYPE OF SECURITIES: COMMON STOCK ACCOUNT NUMBER: 1BM-10015 MAXIMUM # OF SHARES TO SELL UNDER THE PLAN: 2,290,000 RULE 10B5-1 SALES PLAN AND CLIENT REPRESENTATIONS I, Nicola Chu Ming Nga, as of the date below, establish this Sales Plan ("Plan") in order to sell shares of the common stock ("Shares") of CDC Corporation ("Issuer") pursuant to the requirements of Rule 10b5-1 under the Securities Exchange Act of 1934, as amended ("Exchange Act"). I request that Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch") execute the Plan as follows: 1. SALES INSTRUCTIONS FOR SALES/EXERCISES STARTING ON Sep 12, 2005, AND ENDING ON Sep 11, 2006 1.1. For securities other than employee stock options, you are authorized to execute the transactions indicated by the checked box below: [X] Merrill Lynch shall effect a sale (each a "SALE") of Common Stock daily of every week commencing on Sep 12, 2005, in which the Common Stock is trading on the Nasdaq National Market at a price as follows: 1) 20,000 shares at US$3.50 or better per share at 2,000 shares; 2) 50,000 shares at US$4.00 or better per share at 5,000 shares; 3) 100,000 shares at US$4.50 or better per share at 10,000 shares; 4) 120,000 shares at US$5.50 or better per share at 10,000 shares; 5) 150,000 shares at US$7.50 or better per share at 10,000 shares; 6) 150,000 shares at US$9.50 or better per share at 10,000 shares; 7) 300,000 shares at US$11.00 or better per share at 15,000 shares; 8) 400,000 shares at US$13.00 or better per share at 15,000 shares; 9) 500,000 shares at US$15.00 or better per share at 20,000 shares; 10) 500,000 shares at US$18.00 or better per share at 20,000 shares; [ ] SELL Shares pursuant to the following table:
SALE PRICE START DATE END DATE SHARE QUANTITY "LIMIT" OR "MARKET" - ---------- -------- -------------- ------------------- TOTAL
[X] IMPLEMENT CARRYFORWARD PROVISION. (OPTIONAL) Under this provision, any Shares not sold as specified above because the parameters (e.g., specified sale price) under the Plan were not met, will carry forward to the next aforementioned trading day until sold. 1.2 For employee stock options, you are authorized to EXERCISE MY OPTIONS AND execute the transactions in respect of the underlying Shares indicated by the checked box below: [ ] EXERCISE __________________ [number] stock options and sell the underlying Shares every _____________ [insert time period (day, week, month, quarter, day/date of month, etc.)], provided the price per underlying Share is at or above $_______ 1 [dollar amount] on the Exchange. [ ] EXERCISE stock options pursuant to the following table:
NUMBER OF OPTIONS TO BE EXERCISED AND UNDERLYING SHARES SALE PRICE TO BE SOLD UNDER GRANT NO. - "LIMIT" OR START DATE END DATE THE PLAN GRANT DATE EXERCISE PRICE "MARKET" - ---------- -------- ----------------- ---------- -------------- ------------ Total
[ ] IMPLEMENT CARRYFORWARD PROVISION. Under this provision, any options not exercised and underlying Shares not sold as specified above because the parameters (e.g., specified sale price) under the Plan were not met, will carry forward to future ______ [time periods] until the options are exercised and the underlying Shares are sold. For purposes of this section 1.2: 1. Merrill Lynch will not exercise any stock option unless its exercise price is less than the market price of the underlying Shares. 2. Merrill Lynch first will exercise those stock options (select one): [ ] with the earliest expiration date or [ ] with the lowest exercise price. 3. Merrill Lynch will deduct from the proceeds of each stock option exercised and the underlying Shares sold the sum of the exercise price and any withholding tax. The resulting amount will be then remitted to the Issuer. 4. Check which of the following apply: [ ] The Issuer of the Shares has executed a servicing agreement with Merrill Lynch for stock option services for the Issuer and its optionees. [ ] The Issuer of the Shares has not executed a servicing agreement with Merrill Lynch for stock option services for the Issuer and its optionees and therefore I hereby agree to and authorize the following: In connection with the exercise of my employee stock options under the Plan I authorize and instruct the Issuer to register or cause its agent(s) to register, the Shares to be issued upon the exercise of my stock option(s) in the name of Merrill Lynch (or its designated nominee), which is my agent and nominee (or in the event that is not permissible, in my name). I also authorize and instruct the Issuer to deliver, or cause its agent(s) to deliver within three business days, the Shares issued pursuant to the stock option exercise to Merrill Lynch in exchange for funds from Merrill Lynch representing the exercise price (plus any applicable taxes). 2 I cannot revoke or rescind this authorization and instruction under any circumstance while the Plan is in effect. I hereby grant a security interest to Merrill Lynch in the Shares to be issued pursuant to the exercise of my employee stock option(s). This security interest will not terminate even if the securities are delivered to me contrary to these instructions. If I am selling all or some of the Shares to be issued pursuant to the exercise of my employee stock option, I agree that I am responsible for any and all dividends, rights or payments of any kind that are or may become payable to any purchaser of the Shares prior to the registration of the Shares in the name of Merrill Lynch and, if I am holding all or some of these Shares, I agree that I shall not be entitled to such dividends, rights or payments prior to the issuance of the Shares. I agree to pay or deliver to Merrill Lynch upon demand, any and all funds, securities, dividends or distributions due to it, if, for any reason, the Shares to be issued pursuant to the exercise of my employee stock option are not promptly delivered to Merrill Lynch. 2. EXECUTION, AVERAGE PRICING AND PRO RATA ALLOCATION OF SALES 2.1. I agree and acknowledge that: 1. If my order to sell Shares pursuant to the Plan, whether market or limit, is handled by a Merrill Lynch trading desk, my order shall be handled as "not held". A "not held" or "working order" permits a Merrill Lynch trader to use reasonable brokerage judgment, exercising price and time discretion, as to when to execute the order. 2. Merrill Lynch may execute my order: (a) in a single transaction or multiple transactions during the course of the trading day, or (b) it may aggregate my order with other orders for other sellers of the Issuer's securities that may or may not have been accepted pursuant to a Rule 10b5-1 sales plan, execute them as a block or in multiple smaller transactions, and allocate an average price to each seller. 3. When orders are aggregated, Merrill Lynch shall allocate the proceeds of shares sold pro rata among the sellers, based on the ratio of (x) the shares to be sold and (y) the sum of the proceeds of all shares sold, and Merrill Lynch will provide each seller an "average price confirmation" that identifies the amount of securities sold for the applicable seller together with an average price for sales. 3. STOCK SPLITS/ REINCORPORATION/REORGANIZATIONS 3.1 In the event of a stock split or reverse stock split, the quantity and price at which the Shares are to be sold will be automatically adjusted proportionately. 3.2 In the event of a reincorporation or other corporate reorganization resulting in an automatic share-for-share exchange of new shares for the Shares subject to the Plan, then the new shares will automatically replace the Shares originally specified in the Plan. 4. ACCOUNT CREDIT 4.1 In the event any scheduled sale of Shares or exercise of stock options and sale of the underlying Shares is not executed as provided in Section 1 (or Section 7, if applicable) of the Plan, my account will be credited as if such sale or exercise had taken place as scheduled or provided in Section 7. 5. COMPLIANCE WITH RULE 144 AND RULE 145 3 5.1 I understand and agree that if I am an affiliate or control person for purposes of Rule 144 under the Securities Act of 1933, as amended ("Securities Act"), or if the Shares subject to the Plan are restricted securities subject to limitations under Rule 144 or eligible for resale under Rule 145, then all sales of Shares under the Plan will be made in accordance with the applicable provisions of Rule 144. 5.2 I request and authorize Merrill Lynch to complete and file on my behalf any Forms 144 (pre-signed by me) necessary to effect sales under the Plan. 5.3 If appropriate, I understand and agree that, upon my prompt signature and delivery to Merrill Lynch of Form 144, Merrill Lynch will either: (a) make one Form 144 filing at the beginning of each three-month period commencing with the date of the first sale made in connection with the Plan or (b) file Form 144 for each sale made in connection with the Plan. 5.4 Each Form 144 shall state the following: "This proposed sale is made pursuant to a plan intended to comply with Rule 10b5-l(c), previously entered into on [insert plan adoption date], at which time I was not aware of material nonpublic information." 5.5 Merrill Lynch will conduct sales pursuant to Rule 144 or Rule 145 if appropriate, including applying Rule 144 volume limitations as if the sales under the Plan were the only sales subject to the volume limitations. 5.6. I agree not to take any action or to cause any other person or entity to take any action that would require me to aggregate sales of Shares pursuant to Rule 144; and not to take any action that would cause the sales of Shares under the Plan not to comply with Rule 144 or Rule 145. 6. REPRESENTATIONS, WARRANTIES AND COVENANTS In consideration of Merrill Lynch accepting orders to sell securities under this Plan, I make the following representations, warranties and covenants: 6.1 I have established the Plan in good faith, in compliance with the requirements of Rule 10b5-l, and at a time when I was not aware of material nonpublic information about the Shares or the Issuer. 6.2 I have consulted with legal counsel and other advisors in connection with my decision to enter into the Plan and have confirmed that the Plan meets the criteria set forth in Rule 10b5-1. I have not received or relied on any representations by Merrill Lynch regarding the Plan's compliance with Rule 10b5-1. 6.3 I have provided, or caused the Issuer to provide, Merrill Lynch with a certificate completed by the Issuer, substantially in the form of Annex A hereto ("Issuer Certificate"). 6.4. I own all Shares that are subject to the Plan free and clear of liens or encumbrances of any kind. I will own any Shares acquired under employee stock options exercised pursuant to the Plan free and clear of liens or encumbrances, except for any liens or encumbrances in favor of Merrill Lynch. There are no restrictions imposed on me, the Shares or the Issuer that would prevent Merrill Lynch or me from complying with the Plan. 6.5. While the Plan is in effect, except as provided in the Plan, I will not engage in offsetting or hedging transactions in violation of Rule 10b5-1; and I will notify Merrill Lynch in advance of any sales or purchases of, or derivative transactions on, any of the Issuer's securities initiated by me. 4 6.6. While the Plan is in effect, I will not disclose to any employee of Merrill Lynch, including my Private Wealth Advisor or Financial Advisor, any material nonpublic information concerning the Shares or the Issuer. 6.7. While the Plan is in effect, I will not attempt to exercise any influence over how, when or whether to effect sales of Shares. 6.8. The Plan does not violate the Issuer's insider trading policies. 6.9. I agree to make or cause to be made all filings required under the Securities Act and/or the Exchange Act, including under Rule 144 and pursuant to Section 13 and Section 16 of the Exchange Act, and any other filings necessary. 6.10. As to delivery requirements; 1. For securities other than stock options, prior to the date of execution of any sales specified under the Plan, I agree to have delivered into the custody of Merrill Lynch the total amount of the Shares that may be sold pursuant to the Plan, together with all transfer documents and other authorizations required for Merrill Lynch to effect settlement of sales of such Shares on my behalf. 2. For employee stock options, the number of options granted to me by the Issuer that are vested, exercisable and registered is equal to or greater than the number of options to be exercised and the underlying Shares to be sold under the Plan. I agree to provide to Merrill Lynch all necessary documentation, properly executed, to effect the timely exercise of the stock options and the subsequent sale and settlement of the Shares. 3. I agree that Merrill Lynch's obligation to execute sales under the Plan is conditioned on the satisfaction of the foregoing delivery requirements. 6.11. I agree to inform Merrill Lynch as soon as possible of any of the following: 1. any subsequent restrictions imposed on me due to changes in the securities (or other) laws or of any contractual restrictions imposed on the Issuer that would prevent Merrill Lynch or me from complying with the Plan, and 2. the occurrence of any event as set forth in the Plan that would cause the Plan to be suspended or terminated under Section 7 or Section 8 of the Plan, respectively. 7. SUSPENSION 7.1 Sales pursuant to Section 1 above shall be suspended where: 1. trading of the Shares on the Exchange is suspended for any reason; 2. there is insufficient demand for any or all of the Shares at or above the specified price (e.g., the specified price met but all Shares could not be sold at or above the specified price); 3. Merrill Lynch, in its sole discretion, determines that there is a legal, regulatory or contractual reason why it cannot effect a sale of Shares; 4. Merrill Lynch is notified in writing by the Issuer that a sale of Shares should not be effected due to legal, regulatory or contractual restrictions applicable to the Issuer or to me (including without limitation, Regulation M); 5 5. Merrill Lynch is notified in writing by the Issuer that (i) in the case of Shares being sold pursuant to a registration statement filed under the Securities Act, the registration statement has terminated, been suspended, expired or is otherwise unavailable; or (ii) a public announcement of a public offering of securities by the Issuer has been made. 7.2 Merrill Lynch will resume sales in accordance with the Plan as promptly as practicable after (a) Merrill Lynch receives notice in writing from the Issuer that it may resume sales in accordance with Section 1 of the Plan in the case of the occurrence of an Event described in 7.1.4 or 7.1.5 above or (b) Merrill Lynch determines, in its sole discretion, that it may resume sales in accordance with the Plan in the case of the occurrence of an Event described in 7.1.1, 7.1.2 or 7.1.3 above. 7.3 Shares allocated under the Plan for sale during a period that has elapsed due to a suspension under this Section will be carried forward to be sold with the next amount of shares to be sold in accordance with Section 1 of the Plan. 7.4 In the event Section 1 of the Plan provides for an amount of Shares to be sold during a given period pursuant to a limit order, Shares that would otherwise be permitted to be sold during that period, shall, upon lapse of the suspension, nonetheless be carried forward to be sold with the next amount of Shares to be sold in accordance with Section 1 of the Plan. 7.5 Merrill Lynch is released from all liability in connection with any suspension of sales, including, but not limited to, liability for the expiration of stock options or loss of market value. 8. TERMINATION 8.1 The Plan shall terminate on the earliest to occur of the following: 1. the termination date listed above; 2. the completion of all sales contemplated in Section 1 of the Plan; 3. my or Merrill Lynch's reasonable determination that: (a) the Plan does not comply with Rule 10b5-1 or other applicable securities laws; (b) I have not complied with the Plan, Rule 10b5-1 or other applicable securities laws; or (c) I have made misstatements in my representations or warranties in Section 6, above; 4. receipt by Merrill Lynch of written notice from the Issuer or me of: (a) the filing of a bankruptcy petition by the Issuer; (b) the public announcement of a merger, recapitalization, acquisition, tender or exchange offer, or other business combination or reorganization resulting in the exchange or conversion of the Shares of the Issuer into shares of a company other than the Issuer; or (c) the conversion of the Shares into rights to receive fixed amounts of cash or into debt securities and/or preferred stock (whether in whole or in part); 5. receipt by Merrill Lynch of written notice of my death; or 6. receipt by Merrill Lynch of written notice of termination from me. 9. INDEMNIFICATION 9.1 I agree to indemnify and hold harmless Merrill Lynch and its directors, officers, employees and affiliates from and against all claims, losses, damages and liabilities, including, without 6 limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such claim, arising out of or attributable to Merrill Lynch's actions taken in compliance with the Plan, any breach by me of the Plan, or any violation by me of applicable federal or state laws or regulations. This indemnification shall survive termination of the Plan. 9.2 Merrill Lynch agrees to indemnify and hold me harmless from and against all claims, losses, damages and liabilities including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim, arising out of or attributable to Merrill Lynch's gross negligence or willful misconduct in connection with the Plan. 10. MODIFICATION AND AMENDMENT 10.1 The Plan may be modified or amended only upon (a) the written agreement of me and Merrill Lynch; (b) the receipt by Merrill Lynch of a certificate signed by me to the effect that the representations, warranties and covenants contained in Section 6 above, are true as of the date of such certificate; and (c) the receipt by Merrill Lynch of an Issuer Certificate. 11. COUNTERPARTS The Plan may be signed in counterparts, each of which will be an original. 12. ENTIRE AGREEMENT The Plan, including the representations, warranties and covenants in Section 6, constitutes the entire agreement between me and Merrill Lynch regarding the Plan and supersedes any prior agreements or understandings regarding the Plan. 13. NOTICES 13.1 All notices given by the parties under the Plan will be as follows: If to Merrill Lynch: Managing Director and Administrative Manager Merrill Lynch, Pierce, Fenner & Smith, Incorporated 15/F., St. George's Building 2 Ice House Street, Central Hong Kong If to me: Nicola Chu Ming Nga Room 4302,43/F China Resources Building, 26 Harbour Road, Wanchai Hong Kong IF SELLER IS SUBJECT TO THE REPORTING REQUIREMENTS OF SECTION 16 OF THE EXCHANGE ACT, COMPLETE THE FOLLOWING TO HAVE TRANSACTION INFORMATION FOR OPEN MARKET TRANSACTIONS UNDER THE PLAN FORWARDED TO A DESIGNATED THIRD PARTY. 7 14 OFFICER & DIRECTOR EQUITY SERVICE 14.1 I authorize Merrill Lynch to transmit transaction information via facsimile and/or email regarding open market transactions under the Plan to: Name: Ms Clara Lau Name: _________________ Title: Senior Accountant Title: ________________ Organization: _____________ Organization: _________ Fax: (852) 2116 1078 Fax: __________________ Tel: (852) 2116 8518 Tel: __________________ e-mail: claralau3@gmail.com e-mail: _______________ 14.2 I understand that reasonable efforts will be made to transmit transaction information for open market transactions under the Plan (purchase or sale) by the close of business on the day of the purchase or sale, but no later than the close of business on the first trading day following the purchase or sale. 14.3 I acknowledge that Merrill Lynch (a) has no obligation to confirm receipt of any email or faxed information by the designated contact and (b) has no responsibility or liability for filing a Form 4 with the SEC or for compliance with Section 16 of the Exchange Act. 14.4 If any of the above contact information changes, or I would like to terminate this authorization, I will promptly notify Merrill Lynch in writing. I further authorize Merrill Lynch to transmit transaction information to a third party service provider who will make the information available to my designated representative(s) listed above. 8 15. GOVERNING LAW This Plan will be governed by and construed in accordance with the laws of the State of New York. By: /s/ Nicola Chu Ming Nga ----------------------------------- Name: Nicola Chu Ming Nga Date: --------------------------------- Acknowledged and Agreed this _______________ day of _______________, 200___: Merrill Lynch, Pierce, Fenner & Smith Incorporated By: /s/ Kenny Wai ---------------------------------- Name: Kenny Wai Title: Administrative Manager Acknowledged: CDC Corporation By: /s/ Steven Chan ---------------------------------- Name: Steven Chan Title: General Counsel and Corporate Secretary 9 ANNEX A - ISSUER CERTIFICATE THIS ANNEX A MAY NOT BE AMENDED EXCEPT IN ACCORDANCE WITH THE PLAN. 1. CDC Corporation, (the "Issuer") certifies that it has approved, and retained a copy of, the Sales Plan dated _________, 200_ (the "Plan") between Nicola Chu Ming Nga ("Seller") and Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch") relating to the common stock of the Issuer (the "Shares"). 2. The Plan is consistent with Issuer's insider trading policies, and, to the best of Issuer's knowledge, there are no legal, contractual or regulatory restrictions applicable to Seller as of the date of this representation that would prohibit Seller from entering into the Plan or effecting any sale of Shares pursuant to the Plan. 3. While the Plan is effective, Issuer agrees to provide notice as soon as practicable to Merrill Lynch in the event of: a. the selling of the Shares pursuant to a registration statement or the termination, expiration, suspension or unavailability of the registration statement; b. a public announcement of a public offering of securities by the Issuer; c. a legal, regulatory or contractual restriction applicable to Seller or Seller's affiliates, including without limitation, under Regulation M, that would prohibit any sale pursuant to the Plan (other than any such restriction relating to Seller's possession or alleged possession of material nonpublic information about the Issuer or its securities) (the notice merely stating that a restriction applies to Seller without specifying the reasons for the restriction); d. the filing of a bankruptcy petition by the Issuer; e. the public announcement of a merger, recapitalization, acquisition, tender or exchange offer, or other business combination or reorganization resulting in the exchange or conversion of the Shares of the Issuer into shares of a company other than the Issuer; or f. the conversion of the Shares into rights to receive fixed amounts of cash or into debt securities and/or preferred stock (whether in whole or in part). The notice shall be provided by facsimile to [__________], Merrill Lynch, at [_______] and shall indicate the anticipated duration of the restriction but shall not include any other information about the nature of the restriction or its applicability to Seller. In any event, the Issuer shall not communicate any material nonpublic information about Issuer or its securities to Merrill Lynch with respect to the Plan. 4. To avoid delays in connection with transfers of stock certificates and settlement of transactions under the Plan, and in acknowledgment of Merrill Lynch's agreement in Section 5 of the Plan that sales of Shares under the Plan will be effected in compliance with Rule 144, the Issuer agrees that it will, immediately upon Seller's directing delivery of Shares into an account at Merrill Lynch in the name of and for the benefit of Seller, instruct its transfer agent to process the transfer of Shares and issue a new certificate to Seller that does not bear any legend or statement restricting its transferability to a buyer. A-1 5. If the Plan covers options, Issuer acknowledges that Seller has authorized Merrill Lynch to serve as Seller's agent and attorney-in-fact to exercise certain stock options to purchase the Shares from time to time pursuant to the Plan. Issuer agrees to accept, acknowledge and effect the exercise of such stock options by Merrill Lynch and the delivery of the underlying Shares to Merrill Lynch, free of any legend or statement restricting their transferability to a buyer. By signing below and upon delivery of funds representing the exercise price (plus any applicable taxes), the Issuer, for itself and its agents, acknowledges: (1) the security interest of Merrill Lynch in the underlying Shares and (2) that prior to delivery to Merrill Lynch, the Issuer holds the underlying Shares as bailee for Merrill Lynch. Dated: ------------------------------ By: /s/ Steven Chan --------------------------------- Steven Chan General Counsel and Corporate Secretary A-2 CLIENT'S NAME: NICOLA CHU MING NGA ISSUER'S NAME: CDC CORPORATION TYPE OF SECURITIES: COMMON STOCK ACCOUNT NUMBER: ______________ RULE 10B5-1 CLIENT REPRESENTATION LETTER Merrill Lynch, Pierce, Fenner & Smith Incorporated [Branch Office Address] Attn: _____________________ Gentlemen: In consideration of Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch") accepting orders to sell securities under a written plan (the "Plan") that I, Nicola Chu Ming Nga, have established to meet the requirements of Rule 10b5-1 under the Securities and Exchange Act of 1934, as amended (the "Exchange Act"), I make the following representations, warranties and covenants: 1. I established the Plan in good faith, in compliance with the requirements of Rule 10b5-1, and at a time when I was not in possession of material nonpublic information about CDC Corporation (the "Issuer"), whose securities are the subject of the Plan. 2. I have consulted with legal counsel and other advisors in connection with my decision to enter into the Plan and have confirmed that the Plan meets the criteria set forth in Rule 10b5-1. 3. I own all shares that are subject to the Plan free and clear of liens or encumbrances of any kind (except for shares underlying options). 4. Except as provided in the Plan and while the Plan is in effect, I confirm that: a. I will not engage in offsetting or hedging transactions in violation of Rule 10b5-1; and b. I will notify Merrill Lynch in advance of any sales or purchases of, or derivative transactions on, any of the Issuer's securities. 5. I further confirm my understanding that while this Plan is in effect, I may not disclose to the persons at Merrill Lynch effecting sales under the Plan for me any information concerning the Issuer that might influence the execution of the Plan. 6. Compliance with insider trading policies. a. The Plan does not violate the Issuer's insider trading policies. b. I have informed the Issuer of the existence and provisions of the Plan, and, if necessary under the Issuer's insider-trading policies, authorized representatives of the Issuer have approved the Plan and have been provided with a copy of the plan. 7. Compliance with Rule 144 and Rule 145 a. I understand and agree that if I am an affiliate or control person for purposes of Rule 144 under the Securities Act of 1933, as amended (the "Securities Act"), or if the securities subject to the Plan are restricted securities subject to limitations under Rule 144 or eligible for resale under Rule 145, then all sales of securities under the Plan will be in accordance with the applicable provisions of Rule 144. b. I agree: (i) to promptly sign and deliver to Merrill Lynch the Forms 144 that Merrill Lynch may request in connection with the Plan and to note on such Forms that "This proposed sale is made pursuant to a plan intended to comply with Rule 10b5-1(c), previously adopted on _____________________________ [date], when I was not in possession of material nonpublic information"; (ii) not to take any action or to cause any other person or entity to take any action that would require me to aggregate sales of securities pursuant to Rule 144; and not to take any action that would cause the sales of securities under the Plan not to comply with Rule 144 or Rule 145. 8. I agree to make or cause to be made all necessary filings, including Rule 144 filings, filings pursuant to Section 13 and Section 16 of the Exchange Act, and any other filings necessary pursuant to the Securities Act and/or the Exchange Act. 9. Delivery requirements. a. For securities other than stock options, prior to the date of execution of any sales specified under the Plan, I agree to have delivered into the custody of Merrill Lynch certificates representing that number of securities that may be sold pursuant to the Plan (or other appropriate evidence thereof), together with all transfer documents and other authorizations required for Merrill Lynch to effect settlement of sales of such securities on my behalf. b. For stock options, I agree to provide to Merrill Lynch all necessary documentation, properly executed, to effect the timely exercise of the stock option and the subsequent sale and settlement of the securities. c. I agree that Merrill Lynch's obligation to execute sales under the Plan is conditioned on the satisfaction of the foregoing delivery requirements. 2 10. I agree to inform Merrill Lynch as soon as possible of (a) any subsequent restrictions imposed on me due to changes in the securities (or other) laws or of any contractual restrictions imposed on the Issuer that would prevent Merrill Lynch or me from complying with the Plan and (b) the occurrence of any event as set forth in the Plan that would cause the Plan to end or be suspended under paragraph 2 or paragraph 3 of the Plan. 11. Attached is a true and accurate copy of the Plan. Very truly yours, By: /s/ Nicola Chu Ming Nga ------------------------------------ Name: Nicola Chu Ming Nga Date: ---------------------------------- 3 EX-1.5 6 h00801exv1w5.txt EX-1.5 TRADING PLAN DATED APR 25, 2006 Exhibit 1.5 CLIENT'S NAME: NICOLA CHU MING NGA ISSUER'S NAME: CDC CORPORATION TYPE OF SECURITIES: COMMON STOCK ACCOUNT NUMBER: 1BM10015 MAXIMUM # OF SHARES TO SELL UNDER THE PLAN: 875,000 RULE 10B5-1 SALES PLAN AND CLIENT REPRESENTATIONS I, Nicola Chu Ming Nga, as of the date below, establish this Sales Plan ("Plan") in order to sell shares of the common stock ("Shares") of CDC Corporation ("Issuer") pursuant to the requirements of Rule 10b5-1 under the Securities Exchange Act of 1934, as amended ("Exchange Act"). I request that Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch") execute the Plan as follows: 1. SALES INSTRUCTIONS FOR SALES/EXERCISES STARTING ON APRIL 27, 2006, AND ENDING ON APRIL 26, 2007 1.1. For securities other than employee stock options, you are authorized to execute the transactions indicated by the checked box below: [X] Merrill Lynch shall effect a sale (each a "Sale") of Common Stock daily of every week commencing on April 27, 2006, in which the Common Stock is trading on the Nasdaq National Market at a price as follows: 1) 50,000 shares between US$5.00 and US$5.50 (exclusive) per share at 10,000 shares; 2) 100,000 shares between US$5.50 and US$6.00 (exclusive) per share at 20,000 shares; 3) 125,000 shares between US$6.00 and US$6.50 (exclusive) per share at 25,000 shares; 4) 150,000 shares between US$6.50 and US$7.00 (exclusive) per share at 25,000 shares; 5) 150,000 shares between US$7.00 and US$7.50 (exclusive) per share at 30,000 shares; 6) 150,000 shares between US$7.50 and US$8.00 (exclusive) per share at 30,000 shares; 7) 150,000 shares between US$8.00 and US$8.50 (exclusive) per share at 30,000 shares; [ ] Sell Shares pursuant to the following table:
SALE PRICE START DATE END DATE SHARE QUANTITY "LIMIT" OR "MARKET" - ---------- -------- -------------- ------------------- TOTAL
[X] IMPLEMENT CARRYFORWARD PROVISION. (OPTIONAL) Under this provision, any Shares not sold as specified above because the parameters (e.g., specified sale price) under the Plan were not met, will carry forward to the next aforementioned trading day until sold. 1.2 For employee stock options, you are authorized to exercise my options and execute the transactions in respect of the underlying Shares indicated by the checked box below: [ ] EXERCISE _________________ [number] stock options and sell the underlying Shares every _____________ [insert time period (day, week, month, quarter, day/date of month, etc.)], provided the price per underlying Share is at or above $____ [dollar amount] on the Exchange. [ ] Exercise stock options pursuant to the following table: 1
NUMBER OF OPTIONS TO BE EXERCISED AND UNDERLYING SHARES SALE PRICE TO BE SOLD UNDER GRANT NO. -"LIMIT" OR START DATE END DATE THE PLAN GRANT DATE EXERCISE PRICE "MARKET" - ---------- -------- ----------------- ---------- -------------- ----------- TOTAL
[ ] IMPLEMENT CARRYFORWARD PROVISION. Under this provision, any options not exercised and underlying Shares not sold as specified above because the parameters (e.g., specified sale price) under the Plan were not met, will carry forward to future _____ [time periods] until the options are exercised and the underlying Shares are sold. For purposes of this section 1.2: 1. Merrill Lynch will not exercise any stock option unless its exercise price is less than the market price of the underlying Shares. 2. Merrill Lynch first will exercise those stock options (select one): [ ] with the earliest expiration date or [ ] with the lowest exercise price. 3. Merrill Lynch will deduct from the proceeds of each stock option exercised and the underlying Shares sold the sum of the exercise price and any withholding tax. The resulting amount will be then remitted to the Issuer. 4. Check which of the following apply: [ ] The Issuer of the Shares has executed a servicing agreement with Merrill Lynch for stock option services for the Issuer and its optionees. [ ] The Issuer of the Shares has not executed a servicing agreement with Merrill Lynch for stock option services for the Issuer and its optionees and therefore I hereby agree to and authorize the following: In connection with the exercise of my employee stock options under the Plan I authorize and instruct the Issuer to register or cause its agent(s) to register, the Shares to be issued upon the exercise of my stock option(s) in the name of Merrill Lynch (or its designated nominee), which is my agent and nominee (or in the event that is not permissible, in my name). I also authorize and instruct the Issuer to deliver, or cause its agent(s) to deliver within three business days, the Shares issued pursuant to the stock option exercise to Merrill Lynch in exchange for funds from Merrill Lynch representing the exercise price (plus any applicable taxes). I cannot revoke or rescind this authorization and instruction under any circumstance while the Plan is in effect. I hereby grant a security interest to Merrill Lynch in the Shares to be issued pursuant to the exercise of my employee stock option(s). This security interest will not terminate even if the securities are delivered to me contrary to these instructions. 2 If I am selling all or some of the Shares to be issued pursuant to the exercise of my employee stock option, I agree that I am responsible for any and all dividends, rights or payments of any kind that are or may become payable to any purchaser of the Shares prior to the registration of the Shares in the name of Merrill Lynch and, if I am holding all or some of these Shares, I agree that I shall not be entitled to such dividends, rights or payments prior to the issuance of the Shares. I agree to pay or deliver to Merrill Lynch upon demand, any and all funds, securities, dividends or distributions duo to it, if, for any reason, the Shares to be issued pursuant to the exercise of my employee stock option are not promptly delivered to Merrill Lynch. 2. EXECUTION, AVERAGE PRICING AND PRO RATA ALLOCATION OF SALES 2.1. I agree and acknowledge that: 1. If my order to sell Shares pursuant to the Plan, whether market or limit, is handled by a Merrill Lynch trading desk, my order shall be handled as "not held". A "not held" or "working order" permits a Merrill Lynch trader to use reasonable brokerage judgment, exercising price and time discretion, as to when to execute the order. 2. Merrill Lynch may execute my order: (a) in a single transaction or multiple transactions during the course of the trading day, or (b) it may aggregate my order with other orders for other sellers of the Issuer's securities that may or may not have been accepted pursuant to a Rule 10b5-1 sales plan, execute them as a block or in multiple smaller transactions, and allocate an average price to each seller. 3. When orders are aggregated, Merrill Lynch shall allocate the proceeds of shares sold pro rata among the sellers, based on the ratio of (x) the shares to be sold and (y) the sum of the proceeds of all shares sold, and Merrill Lynch will provide each seller an "average price confirmation" that identifies the amount of securities sold for the applicable seller together with an average price for sales. 3. STOCK SPLITS/ REINCORPORATION/REORGANIZATIONS 3.1 In the event of a stock split or reverse stock split, the quantity and price at which the Shares are to be sold will be automatically adjusted proportionately. 3.2 In the event of a reincorporation or other corporate reorganization resulting in an automatic share-for-share exchange of new shares for the Shares subject to the Plan, then the new shares will automatically replace the Shares originally specified in the Plan. 4. ACCOUNT CREDIT 4.1 In the event any scheduled sale of Shares or exercise of stock options and sale of the underlying Shares is not executed as provided in Section 1 (or Section 7, if applicable) of the Plan, my account will be credited as if such sale or exercise had taken place as scheduled or provided in Section 7. 5. COMPLIANCE WITH RULE 144 AND RULE 145 5.1 I understand and agree that if I am an affiliate or control person for purposes of Rule 144 under the Securities Act of 1933, as amended ("Securities Act"), or if the Shares subject to the Plan are restricted securities subject to limitations under Rule 144 or eligible for resale under Rule 145, then all sales of Shares under the Plan will be made in accordance with the applicable provisions of Rule 144. 3 5.2 I request and authorize Merrill Lynch to complete and file on my behalf any Forms 144 (pre-signed by me) necessary to effect sales under the Plan. 5.3 If appropriate, I understand and agree that, upon my prompt signature and delivery to Merrill Lynch of Form 144, Merrill Lynch will either: (a) make one Form 144 filing at the beginning of each three-month period commencing with the date of the first sale made in connection with the Plan or (b) file Form 144 for each sale made in connection with the Plan. 5.4 Each Form 144 shall state the following: "This proposed sale is made pursuant to a plan intended to comply with Rule 10b5-1(c), previously entered into on April 25, 2006, at which time I was not aware of material nonpublic information." 5.5 Merrill Lynch will conduct sales pursuant to Rule 144 or Rule 145 if appropriate, including applying Rule 144 volume limitations as if the sales under the Plan were the only sales subject to the volume limitations. 5.6. I agree not to take any action or to cause any other person or entity to take any action that would require me to aggregate sales of Shares pursuant to Rule 144; and not to take any action that would cause the sales of Shares under the Plan not to comply with Rule 144 or Rule 145. 6. REPRESENTATIONS, WARRANTIES AND COVENANTS In consideration of Merrill Lynch accepting orders to sell securities under this Plan, I make the following representations, warranties and covenants: 6.1 I have established the Plan in good faith, in compliance with the requirements of Rule 10b5-1, and at a time when I was not aware of material nonpublic information about the Shares or the Issuer. 6.2 I have consulted with legal counsel and other advisors in connection with my decision to enter into the Plan and have confirmed that the Plan meets the criteria set forth in Rule 10b5-1. I have not received or relied on any representations by Merrill Lynch regarding the Plan's compliance with Rule 10b5-1. 6.3 I have provided, or caused the Issuer to provide, Merrill Lynch with a certificate completed by the Issuer, substantially in the form of Annex A hereto ("Issuer Certificate"). 6.4. I own all Shares that are subject to the Plan free and clear of liens or encumbrances of any kind. I will own any Shares acquired under employee stock options exercised pursuant to the Plan free and clear of liens or encumbrances, except for any liens or encumbrances in favor of Merrill Lynch. There are no restrictions imposed on me, the Shares or the Issuer that would prevent Merrill Lynch or me from complying with the Plan. 6.5. While the Plan is in effect, except as provided in the Plan, I will not engage in offsetting or hedging transactions in violation of Rule 10b5-1; and I will notify Merrill Lynch in advance of any sales or purchases of, or derivative transactions on, any of the Issuer's securities initiated by me. 6.6. While the Plan is in effect, I will not disclose to any employee of Merrill Lynch, including my Private Wealth Advisor or Financial Advisor, any material nonpublic information concerning the Shares or the Issuer. 6.7. While the Plan is in effect, I will not attempt to exercise any influence over how, when or whether to effect sales of Shares. 4 6.8. The Plan does not violate the Issuer's insider trading policies. 6.9. I agree to make or cause to be made all filings required under the Securities Act and/or the Exchange Act, including under Rule 144 and pursuant to Section 13 and Section 16 of the Exchange Act, and any other filings necessary. 6.10. As to delivery requirements: 1. For securities other than stock options, prior to the date of execution of any sales specified under the Plan, I agree to have delivered into the custody of Merrill Lynch the total amount of the Shares that may be sold pursuant to the Plan, together with all transfer documents and other authorizations required for Merrill Lynch to effect settlement of sales of such Shares on my behalf. 2. For employee stock options, the number of options granted to me by the Issuer that are vested, exercisable and registered is equal to or greater than the number of options to be exercised and the underlying Shares to be sold under the Plan, I agree to provide to Merrill Lynch all necessary documentation, properly executed, to effect the timely exercise of the stock options and the subsequent sale and settlement of the Shares. 3. I agree that Merrill Lynch's obligation to execute sales under the Plan is conditioned on the satisfaction of the foregoing delivery requirements. 6.11. I agree to inform Merrill Lynch as soon as possible of any of the following: 1. any subsequent restrictions imposed on me due to changes in the securities (or other) laws or of any contractual restrictions imposed on the Issuer that would prevent Merrill Lynch or me from complying with the Plan, and 2. the occurrence of any event as set forth in the Plan that would cause the Plan to be suspended or terminated under Section 7 or Section 8 of the Plan, respectively. 7. SUSPENSION 7.1 Sales pursuant to Section 1 above shall be suspended where: 1. trading of the Shares on the Exchange is suspended for any reason; 2. there is insufficient demand for any or all of the Shares at or above the specified price (e.g., the specified price met but all Shares could not be sold at or above the specified price); 3. Merrill Lynch, in its sole discretion, determines that there is a legal, regulatory or contractual reason why it cannot effect a sale of Shares; 4. Merrill Lynch is notified in writing by the Issuer that a sale of Shares should not be effected due to legal, regulatory or contractual restrictions applicable to the Issuer or to me (including without limitation, Regulation M); 5. Merrill Lynch is notified in writing by the Issuer that (i) in the case of Shares being sold pursuant to a registration statement filed under the Securities Act, the registration statement has terminated, been suspended, expired or is otherwise unavailable; or (ii) a public announcement of a public offering of securities by the Issuer has been made. 5 7.2 Merrill Lynch will resume sales in accordance with the Plan as promptly as practicable after (a) Merrill Lynch receives notice in writing from the Issuer that it may resume sales in accordance with Section 1 of the Plan in the case of the occurrence of an Event described in 7.1.4 or 7.1.5 above or (b) Merrill Lynch determines, in its sole discretion, that it may resume sales in accordance with the Plan in the case of the occurrence of an Event described in 7.1.1, 7.1.2 or 7.1.3 above. 7.3 Shares allocated under the Plan for sale during a period that has elapsed due to a suspension under this Section will be carried forward to be sold with the next amount of shares to be sold in accordance with Section 1 of the Plan. 7.4 In the event Section 1 of the Plan provides for an amount of Shares to be sold during a given period pursuant to a limit order, Shares that would otherwise be permitted to be sold during that period, shall, upon lapse of the suspension, nonetheless be carried forward to be sold with the next amount of Shares to be sold in accordance with Section 1 of the Plan. 7.5 Merrill Lynch is released from all liability in connection with any suspension of sales, including, but not limited to, liability for the expiration of stock options or loss of market value. 8. TERMINATION 8.1 The Plan shall terminate on the earliest to occur of the following: 1. the termination date listed above; 2. the completion of all sales contemplated in Section 1 of the Plan; 3. my or Merrill Lynch's reasonable determination that: (a) the Plan does not comply with Rule 10b5-1 or other applicable securities laws; (b) I have not complied with the Plan, Rule 10b5-1 or other applicable securities laws; or (c) I have made misstatements in my representations or warranties in Section 6, above; 4. receipt by Merrill Lynch of written notice from the Issuer or me of: (a) the filing of a bankruptcy petition by the Issuer; (b) the public announcement of a merger, recapitalization, acquisition, tender or exchange offer, or other business combination or reorganization resulting in the exchange or conversion of the Shares of the Issuer into shares of a company other than the Issuer; or (c) the conversion of the Shares into rights to receive fixed amounts of cash or into debt securities and/or preferred stock (whether in whole or in part); 5. receipt by Merrill Lynch of written notice of my death; or 6. receipt by Merrill Lynch of written notice of termination from me. 9. INDEMNIFICATION 9.1 I agree to indemnify and hold harmless Merrill Lynch and its directors, officers, employees and affiliates from and against all claims, losses, damages and liabilities, including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such claim, arising out of or attributable to Merrill Lynch's actions taken in compliance with the Plan, any breach by me of the Plan, or any violation by me of applicable federal or state laws or regulations. This indemnification shall survive termination of the Plan. 6 9.2 Merrill Lynch agrees to indemnify and hold me harmless from and against all claims, losses, damages and liabilities including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim, arising out of or attributable to Merrill Lynch's gross negligence or willful misconduct in connection with the Plan. 10. MODIFICATION AND AMENDMENT 10.1 The Plan may be modified or amended only upon (a) the written agreement of me and Merrill Lynch; (b) the receipt by Merrill Lynch of a certificate signed by me to the effect that the representations, warranties and covenants contained in Section 6 above, are true as of the date of such certificate; and (c) the receipt by Merrill Lynch of an Issuer Certificate. 11. COUNTERPARTS The Plan may be signed in counterparts, each of which will be an original. 12. ENTIRE AGREEMENT The Plan, including the representations, warranties and covenants in Section 6, constitutes the entire agreement between me and Merrill Lynch regarding the Plan and supersedes any prior agreements or understandings regarding the Plan. 13. NOTICES 13.1 All notices given by the parties under the Plan will be as follows: If to Merrill Lynch: Managing Director and Administrative Manager Merrill Lynch, Pierce, Fenner & Smith, Incorporated 15/F., St. George's Building 2 Ice House Street, Central Hong Kong If to me: Nicola Chu Ming Nga Room 4302, 43/F China Resources Building, 26 Harbour Road, Wanchai Hong Kong IF SELLER IS SUBJECT TO THE REPORTING REQUIREMENTS OF SECTION 16 OF THE EXCHANGE ACT, COMPLETE THE FOLLOWING TO HAVE TRANSACTION INFORMATION FOR OPEN MARKET TRANSACTIONS UNDER THE PLAN FORWARDED TO A DESIGNATED THIRD PARTY. 7 14 OFFICER & DIRECTOR EQUITY SERVICE 14.1 I authorize Merrill Lynch to transmit transaction information via facsimile and/or email regarding open market transactions under the Plan to: Name: Ms Clara Lau Name: __________________________ Title: Senior Accountant Title: _________________________ Organization: __________________ Organization: __________________ Fax: (852) 2116 l078 Fax: ___________________________ Tel: (852) 2116 8518 Tel: ___________________________ e-mail: claralau3@gmail.com e-mail: ________________________ 14.2 I understand that reasonable efforts will be made to transmit transaction information for open market transactions under the Plan (purchase or sale) by the close of business on the day of the purchase or sale, but no later than the close of business on the first trading day following the purchase or sale. 14.3 I acknowledge that Merrill Lynch (a) has no obligation to confirm receipt of any email or faxed information by the designated contact and (b) has no responsibility or liability for filing a Form 4 with the SEC or for compliance with Section 16 of the Exchange Act. 14.4 If any of the above contact information changes, or I would like to terminate this authorization, I will promptly notify Merrill Lynch in writing. I further authorize Merrill Lynch to transmit transaction information to a third party service provider who will make the information available to my designated representative(s) listed above. 8 15. GOVERNING LAW This Plan will be governed by and construed in accordance with the laws of the State of New York. By: /s/ Nicola Chu Ming Nga ------------------------------------ Name: Nicola Chu Ming Nga Date: ---------------------------------- Acknowledged and Agreed this 25th day of April, 2006: Merrill Lynch, Pierce, Fenner & Smith Incorporated By: /s/ Beatriz Shek --------------------------------- Name: Beatriz Shek Title: Administrative Manager Acknowledged: CDC Corporation By: /s/ C.J. Clough --------------------------------- Name: C.J. Clough Title: DIRECTOR. 9 ANNEX A - ISSUER CERTIFICATE THIS ANNEX A MAY NOT BE AMENDED EXCEPT IN ACCORDANCE WITH THE PLAN. 1. CDC Corporation, (the "Issuer") certifies that it has approved, and retained a copy of, the Sales Plan dated April 25, 2006 (the "Plan") between Nicola Chu Ming Nga ("Seller") and Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch") relating to the common stock of the Issuer (the "Shares"). 2. The Plan is consistent with Issuer's insider trading policies, and, to the best of Issuer's knowledge, there are no legal, contractual or regulatory restrictions applicable to Seller as of the date of this representation that would prohibit Seller from entering into the Plan or effecting any sale of Shares pursuant to the Plan. 3. While the Plan is effective, Issuer agrees to provide notice as soon as practicable to Merrill Lynch in the event of: a. the selling of the Shares pursuant to a registration statement or the termination, expiration, suspension or unavailability of the registration statement; b. a public announcement of a public offering of securities by the Issuer; c. a legal, regulatory or contractual restriction applicable to Seller or Seller's affiliates, including without limitation, under Regulation M, that would prohibit any sale pursuant to the Plan (other than any such restriction relating to Seller's possession or alleged possession of material nonpublic information about the Issuer or its securities) (the notice merely stating that a restriction applies to Seller without specifying the reasons for the restriction); d. the filing of a bankruptcy petition by the Issuer, e. the public announcement of a merger, recapitalization, acquisition, tender or exchange offer, or other business combination or reorganization resulting in the exchange or conversion of the Shares of the Issuer into shares of a company other than the Issuer; or f. the conversion of the Shares into rights to receive fixed amounts of cash or into debt securities and/or preferred stock (whether in whole or in part). The notice shall be provided by facsimile to [________], Merrill Lynch, at [________________] and shall indicate the anticipated duration of the restriction but shall not include any other information about the nature of the restriction or its applicability to Seller. In any event, the Issuer shall not communicate any material nonpublic information about Issuer or its securities to Merrill Lynch with respect to the Plan. 4. To avoid delays in connection with transfers of stock certificates and settlement of transactions under the Plan, and in acknowledgment of Merrill Lynch's agreement in Section 5 of the Plan that sales of Shares under the Plan will be effected in compliance with Rule 144, the Issuer agrees that it will, immediately upon Seller's directing delivery of Shares into an account at Merrill Lynch in the name of and for the benefit of Seller, instruct its transfer agent to process the transfer of Shares and issue a new certificate to Seller that does not bear any legend or statement restricting its transferability to a buyer. A-1 5. If the Plan covers options, Issuer acknowledges that Seller has authorized Merrill Lynch to serve as Seller's agent and attorney-in-fact to exercise certain stock options to purchase the Shares from time to time pursuant to the Plan. Issuer agrees to accept, acknowledge and effect the exercise of such stock options by Merrill Lynch and the delivery of the underlying Shares to Merrill Lynch, free of any legend or statement restricting their transferability to a buyer. By signing below and upon delivery of funds representing the exercise price (plus any applicable taxes), the Issuer, for itself and its agents, acknowledges: (1) the security interest of Merrill Lynch in the underlying Shares and (2) that prior to delivery to Merrill Lynch, the Issuer holds the underlying Shares as bailee for Merrill Lynch. Dated: April 25, 2006 By: /s/ C.J. Clough --------------------------------- CDC Corporation A-2 EX-1.6 7 h00801exv1w6.txt EX-1.6 TRADING PLAN DATED SEP 8, 2006 Exhibit 1.6 CLIENT'S NAME: NICOLA CHU MING NGA ISSUER'S NAME: CDC CORPORATION TYPE OF SECURITIES: COMMON STOCK ACCOUNT NUMBER: IBM 10015 MAXIMUM # OF SHARES TO SELL UNDER THE PLAN: 510,000 RULE 10B5-1 SALES PLAN AND CLIENT REPRESENTATIONS I, Nicola Chu Ming Nga, as of the date below, establish this Sales Plan ("Plan") in order to sell shares of the common stock ("Shares") of CDC Corporation ("Issuer") pursuant to the requirements of Rule 10b5-1 under the Securities Exchange Act of 1934, as amended ("Exchange Act"). I request that Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch") execute the Plan as follows: 1. SALES INSTRUCTIONS FOR SALES/EXERCISES STARTING ON SEPT. 8, 2006, AND ENDING ON SEPT. 7, 2007 1.1. For securities other than employee stock options, you are authorized to execute the transactions indicated by the checked box below: [X] Merrill Lynch shall effect a sale (each a "Sale") of Common Stock daily of every week commencing on September 8, 2006, in which the Common Stock is trading on the Nasdaq National Market at a price as follows: 1) 150,000 shares at US$5.50 or above per share at maximum 10,000 shares per day 2) 150,000 shares at US$5.75 or above per share at maximum 12,500 shares per day 3) 210,000 shares at US$6.00 or above per share at maximum 15,000 shares per day [ ] Sell Shares pursuant to the following table:
START DATE END DATE SHARE QUANTITY SALE PRICE "LIMIT" OR "MARKET" - ---------- -------- -------------- ------------------------------ TOTAL
[X] IMPLEMENT CARRYFORWARD PROVISION. (OPTIONAL) Under this provision, any Shares not sold as specified above because the parameters (e.g., specified sale price) under the Plan were not met, will carry forward to the next aforementioned trading day until sold. 1.2 For employee stock options, you are authorized to EXERCISE MY OPTIONS AND execute the transactions in respect of the underlying Shares indicated by the checked box below: [ ] EXERCISE ________ [number] stock options and sell the underlying Shares every ___________ [insert time period (day, week, month, quarter, day/date of month, etc.)], provided the price per underlying Share is at or above $________ [dollar amount] on the Exchange. [ ] Exercise stock options pursuant to the following table: 1
NUMBER OF OPTIONS TO BE EXERCISED AND UNDERLYING SHARES SALE PRICE TO BE SOLD UNDER GRANT NO. EXERCISE - "LIMIT" START DATE END DATE THE PLAN GRANT DATE PRICE OR "MARKET" - ---------- -------- ----------------- ---------- -------- ----------- TOTAL
[ ] IMPLEMENT CARRYFORWARD PROVISION. Under this provision, any options not exercised and underlying Shares not sold as specified above because the parameters (e.g., specified sale price) under the Plan were not met, will carry forward to future ___ [time periods] until the options are exercised and the underlying Shares are sold. For purposes of this section 1.2: 1. Merrill Lynch will not exercise any stock option unless its exercise price is less than the market price of the underlying Shares. 2. Merrill Lynch first will exercise those stock options (select one): [ ] with the earliest expiration date or [ ] with the lowest exercise price. 3. Merrill Lynch will deduct from the proceeds of each stock option exercised and the underlying Shares sold the sum of the exercise price and any withholding tax. The resulting amount will be then remitted to the Issuer. 4. Check which of the following apply: [ ] The Issuer of the Shares has executed a servicing agreement with Merrill Lynch for stock option services for the Issuer and its optionees. [ ] The Issuer of the Shares has not executed a servicing agreement with Merrill Lynch for stock option services for the Issuer and its optionees and therefore I hereby agree to and authorize the following: In connection with the exercise of my employee stock options under the Plan I authorize and instruct the Issuer to register or cause its agent(s) to register, the Shares to be issued upon the exercise of my stock option(s) in the name of Merrill Lynch (or its designated nominee), which is my agent and nominee (or in the event that is not permissible, in my name). I also authorize and instruct the Issuer to deliver, or cause its agent(s) to deliver within three business days, the Shares issued pursuant to the stock option exercise to Merrill Lynch in exchange for funds from Merrill Lynch representing the exercise price (plus any applicable taxes). I cannot revoke or rescind this authorization and instruction under any circumstance while the Plan is in effect. I hereby grant a security interest to Merrill Lynch in the Shares to be issued pursuant to the exercise of my employee stock option(s). This security interest will not terminate even if the securities are delivered to me contrary to these instructions. 2 If I am selling all or some of the Shares to be issued pursuant to the exercise of my employee stock option, I agree that I am responsible for any and all dividends, rights or payments of any kind that are or may become payable to any purchaser of the Shares prior to the registration of the Shares in the name of Merrill Lynch and, if I am holding all or some of these Shares, I agree that I shall not be entitled to such dividends, rights or payments prior to the issuance of the Shares. I agree to pay or deliver to Merrill Lynch upon demand, any and all funds, securities, dividends or distributions due to it, if, for any reason, the Shares to be issued pursuant to the exercise of my employee stock option are not promptly delivered to Merrill Lynch. 2. EXECUTION, AVERAGE PRICING AND PRO RATA ALLOCATION OF SALES 2.1. I agree and acknowledge that: 1. If my order to sell Shares pursuant to the Plan, whether market or limit, is handled by a Merrill Lynch trading desk, my order shall be handled as "not held". A "not held" or "working order" permits a Merrill Lynch trader to use reasonable brokerage judgment, exercising price and time discretion, as to when to execute the order. 2. Merrill Lynch may execute my order: (a) in a single transaction or multiple transactions during the course of the trading day, or (b) it may aggregate my order with other orders for other sellers of the Issuer's securities that may or may not have been accepted pursuant to a Rule 10b5-1 sales plan, execute them as a block or in multiple smaller transactions, and allocate an average price to each seller. 3. When orders are aggregated, Merrill Lynch shall allocate the proceeds of shares sold pro rata among the sellers, based on the ratio of (x) the shares to be sold and (y) the sum of the proceeds of all shares sold, and Merrill Lynch will provide each seller an "average price confirmation" that identifies the amount of securities sold for the applicable seller together with an average price for sales. 3. STOCK SPLITS/ REINCORPORATION/REORGANIZATIONS 3.1 In the event of a stock split or reverse stock split, the quantity and price at which the Shares are to be sold will be automatically adjusted proportionately. 3.2 In the event of a reincorporation or other corporate reorganization resulting in an automatic share-for-share exchange of new shares for the Shares subject to the Plan, then the new shares will automatically replace the Shares originally specified in the Plan. 4. ACCOUNT CREDIT 4.1 In the event any scheduled sale of Shares or exercise of stock options and sale of the underlying Shares is not executed as provided in Section 1 (or Section 7, if applicable) of the Plan, my account will be credited as if such sale or exercise had taken place as scheduled or provided in Section 7. 5. COMPLIANCE WITH RULE 144 AND RULE 145 5.1 I understand and agree that if I am an affiliate or control person for purposes of Rule 144 under the Securities Act of 1933, as amended ("Securities Act"), or if the Shares subject to the Plan are restricted securities subject to limitations under Rule 144 or eligible for resale under Rule 145, then all sales of Shares under the Plan will be made in accordance with the applicable provisions of Rule 144. 3 5.2 I request and authorize Merrill Lynch to complete and file on my behalf any Forms 144 (pre-signed by me) necessary to effect sales under the Plan. 5.3 If appropriate, I understand and agree that, upon my prompt signature and delivery to Merrill Lynch of Form 144, Merrill Lynch will either: (a) make one Form 144 filing at the beginning of each three-month period commencing with the date of the first sale made in connection with the Plan or (b) file Form 144 for each sale made in connection with the Plan. 5.4 Each Form 144 shall state the following: "This proposed sale is made pursuant to a plan intended to comply with Rule 10b5-1(c), previously entered into on [insert plan adoption date], at which time I was not aware of material nonpublic information." 5.5 Merrill Lynch will conduct sales pursuant to Rule 144 or Rule 145 if appropriate, including applying Rule 144 volume limitations as if the sales under the Plan were the only sales subject to the volume limitations. 5.6. I agree not to take any action or to cause any other person or entity to take any action that would require me to aggregate sales of Shares pursuant to Rule 144; and not to take any action that would cause the sales of Shares under the Plan not to comply with Rule 144 or Rule 145. 6. REPRESENTATIONS, WARRANTIES AND COVENANTS In consideration of Merrill Lynch accepting orders to sell securities under this Plan, I make the following representations, warranties and covenants: 6.1 I have established the Plan in good faith, in compliance with the requirements of Rule 10b5-1, and at a time when I was not aware of material nonpublic information about the Shares or the Issuer. 6.2 I have consulted with legal counsel and other advisors in connection with my decision to enter into the Plan and have confirmed that the Plan meets the criteria set forth in Rule 10b5-1. I have not received or relied on any representations by Merrill Lynch regarding the Plan's compliance with Rule 10b5-1. 6.3 I have provided, or caused the Issuer to provide, Merrill Lynch with a certificate completed by the Issuer, substantially in the form of Annex A hereto ("Issuer Certificate"). 6.4. I own all Shares that are subject to the Plan free and clear of liens or encumbrances of any kind. I will own any Shares acquired under employee stock options exercised pursuant to the Plan free and clear of liens or encumbrances, except for any liens or encumbrances in favor of Merrill Lynch. There are no restrictions imposed on me, the Shares or the Issuer that would prevent Merrill Lynch or me from complying with the Plan. 6.5. While the Plan is in effect, except as provided in the Plan, I will not engage in offsetting or hedging transactions in violation of Rule 10b5-1; and I will notify Merrill Lynch in advance of any sales or purchases of, or derivative transactions on, any of the Issuer's securities initiated by me. 6.6. While the Plan is in effect, I will not disclose to any employee of Merrill Lynch, including my Private Wealth Advisor or Financial Advisor, any material nonpublic information concerning the Shares or the Issuer. 6.7. While the Plan is in effect, I will not attempt to exercise any influence over how, when or whether to effect sales of Shares. 4 6.8. The Plan does not violate the Issuer's insider trading policies. 6.9. I agree to make or cause to be made all filings required under the Securities Act and/or the Exchange Act, including under Rule 144 and pursuant to Section 13 and Section 16 of the Exchange Act, and any other filings necessary. 6.10. As to delivery requirements: 1. For securities other than stock options, prior to the date of execution of any sales specified under the Plan, I agree to have delivered into the custody of Merrill Lynch the total amount of the Shares that may be sold pursuant to the Plan, together with all transfer documents and other authorizations required for Merrill Lynch to effect settlement of sales of such Shares on my behalf. 2. For employee stock options, the number of options granted to me by the Issuer that are vested, exercisable and registered is equal to or greater than the number of options to be exercised and the underlying Shares to be sold under the Plan. I agree to provide to Merrill Lynch all necessary documentation, properly executed, to effect the timely exercise of the stock options and the subsequent sale and settlement of the Shares. 3. I agree that Merrill Lynch's obligation to execute sales under the Plan is conditioned on the satisfaction of the foregoing delivery requirements. 6.11. I agree to inform Merrill Lynch as soon as possible of any of the following: 1. any subsequent restrictions imposed on me due to changes in the securities (or other) laws or of any contractual restrictions imposed on the Issuer that would prevent Merrill Lynch or me from complying with the Plan, and 2. the occurrence of any event as set forth in the Plan that would cause the Plan to be suspended or terminated under Section 7 or Section 8 of the Plan, respectively. 7. SUSPENSION 7.1 Sales pursuant to Section 1 above shall be suspended where: 1. trading of the Shares on the Exchange is suspended for any reason; 2. there is insufficient demand for any or all of the Shares at or above the specified price (e.g., the specified price met but all Shares could not be sold at or above the specified price); 3. Merrill Lynch, in its sole discretion, determines that there is a legal, regulatory or contractual reason why it cannot effect a sale of Shares; 4. Merrill Lynch is notified in writing by the Issuer that a sale of Shares should not be effected due to legal, regulatory or contractual restrictions applicable to the Issuer or to me (including without limitation, Regulation M); 5. Merrill Lynch is notified in writing by the Issuer that (i) in the case of Shares being sold pursuant to a registration statement filed under the Securities Act, the registration statement has terminated, been suspended, expired or is otherwise unavailable; or (ii) a public announcement of a public offering of securities by the Issuer has been made. 5 7.2 Merrill Lynch will resume sales in accordance with the Plan as promptly as practicable after (a) Merrill Lynch receives notice in writing from the Issuer that it may resume sales in accordance with Section 1 of the Plan in the case of the occurrence of an Event described in 7.1.4 or 7.1.5 above or (b) Merrill Lynch determines, in its sole discretion, that it may resume sales in accordance with the Plan in the case of the occurrence of an Event described in 7.1.1, 7.1.2 or 7.1.3 above. 7.3 Shares allocated under the Plan for sale during a period that has elapsed due to a suspension under this Section will be carried forward to be sold with the next amount of shares to be sold in accordance with Section 1 of the Plan. 7.4 In the event Section 1 of the Plan provides for an amount of Shares to be sold during a given period pursuant to a limit order, Shares that would otherwise be permitted to be sold during that period, shall, upon lapse of the suspension, nonetheless be carried forward to be sold with the next amount of Shares to be sold in accordance with Section 1 of the Plan. 7.5 Merrill Lynch is released from all liability in connection with any suspension of sales, including, but not limited to, liability for the expiration of stock options or loss of market value. 8. TERMINATION 8.1 The Plan shall terminate on the earliest to occur of the following: 1. the termination date listed above; 2. the completion of all sales contemplated in Section 1 of the Plan; 3. my or Merrill Lynch's reasonable determination that: (a) the Plan does not comply with Rule 10b5-1 or other applicable securities laws; (b) I have not complied with the Plan, Rule 10b5-1 or other applicable securities laws; or (c) I have made misstatements in my representations or warranties in Section 6, above; 4. receipt by Merrill Lynch of written notice from the Issuer or me of: (a) the filing of a bankruptcy petition by the Issuer; (b) the public announcement of a merger, recapitalization, acquisition, tender or exchange offer, or other business combination or reorganization resulting in the exchange or conversion of the Shares of the Issuer into shares of a company other than the Issuer; or (c) the conversion of the Shares into rights to receive fixed amounts of cash or into debt securities and/or preferred stock (whether in whole or in part); 5. receipt by Merrill Lynch of written notice of my death; or 6. receipt by Merrill Lynch of written notice of termination from me. 9. INDEMNIFICATION 9.1 I agree to indemnify and hold harmless Merrill Lynch and its directors, officers, employees and affiliates from and against all claims, losses, damages and liabilities, including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such claim, arising out of or attributable to Merrill Lynch's actions taken in compliance with the Plan, any breach by me of the Plan, or any violation by me of applicable federal or state laws or regulations. This indemnification shall survive termination of the Plan. 6 9.2 Merrill Lynch agrees to indemnify and hold me harmless from and against all claims, losses, damages and liabilities including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim, arising out of or attributable to Merrill Lynch's gross negligence or willful misconduct in connection with the Plan. 10. MODIFICATION AND AMENDMENT 10.1 The Plan may be modified or amended only upon (a) the written agreement of me and Merrill Lynch; (b) the receipt by Merrill Lynch of a certificate signed by me to the effect that the representations, warranties and covenants contained in Section 6 above, are true as of the date of such certificate; and (c) the receipt by Merrill Lynch of an Issuer Certificate. 11. COUNTERPARTS The Plan may be signed in counterparts, each of which will be an original. 12. ENTIRE AGREEMENT The Plan, including the representations, warranties and covenants in Section 6, constitutes the entire agreement between me and Merrill Lynch regarding the Plan and supersedes any prior agreements or understandings regarding the Plan. 13. NOTICES 13.1 All notices given by the parties under the Plan will be as follows: If to Merrill Lynch: Managing Director and Administrative Manager Merrill Lynch, Pierce, Fenner & Smith, Incorporated 15/F., St. George's Building 2 Ice House Street, Central Hong Kong If to me: Nicola Chu Ming Nga Room 4302, 43/F China Resources Building, 26 Harbour Road, Wanchai Hong Kong IF SELLER IS SUBJECT TO THE REPORTING REQUIREMENTS OF SECTION 16 OF THE EXCHANGE ACT, COMPLETE THE FOLLOWING TO HAVE TRANSACTION INFORMATION FOR OPEN MARKET TRANSACTIONS UNDER THE PLAN FORWARDED TO A DESIGNATED THIRD PARTY. 7 14 OFFICER & DIRECTOR EQUITY SERVICE 14.1 I authorize Merrill Lynch to transmit transaction information via facsimile and/or email regarding open market transactions under the Plan to: Name: Ms Clara Lau Name: __________________________________ Title: Senior Accountant Title: _________________________________ Organization: _____________ Organization: __________________________ Fax: (852) 2116 1078 Fax: ___________________________________ Tel: (852) 2116 8518_______ Tel: ___________________________________ e-mail: claralau3@gmail.com e-mail: _______________________________. 14.2 I understand that reasonable efforts will be made to transmit transaction information for open market transactions under the Plan (purchase or sale) by the close of business on the day of the purchase or sale, but no later than the close of business on the first trading day following the purchase or sale. 14.3 I acknowledge that Merrill Lynch (a) has no obligation to confirm receipt of any email or faxed information by the designated contact and (b) has no responsibility or liability for filing a Form 4 with the SEC or for compliance with Section 16 of the Exchange Act. 14.4 If any of the above contact information changes, or I would like to terminate this authorization, I will promptly notify Merrill Lynch in writing. I further authorize Merrill Lynch to transmit transaction information to a third party service provider who will make the information available to my designated representative(s) listed above. 8 15. GOVERNING LAW This Plan will be governed by and construed in accordance with the laws of the State of New York. By: /s/ Nicola Chu Ming Nga ------------------------------------ Name: Nicola Chu Ming Nga Date: ---------------------------------- Acknowledged and Agreed this 8 day of Sep, 2006: Merrill Lynch, Pierce, Fenner & Smith Incorporated By: /s/ Kenny Wai --------------------------------- Name: Kenny Wai Title: Administrative Manager Acknowledged: CDC Corporation By: /s/ C.J. Clough --------------------------------- Name: ------------------------------- Title: ------------------------------ 9 ANNEX A - ISSUER CERTIFICATE THIS ANNEX A MAY NOT BE AMENDED EXCEPT IN ACCORDANCE WITH THE PLAN. 1. CDC Corporation (the "Issuer") certifies that it has approved, and retained a copy of, the Sales Plan dated 8 Sep, 2006 (the "Plan") between Nicola Chu Ming Nga ("Seller") and Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch") relating to the common stock of the Issuer (the "Shares"). 2. The Plan is consistent with Issuer's insider trading policies, and, to the best of Issuer's knowledge, there are no legal, contractual or regulatory restrictions applicable to Seller as of the date of this representation that would prohibit Seller from entering into the Plan or effecting any sale of Shares pursuant to the Plan. 3. While the Plan is effective, Issuer agrees to provide notice as soon as practicable to Merrill Lynch in the event of: a. the selling of the Shares pursuant to a registration statement or the termination, expiration, suspension or unavailability of the registration statement; b. a public announcement of a public offering of securities by the Issuer; c. a legal, regulatory or contractual restriction applicable to Seller or Seller's affiliates, including without limitation, under Regulation M, that would prohibit any sale pursuant to the Plan (other than any such restriction relating to Seller's possession or alleged possession of material nonpublic information about the Issuer or its securities) (the notice merely stating that a restriction applies to Seller without specifying the reasons for the restriction); d. the filing of a bankruptcy petition by the Issuer; e. the public announcement of a merger, recapitalization, acquisition, tender or exchange offer, or other business combination or reorganization resulting in the exchange or conversion of the Shares of the Issuer into shares of a company other than the Issuer; or f. the conversion of the Shares into rights to receive fixed amounts of cash or into debt securities and/or preferred stock (whether in whole or in part). The notice shall be provided by facsimile to [____], Merrill Lynch, at [______________] and shall indicate the anticipated duration of the restriction but shall not include any other information about the nature of the restriction or its applicability to Seller. In any event, the Issuer shall not communicate any material nonpublic information about Issuer or its securities to Merrill Lynch with respect to the Plan. 4. To avoid delays in connection with transfers of stock certificates and settlement of transactions under the Plan, and in acknowledgment of Merrill Lynch's agreement in Section 5 of the Plan that sales of Shares under the Plan will be effected in compliance with Rule 144, the Issuer agrees that it will, immediately upon Seller's directing delivery of Shares into an account at Merrill Lynch in the name of and for the benefit of Seller, instruct its transfer agent to process the transfer of Shares and issue a new certificate to Seller that does not bear any legend or statement restricting its transferability to a buyer. A-1 5. If the Plan covers options, Issuer acknowledges that Seller has authorized Merrill Lynch to serve as Seller's agent and attorney-in-fact to exercise certain stock options to purchase the Shares from time to time pursuant to the Plan. Issuer agrees to accept, acknowledge and effect the exercise of such stock options by Merrill Lynch and the delivery of the underlying Shares to Merrill Lynch, free of any legend or statement restricting their transferability to a buyer. By signing below and upon delivery of funds representing the exercise price (plus any applicable taxes), the Issuer, for itself and its agents, acknowledges: (1) the security interest of Merrill Lynch in the underlying Shares and (2) that prior to delivery to Merrill Lynch, the Issuer holds the underlying Shares as bailee for Merrill Lynch. Dated: 8 Sep 2006 CDC Corporation By: /s/ C.J. Clough --------------------------------- Name: ------------------------------- Title: ------------------------------ A-2 EX-1.7 8 h00801exv1w7.txt EX-1.7 TRADING PLAN DATED JUN 9, 2006 Exhibit 1.7 TRADING PLAN This TRADING PLAN, dated April 12, 2006 (the "TRADING PLAN"), between Nicola Chu Ming Nga (the "BUYER") and Redwine & Company, Inc. (the "BROKER"). WHEREAS, the buyer desires to establish this Trading Plan to buy a certain amount of CDC Corporation's (the "Issuer") Class A Common Stock, par value $0.00025 per share (the "Common Stock"); and WHEREAS, the buyer desires to engage Broker to effect purchase of shares of Common Stock in accordance with the Trading Plan; Now, therefore, the buyer and broker hereby agree as follows: 1. TRADING REQUIREMENTS (AMOUNT/PRICE/DATE). Broker shall effect a Purchase (each a "PURCHASE") as of Common Stock daily of every week commencing on April 13, 2006, in which the Common Stock is trading on the Nasdaq National Market at a price as follows: 1) 800,000 shares for the price below US$4.00 per share at 40,000 shares 2) 500,000 shares for the price between US$4.00 and US$4.50 (exclusive) per share at 30,000 shares 3) 350,000 shares for the price between US$4.50 and US$5.00 (inclusive) per share at 20,000 shares 2. EFFECTIVE DATE/TERMINATION. This Trading Plan shall become effective on April 13, 2006 and shall terminate upon: (a) 1,650,000 shares of the Buyer's Common Stock have been purchased pursuant to this Trading Plan (b) the death of the Buyer (c) if at any time any trade contemplated hereunder shall result in a violation or adverse consequence under the applicable securities laws; and (d) if the Issuer engages in an underwritten offering of its securities pursuant to the Securities Act of 1933 and the lead underwriter of such offering requires that the Issuer's directors and executive officers enter into a market stand-off agreement. (e) 30th April 2007 3. MODIFICATIONS This Trading Plan may be modified by the Buyer provided that such modification is in writing, made in good faith and not as part of a plan or scheme to evade prohibitions of Rule 10b-5 under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT") and pre-cleared or acknowledged by the Issuer's designated legal officer. 4. MARKET DISRUPTION OF OTHER DISRUPTION Buyer understands that Broker may not be able to effect a Purchase due to a market disruption or a legal, regulatory or contractual restriction application to the Broker or to the relevant market. If any Purchase cannot be executed as required by paragraph 1 above due to a market disruption, a legal, regulatory or contractual restriction applicable to the Broker or any other event, Broker shall effect such Purchase as promptly as practical after the cessation or termination of such market disruption, applicable restriction or other event, provided, that, the Purchase complies that the Trading Requirements as provided in paragraph 1 above. 5. BUYER REPRESENTATIONS AND WARRANTS Buyer represents and warrants that: (a) Buyer is not aware at the time of his or her execution hereof of material nonpublic information with respect to the Issue or any securities of the Issue (including the Common Stock) and is entering into this Trading Plan in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 under the Exchange Act. (b) Buyer is currently able to buy shares of Common Stock in accordance with the Issuer's insider trading policies and Buyer has obtained the written approval of the Issuer to enter into this Trading Plan. 6. COMPLIANCE WITH THE SECURITIES LAWS (a) It is the intent of the parties that this Trading Plan comply with the requirements of Rule 10b5-1(c)(1)(i)(B) under the Exchange Act and this Trading Plan shall be interpreted to comply with the requirements of Rule 10b5-1(c) under the Exchange Act. (b) If applicable, buyer agrees to make all filings, if any, required under Sections 13(d) and 16 of Exchange Act. REVISED TRADING PLAN This REVISED TRADING PLAN (the "TRADING PLAN"), dated June 9, 2006, between Nicola Chu Ming Nga (the "BUYER") and Redwine & Company, Inc. (the "BROKER"). WHEREAS, the Buyer desires to establish this Trading Plan to buy a certain amount of CDC Corporation's (the "ISSUER") Class A Common Shares, par value $0.00025 per share (the "COMMON STOCK"); and WHEREAS, the Buyer desires to engage Broker to effect purchase of shares of Common Stock in accordance with the Trading Plan; Now, therefore, the Buyer and Broker hereby agree as follows: 1. TRADING REQUIREMENTS (AMOUNT/PRICE/DATE). Broker shall effect a Purchase (each a "PURCHASE") of Common Stock daily commencing on June 9, 2006, in which the Common Stock is trading on the Nasdaq National Market at a price as follows: 1) An aggregate of 180,000 shares for the price at US$4.00 or better per share at a maximum of 20,000 shares per day; 2) An aggregate of 180,000 shares for the price at US$4.30 or better per share at a maximum of 18,000 shares per day; 3) An aggregate of 100,000 shares for the price at US$4.50 or better per share at a maximum of 10,000 shares per day; 4) An aggregate 70,000 shares for the price at US$4.70 or better per share at a maximum of 5,000 shares per day. 2. EFFECTIVE DATE/TERMINATION. This Trading Plan shall become effective on June 9, 2006 and shall terminate upon the first to occur of any of the below: (a) 530,000 shares of the Buyer's Common Stock have been purchased pursuant to this Trading Plan; (b) the death of the Buyer; (c) if at any time any trade contemplated hereunder shall result in a violation or adverse consequence under the applicable securities laws; (d) if the Issuer engages in an underwritten offering of its securities pursuant to the Securities Act of 1933 and the lead underwriter of such offering requires that the Issuer's directors and executive officers enter into a market stand-off agreement; and (e) 30th April 2007. 3. TERMINATION OF PRIOR TRADING PLAN. For the avoidance of doubt, the 10b5-1 Trading Plan dated as of April 12, 2006 between the Buyer and the Broker is hereby terminated. 4. MODIFICATIONS This Trading Plan may be modified by the Buyer provided that such modification is in writing, made in good faith and not as part of a plan or scheme to evade prohibitions of Rule 10b-5 under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT") and pre-cleared or acknowledged by the Issuer's designated legal officer. 5. MARKET DISRUPTION OF OTHER DISRUPTION Buyer understands that Broker may not be able to effect a Purchase due to a market disruption or a legal, regulatory or contractual restriction application to the Broker or to the relevant market. If any Purchase cannot be executed as required by paragraph 1 above due to a market disruption, a legal, regulatory or contractual restriction applicable to the Broker or any other event, Broker shall effect such Purchase as promptly as practical after the cessation or termination of such market disruption, applicable restriction or other event, provided, that, the Purchase complies that the Trading Requirements as provided in paragraph 1 above. 6. BUYER REPRESENTATIONS AND WARRANTS Buyer represents and warrants that: (a) Buyer is not aware at the time of his or her execution hereof of material nonpublic information with respect to the Issuer or any securities of the Issuer (including the Common Stock) and is entering into this Trading Plan in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 under the Exchange Act. (b) Buyer is currently able to buy shares of Common Stock in accordance with the Issuer's insider trading policies and Buyer has obtained the written approval of the Issuer to enter into this Trading Plan. 7. COMPLIANCE WITH THE SECURITIES LAWS i) It is the intent of the parties that this Trading Plan comply with the requirements of Rule 10b5-1(c)(1)(i)(B) under the Exchange Act and this Trading Plan shall be interpreted to comply with the requirements of Rule 10b5-1(c) under the Exchange Act. ii) If applicable, Buyer agrees to make all filings, if any, required under Sections 13(d) and 16 of Exchange Act. 8. Governing Law This Trading Plan shall be governed by and construed in accordance with the laws of the United States of America. IN WITNESS WHEREOF, the undersigned have signed this Trading Plan as of the date first written above. /s/ Nicola Chu Ming Nga - -------------------------------------------- Nicola Chu Ming Nga /s/ J. Craighill Redwine, Sr. - -------------------------------------------- J. Craighill Redwine, Sr. Redwine & Company, Inc. Acknowledged CDC Corporation By /s/ C.J. Clough - -------------------------------------------- Name: C.J. Clough Title: Director -----END PRIVACY-ENHANCED MESSAGE-----