EX-4.9 10 tm2213605d1_ex4-9.htm EXHIBIT 4.9

Exhibit 4.9

FINAL VERSION

EMPLOYMENT AGREEMENT

This EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered into as of this 29 day of April 2022, by and between, Global Cord Blood Corporation, a Cayman Islands corporation (the “Company”), and Leong Kim Chuan (the “Executive”).

W I T N E S S E T H :

WHEREAS, in connection with the transactions contemplated by the Acquisition Agreement and the Other SPAs (as defined under the Acquisition Agreement), Cellenkos, Inc., a Delaware corporation (“Cellenkos”) will become a direct or indirect subsidiary of the Company; and

WHEREAS, the Company desires to employ Executive and to enter into this Agreement embodying the terms of such employment, and Executive desires to enter into this Agreement and to accept such employment, subject to the terms and provisions of this Agreement.

NOW, THEREFORE, in consideration of the promises and mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are mutually acknowledged, the Company and Executive hereby agree as follows:

Section 1. Definitions. Capitalized terms not otherwise defined in this Agreement shall have the meaning set forth on Appendix A, attached hereto.

Section 2. Acceptance and Term of Employment.

The Company agrees to employ Executive, and Executive agrees to serve the Company, on the terms and conditions set forth herein. The initial term of Executive’s employment under this Agreement shall be for the period beginning on the Closing and ending on the fifth (5^th) anniversary of the Closing (the “Initial Term”). On the fifth anniversary of the Closing, the term of Executive’s employment under this Agreement shall automatically renew and extend for a period of three (3) years and shall continue for an additional three years at the end of each three (3)-year term (each such three (3)-year term being a “Renewal Term”) unless written notice of non-renewal is delivered by either party to the other not less than 90 days prior to the expiration of the then-existing Initial Term or Renewal Term (the Initial Term and any Renewal Term, the “Term of Employment”), as applicable. Notwithstanding any other provision of this Agreement, Executive’s employment pursuant to this Agreement may be terminated at any time in accordance with ‎Section 7 hereof.

Section 3. Position, Duties, and Responsibilities; Place of Performance.

(a) Position, Duties, and Responsibilities. During the Term of Employment, Executive shall be employed and serve as (i) the Co-Chief Financial Officer of the Company, reporting directly to the Board, and having such duties and responsibilities commensurate with such position, and (ii) the Chief Financial Officer of Cellenkos, having such duties and responsibilities consistent with the past practice of Cellenkos with respect to such position, without additional compensation.

(b) Performance. Executive shall devote substantially all of Executive’s business time to the performance of Executive’s duties under this Agreement and shall not engage in any other business or occupation during the Term of Employment. Notwithstanding the foregoing, nothing herein shall preclude Executive from, (i) serving as a member of the board of directors or advisory board (or the equivalent in the case of a non-corporate entity) of a non-competing for-profit business and one or more not-for-profit or charitable organizations, (ii) engaging in charitable activities and community affairs or holding any academic position or title with any academic or research institute, and (iii) managing Executive’s and his family’s investments and affairs; provided, that, in the case of (i) and (ii), the Executive has informed the Company by a written notice in advance; provided, further, that the activities set out in clauses (i), (ii), and (iii) shall be limited by Executive so as not to materially interfere with the performance of Executive’s duties and responsibilities hereunder.

(c) Principal Place of Employment. Executive’s principal place of employment shall be in Hong Kong, although Executive understands and agrees that Executive may be required to travel on a reasonable basis from time to time for business reasons.

Section 4. Compensation.

During the Term of Employment, Executive shall be entitled to the following compensation:

(a) Base Salary. Executive shall be paid an annualized Base Salary (the “Base Salary”), payable in accordance with the regular payroll practices of the Company, of HK $4,329,000, with such increases (but not decreases), if any, as may be approved in writing by the Board or the Compensation Committee.

(b) Annual Bonus. Executive shall be eligible for an annual incentive bonus award determined by the Board or the Compensation Committee in respect of each fiscal year during the Term of Employment (the “Annual Bonus”). Any payment of the Annual Bonus in the initial partial year during the Term of Employment will be pro-rated to reflect Executive’s period of employment in that partial year. The Annual Bonus shall otherwise be subject to the terms and conditions of the annual bonus plan adopted by the Board or the Compensation Committee, if any, under which bonuses are generally payable to senior executives of the Company, as in effect from time to time. The Annual Bonus shall be paid to Executive at the same time as annual bonuses are generally payable to other senior executives of the Company.

(c) Equity Participation. In connection with the commencement of Executive’s employment hereunder, Executive shall be entitled to participate in, and receive a grant of restricted stock units representing ten percent (10%) of the aggregate pool approved under, the equity incentive plan to be adopted by the Company, pursuant to the terms of such plan, an award agreement and such other documents that Executive is required to execute pursuant to the terms of such plan (the plan, the award agreement, and such other documents collectively, the “Equity Documents”). The aggregate pool shall equal ten percent (10%) of the fully diluted shares of the Company and the Equity Documents shall be consistent with the terms and conditions set forth in the Equity Participation Term Sheet attached as Schedule [5] to the Acquisition Agreement.

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Section 5. Employee Benefits.

During the Term of Employment, Executive shall be entitled to participate in health, insurance, retirement, and other benefits provided generally to senior executives of the Company and/or Cellenkos. Executive shall also be entitled to the same number of holidays, vacation days, and sick days, as well as any other benefits, in each case as are generally allowed to senior executives of the Company and/or Cellenkos in accordance with applicable policies of the Company and/or Cellenkos as in effect from time to time.

In accordance with the provisions of the Mandatory Provident Fund Schemes Ordinance (Cap. 458 of the laws of Hong Kong) (the “MPF Ordinance”), Executive shall be required to make a contribution to the Mandatory Provident Fund (“MPF”) scheme provided by the Company and/or Cellenkos. Such contribution shall be made in accordance with the MPF Ordinance. Should there be any changes in the relevant legislation on the level of MPF contribution in the future, the Company or Cellenkos will give effect to such changes accordingly. The Company and/or Cellenkos will make a matching contribution to the MPF scheme. Executive may claim for payment of accrued benefits from the scheme upon declaration of permanent departure from Hong Kong.

Section 6. Reimbursement of Business Expenses.

Executive is authorized to incur reasonable business expenses in carrying out Executive’s duties and responsibilities under this Agreement, and the Company shall promptly reimburse, or cause Cellenkos to promptly reimburse, Executive for all such reasonable business expenses, subject to documentation in accordance with the Company’s policy, as in effect from time to time.

Section 7. Termination of Employment.

(a) General. The Term of Employment, and Executive’s employment with the Company hereunder, shall terminate upon the earliest to occur of (i) Executive’s death, (ii) a termination by reason of a Disability, (iii) a termination by the Board with or without Cause, (iv) a termination by Executive with or without Good Reason and (v) the nonrenewal of the Term of Employment by either party pursuant to ‎Section 2 of this Agreement. Except as otherwise expressly required by law or as specifically provided herein or in the Equity Documents, all of Executive’s rights to Base Salary, Annual Bonus, employee benefits and other compensatory amounts hereunder (if any) shall cease upon the termination of Executive’s employment hereunder.

(b) Deemed Resignation. Upon any termination of Executive’s employment for any reason, except as may otherwise be requested by the Company in writing and agreed upon in writing by Executive, Executive shall be deemed to have resigned from any and all directorships, committee memberships, and any other positions that Executive holds with the Company or any other member of the Company Group.

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(c) Termination Due to Death or Disability. Executive’s employment shall terminate automatically upon Executive’s death. The Board may terminate Executive’s employment upon the occurrence of a Disability, such termination to be effective upon Executive’s receipt of written notice of such termination. Upon Executive’s death or in the event that Executive’s employment is terminated due to Executive’s Disability, Executive or Executive’s estate or Executive’s beneficiaries, as the case may be, shall be entitled to:

(i) The Accrued Obligations; and

(ii) An amount equal to (A) the Annual Bonus of the fiscal year in which such termination occurs (to the extent determined by the Board or the Compensation Committee) multiplied by (B) a fraction, the numerator of which is the number of days elapsed from the commencement of the fiscal year in which such termination occurs through the date of such termination and the denominator of which is 365 (or 366, as applicable), which amount shall be paid in a lump sum on the sixtieth (60^th) day following Executive’s termination date.

(d) Termination by the Company for Cause.

(i) The Board may terminate Executive’s employment at any time for Cause, effective upon delivery to Executive of written notice of such termination; provided, however, that with respect to any Cause termination relying on clause (ii), (vi) or (vii) of the definition of Cause, to the extent that such act or acts or failure or failures to act are curable, Executive shall be given not less than ten (10) days’ written notice by the Board of its intention to terminate Executive for Cause, such notice to state in detail the particular act or acts or failure or failures to act that constitute the grounds on which the proposed termination for Cause is based, and such termination shall be effective at the expiration of such ten (10)-day notice period unless Executive has fully cured such act or acts or failure or failures to act that give rise to Cause during such period.

(ii) In the event that the Board terminates Executive’s employment for Cause, Executive shall be entitled only to the Accrued Obligations.

(e) Termination by the Company without Cause or Nonrenewal by the Company. The Board may terminate Executive’s employment at any time without Cause by providing Executive thirty (30) days’ written notice and the Board may elect not to renew the Term of Employment pursuant to Section 2 hereof. In the event that Executive’s employment is terminated by the Board without Cause (other than due to death or Disability) or the Board elects not to renew the Term of Employment pursuant to ‎Section 2 hereof, Executive shall be entitled to:

(i) The Accrued Obligations;

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(iii) An amount equal to two times the sum of (A) Base Salary, plus (Y) the Annual Bonus of the fiscal year in which such termination occurs (to the extent determined by the Board or the Compensation Committee), which amount shall be paid in a lump sum on the sixtieth (60^th) day following Executive’s termination date.

Notwithstanding the foregoing, the payments and benefits described in clauses (ii) through (iii) above shall immediately terminate, and the Company shall have no further obligations to Executive with respect thereto, in the event that Executive materially breaches the Restricted Covenant Agreement (as defined in ‎Section 8 hereof); provided, that to the extent such material breach is curable, Executive shall be given thirty (30) days’ written notice by the Board of any such purported material breach, and such payments and benefits shall not terminate if Executive has completely cured such act or acts during such period.

(f) Termination by Executive with Good Reason. Executive may terminate Executive’s employment with Good Reason by providing the Company ninety (90) days’ written notice setting forth in reasonable specificity the event that constitutes Good Reason, which written notice, to be effective, must be provided to the Company within sixty (60) days of the occurrence of such event. During such ninety (90)-day notice period, the Company shall have a cure right (if curable), and if not cured within such period, Executive’s termination will be effective upon the expiration of such cure period, and Executive shall be entitled to the same payments and benefits as provided in ‎Section 7(e)(i) and ‎Section 7(e)(ii).

(g) Termination by Executive without Good Reason or Nonrenewal by Executive. Executive may terminate Executive’s employment without Good Reason by providing the Company ninety (90) days’ written notice of such termination and may elect not to renew the Term of Employment pursuant to ‎Section 2. In the event of a termination of employment by Executive under this ‎Section 7(g), Executive shall be entitled only to the Accrued Obligations.

(h) Termination by the Company without Cause, Nonrenewal by the Company or Resignation for Good Reason in connection with a Change of Control. If the Company terminates Executive’s employment without Cause (other than due to death or Disability), the Company elects not to renew the Term of Employment pursuant to ‎Section 2 hereof or Executive resigns for Good Reason, in each case, within the three-month period prior to or at any time following a Change of Control, Executive shall be entitled, in lieu of the payments and benefits set forth in ‎Section 7(e) or ‎Section 7(f), to:

(i) The Accrued Obligations;

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(iii) An amount equal to (X) US$5,000,000 plus (Y) the product of (1) US$1,000,000 and (2) the number of full years of service during the Term of Employment, such amount to be treated as inclusive of any amount payable as statutory severance payment pursuant to the Employment Ordinance (Cap. 57 of the laws of Hong Kong) and paid in a lump sum on the next regularly scheduled payroll date following the date of such termination.

Section 8. Restrictive Covenants

(a) General. Executive acknowledges and agrees, in consideration for the Company executing this Agreement, to execute the Proprietary Information and Inventions Agreement attached hereto as Appendix B (the “Restricted Covenant Agreement”).

Section 9. Taxes.

The Company may withhold from any payments made under this Agreement or otherwise made in connection with Executive’s employment hereunder, all applicable taxes, including but not limited to income, employment, and social insurance taxes, as shall be required by law. If any such taxes are paid or advanced by the Company on behalf of Executive, Executive shall remain responsible for, and shall repay, such amounts to the Company, promptly following notice thereof by the Company. Executive acknowledges and represents that the Company have not provided any tax advice to Executive in connection with this Agreement and that Executive has been advised by the Company to seek tax advice from Executive’s own tax advisors regarding this Agreement and payments that may be made to Executive pursuant to this Agreement.

Section 10. Set Off; Mitigation.

The Company’ obligation to pay Executive the amounts provided and to make the arrangements provided hereunder shall be subject to set-off, counterclaim, or recoupment of amounts owed by Executive to the Company, Cellenkos or their affiliates. Executive shall not be required to mitigate the amount of any payment provided pursuant to this Agreement by seeking other employment or otherwise, and except as may be required by applicable laws, the amount of any payment provided for pursuant to this Agreement shall not be reduced by any compensation earned as a result of Executive’s other employment or otherwise.

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Section 11. Successors and Assigns; No Third-Party Beneficiaries.

(a) The Company. This Agreement shall inure to the benefit of the Company and their respective successors and assigns. Neither this Agreement nor any of the rights, obligations, or interests arising hereunder may be assigned by the Company to a Person (other than another member of the Company Group, or its or their respective successors) without Executive’s prior written consent (which shall not be unreasonably withheld, delayed, or conditioned); provided, however, that in the event of a sale of all or substantially all of the assets of the Company, Cellenkos or any direct or indirect division or subsidiary of the Company or Cellenkos to which Executive’s employment primarily relates, the Company may provide that this Agreement will be assigned to, and assumed by, the acquiror of such assets, division or subsidiary, as applicable, without Executive’s consent and thereafter any reference in this Agreement to “the Company” shall be deemed to be a reference to such acquiror.

(b) Executive. Executive’s rights and obligations under this Agreement shall not be transferable by Executive by assignment or otherwise, without the prior written consent of the Company; provided, however, that if Executive shall die, all amounts then payable to Executive hereunder shall be paid in accordance with the terms of this Agreement to Executive’s devisee, legatee, or other designee, or if there be no such designee, to Executive’s estate.

(c) No Third-Party Beneficiaries. Except as otherwise set forth in ‎Section 7(c) or ‎Section 11(b) hereof, nothing expressed or referred to in this Agreement will be construed to give any Person other than the Company, the other members of the Company Group, and Executive any legal or equitable right, remedy, or claim under or with respect to this Agreement or any provision of this Agreement.

Section 12. Waiver and Amendments.

Any waiver, alteration, amendment, or modification of any of the terms of this Agreement shall be valid only if made in writing and signed by each of the parties hereto; provided, however, that any such waiver, alteration, amendment, or modification must be consented to on the Company’s behalf by the Board. No waiver by either of the parties hereto of their rights hereunder shall be deemed to constitute a waiver with respect to any subsequent occurrences or transactions hereunder unless such waiver specifically states that it is to be construed as a continuing waiver.

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Section 13. Severability.

If any covenants or such other provisions of this Agreement are found to be invalid or unenforceable by a final determination of a court of competent jurisdiction, (a) the remaining terms and provisions hereof shall be unimpaired, and (b) the invalid or unenforceable term or provision hereof shall be deemed replaced by a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision hereof.

Section 14. Governing Law; Exclusive Forum.

This Agreement is governed by and is to be construed under the laws of Hong Kong. The exclusive forum for any suit, action or other proceeding arising out of or in any way related to this Agreement shall be the courts of Hong Kong.

Section 15. Notices.

(a) Place of Delivery. Every notice or other communication relating to this Agreement shall be in writing, and shall be mailed to or delivered to the party for whom or which it is intended at such address as may from time to time be designated by it in a notice mailed or delivered to the other party as herein provided; provided, however, that unless and until some other address be so designated, all notices and communications by Executive to the Company shall be mailed or delivered to the Company at its principal executive office, and all notices and communications by the Company to Executive may be given to Executive personally or may be mailed to Executive at Executive’s last known address, as reflected in the Company’s records.

(b) Date of Delivery. Any notice so addressed shall be deemed to be given (i) if delivered by hand, on the date of such delivery, (ii) if mailed by courier or by overnight mail, on the first business day following the date of such mailing, and (iii) if mailed by registered or certified mail, on the third business day after the date of such mailing.

Section 16. Section Headings.

The headings of the sections and subsections of this Agreement are inserted for convenience only and shall not be deemed to constitute a part thereof or affect the meaning or interpretation of this Agreement or of any term or provision hereof.

Section 17. Entire Agreement.

This Agreement, together with any exhibits attached hereto, constitutes the entire understanding and agreement of the parties hereto regarding the employment of Executive. This Agreement supersedes all prior negotiations, discussions, correspondence, communications, understandings, and agreements among the parties relating to the subject matter of this Agreement.

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Section 18. Survival of Operative Sections.

Upon any termination of Executive’s employment, the provisions of ‎Section 7 through ‎Section 20 of this Agreement (together with any related definitions set forth on Appendix A) shall survive to the extent necessary to give effect to the provisions thereof.

Section 19. Conditional Upon Closing of Transactions.

This Agreement and the Restricted Covenant Agreement shall be conditioned upon the closing of the transactions contemplated by the Acquisition Agreement. In the event that the Acquisition Agreement terminates prior to the closing of the transactions contemplated thereby, this Agreement and the Restricted Covenant Agreement shall be void ab initio.

Section 20. Counterparts.

This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument. The execution of this Agreement may be by actual, electronic or facsimile signature.

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[Signatures to appear on the following page.]

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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above written.

	GLOBAL CORD BLOOD CORPORATION

	/s/ Ting Zheng
	By: Ting Zheng
	Title: CEO

	EXECUTIVE

	/s/ Leong Kim Chuan
	Leong Kim Chuan