EXHIBIT 10.3
FORM OF EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is entered into as of
_____________, 2006 by and between E-House (China) Holdings Limited, a company
incorporated and existing under the laws of the Cayman Islands (the "Company")
and Mr. [-], an individual (the "Executive"). The term "Company" as used herein
with respect to all obligations of the Executive hereunder shall be deemed to
include the Company and all of its direct or indirect parent companies,
subsidiaries, affiliates, or subsidiaries or affiliates of its parent companies
(collectively, the "Group").
RECITALS
A. The Company desires to employ the Executive and to assure itself of the
services of the Executive during the term of Employment (as defined below).
B. The Executive desires to be employed by the Company during the term of
Employment and under the terms and conditions of this Agreement.
AGREEMENT
The parties hereto agree as follows:
1. POSITION
The Executive hereby accepts a position of [-] Officer (the "Employment")
of the Company.
2. TERM
Subject to the terms and conditions of this Agreement, the initial term of
the Employment shall be three years, commencing on ___________, 200__ (the
"Effective Date"), until __________, 20__, unless terminated earlier
pursuant to the terms of this Agreement. Upon expiration of the initial
three-year term, the Employment shall be automatically extended for
successive one-year terms unless either party gives the other party hereto
a prior written notice to terminate the Employment prior to the expiration
of such one-year term or unless terminated earlier pursuant to the terms
of this Agreement.
3. PROBATION
Three months, commencing on the Effective Date.
4. DUTIES AND RESPONSIBILITIES
The Executive's duties at the Company will include all jobs assigned by
the Board of Directors of the Company (the "Board").
The Executive shall devote all of his working time, attention and skills
to the performance of his duties at the Company and shall faithfully and
diligently serve the Company in accordance with this Agreement and the
guidelines, policies and procedures of the Company approved from time to
time by the Board.
The Executive shall use his best efforts to perform his duties hereunder.
The Executive shall not, without the prior written consent of the Board,
become an employee or consultant of any entity other than the Company
and/or any member of the Group, and shall not carry on or be interested in
the business or entity that competes with that carried on by the Group
(any such business or entity, a "Competitor"), provided that nothing in
this clause shall preclude the Executive from holding any shares or other
securities of any Competitor that is listed on any securities exchange or
recognized securities market anywhere. The Executive shall notify the
Company in writing of his interest in such shares or securities in a
timely manner and with such details and particulars as the Company may
reasonably require.
5. NO BREACH OF CONTRACT
The Executive hereby represents to the Company that: (i) the execution and
delivery of this Agreement by the Executive and the performance by the
Executive of the Executive's duties hereunder shall not constitute a
breach of, or otherwise contravene, the terms of any other agreement or
policy to which the Executive is a party or otherwise bound, except for
agreements that are required to be entered into by and between the
Executive and any member of the Group pursuant to applicable law of the
jurisdiction where the Executive is based, if any; (ii) that the Executive
has no information (including, without limitation, confidential
information and trade secrets) relating to any other person or entity
which would prevent, or be violated by, the Executive entering into this
Agreement or carrying out his duties hereunder; (iii) that the Executive
is not bound by any confidentiality, trade secret or similar agreement
(other than this) with any other person or entity except for other
member(s) of the Group, as the case may be.
6. LOCATION
The Executive will be based in Shanghai, China until both parties hereto
agree to change otherwise.
7. COMPENSATION AND BENEFITS
(a) Cash Compensation. The Executive's cash compensation shall be
provided by the Company pursuant to Schedule A hereto, subject to
annual review and adjustment by the Board.
(b) Equity Incentives. When the Company adopts and maintains a share
incentive plan (the "Plan"), the Executive will be entitled to
receive options under the Plan pursuant to the following principal
terms, subject to terms and conditions of the Plan:
(1) The Executive will receive an option to purchase [-] ordinary
shares of the Company (the "Option");
(2) The exercise price of the Option shall be at US$[-] per share;
(3) The Option will vest at the following schedule: one-third of
the Option will vest on each anniversary of the Effective
Date;
2
(4) In the event of a change-of-control transaction of the
Company, as a result of which the shareholders of the Company
prior to such transaction do not retain, directly or
indirectly, at least a majority of the voting power of the
Company, all unvested Option shall accelerate upon
consummation of such transaction; and
(5) In the event the Employment is terminated for any reason, the
Executive may exercise the vested Option as of the date of
termination at any time within three months after the date of
termination.
(c) Housing Accommodation. The Company will arrange and pay for the
Executive's housing accommodation in Shanghai, PRC.
(d) Benefits. The Executive is eligible for participation in any
standard employee benefit plan of the Company, including any health
insurance plan and annual holiday plan.
8. TERMINATION OF THE AGREEMENT
(a) By the Company. The Company may terminate the Employment for cause,
at any time, without advance notice or remuneration, if (1) the
Executive is convicted or pleads guilty to a felony or to an act of
fraud, misappropriation or embezzlement, (2) the Executive has been
negligent or acted dishonestly to the detriment of the Company, (3)
the Executive has engaged in actions amounting to misconduct or
failed to perform his duties hereunder and such failure continues
after the Executive is afforded a reasonable opportunity to cure
such failure, (4) the Executive has died, or (5) the Executive has a
disability which shall mean a physical or mental impairment which,
as reasonably determined by the Board, renders the Executive unable
to perform the essential functions of his employment with the
Company, even with reasonable accommodation that does not impose an
undue hardship on the Company, for more than 180 days in any
12-month period, unless a longer period is required by applicable
law, in which case that longer period would apply. In addition, the
Company may terminate the Employment without cause, at any time,
upon one-month prior written notice to the Executive during the
first year after the Effective Date, two-month prior written notice
to the Executive during the second year after the Effective Date, or
three-month prior written notice to the Executive during any period
after the second anniversary of the Effective Date.
(b) By the Executive. If there is a material and substantial reduction
in the Executive's existing authority and responsibilities and such
resignation is approved by the Board, the Executive may resign upon
one-month prior written notice to the Company during the first year
after the Effective Date, two-month prior written notice to the
Company during the second year after the Effective Date, or
three-month prior written notice to the Company during any period
after the second anniversary of the Effective Date.
(c) Notice of Termination. Any termination of the Executive's employment
under this Agreement shall be communicated by written notice of
termination from the terminating party to the other party. The
notice of termination shall indicate the specific provision(s) of
this Agreement relied upon in effecting the termination.
(d) Remuneration upon Termination. Upon the Company's termination of the
Employment without cause pursuant to subsection (a) above or the
Executive's resignation upon the Board's approval pursuant to
subsection (b) above, the Company will provide remuneration to the
Executive as follows: (1) if such termination or resignation becomes
3
effective during the first year after the Effective Date, the
Company will provide the Executive with a severance pay equal to one
month base salary of the Executive; (2) if such termination or
resignation becomes effective during the second year after the
Effective Date, the Company will provide the Executive with a
severance pay equal to two month base salary of the Executive; (3)
if such termination or resignation becomes effective during any
period after the second anniversary of the Effective Date, the
Company will provide the Executive with a severance pay equal to
three month base salary of the Executive; and (4) the Executive may
exercise the vested Option as of the date of termination at any time
within three months after the date of termination. Except for the
foregoing, the Executive shall not be entitled to any severance
payments or benefits upon the termination of the Employment for any
reason.
9. CONFIDENTIALITY AND NONDISCLOSURE
(a) Confidentiality and Non-disclosure. In the course of the Executive's
services, the Executive may have access to the Company and/or the
Company's client's and/or prospective client's trade secrets and
confidential information, including but not limited to those
embodied in memoranda, manuals, letters or other documents, computer
disks, tapes or other information storage devices, hardware, or
other media or vehicles, pertaining to the Company and/or the
Company's client's and/or prospective client's business. All such
trade secrets and confidential information are considered
confidential. All materials containing any such trade secret and
confidential information are the property of the Company and/or the
Company's client and/or prospective client, and shall be returned to
the Company and/or the Company's client and/or prospective client
upon expiration or earlier termination of this Agreement. The
Executive shall not directly or indirectly disclose or use any such
trade secret or confidential information, except as required in the
performance of the Executive's duties in connection with the
Employment, or pursuant to applicable law.
(b) Trade Secrets. During and after the Employment, the Executive shall
hold the Trade Secrets in strict confidence; the Executive shall not
disclose these Trade Secrets to anyone except other employees of the
Company who have a need to know the Trade Secrets in connection with
the Company's business. The Executive shall not use the Trade
Secrets other than for the benefits of the Company.
"Trade Secrets" means information deemed confidential by the
Company, treated by the Company or which the Executive know or ought
reasonably to have known to be confidential, and trade secrets,
including without limitation designs, processes, pricing policies,
methods, inventions, conceptions, technology, technical data,
financial information, corporate structure and know-how, relating to
the business and affairs of the Company and its subsidiaries,
affiliates and business associates, whether embodied in memoranda,
manuals, letters or other documents, computer disks, tapes or other
information storage devices, hardware, or other media or vehicles.
Trade Secrets do not include information generally known or released
to public domain through no fault of the Executive.
(c) Former Employer Information. The Executive agrees that he has not
and will not, during the term of his employment improperly use or
disclose any proprietary information or trade secrets of any former
employer or other person or entity with which the Executive has an
agreement to keep in confidence information acquired by Executive,
if any. The Executive will indemnify the Company and hold it
harmless from and against all claims,
4
liabilities, damages and expenses, including reasonable attorneys'
fees and costs of suit, arising out of or in connection with any
violation of the foregoing.
(d) Third Party Information. The Executive recognizes that the Company
may have received, and in the future may receive, from third parties
their confidential or proprietary information subject to a duty on
the Company's part to maintain the confidentiality of such
information and to use it only for certain limited purposes. The
Executive agrees that the Executive owes the Company and such third
parties, during the Executive's employment by the Company and
thereafter, a duty to hold all such confidential or proprietary
information in the strictest confidence and not to disclose it to
any person or firm and to use it in a manner consistent with, and
for the limited purposes permitted by, the Company's agreement with
such third party.
This Section 9 shall survive the termination of this Agreement for any
reason. In the event the Executive breaches this Section 9, the Company
shall have right to seek remedies permissible under applicable law.
10. INVENTIONS
(a) Inventions Retained and Licensed. The Executive has attached hereto,
as Schedule B, a list describing all inventions, ideas,
improvements, designs and discoveries, whether or not patentable and
whether or not reduced to practice, original works of authorship and
trade secrets made or conceived by or belonging to the Executive
(whether made solely by the Executive or jointly with others) that
(i) were developed by Executive prior to the Executive's employment
by the Company (collectively, "Prior Inventions"), (ii) relate to
the Company' actual or proposed business, products or research and
development, and (iii) are not assigned to the Company hereunder;
or, if no such list is attached, the Executive represents that there
are no such Prior Inventions. Except to the extent set forth in
Schedule B, the Executive hereby acknowledges that, if in the course
of his service for the Company, the Executive incorporates into a
Company product, process or machine a Prior Invention owned by the
Executive or in which he has an interest, the Company is hereby
granted and shall have a nonexclusive, royalty-free, irrevocable,
perpetual, worldwide right and license (which may be freely
transferred by the Company to any other person or entity) to make,
have made, modify, use, sell, sublicense and otherwise distribute
such Prior Invention as part of or in connection with such product,
process or machine.
(b) Disclosure and Assignment of Inventions. The Executive understands
that the Company engages in research and development and other
activities in connection with its business and that, as an essential
part of the Employment, the Executive is expected to make new
contributions to and create inventions of value for the Company.
From and after the Effective Date, the Executive shall disclose in
confidence to the Company all inventions, improvements, designs,
original works of authorship, formulas, processes, compositions of
matter, computer software programs, databases, mask works and trade
secrets (collectively, the "Inventions"), which the Executive may
solely or jointly conceive or develop or reduce to practice, or
cause to be conceived or developed or reduced to practice, during
the period of the Executive's Employment at the Company. The
Executive acknowledges that copyrightable works prepared by the
Executive within the scope of and during the period of the
Executive's Employment with the Company are "works for hire" and
that the Company will be considered the author thereof. The
5
Executive agrees that all the Inventions shall be the sole and
exclusive property of the Company and the Executive hereby assign
all his right, title and interest in and to any and all of the
Inventions to the Company or its successor in interest without
further consideration.
(c) Patent and Copyright Registration. The Executive agrees to assist
the Company in every proper way to obtain for the Company and
enforce patents, copyrights, mask work rights, trade secret rights,
and other legal protection for the Inventions. The Executive will
execute any documents that the Company may reasonably request for
use in obtaining or enforcing such patents, copyrights, mask work
rights, trade secrets and other legal protections. The Executive's
obligations under this paragraph will continue beyond the
termination of the Employment with the Company, provided that the
Company will reasonably compensate the Executive after such
termination for time or expenses actually spent by the Executive at
the Company's request on such assistance. The Executive appoints the
person designated by the Company as the Executive's attorney-in-fact
to execute documents on the Executive's behalf for this purpose.
(d) Return of Confidential Materials. In the event of the Executive's
termination of employment with the Company for any reason
whatsoever, Executive agrees promptly to surrender and deliver to
the Company all records, materials, equipment, drawings, documents
and data of any nature pertaining to any confidential information or
to his employment, and Executive will not retain or take with him or
her any tangible materials or electronically stored data, containing
or pertaining to any confidential information that Executive may
produce, acquire or obtain access to during the course of his
employment.
This Section 10 shall survive the termination of this Agreement for any
reason. In the event the Executive breaches this Section 10, the Company
shall have right to seek remedies permissible under applicable law.
11. NON-COMPETITION AND NON-SOLICITATION
In consideration of the base salary provided to the Executive by the
Company hereunder, the adequacy of which is hereby acknowledged by the
parties hereto, the Executive agree that during the term of the Employment
and for a period of one year following the termination of the Employment
for whatever reason:
(a) The Executive will not approach clients, customers or contacts of
the Company or other persons or entities introduced to the Executive
in the Executive's capacity as a representative of the Company for
the purposes of doing business with such persons or entities which
will harm the business relationship between the Company and such
persons and/or entities;
(b) unless expressly consented to by the Company, the Executive will not
assume employment with or provide services for any Competitor, or
engage, whether as principal, partner, licensor or otherwise, in any
Competitor; and
(c) unless expressly consented to by the Company, the Executive will not
seek directly or indirectly, by the offer of alternative employment
or other inducement whatsoever, to solicit the services of any
employee of the Company employed as at or after the date of such
termination, or in the year preceding such termination.
6
The provisions contained in Section 11 are considered reasonable by the
Executive and the Company. In the event that any such provisions should be
found to be void under applicable laws but would be valid if some part
thereof was deleted or the period or area of application reduced, such
provisions shall apply with such modification as may be necessary to make
them valid and effective.
This Section 11 shall survive the termination of this Agreement for any
reason. In the event the Executive breaches this Section 11, the Executive
acknowledges that there will be no adequate remedy at law, and the Company
shall be entitled to injunctive relief and/or a decree for specific
performance, and such other relief as may be proper (including monetary
damages if appropriate). In any event, the Company shall have right to
seek all remedies permissible under applicable law.
12. ASSIGNMENT
This Agreement is personal in its nature and neither of the parties hereto
shall, without the consent of the other, assign or transfer this Agreement
or any rights or obligations hereunder; provided, however, that (i) the
Company may assign or transfer this Agreement or any rights or obligations
hereunder to any member of the Group without such consent, and (ii) in the
event of a change-of-control transaction of the Company, this Agreement
shall, subject to the provisions hereof, be binding upon and inure to the
benefit of such successor and such successor shall discharge and perform
all the promises, covenants, duties, and obligations of the Company
hereunder.
14. SEVERABILITY
If any provision of this Agreement or the application thereof is held
invalid, the invalidity shall not affect other provisions or applications
of this Agreement which can be given effect without the invalid provisions
or applications and to this end the provisions of this Agreement are
declared to be severable.
15. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement and understanding between
the Executive and the Company regarding the terms of the Employment and
supersedes all prior or contemporaneous oral or written agreements
concerning such subject matter. The Executive acknowledges that he has not
entered into this Agreement in reliance upon any representation, warranty
or undertaking which is not set forth in this Agreement.
16. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
law of the State of New York, U.S.A.
17. AMENDMENT
This Agreement may not be amended, modified or changed (in whole or in
part), except by a formal, definitive written agreement expressly
referring to this Agreement, which agreement is executed by both of the
parties hereto.
7
18. WAIVER
Neither the failure nor any delay on the part of a party to exercise any
right, remedy, power or privilege under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any right,
remedy, power or privilege preclude any other or further exercise of the
same or of any right, remedy, power or privilege, nor shall any waiver of
any right, remedy, power or privilege with respect to any occurrence be
construed as a waiver of such right, remedy, power or privilege with
respect to any other occurrence. No waiver shall be effective unless it is
in writing and is signed by the party asserted to have granted such
waiver.
19. NOTICES
All notices, requests, demands and other communications required or
permitted under this Agreement shall be in writing and shall be deemed to
have been duly given and made if (i) delivered by hand, (ii) otherwise
delivered against receipt therefor, or (iii) sent by a recognized courier
with next-day or second-day delivery to the last known address of the
other party.
20. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original as against any party whose signature
appears thereon, and all of which together shall constitute one and the
same instrument. This Agreement shall become binding when one or more
counterparts hereof, individually or taken together, shall bear the
signatures of all of the parties reflected hereon as the signatories.
Photographic copies of such signed counterparts may be used in lieu of the
originals for any purpose.
21. NO INTERPRETATION AGAINST DRAFTER
Each party recognizes that this Agreement is a legally binding contract
and acknowledges that such party has had the opportunity to consult with
legal counsel of choice. In any construction of the terms of this
Agreement, the same shall not be construed against either party on the
basis of that party being the drafter of such terms.
22. LANGUAGE
This Agreement is prepared and executed in the English and Chinese
languages. In the event of any discrepancy between the two versions, the
Chinese language version shall prevail.
[Remainder of this page has been intentionally left blank.]
8
IN WITNESS WHEREOF, this Agreement has been executed as of the date first
written above.
E-HOUSE (CHINA) HOLDINGS LIMITED
By: _____________________________________
Name: ZHOU Xin [CHINESE CHARACTERS]
Title: President [CHINESE CHARACTERS]
EXECUTIVE [CHINESE CHARACTERS]
Signature: ______________________________
Name: [-]
Schedule A
CASH COMPENSATION
AMOUNT PAY PERIOD
--------------------------------------------------------- ------------------------------------
BASE SALARY RMB [-] annually (including all statutory welfare Payable in 12 equal monthly
reserves that the Company is required to set aside for installments for each calendar year
the Executive under applicable law and all consideration
for the Executive's obligations under Section 11:
"Non-Competition and Non-Solicitation" of the Employment
Agreement)
CASH BONUS [-]. Once per year, if applicable
10
Schedule B
LIST OF PRIOR INVENTIONS
IDENTIFYING NUMBER
TITLE DATE OR BRIEF DESCRIPTION
- ------------------- ------------- ----------------------------------
______ No inventions or improvements
______ Additional Sheets Attached
Signature of Executive: ________________
Print Name of Executive: _______________
Date: ____________
11