FORM OF EMPLOYMENT AGREEMENT
Exhibit 10.5
FORM
OF
EMPLOYMENT AGREEMENT
Between
China Lodging Group, Limited
And
an
Executive Officer
This EMPLOYMENT AGREEMENT (the “Agreement”) is signed on in Shanghai, the
People’s Republic of China (“China”), between China Lodging Group, Limited, a limited liability
company organized and existing under the laws of the Cayman
Islands (the “Company”), and , an individual residing at (the “Employee”).
IN CONSIDERATION OF the mutual covenants herein contained, and other good and
valuable consideration, the parties hereto agree as follows:
1. Employment
The Company hereby agrees to employ the Employee and the Employee hereby agrees to
serve as an employee of the Company and one or more of its subsidiaries in such
capacities and upon such conditions as are hereinafter set forth.
2. Employment Period
(a) Period of Employment. The Employee’s employment shall commence on (the “Start Date”), and shall continue for a period of four (4) years from the
Start Date (the “Employment Period”), unless this Agreement is earlier terminated in
accordance with its terms.
(b) Extension or Renewal. The Employment Period may be renewed or extended
for an additional period upon expiration of the initial Employment Period by written
agreement between the parties. Negotiation to renew or extend the Employment Period
shall be held at least sixty (60) days prior to expiration of the initial Employment
Period.
3. Responsibilities
(a) Appointment. The Employee shall serve as of the Company and shall devote his full time, attention and best efforts
to the business affairs of the Company and its subsidiaries. Unless the Board of Directors
determines otherwise, during the Employment Period, the Employee also
agrees to serve as of the Company’s wholly owned subsidiaries in China (“WFOEs”) listed in Schedule A.
(b) Duties. The ’s responsibilities shall initially include (which responsibilities
may be amended by the Board of Directors from time to time if the Board of
Directors determines in good faith such amendment is in the best interests of the Company):
(c) Board Supervision. The Employee shall be subject to the oversight and direction of
Board of Directors, which shall retain full power and authority for overseeing the management of
the business affairs of the Company.
4. Place of Employment; Devotion of Time to Business
(a) Place of Employment. The Employee’s place of employment shall be in China. While
discharging his/her duties and responsibilities hereunder, the Employee may be required to travel
from time to time outside of China and, as a result, be temporarily absent from his/her place of
employment.
(b) Devotion of Time to Business. The Employee is employed on a full-time basis, to
work generally for eight (8) hours per working day. The Company may adjust the Employee’s working
hours at any time due to its business requirements provided that such adjustment is in compliance
with any applicable laws and regulations. The Employee agrees to work such extra hours as necessary
to perform his/her duties and to travel as necessary. These extra hours may, on occasion,
necessitate working overtime for no additional remuneration from the Company.
5. Compensation
(a) Base Salary. The Company shall pay (or cause to be paid by the WFOEs or any of the
Company’s subsidiaries) to the Employee an initial monthly gross
salary of RMB
, payable as
specified below and pursuant to the Company’s usual payroll practices. The Company shall review the
Employee’s compensation within three (3) to six (6) months after
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the Start Date to determine, in its sole discretion, if any adjustment to the Employee’s salary is
necessary.
The
Employee’s salary shall be paid monthly in arrears no later than
the tenth (10th) day
of the following month and shall be paid directly to a bank account as designated by the
Employee. Subject to the Company’s discretion, the salary can be paid either in RMB or US Dollars.
The applicable exchange rate shall be the central parity rate as issued daily by the
People’s Bank of China on the last day of each month. The salary is payable in monthly
installments during each year, or any portion thereof, during the Employment Period.
(b) Discretionary Bonus. The Employee is eligible to participate in the
Company’s annual performance bonus scheme. During the Employment Period, the Board of
Directors, in its sole discretion and in accordance with the Articles, may award (or cause to be
awarded) to the Employee an annual bonus based on the Employee’s performance and other
factors.
(c) Executive Compensation Plans. In addition to the cash compensation provided for in
Sections 5(a) and (b), the Employee, subject to meeting eligibility provisions, shall be entitled
to participate in the Company’s executive compensation plans, including
management incentive plans, deferred compensation plans and stock option plans.
(d) Benefits. In addition to the cash compensation provided in Sections
5(a) and (b), subject to meeting eligibility requirements, the Employee shall be
entitled to participate in all employee benefit plans of the Company, as presently in
effect or as modified or supplemented from time to time including plans for retirement
benefits, medical insurance, disability insurance and other benefits. The Employee
shall also be entitled to ten (10) days of paid vacation in the first two years of the
Employment Period and fifteen (15) days of paid vacation per year thereafter. All
benefits shall begin to accrue on the Start Date.
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(e) Expenses. The Company shall reimburse the Employee for travel and
other business expenses reasonably incurred and properly documented by the Employee in
the
performance of all his duties, and provide such other facilities and services as the Company and
the Employee may from time to time agree are appropriate, all in accordance with the Company’s
established practices.
(f) Payer of Compensation. Subject to the Company’s discretion, all
compensation, salary, benefits and remuneration in this Agreement can be paid by the Company, the
WFOEs or its subsidiaries.
6. Representations
The Employee hereby represents and warrants that the execution of this Agreement
and the performance of the Employee’s obligations hereunder will not breach or be in
conflict with any other agreement to which the Employee is a party or is bound and that
the Employee is not now subject to any covenants against competition or similar
covenants that would affect the performance of the Employee’s obligations under this
Agreement. The Employee will not disclose to or use on behalf of the Company any
proprietary information of a third party without such party’s consent.
7. Termination of Employment Period
(a) Death. The Employment Period shall terminate automatically upon the
death of the Employee. The Company shall pay to the Employee’s beneficiaries or estate,
as appropriate, any compensation then due and owing,
including payment for accrued unused vacation, if any. Thereafter, all obligations
of the Company under this Agreement shall cease.
(b) Disability. If, by reason of any physical or mental incapacity, the
Employee shall become permanently disabled in the Employment Period, the Company may
terminate the Employment Period upon fourteen (14) days’ advance written notice and the Company
shall pay the Employee the severance package as provided in Section 7(b) as well as all
compensation to which he is entitled pursuant to applicable law. For purposes hereof, “permanent
disability” means inability to perform the services of required hereunder due to
physical or mental disability which continues for ninety (90) consecutive days. Nothing in this
Article shall affect the Employee’s rights under any applicable Company disability plan.
(c) Termination by the Employee. If at any time during the Employment
Period, the Company fails, without the Employee’s consent and without “just cause” (as defined
below), to cause the Employee to be elected or re-elected as of the Company or
otherwise as a full-time employee of the Company, or removes the Employee such office (other than
in connection with an amendment of the responsibilities of the
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Employee if the Board of Directors determines in good faith such amendment is in the best
interests of the Company), the Employee shall have the right by
written notice to the Company to
terminate his services hereunder, effective as of the last day of the
first month after the receipt by the
Company of the written notice (or such earlier day as shall be individually agreed), in which event
the Employment Period shall so terminate on the last day of such month. Termination under the
circumstances described in this Section 7(c) shall be deemed as a termination by the Company other
than for “material breach” or “just cause” with all the consequences which flow from such
termination pursuant to Section 7(d).
If the Employee exercises the Employee’s right of termination under this Section 6(c), the Employee
shall resign voluntarily as an employee of the Company and any of
its WFOEs and other subsidiaries on the date the Employee’s termination of employment becomes
effective as provided for in the preceding paragraph.
(d) Termination by the Company other than for Material Breach or Just
Cause. If the Company should terminate the Employment Period for other than
material breach or just
cause, as herein defined, or if the Employee should terminate the Employment Period
pursuant to Section 7(c), the Company shall provide the Employee with thirty (30) days’ advance
written notice. The Company shall have the option, in its complete discretion, to terminate
the Employee at any time prior to the end of such notice period, provided the Company
pays the Employee all compensation due and owing through the last day actually worked, plus
an amount equal to the base salary the Employee would have earned through the balance of the
above notice period.
“Material breach” and “just cause” shall mean (i) the continual failure by the
Employee to perform substantially his duties with the Company (other than any such failure
resulting from incapacity due to physical or mental illness) after a demand for substantial
performance is delivered to the Employee by the Board of Directors; (ii) conviction of a felony
or any conviction in relation to his negligent or willful misconduct; (iii) habitual
drunkenness; (iv) excessive absenteeism not related to illness, sick leave or vacations, but
only after notice from the Board of Directors followed by a repetition of such excessive
absenteeism; (v) dishonesty; (vi) continuous conflicts of interest after notice in writing from
the Board of Directors, (vii) the material breach of any fiduciary duty owed to the Company, as
determined in good faith by the Board of Directors; or (viii) the material breach of any of the
provisions of this Agreement, which breach is not cured within thirty (30) days after the Board
of Directors notifies the Employee in writing of such breach. Notwithstanding the foregoing, the
Employee shall not be deemed to have been terminated for material breach or just cause unless
and until there shall have been delivered to him a copy of a resolution duly adopted by the
Board of Directors at a meeting of the Board of Directors called and held (after reasonable
notice to the Employee and an opportunity for the Employee, together with the Employee’s
counsel, to be heard before the Board of Directors) for the purpose of determining whether in
the good faith
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opinion of
the Board of Directors the Company has just cause to terminate the
Employee’s employment.
(e) Termination by the Company for Material Breach or Just Cause. If
the Company should terminate the Employment Period for material breach or just
cause, as herein defined, the Employee will be entitled to be paid the base annual
salary otherwise payable to the Employee under Section 5(a) through the end of the
month in which the Employment Period is terminated.
(f) Change in the Company Status. To the extent permitted by law, the
Company, in its sole discretion, may terminate the Employment Period (in which
case all of the Company’s obligations under this Agreement shall cease after
payment of all compensation due and owing) upon any formal action of the Company’s
management to terminate the Company’s existence or otherwise wind up its affairs,
to sell all or substantially all of its assets, or to merge with or into another
entity.
(g) No Termination for Transfer of Work Location. Employee hereby
agrees to being physically transferred at any time during the Employment Period to
any one of the WFOEs or subsidiaries of the Company as well as any successor
entities of the Company. Such transfer is expressly permitted and agreed to
pursuant to this Agreement. In the event of such a
transfer, references to the Company as the employer in this Agreement shall
be deemed reference to such WFOE, subsidiary or successor of the Company.
(h) Termination Obligations. Upon termination of this Agreement, the
Employee agrees that all property, including, without limitation, all equipment,
tangible confidential information, documents, records, notes, contracts and
computer-generated materials furnished to or prepared by the Employee incident to
his employment shall be returned promptly to the Company.
(i) Due Practice. The Employee shall not, and shall not direct any
other person to, pay, offer to pay, promise or give to any government official, any
political party or official thereof, or to any candidate for political office (or
to any other person where such person knew or was aware of a high probability that
all or a portion of such money or thing of value will be paid, offered, promised or
given to any of those listed above) for the purpose of influencing any action,
omission or decision by such government official, political party, party official
or candidate or inducing any such person to use his influence with any government
entity, in order to assist the Company in obtaining or retaining business for the
Company or in directing business to the Company.
(j) Non-Disclosure. The Employee shall not, at any time during or
following the Employment Period, disclose, use, transfer or sell, except in the
course of employment with the Company, any confidential information or proprietary
data of the Company and its
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subsidiaries so long as such information or proprietary data remains confidential and has not been
disclosed or is not otherwise in the public domain, except as
required by law or pursuant to legal
process.
(k) Non-Competition Agreement. At all times during the Employee’s employment with the
Company, the Employee is not permitted to engage in or carry on any full-time employment other than
his employment with the Company.
Without the consent in writing of the Board of Directors, at all times
during the Employee’s employment with the Company or any of its subsidiaries and
for a period of two (2) years after the termination of the Employee’s employment
with the Company and all of its subsidiaries for any reason whatsoever, the
Employee will not permit his name to be used by, or engage in, or carry on,
directly or indirectly, either for himself or as a member of a partnership or as
a stockholder, investor, officer or director of a corporation or company or as an
employee, agent, associate or consultant of any person,
partnership or corporation or company, any business in competition with the
business carried on by the Company or any of its subsidiaries or affiliates in
China, including but not limited to competing businesses with respect to
acquiring, owning, enhancing, managing, operating or maintaining assets, real
property or other facilities for use in lodging-related business activities,
including, but not limited to limited service, deluxe, luxury, upscale, and
mid-scale with food and beverage service. To the extent any court or other
governmental authority with competent jurisdiction finds that compensation is
required under applicable law to enforce this Section 7(k), the Company shall
have the option to pay such compensation or waive its rights under this Section
7(k).
8. Taxes
The Employee shall comply with the taxation laws of the applicable
jurisdiction. The Company may withhold tax for any amount payable to the Employee
if so required by the applicable laws and regulations.
9. Notices
All notices under this Agreement shall be in writing and shall be deemed effective
when delivered in person, addressed, in the case of:
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| (a) | The Employee, to: | ||||
| (b) | The Company, to: | ||||
| Xxxxx 0, Xxxxxxxx 00 | |||||
| Xx. 000 Xxxxxxx Xxxx | |||||
| Xxxxxxxx 200233 | |||||
| The People’s Republic of China | |||||
10. Successors and Assigns
Neither party may assign this Agreement or the rights and obligations hereunder
to any third party; provided, however, that the Company may assign its rights and
obligations under this Agreement to a successor entity to the Company as the result
of a merger or other corporate reorganization and which continues the business of the
Company, or to any subsidiary of the Company. This Agreement shall be binding upon
and shall inure to the benefit of the Employee, the Employee’s heirs, executors,
administrators and beneficiaries, and the Company and its successors.
11. Governing Law; Severability
This Agreement is governed by and is to be construed and enforced in accordance
with the laws of the Hong Kong Special Administrative Region. If under such laws, any
portion of this Agreement at any time conflicts with any applicable law and
regulation, such portion shall be deemed to be modified to conform thereto, or if
that is not possible, to be omitted from this Agreement and the invalidity of any
such portion shall not affect the force, effect and validity of the remaining portion
hereof.
12. Entire Agreement
This Agreement constitutes the entire understanding between the Company and the Employee
relating to the Employee’s employment by the Company and supersedes all prior written and oral
agreements and understandings with respect to the subject matter of
this Agreement, provided,
however, that nothing in this Agreement shall be deemed to terminate or
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supersede the provisions of any confidentiality and nondisclosure agreements executed by the
parties hereto prior to the date of this Agreement, all of which agreements shall continue in full
force and effect until terminated in accordance with their respective terms, provided, further,
that the Employee may enter into separate employment agreements with subsidiaries of the
Company in China consistent with the terms hereof. In the event of a conflict between the
provisions of such other employment agreements and this Agreement, subject to applicable law, the
provisions of this Agreement shall prevail.
13. Amendments
This Agreement may be amended only by a written instrument duly executed by the
Employee and a duly authorized representative of the Company other than the Employee.
14. The Employee’s Acknowledgement
The Employee acknowledges (i) that he has consulted with or has had the
opportunity to consult with independent counsel of his own choice concerning this
Agreement and has been advised to do so by the Company, and (ii) that he has read and
understands the Agreement, is fully aware of its legal effect, and has entered into it
freely based on his own
judgment.
15. Language
This Agreement is entered into in English only. Any Chinese translation of this
Agreement, if any, is for reference only and shall not be legally binding document. Accordingly,
the English version will prevail in the event of any inconsistency between the
English and any Chinese translations thereof.
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IN WITNESS
WHEREOF, the Company and the Employee have caused this Agreement to be
executed on the date first written above.
| China Lodging Group, Limited | ||||||||||||
By:
|
By: | |||||||||||
| Name: | Name: | |||||||||||
| Title: | ||||||||||||
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SCHEDULE A
WFOES
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