EMPLOYMENT AGREEMENT
Exhibit
10.9
THIS
EMPLOYMENT AGREEMENT (the
“Agreement”) is made as of _______________, 2009 between Xi’an Softech
Co., Ltd. (the "Company"), a wholly
foreign-owned company organized under the law of the People's Republic of China
(the "PRC"), and
_______________ ("___________", ID No.:
_________________). The Company and the Xxxx Xxxx Xxxx are also referred to
herein together as the “Parties” and individually as a
“Party.”
In
consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Employment.
The
Company shall employ _____________, and ______________ hereby accept employment
with the Company, upon the terms and conditions set forth in this Agreement for
a period beginning on the date hereof and ending on the fifth anniversary date
(the “ Initial Employment
Period”); and this Agreement shall automatically be renewed on the same
terms and conditions set forth herein as modified from time to time by the
parties hereto for additional one-year periods as soon as the expiration of the
Initial Employment Period, unless the Company or _______________ gives the other
party written notice of the election not to renew the Employment Period at least
30 days prior to any such renewal date.
2. Position
and Duties.
(a)
During the Employment Period, __________ shall be appointed or seconded to the
Company to serve as the ________________ and shall have the normal duties,
responsibilities, functions and authority of the ________________. During the
Employment Period, Xxxx Xxxx Ying shall render such technology
research and application services to the Company and its affiliates which are
consistent with ________________'s position as the Executive director may from
time to time direct.
(b) During
the Employment Period, ____________ shall perform his duties, responsibilities
and functions to the Company hereunder to the best of his abilities in a
diligent, trustworthy, professional and efficient manner and shall comply with
the Company’s policies and procedures in all material respects. In
performing his duties and exercising his authority under the Agreement,
_________________ shall support the work of general manager and execute the
business and strategic plans approved from time to time by the Company and shall
expand the Company’s businesses and operate profitably and in conformity with
the business and strategic plans.
(c) ______________’s
position shall be based at the current principal executive offices in Xi’an,
PRC, or any other location of the Company in the PRC as mutually agreed by the
executive director and ________________.
3. Compensation
and Benefits.
(a)
During the Employment Period, ________________'s base salary shall be RMB
___________ per annum or such other rate as the Company may determine from time
to time (as adjusted from time to time, the "Base Salary"), which salary
shall be payable by the Company in regular installments in accordance with the
Company's general payroll practices (in effect from time to
time). The Company shall also purchase social insurances and provide
welfare and benefits to ________________ according to the applicable national
and local labor laws and regulations.
(b)
In addition to the Base Salary, the executive director may, in its sole
discretion, award a bonus (the “Performance Bonus”) to
_____________________ with respect to each fiscal year during the Employment
Period. The reference amount for Performance Bonus shall be equal to 25% of the
Base Salary. The actual amount of the Performance Bonus awarded shall
be dependent upon the degree to which certain financial targets of the Company,
as established annually by the executive director, are achieved.
(c) All
amounts payable to ___________________ as compensation hereunder shall be
subject to all required and customary withholding by the Company.
4. Working
Hours
____________________
shall work five days a week and eight hours a day.
5. Working
Environment and Employment Safety
(a)
the Company shall provide the ____________________ with a working
environment that complies with national regulations with respect to workplace
health and safety.
(b) the
Company shall provide ____________________ with necessary working conditions and
set up other necessary employee protection mechanism in accordance with the
national and local regulations.
6. Termination.
The
Company may terminate the employment of _______________ before the Employment
Period expires immediately upon issuing a written notice to ________________
after occurrence of any of the following events:
(i)
______________ has materially violated any of the
Company's rules or policies;
(ii) ______________
has committed an act of gross negligence or graft which causes substantial
damage or adverse effect to the Company's interests;
(iii) _______________ has been
charged or convicted with criminal liabilities in accordance with the
laws.
7. Confidential
Information
(a) Obligation
to Maintain Confidentiality. ___________ acknowledges that the continued success
of the Company depends upon the use and protection of a large body of
confidential and proprietary information. All of such confidential
and proprietary information now existing or to be developed in the future will
be referred to in this Agreement as "Confidential
Information." Confidential Information includes, without specific
limitation, the information, observations and data obtained by him during the
course of his performance under this Agreement concerning the business and
affairs of the Company and its affiliates, information concerning acquisition
opportunities in or reasonably related to the Company's or its affiliates'
business or industry of which ____________ becomes aware during the Employment
Period, the persons or entities that are current, former or prospective
suppliers or customers of any one or more of them during __________’s course of
performance under this Agreement, as well as development, transition and
transformation plans, methodologies and methods of doing business, strategic,
marketing and expansion plans, including plans regarding planned and potential
sales, financial and business plans, employee lists and telephone numbers,
locations of sales representatives, new and existing programs and services,
prices and terms, customer service, integration processes, requirements and
costs of providing service, support and equipment. Therefore,
______________ agrees that during the Employment Period and at anytime
thereafter he shall not disclose to any unauthorized person or use for his own
account any of such Confidential Information without executive director 's prior
written consent, unless and to the extent that any Confidential Information
(i) becomes generally known to and available for use by the public other
than as a result of _______'s acts or omissions to act or (ii) is required
to be disclosed pursuant to any applicable law or court
order. _________ agrees to deliver to the Company at the end of the
employment period, or at any other time the Company may request in writing, all
memoranda, notes, plans, records, reports and other documents (and copies
thereof) relating to the business of the Company or its affiliate (including,
without limitation, all Confidential Information) that he may then possess or
have under his control.
(b) Ownership
of Intellectual Property. _________ agrees to make prompt and full
disclosure to the Company or its affiliate, as the case may be, all ideas,
discoveries, trade secrets, inventions, innovations, improvements, developments,
methods of doing business, processes, programs, designs, analyses, drawings,
reports, data, software, firmware, logos and all similar or related
information (whether or not patentable and whether or not reduced to
practice) that relate to the Company's or its affiliate's actual or anticipated
business, research and development, or existing or future products or services
and that are conceived, developed, acquired, contributed to, made, or reduced to
practice by _____________ (either solely or jointly with others) while employed
by the Company and for a period of one (1) year thereafter (collectively, "Work Product"), provided that
such period of one year only applies to the inventions, utility models and
designs which are related to ________________'s duties and responsibilities to
the Company. The ownership of all rights under intellectual property
laws of any work falling within the definition of Work Product shall vest in the
Company.
(c) Third
Party Information. __________ understands that the Company will receive from
third parties confidential or proprietary information ("Third Party 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. During
the Employment Period and thereafter, and without in any way limiting the
provisions of Section 7(a) above, ________________ will hold Third Party
Information in the strictest confidence and will not disclose to anyone (other
than personnel of the Company or its affiliates who need to know such
information in connection with their work for the Company or such affiliates) or
use, except in connection with his work for the Company or its affiliates, Third
Party Information unless expressly authorized by the executive director in
writing.
8. _________________'s
Representations. _______________ hereby represents and warrants to
the Company that (i) the execution, delivery and performance of this Agreement
by Deputy _____________________ do not and shall not conflict with, breach,
violate or cause a default under any contract, agreement, instrument, order,
judgment or decree to which ________________ is a party or by which he is bound,
and (ii) upon the execution and delivery of this Agreement by the Company, this
Agreement shall be the valid and binding obligation of ________________,
enforceable in accordance with its terms. ________________ hereby
acknowledges and represents that he has consulted with independent legal counsel
regarding his rights and obligations under this Agreement and that he fully
understands the terms and conditions contained herein.
9. Survival. Sections
7, 8, 9, 15, 16 and 18 inclusive, shall survive and continue in full force in
accordance with their terms notwithstanding the expiration or termination of the
Employment Period.
10. Notices. Any
notice provided for in this Agreement shall be in writing and shall be either
personally delivered, sent by reputable overnight courier service or mailed by
first class mail, return receipt requested, to the recipient at the address
below indicated:
Notices
to ________________:
_____________
Address:
3/F, District A, the Industry Office Building, No.181 of Tai Xxx Xxxxx Xxxx,
Xx’xx Xxxx, Xxxxxxx Xxxxxxxx, Xxxxx
Tel: 000-00000000
Fax:
000-00000000
Attention:
___________
Notices
to the Company:
Xi’an
Softech Co., Ltd
Address:
3/F, District A, the Industry Office Building, No.181 of Tai Xxx Xxxxx Xxxx,
Xx’xx Xxxx, Xxxxxxx Xxxxxxxx, Xxxxx
Tel: 000-00000000
Fax:
000-00000000
Attention:
Xx
Xxx
or such
other address or to the attention of such other person as the recipient party
shall have specified by prior written notice to the sending
party. Any notice under this Agreement shall be deemed to have been
given when so delivered, sent or mailed.
11. Severability. Whenever
possible, each provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of this
Agreement is held to be invalid, illegal or unenforceable in any respect under
any applicable law or rule in any jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement or any
action in any other jurisdiction, but this Agreement shall be reformed,
construed and enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision had never been contained herein.
12. Complete
Agreement. This Agreement, those documents expressly referred to
herein and other documents of even date herewith embody the complete agreement
and understanding among the parties and supersede and preempt any prior
understandings, agreements or representations by or among the parties, written
or oral, which may have related to the subject matter hereof in any
way.
13. No
Strict Construction. The language used in this Agreement shall be
deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction shall be applied against any
party.
14. Choice
of Law. All issues and questions concerning the construction,
validity, enforcement and interpretation of this Agreement and the exhibits and
schedules hereto shall be governed by, and construed in accordance with, the
applicable laws of the People's Republic of China, without giving effect to any
choice of law or conflict of law rules or provisions.
15. Arbitration. Each
party hereto agrees that any claim or dispute ("Claim") arising out of or
relating to the rights and obligations acknowledged and agreed to in this
Agreement and the employment of ________________ by the Company (including,
without limitation, disputes and claims regarding employment discrimination,
sexual harassment, termination and discharge), whether such Claim arose or the
facts on which such Claim is based occurred prior to or after the execution and
delivery of adoption of this Agreement shall be resolved according to the
following procedures:
(a) consultation
between ________________ and the Company to resolve the Claim;
(b) if
no resolution with respect to a Claim is reached through consultation within
thirty (30) days after the commencement of the same, either party may, within
sixty (60) days after the occurrence of the Claim, submit the Claim to a local
labor dispute arbitration tribunal for arbitration; and
(c) either
party may appeal the arbitration award rendered by such local labor dispute
arbitration tribunal to a competent People's Court within fifteen (15) days
after the issuance of such award.
16. Amendment
and Waiver. The provisions of this Agreement may be amended or waived
only with the prior written consent of a majority of the executive director
(excluding ________________) on the one hand and ________________ on the other
hand, and no course of conduct or course of dealing or failure or delay by any
party hereto in enforcing or exercising any of the provisions of this Agreement
(including, without limitation, the Company’s right to terminate the Employment
Period for Cause) shall affect the validity, binding effect or enforceability of
this Agreement or be deemed to be an implied waiver of any provision of this
Agreement.
17. ________________'s
Cooperation. During the Employment Period and thereafter,
________________ shall cooperate with the Company and its affiliates in any
internal investigation, any administrative, regulatory or judicial investigation
or proceeding or any dispute with a third party as reasonably requested by the
Company (including, without limitation, ________________ being available to the
Company upon reasonable notice for interviews and factual investigations,
appearing at the Company's request to give testimony without requiring service
of a subpoena or other legal process, volunteering to the Company all pertinent
information and turning over to the Company all relevant documents which are or
may come into ________________'s possession, all at times and on schedules that
are reasonably consistent with ________________'s other permitted activities and
commitments).
18. Counterparts. This
Agreement may be executed in separate counterparts, each of which is deemed to
be an original and all of which taken together constitute one and the same
agreement.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first written above.
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Xi’an Softech Co.,
Ltd
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By:
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Name:
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Title:
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(Signature):
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