EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement"), is entered into as of [ ],
2007 by and between WSP Holdings Limited, a company incorporated and existing
under the laws of the Cayman Islands (the "Company"), and [ ], an individual
(the "Executive"). Except with respect to the direct employment of the Executive
by the Company, 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 (collectively, the "Group").
RECITALS
A. The Company desires to employ the Executive as its [ ] 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 as its [ ] during the
term of Employment and upon the terms and conditions of this Agreement.
AGREEMENT
The parties hereto agree as follows:
1. POSITION
The Executive hereby accepts a position of [ ] of the Company (the
"Employment").
2. TERM
Subject to the terms and conditions of this Agreement, the initial term of
the Employment shall be two years, commencing on [ ], 2007 (the "Effective
Date"), until [ ], 2009, unless terminated earlier pursuant to the terms
of this Agreement. Upon expiration of the initial two-year term, the
Employment shall be automatically extended for successive one-year terms
unless either party gives the other party hereto a one-month 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. LOCATION
The Executive acknowledges that the Company's principal executive offices
are currently located in Xx.00 Xxxxxxxx Xxxx, Xxxxxx, Wuxi, Jiangsu
Province, People's Republic of China. The Executive's principal place of
employment shall be the Company's principal executive offices. The
Executive agrees that he will be regularly present at the Company's
principal executive offices. The Executive acknowledges that he may be
required to travel from time to time in the course of performing his
duties for the Company.
4. PROBATION
No probationary period.
5. DUTIES AND RESPONSIBILITIES
The Executive's duties at the Company will include all jobs assigned by
the Company's Board of Directors (the "Board") and/or the [Chief Executive
Officer] of the Company.
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, the
Memorandum and Articles of Association of the Company (the "Articles of
Association"), 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 hold any other employment, and shall not be
concerned or interested in any business or entity that directly or
indirectly competes with the Group (any such business or entity, a
"Competitor"), provided that nothing in this clause shall preclude the
Executive from holding up to 1% of shares or other securities of any
Competitor that is listed on any securities exchange or recognized
securities market anywhere, provided however, that the Executive shall
notify the Company in writing prior to his obtaining a proposed interest
in such shares or securities in a timely manner and with such details and
particulars as the Company may reasonably require. The Company shall have
the right to require the Executive to resign from any board or similar
body which he may then serve if the Board reasonably determines in writing
that the Executive's service on such board or body interferes with the
effective discharge of the Executive's duties and responsibilities to the
Company or that any business related to such service is then in
competition with any business of the Company or any of its subsidiaries or
affiliates.
6. 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.
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7. COMPENSATION AND BENEFITS
(a) Cash Compensation. The Executive's salary shall be provided by the
Company pursuant to Schedule A hereto, subject to annual review and
adjustment by the Company.
(b) Equity Incentives. Once the Board and the shareholders of the
Company adopt a share incentive plan of the Company, the Executive
will be entitled to receive options to purchase ordinary shares of
the Company, and upon such other terms as determined by the Board.
(c) Benefits. The Executive is eligible for participation in any
standard employee benefit plan of the Company that currently exists
or may be adopted by the Company in the future, including, but not
limited to, any retirement plan, life insurance plan, health
insurance plan and travel/holiday plan.
8. TERMINATION OF THE AGREEMENT
(a) By the Company. The Company may terminate the Employment for cause,
at any time, without notice or remuneration, if (1) the Executive is
convicted or pleads guilty to a crime which the Board reasonably
believes has had or will have a detrimental effect on the Company's
reputation or business, (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 written
notice, and upon termination without cause, the Company shall
provide compensation to the Executive only to the minimum extent
expressly required by applicable law of the jurisdiction where the
Executive is based.
(b) By the Executive. The Executive may terminate the Employment at any
time with a [one-month] prior written notice to the Company, if (1)
there is a material reduction in the Executive's authority, duties
and responsibilities, or (2) there is a material reduction in the
Executive's annual salary before the next annual salary review. In
addition, the Executive may resign prior to the expiration of the
Agreement if such resignation or an alternative arrangement with
respect to the Employment is approved by the Board.
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(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.
9. CONFIDENTIALITY AND NONDISCLOSURE
(a) Confidentiality and Non-disclosure.The Executive hereby agrees at
all times during the term of his employment and after termination,
to hold in the strictest confidence, and not to use, except for the
benefit of the Group, or to disclose to any person, corporation or
other entity without written consent of the Company, any
Confidential Information. The Executive understands that
"Confidential Information" means any proprietary or confidential
information of the Group, its affiliates, their clients, customers
or partners, and the Group's licensors, including, without
limitation, technical data, trade secrets, research and development
information, product plans, services, customer lists and customers
(including, but not limited to, customers of the Group on whom the
Executive called or with whom the Executive became acquainted during
the term of his employment), supplier lists and suppliers, software,
developments, inventions, processes, formulas, technology, designs,
drawings, engineering, hardware configuration information, personnel
information, marketing, finances, information about the suppliers,
joint ventures, licensors, licensees, distributors and other persons
with whom the Group does business, information regarding the skills
and compensation of other employees of the Group or other business
information disclosed to the Executive by or obtained by the
Executive from the Group, its affiliates, or their clients,
customers or partners either directly or indirectly in writing,
orally or by drawings or observation of parts or equipment, if
specifically indicated to be confidential or reasonably expected to
be confidential. Notwithstanding the foregoing, Confidential
Information shall not include information that is generally
available and known to the public through no fault of the Executive.
(b) Company Property. The Executive understands that all documents
(including computer records, facsimile and e-mail) and materials
created, received or transmitted in connection with his work or
using the facilities of the Group are property of the Group and
subject to inspection by the Group, at any time. Upon termination of
the Executive's employment with the Company (or at any other time
when requested by the Company), the Executive will promptly deliver
to the Company all documents and materials of any nature pertaining
to his work with the Company and will provide written certification
of his compliance with this Agreement. Under no circumstances will
the Executive have, following his termination, in his possession any
property of the Group, or any documents or materials or copies
thereof containing any Confidential Information.
(c) Former Employer Information. The Executive agrees that he has not
and will not, during the term of his employment, (i) improperly use
or disclose any proprietary information or trade secrets of any
former employer or other person or entity with
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which the Executive has an agreement or duty to keep in confidence
information acquired by Executive, if any, or (ii) bring into the
premises of the Group any document or confidential or proprietary
information belonging to such former employer, person or entity
unless consented to in writing by such former employer, person or
entity. The Executive will indemnify the Group and hold it harmless
from and against all claims, 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 Group may
have received, and in the future may receive, from third parties
their confidential or proprietary information subject to a duty on
the Group'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 Group 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 Group'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 Group's actual or proposed business, products or research and
development, and (iii) are not assigned to the Group 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 and represents that, if in the
course of his service for the Group, the Executive incorporates into
a Group product, process or machine a Prior Invention owned by the
Executive or in which he has an interest, (a) the Group is hereby
granted and shall have a nonexclusive, royalty-free, irrevocable,
perpetual, worldwide right and license (which may be freely
transferred by the Group 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, and (b) he has all necessary rights, powers and
authorization to use such Prior Invention in the manner it is used
and such use will not infringe any right of any company, entity or
person. The Executive hereby agrees to indemnify the Group and hold
it
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harmless from all claims, liabilities, damages and expenses,
including reasonable legal fees and costs for resolving disputes
arising out of or in connection with any violation or claimed
violation of a third party's rights resulting from any use,
sub-licensing, modification, transfer or sale by the Group of such
Prior Invention.
(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 make full
written disclosure in confidence to the Company all inventions,
improvements, designs, original works of authorship, formulas,
processes, compositions of matter, computer software programs,
databases, mask works, concepts and trade secrets, whether or not
patentable or registrable under patent, copyright, circuit layout
design or similar laws in China or anywhere else in the world, 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 (whether or not during business hours) that are either
related to the scope of his Employment at the Company or make use,
in any manner, of the resources of the Group (collectively, the
"Inventions")The Executive hereby acknowledges that the Company or
the Group shall be the sole owner of all rights, title and interest
in the Inventions created hereunder. In the event the foregoing
assignment of Inventions to the Company or the Group is ineffective
for any reason, each member of the Group is hereby granted and shall
have a royalty-free, sub-licensable, transferable, irrevocable,
perpetual, worldwide license to make, have made, modify, use, and
sell such Inventions as part of or in connection with any product,
process or machine. Such exclusive license shall continue in effect
for the maximum term as may now or hereafter be permissible under
applicable law. Upon expiration, such license, without further
consent or action on the Executive's part, shall automatically be
renewed for the maximum term as is then permissible under applicable
law, unless, within the six-month period prior to such expiration,
the Company and the Executive have agreed that such license will not
be renewed. The Executive also hereby forever waives and agrees
never to assert any and all rights he may have in or with respect to
any Inventions even after termination of his employment with the
Company. The Executive hereby further acknowledges that all
Inventions created by him (solely or jointly with others) are, to
the extent permitted by applicable law, "works made for hire" or
"inventions made for hire," as those terms are defined in the
People's Republic of China ("PRC") Copyright Law, the PRC Patent Law
and the Regulations on Computer Software Protection, respectively,
and all titles, rights and interests in or to such Inventions are or
shall be vested in the Company.
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(c) Patent and Copyright Registration. The Executive agrees to assist
the Company or its designees 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 in any
and all countries. 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 Company and its duly authorized officers and
agents as the Executive's attorney-in-fact to execute documents on
the Executive's behalf for this purpose.
(d) Remuneration. The Executive hereby agrees that the remuneration
received by the Executive pursuant to this Agreement with the
Company includes any remuneration which the Executive may be
entitled to under applicable PRC law for any "works made for hire,"
"inventions made for hire" or other Inventions assigned to the
Company pursuant to this Agreement.
(e) Return of Confidential Material. 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
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. CONFLICTING EMPLOYMENT
The Executive hereby agrees that, during the term of his employment with
the Company, he will not engage in any other employment, occupation,
consulting or other business activity related to the business in which the
Group is now involved or becomes involved during the term of the
Executive's employment, nor will the Executive engage in any other
activities that conflict with his obligations to the Company without the
prior written consent of the Company.
12. NON-COMPETITION AND NON-SOLICITATION
In consideration of the salary paid to the Executive by the Company, the
Executive undertakes that for a period of [twelve (12) months] after he
ceases to be employed by the Company, he will not, without the prior
written consent of the Company:
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(a) in the territory of the PRC (for the purpose of this Section 12, the
PRC shall include Hong Kong, Macau and Taiwan) (the "Territory"),
either on his own account or through any of his affiliates, or in
conjunction with or on behalf of any other person, carry on or be
engaged, concerned or interested directly or indirectly whether as
shareholder, director, employee, partner, agent or otherwise carry
on any business in direct competition with the business of the
Group;
(b) either on his own account or through any of his affiliates or in
conjunction with or on behalf of any other person, solicit or entice
away or attempt to solicit or entice away from the Group, any
person, firm, company or organization who is or shall at any time
within [twelve (12) months] prior to such cessation have been a
customer, client, representative or agent of the Group or in the
habit of dealing with the Group;
(c) either on his own account or through any of his affiliates or in
conjunction with or on behalf of any other person, employ, solicit
or entice away or attempt to employ, solicit or entice away from the
Group any person who is or shall have been at the date of or within
[twelve (12) months] prior to such cessation of employment an
officer, manager, consultant or employee of any such the Group
whether or not such person would commit a breach of contract by
reason of leaving such employment; or
(d) either on his own account or through any of his affiliates or in
conjunction with or on behalf of any other person, in relation to
any trade, business or company use a name including the words "WSP"
or any other words hereafter used by the Group in its name or in the
name of any of its products, services or their derivative terms, or
the Chinese or English equivalent or any similar word in such a way
as to be capable of or likely to be confused with the name of the
Group or the product or services or any other products or services
of the Group, and shall use all reasonable endeavors to procure that
no such name shall be used by any of his affiliates or otherwise by
any person with which he is connected.
Each and every obligation under Section 12 shall be treated as a separate
obligation and shall be severally enforceable as such and in the event of
any obligation or obligations being or becoming unenforceable in whole or
in part, such part or parts which are unenforceable shall be deleted from
such section and any such deletion shall not affect the enforceability of
the remainder parts of such section.
The Executive agrees that in light of the circumstances, the restrictive
covenants contained in Section 12 are reasonable and necessary for the
protection of the Group, and further agrees that having regard to those
circumstances the said covenants and are not excessive or unduly onerous
upon the Executive. However, it is recognized that restrictions of the
nature in question may fail for technical reasons currently unforeseen and
accordingly it is hereby agreed and declared that if any of such
restrictions shall be adjudged to be void as going beyond what is
reasonable, in light of the circumstances, for the protection of the
Group, but would be valid if part of the wording thereof were deleted or
the periods thereof reduced or the range of activities or area dealt with
thereby
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reduced in scope, the said restriction shall apply with such modification
as may be necessary to make it valid and effective.
This Section 12 shall survive the termination of this Agreement for any
reason. In the event the Executive breaches this Section 12, 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.
13. WITHHOLDING TAXES
Notwithstanding anything else herein to the contrary, the Company may
withhold (or cause there to be withheld, as the case may be) from any
amounts otherwise due or payable under or pursuant to this Agreement such
national, provincial, local or any other income, employment, or other
taxes as may be required to be withheld pursuant to any applicable law or
regulation.
14. NOTIFICATION OF NEW EMPLOYER
In the event that the Executive leaves the employ of the Company, the
Executive hereby grants consent to notification by the Company to his or
her new employer about his or her rights and obligations under this
Agreement.
15. 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 merger, consolidation, or transfer or sale of all or
substantially all of the assets of the company with or to any other
individual(s) or entity, 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.
16. 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.
17. 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
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any representation, warranty or undertaking which is not set forth in this
Agreement. Any amendment to this Agreement must be in writing and signed
by the Executive and the Company.
18. REPRESENTATIONS
The Executive hereby agrees to execute any proper oath or verify any
proper document required to carry out the terms of this Agreement. The
Executive hereby represents that the Executive's performance of all the
terms of this Agreement will not breach any agreement to keep in
confidence proprietary information acquired by the Executive in confidence
or in trust prior to his or her employment by the Company. The Executive
has not entered into, and hereby agrees that he or she will not enter
into, any oral or written agreement in conflict with this Section 18.
19. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
law of the State of New York.
20. 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.
21. 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.
22. 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.
23. 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
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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.
24. NO INTERPRETATION AGAINST DRAFTER
Each party recognizes that this Agreement is a legally binding contract
and acknowledges that it, he 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. The Executive agrees and
acknowledges that he has read and understands this Agreement, is entering
into it freely and voluntarily, and has been advised to seek counsel prior
to entering into this Agreement and has ample opportunity to do so.
[Remainder of this page intentionally has been intentionally left blank.]
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IN WITNESS WHEREOF, this Agreement has been executed as of the date first
written above.
WSP HOLDINGS LIMITED.
By:___________________________________
Name:
Title:
EXECUTIVE
Signature: ___________________________
Name:
[SIGNATURE PAGE TO EMPLOYMENT AGREEMENT]
Schedule A
CASH COMPENSATION
AMOUNT PAY PERIOD
---------------- ------------------
Salary RMB [ ] annually To be paid monthly
Schedule A
Employment Agreement
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: ________________, 2007
--------------------------------------------------------------------------------
Schedule B
Employment Agreement
