Exhibit 10.5
This
EMPLOYMENT AGREEMENT (the “
Agreement”)
is entered into as of September 23, 2009 by and
between
China Real Estate Information Corporation, a company incorporated and existing under the
laws of the Cayman Islands (the “
Company”) and Zuyu Ding (
), 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
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The parties hereto agree as follows: |
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The Executive hereby accepts a position of Co-President (the “Employment”) of the
Company. |
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Subject to the terms and conditions of this Agreement, the initial term of the Employment
shall be four years, commencing on September 20, 2009
(the “Effective Date”), until
September 20, 2013, unless terminated earlier pursuant to the terms of this Agreement. Upon
expiration of the initial four-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. |
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The probation period of the Employment shall be six months, commencing on the Effective
Date. |
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| 4. |
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DUTIES AND RESPONSIBILITIES |
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The Executive’s duties at the Company will include all jobs assigned by the Board of
Directors of the Company (the “Board”) and the Company’s Chief Executive Officer.
The Executive hereby agrees and acknowledges that one of his/her initial primary
responsibilities is to
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The Executive shall devote all of his/her working time, attention and skills to the
performance of his/her duties at the Company and shall faithfully and diligently serve the
Company in accordance |
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with this Agreement and the guidelines, policies and procedures of the Company approved from
time to time by the Board. |
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The Executive shall use his/her best efforts to perform his/her 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/her interest in such shares or securities in a timely manner and with such details and particulars as the Company
may reasonably require. |
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/her duties
hereunder; and (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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The Executive will be based in Shanghai until both parties hereto agree to change
otherwise. |
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COMPENSATION AND BENEFITS |
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(a) |
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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. |
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(b) |
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Equity Incentives. The Executive will be entitled to receive options
under the share incentive plan adopted by the Company in 2008 (the “Plan”)
pursuant to the following principal terms, subject to terms and conditions of the Plan
and a share option agreement to be entered into separately between the Company and the
Executive: |
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(1) |
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The Executive shall receive an option to purchase 1,000,000
ordinary shares of the Company (the “Option”); |
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(2) |
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The exercise price of the Option shall be at US$3.00 per
share; and |
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(3) |
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The Option shall vest at the following schedule: one-fourth of
the Option will vest on each anniversary of the Effective Date. |
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(c) |
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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. |
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TERMINATION OF THE AGREEMENT |
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(a) |
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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/her 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/her 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. |
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(b) |
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By the Executive. 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. |
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(c) |
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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. |
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(d) |
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Remuneration upon Termination. Upon the Company’s termination of the
Employment without cause pursuant to subsection (a) above, the Company will provide
remuneration to the Executive as follows: (1) if such termination becomes 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 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 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 pursuant to the terms of the applicable share option
agreement. 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. |
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| 9. |
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CONFIDENTIALITY AND NONDISCLOSURE |
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(a) |
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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. |
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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. |
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“Trade Secrets” means information deemed confidential by the Company,
treated by the Company or which the Executive knows 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. |
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(c) |
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Former Employer Information. The Executive agrees that he/she has not
and will not, during the term of his/her 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, liabilities, damages and expenses, including
reasonable attorneys’ fees and costs of suit, arising out of or in connection with any
violation of the foregoing. |
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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. |
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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. |
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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/her 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. |
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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. |
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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 Executive agrees that all
the Inventions shall be the sole and exclusive property of the Company and the
Executive hereby assign all his/her right, title and interest in and to any and all
of the Inventions to the Company or its successor in interest without further
consideration. |
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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 |
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spent by the Executive at the Company’s request on such assistance. The Executive
appoints the Secretary of the Company as the Executive’s attorney-in-fact to execute
documents on the Executive’s behalf for this purpose. |
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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/her employment, and Executive will not retain or take with him/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/her employment. |
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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. |
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| 11. |
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NON-COMPETITION AND NON-SOLICITATION |
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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 agrees that
during the term of the Employment and for a period of one year following the termination of
the Employment for whatever reason: |
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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; |
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(b) |
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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, any Competitor; and |
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(c) |
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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. |
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The provisions contained in this 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. |
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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. |
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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. |
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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. |
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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/she has not entered into this Agreement in reliance upon any
representation, warranty or undertaking which is not set forth in this Agreement. |
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This Agreement shall be governed by and construed in accordance with the law of the State of
New York, U.S.A. |
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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. |
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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. |
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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) |
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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. |
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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. |
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| 20. |
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NO INTERPRETATION AGAINST DRAFTER |
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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. |
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This Agreement is prepared and executed in the English and Chinese languages. In the event
of any discrepancy between the two versions, the English language version shall prevail. |
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IN WITNESS WHEREOF, this Agreement has been
executed as of the date first written above.
