Exhibit 10.4
This
EMPLOYMENT AGREEMENT (the “
Agreement”), is entered into as of
(the “
Effective Date”) by and between
NetQin Mobile Inc., 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
subsidiaries and affiliated entities (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:
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The Executive hereby accepts a position of (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 two years commencing on the Effective Date, unless terminated earlier pursuant to the
terms of this Agreement. Upon expiration of the initial two-year term, the parties may extend
the Employment term by entering into negotiations within one month prior to the expiration. |
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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 Company’s Board of
the Directors (the “Board”) or the Company’s Chief Executive Officer, as the case may
be. |
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The Executive shall devote all of his or her working time, attention and skills to the
performance of his or her 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 as amended and restated from time to time (the “Articles of Association”), 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 or her best efforts to perform his or her duties hereunder. The
Executive shall not, without the prior written consent of the Board, become an |
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employee of any entity other than the Company and any subsidiary or affiliate of the Company,
and shall not be concerned or interested in any business or entity that engages in any
businesses in which the Company engages, including but not limited to the providing of mobile
security products and services(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 or her
interest in such shares or securities in a timely manner and with such details and particulars
as the Company may reasonably require. |
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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
entered into by and between the Executive and any member of the Group pursuant to applicable
law, 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 or
her 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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The Executive will be based in Beijing, China. The Company reserves the right to transfer or
second the Executive to any location in China or elsewhere in accordance with its operational
requirements. |
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COMPENSATION AND BENEFITS |
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(a) |
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Cash Compensation. The Executive’s cash compensation (including salary
and bonus) shall be determined by the Company and specified in a
standalone agreement between the Executive and the Company’s
designated subsidiary or affiliated entity and such compensation is
subject to annual review and adjustment by the Company. |
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(b) |
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Equity Incentives. To the extent the Company adopts and maintains a
share incentive plan, the Executive will be eligible for participating
in such plan pursuant to the terms thereof as determined by the
Company. |
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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 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. |
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TERMINATION OF THE AGREEMENT |
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(i) For Cause. The Company may terminate the Employment for cause, at any time,
without notice or remuneration (unless notice or remuneration is specifically required by
applicable law, in which case notice or remuneration will be provided in accordance with
applicable law), 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 grossly negligent or acted dishonestly to the detriment
of the Company, or
(3) the Executive has engaged in actions amounting to willful misconduct or failed
to perform his or her duties hereunder and such failure continues after the
Executive is afforded a reasonable opportunity to cure such failure.
(ii) For death and disability. The Company may also terminate the Employment, at
any time, without notice or remuneration (unless notice or remuneration is specifically
required by applicable law, in which case notice or remuneration will be provided in
accordance with applicable law), if:
(1) the Executive has died, or
(2) 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 or 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.
(iii) Without Cause. The Company may terminate the Employment without cause,
at any time, upon a written notice with immediate effect. Upon termination without cause,
the Company shall provide the Executive with a lump sum cash severance payment equal to
N+1 months of the Executive’s then current monthly base salary (N = the number of years
for which the Executive has been employed by the Company), provided that such cash
payment shall not exceed twelve (12) months of the Executive’s then current monthly base
salary.
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(b) |
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By the Executive. The Executive may terminate the Employment at any
time with a ninety(90)-day prior written notice to the Company, in
which event the Executive shall be entitled to no compensation from
the Company. In addition, the Executive may resign prior to the
expiration of the Agreement if such resignation is approved by the
Board or an alternative arrangement with respect to the Employment is
agreed to by the Board. |
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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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| 9. |
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CONFIDENTIALITY AND NONDISCLOSURE |
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(a) |
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Confidentiality and Non-disclosure. The Executive hereby agrees at all
times during the term of the Employment and after its termination, to
hold in the strictest confidence, and not to use, except for the
benefit of the Company, 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 Company, its
affiliates, or their respective clients, customers or partners,
including, without limitation, technical data, trade secrets, research
and development information, product plans, services, customer lists
and customers, supplier lists and suppliers, software developments,
inventions, processes, formulas, technology, designs, hardware
configuration information, personnel information, marketing, finances,
information about the suppliers, joint ventures, franchisees,
distributors and other persons with whom the Company does business,
information regarding the skills and compensation of other employees
of the Company or other business information disclosed to the
Executive by or obtained by the Executive from the Company, its
affiliates, or their respective clients, customers or partners either
directly or indirectly in writing, orally or otherwise, 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. |
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(b) |
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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 or her work or
using the facilities of the Company are property of the Company and
subject to inspection by the Company, 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 or
her compliance with this Agreement. Under no circumstances will the
Executive have, following his or her termination, in his or her
possession any property of the Company, or any documents or materials
or copies thereof containing any Confidential Information. |
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(c) |
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Former Employer Information. The Executive agrees that he or she has
not and will not, during the term of his or her employment, (i)
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 or duty to keep in confidence
information acquired by Executive, if any, or (ii) bring into the
premises of the Company 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 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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(d) |
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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 |
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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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CONFLICTING EMPLOYMENT. |
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The Executive hereby agrees that, during the term of his or her employment with the Company,
he or she will not engage in any other employment, occupation, consulting or other business
activity related to the business in which the Company 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 or her obligations to the Company without the prior written
consent of the Company. |
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| 11. |
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NON-COMPETITION AND NON-SOLICITATION |
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In consideration of the salary paid to the Executive by the Company and subject to applicable
law, the Executive agrees that during the term of the Employment: |
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(a) |
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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 as a director or otherwise
for any Competitor, or engage, whether as principal, partner, licensor
or otherwise, in any Competitor; and |
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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 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
that the Executive breaches this Section 11, the Executive acknowledges that there may 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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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. |
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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, 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
or she has not entered into this Agreement in reliance upon 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. |
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GOVERNING LAW; JURISDICTION |
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This Agreement shall be governed by and construed in accordance with the laws of the State of
New York. Each party hereto irrevocably agrees that the courts of the State of New York shall
have jurisdiction to hear and determine any suit, action or proceeding, and to settle any
disputes which may arise out of or in connection with this Agreement and for such purposes
irrevocably submits to the jurisdiction of such courts. |
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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 |
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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)
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. |
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Photographic copies of such signed counterparts may be used in lieu of the originals for any
purpose. |
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| 21. |
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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
it, he or she 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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IN WITNESS WHEREOF, this Agreement has been executed as of the date first written above.
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