EMPLOYMENT AGREEMENT
Exhibit 4.10
This EMPLOYMENT AGREEMENT (the “Agreement”), is entered into as of July 13, 2009 (the
“Effective Date”) by and between Home Inns & Hotels Management Inc., a company
incorporated and existing under the laws of the Cayman Islands (the “Company”) and
HuipingYAN, an individual (the “Executive”).
RECITALS
A. The Company desires to employ the Executive as its Senior Vice President of Finance and
Strategy 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 Senior Vice President of Finance
and Strategy 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 Senior Vice President of Finance and
Strategy (the “Employment”) of the Company.
| 2. | TERM |
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 Employment
shall be automatically extended for successive one-year terms unless either party gives the
other party hereto a three-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. | PROBATION |
No probationary period.
| 4. | DUTIES AND RESPONSIBILITIES |
The Executive’s duties at the Company will include all jobs assigned, from time to time, by
the Company’s Board of the Directors (the “Board”) or the Company’s Chief Executive
Officer, as the case may be.
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 (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 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 employee of
any entity other than the Company and any subsidiary or affiliate of the Company, and shall
not be concerned or interested in the lodging business or an entity that competes with that
carried on by the Company (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.
| 5. | 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 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 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.
| 6. | LOCATION |
The Executive will be based in any location as determined by the Board from time to time.
| 7. | COMPENSATION AND BENEFITS |
| (a) | Cash Compensation. The Executive’s cash compensation (including salary
and bonus) shall be determined by the Board from time to time. |
| (b) | 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 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. |
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| 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 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 or 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 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 three months written notice, and upon termination without cause, the Company
shall provide compensation to the Executive as 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 three-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 is approved by the Board or an alternative arrangement with respect
to the Employment is agreed to by the Board. |
| (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. 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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| (b) | 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. |
“Trade Secrets” means information deemed confidential by the Company,
treated by the Company or which the Executive know 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.
| (c) | 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 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. |
| (d) | 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. |
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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| 10. | INVENTIONS |
| (a) | 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 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 or 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.
| (b) | 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 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. |
| (c) | 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 or her employment, and Executive will not retain or take with him or 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 or her 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.
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| 11. | CONFLICTING EMPLOYMENT. |
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.
| 12. | NON-COMPETITION AND NON-SOLICITATION |
In consideration of the salary paid to the Executive by the Company, the Executive agree
that during the term of the Employment and for a period of two (2) years following the
termination of the Employment for whatever reason:
| (a) | 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; |
| (b) | 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 |
| (c) | 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. |
The provisions contained in Section 12 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 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. |
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| 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.
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| 14. | 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 of its affiliates or subsidiaries 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.
| 15. | 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.
| 16. | 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 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.
| 17. | GOVERNING LAW |
This Agreement shall be governed by and construed in accordance with the law of the State of
New York, USA.
| 18. | 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.
| 19. | 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.
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| 20. | 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.
| 21. | 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 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.
| 22. | NO INTERPRETATION AGAINST DRAFTER |
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.
[Remainder of this page has been intentionally left blank.]
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IN WITNESS WHEREOF, this Agreement has been executed as of the date first written above.
| Home Inns & Hotels Management Inc. |
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| By: | /s/ Xxxxx Xxxx Xxx | |||
| Name: | Xxxxx Xxxx XXX | |||
| Title: | CEO | |||
| Executive | ||||||
| Signature: | /s/ Xxxxxxx Xxx
|
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| Title: Senior Vice President | ||||||
