Employment Agreement - KongZhong Corp.
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement"), effective as of February 1, 2004,
between KONGZHONG CORPORATION, an exempted company organized and existing under
the laws of the Cayman Islands (the "COMPANY"), and ________________ (the
"Executive"), residing at __________________________, Beijing, PRC.
RECITAL
The Executive and the Company deem it in their respective best interests to
enter into an agreement providing for the Company's employment of Executive
pursuant to the terms herein stated.
WITNESSETH
In consideration of the mutual promises and agreements contained herein, and for
other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto agree as follows:
1. EMPLOYMENT
1.1 TERM OF EMPLOYMENT The Company will employ the Executive, and
the Executive will serve the Company, as the Company's _______
for a period beginning on the date hereof and ending two(2)
years hereafter, unless earlier terminated pursuant to the
terms hereof (the "Term of Employment").
1.2 DUTIES Throughout the Term of Employment, the Executive will
serve as the Company's _________ with responsibility for the
business affairs and operations of the Company that are
customarily assigned to such position at companies of similar
operational and financial conditions in the same industry, to
which he will devote his best efforts and all his business
time and services, subject to the terms of this Agreement and
the direction and control of the Board of Directors of the
Company (the "Board"). The Executive will, during
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the Term of Employment, serve the Company faithfully,
diligently and competently and to the best of his ability and
will hold, in addition to the office of _________ of the
Company, such other executive offices in the Company to which
he may be elected, appointed or assigned by the Board from
time to time and will discharge such executive duties in
connection therewith.
2. COMPENSATION AND BENEFITS
2.1 Executive shall be entitled to a base annual salary of USD
_________ ("Annual Salary") during the Term of Employment,
subject to adjustment to be decided and effected by the Board
of the Company, which Annual Salary shall be paid at such
times in consistent with the Company's present practice. 2.2
In addition to the Annual Salary, Executive shall be entitled
to such benefits as made available by the Company to its
employees or to personnel holding positions of similar level
of responsibilities in the Company.
3. DEATH OR DISABILITY
This Agreement shall be automatically terminated by the death of the
Executive. This Agreement may be terminated at the discretion of the
Board if, after undergoing a period of medical treatment, the Executive
shall be rendered incapable by illness or any other non-work-related
disability from complying with the terms, conditions and provisions on
his part to be kept, observed and performed, or from performing other
duties arranged by the Company during the Term of Employment
("Disability"). If this Agreement is terminated by reason of Disability
of the Executive, the Company shall give written notice to that effect
to the Executive thirty (30) days in advance of such termination in the
manner provided herein. In the event this Agreement is terminated
pursuant to this paragraph, Executive shall be entitled to benefits to
be decided by the Board.
4. TERMINATION; RESIGNATION
4.1 TERMINATION OF EMPLOYMENT BY COMPANY
(a) FOR CAUSE The Executive's employment with the Company
may be terminated by the Company or the Board for
"Cause", which shall mean (a) the Executive's
conviction for a crime involving moral
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turpitude, (b) the Executive's commission of an act
of personal dishonesty or breach of fiduciary duty
involving personal profit in connection with the
Executive's employment by the Company, (c) the
Executive's commission of an act which the Board
shall have found to have involved willful misconduct
or gross negligence on the part of the Executive in
the conduct of his duties hereunder, (d) habitual
absenteeism on the part of the Executive, or (e) the
Executive's material breach of any material provision
of this Agreement. In the event that the Company
terminates the Executive's employment for Cause, the
Executive shall not be entitled to receive any
amounts or any rights of option due under the Option
Agreement entered into pursuant to Section 2 hereof.
(b) WITHOUT CAUSE Notwithstanding anything to the
contrary in this Agreement, whether express or
implied, the Company may, at any time, terminate
Executive's employment for any reason other than
Cause, Disability, or death by giving Executive at
least thirty (30) days prior written notice of the
effective date of termination. In event this
Agreement is terminated pursuant this paragraph, in
addition to any compensation and benefit that have
become due and payable as of the date of such
termination, Executive shall be entitled to a
severance amount equal to 50% of such Executive's
annual base salary effective as of the date of such
termination.
4.2 TERMINATION OF EMPLOYMENT BY EXECUTIVE. The Executive may, at
any time, terminate his or her employment for any reason by
giving the Company at least thirty (30) days prior written
notice. In the event this Agreement is terminated pursuant
this paragraph, the Executive shall not be entitled to receive
any severance or any amount of similar nature, except unpaid
Annual Salary and other benefits that have become due and
payable as of the date of the termination.
4.3 RESIGNATION In the event that the Executive's services
hereunder are terminated under any of the provisions of this
Agreement (except by death), the Executive agrees that he will
deliver his written resignation as an officer of the Company
to the Board, such resignation to become effective
immediately.
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4.4 DATA Upon expiration of the Term of Employment or prior
termination pursuant to Section 3 or 4 hereof, the Executive
or his personal representative shall promptly deliver to the
Company all books, memoranda, plans, records, computer disks
and written and electronic data of every kind relating to the
business and affairs of the Company which are then in his
possession.
5. CONFIDENTIAL INFORMATION AND NON-COMPETITION
5.1 The Company and the Executive agree that the services rendered
by the Executive hereunder are unique and irreplaceable.
Accordingly, the Executive hereby agrees that, during the Term
of Employment and for a period of one (1) years thereafter,
the Executive shall not disclose to others or use, whether
directly or indirectly, any Confidential Information regarding
the Company. Executive acknowledges that such Confidential
Information is specialized, unique in nature and of great
value to the Company, and that such information gives the
Company a competitive advantage.
5.2 "Confidential Information" shall mean information about the
Company, its subsidiaries and affiliates, and their respective
clients and customers that is not available to the general
public and that was learned by Executive in the course of his
employment by the Company, including, but not limited to, any
proprietary knowledge, trade secrets, patents, copyright,
data, formulae, information, and client and customer lists and
all papers, resumes, records (including computer records) and
the documents containing such Confidential Information.
6. OWNERSHIP OF RIGHTS; PROPRIETARY INFORMATION
6.1 Company shall own all right, title and interest (including
patent rights, copyrights, trade secret rights, mask work
rights, trademark rights, sui generis database rights and all
other intellectual and industrial property rights of any sort
throughout the world) relating to any and all inventions
(whether or not patentable), works of authorship, mask works,
designations, designs, know-how, ideas and information made or
conceived or reduced to practice, in whole or in part, by
Executive (collectively, "Inventions") and Executive will
promptly disclose and provide all Inventions to Company. All
Inventions are work made for hire to the extent allowed by law
and, in addition, Executive
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hereby makes all assignments necessary to accomplish the
foregoing ownership. Executive shall further assist Company,
at Company's expense, to further evidence, record and perfect
such assignments, and to perfect, obtain, maintain, enforce,
and defend any rights assigned. Executive hereby irrevocably
designates and appoints Company as its agent and
attorney-in-fact to act for and in Executive's behalf to
execute and file any document and to do all other lawfully
permitted acts to further the foregoing with the same legal
force and effect as if executed by Executive.
6.2 The Executive agrees that the Company is the sole, absolute
owner of all Inventions and hereby grants to the Company,
exclusively and perpetually, all rights of every kind or
nature, throughout the universe, whether now known or
hereafter devised, in any and all languages, in and to such
Inventions, all ancillary rights therein and all of the
results and proceeds of the services rendered by Executive
hereunder. To the extent, if any, that any Inventions intended
to be assigned to the Company pursuant to this Section 6 are
at any time determined in any jurisdiction not to belong to
the Company, then Executive hereby grants an exclusive,
royalty-free license to the Company, (transferable by the
Company without limitation) to exploit such Inventions and all
rights therein in such jurisdiction. 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 part of the Executive, 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,
Company and Executive have agreed that such license will not
be renewed.
7. REMEDIES
The Executive acknowledges that irreparable damage would result to the
Company if the provisions of Sections 5 or 6 were not specifically
enforced, and agrees that the Company shall be entitled to enforce this
Agreement by injunction, specific performance or any other appropriate
legal, equitable relief, without bond and without prejudice to any
other rights and remedies that the Company may have for a breach of
this Agreement. The Executive acknowledges and agrees that its sole
remedy for breach of any of Company's obligations under this Agreement
shall be limited to an action for damages and Executive acknowledges
that such damages are fully adequate
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to compensate the Executive hereunder. In no event shall Executive seek
or be entitled to rescission, injunctive or other equitable relief.
8. INSURANCE
The Executive agrees that the Company shall have the right at its own
costs and expense to apply for and to secure in its own name, or
otherwise, life, health or accident insurance or any or all of them
covering the Executive, and the Executive agrees to submit to the usual
and customary medical examination and otherwise to cooperate with the
Company in connection with the procurement of any such insurance, and
any claims thereunder.
9. ASSIGNMENT
Neither party hereto may not assign his or its rights or delegate his
or its duties under this Agreement without the prior written consent of
the other party; provided, however, that this Agreement shall inure to
the benefit of and be binding upon the successors and assigns of the
Company upon any sale of all or substantially all of the Company's
assets or upon any merger or consolidation of the Company with or into
any other corporation, all as though such successors and assigns of the
Company and their respective successors and assigns were the Company.
10. MISCELLANEOUS
(a) REPRESENTATIONS AND WARRANTIES.
(i) Executive represents and warrants to the Company that
he has the authorization, power and right to deliver,
execute and fully perform his obligations under this
Agreement in accordance with its terms. Executive
further represents and warrants that this Agreement
does not require any authorization, consent,
approval, exemption or other action by any other
party and does not (A) conflict with or result in the
breach of the terms, conditions or provisions of, (B)
constitute a default under, or (C) result in a
violation of any agreement, instrument, order,
judgment or decree to which Executive is subject.
Executive will, to the fullest extent permitted by
applicable law, as from time to time in
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effect, indemnify the Company and hold the Company
harmless for any breach of the representations set
forth in this subparagraph (i).
(ii) The Company represents and warrants to Executive that
it has the authorization, power and right to deliver,
execute and fully perform its obligations under this
Agreement in accordance with its terms. The Company
further represents and warrants that this Agreement
does not require any authorization, consent,
approval, exemption or other action by any other
party and does not (A) conflict with or result in the
breach of the terms, conditions or provisions of, (B)
constitute a default under, or (C) result in a
violation of any agreement, instrument, order,
judgment or decree to which the Company is subject.
The Company will, to the fullest extent permitted by
applicable law, as from time to time in effect,
indemnify Executive and hold Executive harmless for
any breach of its representations set forth in this
subparagraph (ii).
(b) DIVISIBILITY OF THE AGREEMENT. If any provision of this
Agreement or any portion thereof is declared invalid, illegal,
or incapable of being enforced by any court of competent
jurisdiction, the remainder of such provisions and all of the
remaining provisions of this Agreement shall continue in full
force and effect.
(c) CHOICE OF LAW. This Agreement shall be construed, interpreted
and the rights of the parties determined in accordance with
the laws of the State of New York.
(d) NOTICES. All notices, requests and other communications
pursuant to this Agreement shall be in writing and shall be
deemed to have been duly given, if delivered in person or by
courier, telegraphed, telexed or by facsimile transmission or
sent by registered or certified mail, postage prepaid,
addressed as follows:
If to the Executive:
[ ]
ABC Inc.
Beijing, China 100045
Tel.: (010)
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Fax: (010)
If to the Company:
ABC Inc.
Beijing, PRC
Attn.: Chairman of the Board of Directors
Tel.: (010)
Fax: (010)
Any party may, by written notice to the other, change the
address to which notices to such party are to be delivered or
mailed.
(e) HEADINGS. Section headings in this Agreement are included
herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose.
(f) WAIVER. Failure to insist upon strict compliance with any of
the terms, covenants, or conditions hereof shall not be deemed
a waiver of such term, covenant, or condition, nor shall any
waiver or relinquishment of, or failure to insist upon strict
compliance with, any right or power hereunder at any one or
more times be deemed a waiver or relinquishment of such right
or power at any other time or times.
(g) EXECUTIVE'S ACKNOWLEDGMENT. Executive acknowledges (i) that he
has consulted with or has had the opportunity to consult with
independent counsel of his own choice concerning this
Agreement and has been advised to do so by the Company, and
(ii) that he has read and understands the Agreement, is fully
aware of its legal effect, and has entered into it freely
based on his own judgment.
(h) COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original
but all of which together will constitute one and the same
instrument.
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(i) ENTIRE AGREEMENT; AMENDMENT. This Agreement (i) contains a
complete statement of all the arrangements between the parties
with respect to Executive's employment by the Company, (ii)
supersedes all prior and existing negotiations and agreements
between the parties concerning Executive's employment and
(iii) can only be changed or modified pursuant to a written
instrument duly executed by each of the parties hereto.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
ABC INC.
By:
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Title:
ACCEPTED AND AGREED TO:
By:
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