EXHIBIT 10.2
[ENGLISH TRANSLATION]
YINGLI GREEN ENERGY HOLDING COMPANY LIMITED
FORM OF
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement, dated as of ____________, 2006
(this "Agreement"), is executed by and between YINGLI GREEN ENERGY HOLDING
COMPANY LIMITED, an exempted company with limited liability incorporated and
existing under the laws of the Cayman Islands (the "Company") and __________
(holding passport of _____________ with passport number of _________) (the
"Executive").
RECITALS
The Company desires to employ the Executive, and the Executive agrees
be employed by the Company, to act as __________ of the Company, all pursuant to
the terms and conditions of this Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
1. TERM OF EMPLOYMENT
1.1 The Company shall employ the Executive to take the position as set
forth in Article 2 hereof, perform the duties and responsibilities as
set forth in Article 2 hereof, and render services to the Company
during a term of five (5) years commencing on ___________, _____ and
ending on __________, ____(the "Term"). The Term may be early
terminated pursuant to the provisions of Articles 4 and 5 hereof.
2. POSITION, DUTIES AND RESPONSIBILITIES
2.1 Position. The Executive shall be employed and act as the
______________ of the Company with all responsibilities as set forth
in Exhibit A, as well as other responsibilities reasonably assigned by
the Company. The Executive may take position in any Affiliate (as
defined in Article 2.2 hereof) of the Company. The Executive shall
initially take position in Baoding Tianwei Yingli New Energy Co.,
Ltd., a subsidiary of the Company, and shall initially work in
Baoding, Hebei province, China. The entity in which the Executive
takes position and the location where the Executive works may be
appropriately adjusted according to the operative demands of the
Company in the future. The Executive shall use his/her best efforts to
perform his/her duties and shall comply with all applicable laws,
regulations and rules as well as the bylaws and rules of the Company.
The Executive shall adhere to good business ethics and practices and
shall not take advantage of his/her position for personal gains.
2.2 For the purpose of this Agreement, "Affiliate" means any individual or
entity directly or indirectly controlled by the Company. For the
purpose of this Article, "Control" means the direct or indirect
possession of the power to direct or cause to direct the management
and policies of such individual or entity, whether through ownership
of voting securities, by contract or otherwise, including, without
limitation, (a) the direct or indirect ownership of 50% or more of the
outstanding stocks or other equity interests issued by such entity,
(b) direct or indirect ownership of the 50% or more voting power of
such entity, or (iii) the power to appoint, directly or indirectly, a
majority of the members of the board of directors or other similar
decision-making organization of such entity.
2.3 Voting Restriction. If the Executive is elected as a director of the
Company, the Executive shall refrain from voting, in his/her capacity
of a director of the Company, on matters in relation to his/her
employment or termination of his/her employment at meetings of the
board of directors of the Company.
2.4 Other Activities. Except with the prior written approval of the
Company, the Executive shall not render commercial or professional
services of any nature to any person or organization, whether or not
for compensation; and the Executive will not directly or indirectly
engage, participate, invest, finance or otherwise assist in any
business activity that is potentially competitive in any manner with
the business of the Company or any Affiliate or any business activity
that may cause the Executive to be in conflict of interest with the
Company or any Affiliate, whether or not for profit.
3. COMPENSATION AND BENEFITS
As full consideration for the services to be provided by the Executive
under this Agreement and as full compensation for the obligations and
restrictions to be imposed on the Executive by this Agreement, the Company
shall pay the Executive, and the Executive agrees to accept, the base
salary, stock option and other incentive programs, and other benefits as
set forth in this Article 3.
3.1 Base salary. The Company shall pay base salaries to the Executive in
the amount and by the means as set forth in Part I of Exhibit B
hereof.
3.2 Stock Options And Other Incentive Programs. The Executive shall be
eligible to participate in any stock option or other incentive program
available to officers or employees of the Company in accordance with
the terms and conditions as set forth in Exhibit C hereof.
3.3 Benefits. The Executive will be eligible to receive any benefit as the
Company or the Affiliate with which the Executive works generally
provides to its other employees of comparable position in accordance
with the benefit plans established and amended from time to time at
its sole discretion by the Company or such Affiliate. The annual paid
leave of the Executive shall be twenty (20) working days.
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4. TERMINATION BY THE COMPANY.
4.1 Termination for Cause. For purposes of this Agreement, unless
otherwise provided under applicable laws, "Cause" will exist at any
time after the occurrence of one or more of the following events: (a)
the Executive commits willful misconduct or gross negligence in
performance of his duties hereunder ("Malfeasance") and fails to
correct such Malfeasance within a reasonable period specified by the
Company (the "Correction Period") after the Company has sent the
Executive a written notice demanding correction within the Correction
Period; (b) the Executive seriously violates the internal rules of the
Company and fails to correct such violation within a reasonable period
specified by the Company (the "Correction Period") after the Company
has sent the Executive a written notice demanding correction within
the Correction Period; (c) the Executive is convicted by a court of
theft, fraud or other criminal offense; or (d) the Executive seriously
breaches his/her duty of loyalty to the Company or an Affiliate under
the laws of the Cayman Islands, the PRC or other relevant
jurisdictions. The Company may terminate the employment of the
Executive for Cause at any time without prior written notice. Upon
termination, the Company shall pay all compensation of the Executive
accrued up to the date of termination pursuant to Article 3 hereof;
provided, however, that the Company may deduct and withhold any amount
it is entitled to as damages under applicable laws. Thereafter, all
obligations of the Company under this Agreement shall terminate.
4.2 Termination By Reason of Death. The employment of the Executive by the
Company shall be automatically ceased upon the death of the Executive.
In the event that employment of the Executive by the Company
terminates as a result of the Executive's death, the Executive's
estate or heirs will receive all unpaid compensation accrued as of the
date of the termination of the employment as provided in Article 3
hereof; provided that, the Company may deduct and withhold any amount
it is entitled to as damages under applicable laws. Thereafter, all
obligations of the Company under this Agreement shall terminate.
Nothing contained herein shall prevent the estate or heirs of the
Executive from being entitled to any interest or other applicable
benefits under any life insurance programs (if any). If the death of
the Executive occurs during the performance of his/her duties for the
Company, the Company shall pay to the appropriate beneficiaries a
special compensation at an amount to be determined by the Company
which shall not exceed the annual base salary of the Executive as set
forth in Article 3.1 hereof.
4.3 Termination By Reason of Disability. In the event that the Executive
is entitled to long-term disability benefits of the Company, or in the
event that, in the judgment of the Company, the Executive is not able
to perform his/her duties for 90 consecutive days or 120 days or
longer in a 12-month period due to his/her physical or psychological
problems, the Company may terminate the Executive's employment,
provided that such termination is permitted by the law. Upon
termination, the Company shall pay all compensation of the Executive
accrued up to the date of termination pursuant to Article 3 hereof;
provided, however, that the
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Company may deduct and withhold any amount it is entitled to as
damages under applicable laws. Thereafter, all obligations of the
Company under this Agreement shall terminate. The provisions of this
Article 4.3 shall not affect the Executive's rights under any
disability program that he/she participates (if any).
5. TERMINATION BY THE EXECUTIVE
5.1 The Executive may voluntarily terminate his/her employment with the
Company with or without cause by a three-month prior written notice.
During such three-month notice period, the Executive shall continue to
perform diligently his/her duties and responsibilities under this
Agreement. The Company shall have the discretion to terminate its
employment with the Executive prior to the last day of such
three-month period; provided that the Company shall have paid the
Executive all of his/her compensation accrued through the last day of
such three-month period pursuant to Article 3 hereof. Thereafter, the
Company's obligations hereunder shall terminate. In such case, the
Company shall not be responsible for paying any severance pay or other
benefits to the Executive.
6. RESPONSIBILITIES UPON TERMINATION
6.1 Return of Documents. The Executive agrees to promptly return to the
Company all documents and materials in any form received by the
Executive by virtue of his/her employment with the Company upon or
prior to the termination of his/her employment with the Company,
including, without limitation, all originals and copies of any
Proprietary Information as defined in Article 8 hereof as well as any
part thereof, together with all equipment and other tangible or
intangible assets of the Company. The Executive agrees not to retain
any document or material that contains such Proprietary Information or
any copy thereof.
6.2 Survival. The Executive further agrees that (a) all representations,
warranties and obligations under Articles 6, 7, 8, 9, 11 and 14 hereof
shall survive the termination or expiration of the Term; (b) all
representations, warranties and obligations under Articles 6, 7, 8, 9,
11 and 14 hereof shall also survive the termination of this Agreement;
and (c) after termination or expiration of the Term, the Executive
shall use his/her best efforts to cooperate with the Company in
connection with such surviving obligations, including, without
limitation to, completion of outstanding work on behalf of the
Company, transfer of his/her assignments to designated employees of
the Company, and dependence of the Company against claims raised by
any third party in connection with any action or negligence of the
Executive during his employment with the Company. The Executive also
agrees to execute and deliver the Termination Certificate in the form
as set forth in Exhibit D hereto prior to the termination of the
employment with the Company.
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7. RESTRICTED ACTIVITIES
7.1 No-use of Proprietary Information. The Executive acknowledges that to
conduct any activity restricted in this Article will certainly involve
the use or disclosure of Proprietary Information as defined in Article
8 hereof and consequently result in a breach of such Article, and it
will be difficult to directly demonstrate a breach of Article 8
hereof. Therefore, in order to prevent the Executive from using or
disclosing the Proprietary Information as defined in Article 8 and as
a condition to employing the Executive, the Executive agrees that
during his/her employment with the Company and for a period of two
years after the termination or expiration of the employment, the
Executive shall not, directly or indirectly:
(a) refer or attempt to refer to any third party any business in
which the Company or its Affiliates currently engage or will
likely engage or participate, including, without limitation,
solicitation or provision of any business or services that are
essentially similar to the business of the Company or its
Affiliates on behalf of any individual, company or other entity
who was then an existing or prospective customer, supplier or
partner of the Company or its Affiliates.
(b) solicit or employ any person with whom the Company or its
Affiliates maintain employment or consulting relation, or
otherwise direct or cause any person to terminate his/her
employment or consulting relationship with the Company or its
Affiliates.
7.2 Non-Competition
(a) During the Restrictive Period set forth in Article 7.2(b) hereof,
the Executive shall not, directly or indirectly, engage in any
manner in any business that may compete with the business of the
Company anywhere in the world, and without the prior written
consent of the Company, the Executive shall not, directly or
indirectly, anywhere in the world, own an interest in, manage,
operate, join, control, lend money or render financial or other
assistance to or participate in or be connected with, as an
officer, employee, partner, stockholder, consultant or otherwise,
any person that competes with the Company.
(b) In this Article 7.2, "Restricted Period" shall mean: (i) two (2)
years after the expiration of the Term in due course; (ii) two
(2) years after termination by the Executive of this Agreement
without cause as provided in Article 5 hereof prior to the
expiration of the Term; or (iii) two (2) years after the
termination of this Agreement prior to the expiration of the Term
for any other reasons.
(c) In the event that the Executive is in breach of the provisions of
Article 7.2(a) hereof, the Restricted Period shall be extended by
the length of the period of such breach.
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(d) The Executive acknowledges that the compensation to be paid by
the Company shall have contained any and all economic
consideration for each and all obligations of the Executive under
this Article 7.2.
7.3 Enforceability. Each covenant contained in this Article 7 constitutes
an independent covenant, and if any covenant in unenforceable, other
covenants shall continue to be valid and binding. In the event the
term of any restriction or the territorial restriction contained in
this Article 7 is finally determined by a competent court to have
exceeded the maximum extent deemed reasonable and enforceable by such
court, then this Agreement shall be amended as such to adopt the
longest term or largest territory deemed by such court to be
enforceable.
7.4 Independent Covenant. All covenants contained in this Article 7 shall
be interpreted as a separate agreement independent of other provisions
of this Agreement. Any lawsuit or claim brought by the Executive
against the Company (whether by virtue of this Agreement or any other
agreement) shall not constitute a defense against the enforcement of
this Article 7 by the Company.
8. PROPRIETARY INFORMATION
8.1 The Executive agrees that during his/her employment with the Company
and within two (2) years after termination of his/her employment with
the Company, he/she will keep in strict confidence all Proprietary
Information and, without the prior written consent of the Company,
will not use or disclose to any individual, entity or company the
Proprietary Information other than the use or disclosure for the
purposes of performing his/her duties and responsibilities and in
favor of the Company to the extent necessary. "Proprietary
Information" shall mean any proprietary, confidential or secret
information disclosed to the Executive in connection with the Company,
the business of the Company, or the parent, subsidiaries, Affiliates,
customers or suppliers of the Company or their respective businesses,
or any other party to which the Company has confidentiality obligation
(the "Related Party") or its business. Such Proprietary Information
shall include, without limitation, research material, product plans,
products, services, business strategies, personnel information,
customer lists, customers, market, technical materials, forecasts,
promotion, financial and other business information of the Company or
the Related Parties, no matter such information is directly or
indirectly disclosed to the Executive in writing, orally, in the form
of image or object or otherwise. The Executive understands that the
Proprietary Information does not include any of the foregoing that has
become known to the public.
9. INTELLECTUAL PROPERTY
9.1 Inventions Retained and Licensed. Exhibit E of this Agreement sets
forth all inventions which were made by the Executive prior to his/her
employment with the Company (collectively, the "Prior Inventions"),
including all processes, inventions, technology, original works of
authorship, developments,
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improvements, formulas, patents, discoveries, copyrights and trade
secrets. Such Prior Inventions, which belong to the Executive and are
relate to the Company's proposed business, products or research and
development, are not assigned to the Company hereunder. In case that
there is no Prior Invention listed in Exhibit E hereof, the Executive
hereby confirms that no Prior Invention exist. If in the course of
his/her employment with the Company, the Executive incorporates into a
Company product, process, machine or other project a Prior Invention
owned by the Executive or in which the Executive has an interest, the
Company is hereby granted and shall have a nonexclusive, royalty-free,
irrevocable, perpetual, worldwide license to make, have made, modify,
use, sell and engage in other actions with respect to such Prior
Invention as part of or in connection with such product, process or
machine.
9.2 Assignment of Inventions. The Executive agrees that he/she will
promptly make full written disclosure to the Company, will hold in
trust for the sole right and benefit of the Company, and hereby assign
to the Company, or its designee, without further compensation, all
his/her right, title, and interest in and to any and all inventions,
original works of authorship, developments, concepts, improvements or
trade secrets, whether or not patentable or registrable under
copyright or similar laws, 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 time the
Executive is in the employment of the Company and within twelve (12)
months after the termination or expiration of the employment
(collectively referred to as "Inventions"), except as provided in
Article 9.3 below. The Executive further agrees that all patentable
and copyrightable works which are made by the Executive (solely or
jointly with others) within the scope of and during the period of
his/her employment with the Company, are "works made for hire" and the
Executive hereby assigns all proprietary rights, including patent and
copyright, in these works to the Company without further compensation.
9.3 Unrelated Inventions. Inventions as referenced to in Article 9.2
hereof does not include inventions which the Executive can demonstrate
to be developed entirely on his/her own time without using the
Company's equipment, supplies, facilities or trade secret information
(the "Unrelated Inventions"), unless those inventions that are either
(i) related at the time of conception or reduction to practice of the
invention to the Company's business, or actual or demonstrably
anticipated research or development of the Company, or (ii) result
from any work performed by Executive for the Company. The Executive
agrees to disclose promptly to the Company all such Unrelated
Inventions and to provide the Company or its assignee first rights of
refusal to license such disclosed Unrelated Inventions within three
months after his/her disclosure of such Unrelated Inventions based on
commercially negotiated terms.
9.4 Maintenance of Records. The Executive agrees to keep and maintain
adequate and current written records of all Inventions made by the
Executive (solely or jointly with others) during the term of his/her
employment with the Company.
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The records will be in the form of notes, sketches, drawings, and any
other format that may be specified by the Company. The records will be
available to and remain the sole property of the Company at all times.
9.5 Patent and Copyright Registrations.
(a) The Executive agrees to assist the Company, or its designee, upon
the instruction of the Company, in every proper way to secure the
Company's rights in the Inventions and any copyrights, patents or
other intellectual property rights relating thereto in any and
all countries, including the disclosure to the Company of all
pertinent information and data with respect thereto, the
execution of all applications, specifications, oaths, assignments
and all other instruments which the Company shall deem necessary
in order to apply for and obtain such rights and in order to
assign and convey to the Company, its successors, assigns, and
nominees the sole and exclusive rights, title and interest in and
to such Inventions, and any copyrights, patents or other
intellectual property rights relating thereto.
(b) The Executive further agrees that his/her obligation to execute
or cause to be executed any such instrument or papers shall
continue after the termination of this Agreement. If the Company
is unable because of the Executive's mental or physical
incapacity or for any other reason to secure his/her signature to
apply for or to pursue any application for any domestic or
foreign patents or copyright registrations covering Inventions
assigned to the Company as above, then the Executive hereby
irrevocably designates and appoints the Company and its duly
authorized officers and agents as his/her agent and attorney in
fact, to act for and in his/her behalf and stead to execute and
file any such applications and to do all other lawfully permitted
acts to further the prosecution and issuance of letters patent or
copyright registrations thereon with the same legal force and
effect as if executed by the Executive.
10. INFORMATION OF PREVIOUS EMPLOYER
10.1 The Executive agrees that during his/her employment with the Company
he/she will not inappropriately use or disclose any proprietary
information or trade secrets owned by any previous employer of the
Executive or any other individual or entity obtained prior to his/her
employment with the Company, nor will he/she bring to the Company any
such non-public document or proprietary information.
11. INFORMATION OF THIRD PARTIES
11.1 The Executive hereby acknowledges that the Company has received and
may continue to receive from third parties confidential or proprietary
information. The Executive agrees to keep in strict confidence such
all of such confidential or proprietary information in his/her
possession and to refrain from using or
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disclosing to any individual, entity or company such confidential or
proprietary information, except that such use or disclosure is in
compliance with the agreement between the Company and such third party
and is necessary for the performance of relevant work on behalf of the
Company.
12. NO-CONFLICT
12.1 The Executive represents and warrants that the execution by the
Executive of this Agreement, the employment with the Company, and the
performance by the Executive of his/her duties and responsibilities
pursuant to this Agreement will not breach any of his/her legal or
contractual obligation to any prior employer of the Executive or any
other parties, including, without limitation, any obligation in
respect of proprietary or confidential information or intellectual
property rights of such party.
13. FOREIGN CORRUPTION ACT
13.1 The Executive agrees to diligently adhere to the Foreign Corrupt
Practices Act attached as Exhibit F hereof.
13.2 The Executive agrees and promises not to provide or offer any
remuneration, gift, service or article of value to any government
officials (including working stuff or employees of any government or
administrative agencies, political parties or candidates) of any
country for any reason. The Executive further agrees and promises that
the Executive will not accept any remuneration in the form of cash or
other tangible objects from any person in performing his/her duties
under this Agreement other than the compensation specified in Article
3 of this Agreement. The Executive promises that all conducts of the
Executive under this Agreement shall be in compliance with all
relevant laws, regulations and administrative rules of the People's
Republic of China at all times.
14. MISCELLANEOUS
14.1 Continuing Obligation. If the Executive is employed by any existing or
future Affiliate of the Company at any time, or provides services to
such Affiliate, or otherwise retained by such Affiliate, then the
obligations under this Agreement shall continue to apply. Any
reference to the Company shall include such Affiliate. In the event
that this Agreement expires or terminates for any reason, the
Executive shall immediately resign from any position at such Affiliate
of the Company, unless otherwise required by the Company.
14.2 Notice to Employer. The Executive hereby authorizes the Company to
notify the relevant provisions of this Agreement and the Executive's
obligations under this Agreement to the actual or future employer of
the Executive (including the Affiliate with which the Executive will
work).
14.3 Right to Name and Image. The Executive hereby authorizes the Company
to use, or authorize any other person to use, once or from time to
time during his/her
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employment with the Company, the names, photos, images (including
cartoons), voices and resume of the Executive as well as photocopies
and duplicates thereof in any media now known or developed in the
future (including but not limited to movies, videos, digital or any
other electronic media) for purposes as may be deemed appropriate by
the Company.
14.4 Legal Fees. In any dispute arise from or in connection with this
Agreement, the winning party shall be entitled to be reimbursed for
reasonable legal fees.
14.5 Amendments, Extension and Waiver. This Agreement may not be amended,
revised, extended or terminated unless by a written instrument
executed by the Executive or a duly authorized representative of the
Company (excluding the Executive). Any failure or delay to assert any
right, remedy or power shall not be construed as a waiver of such
right, remedy or power. All rights and remedies existing under this
Agreement are cumulative to, and not exclusive of, any rights or
remedies otherwise available.
14.6 Transfer; Successors and Assigns. The Executive agrees that he/she
will not transfer, sell, assign or otherwise dispose of (whether
voluntarily, involuntarily or by operation of law) any rights or
interests under this Agreement, and the rights of the Executive shall
not be subject to any security interest or creditors' claims. Any such
transfer, assign or other disposal shall be invalid. Nothing contained
in this Agreement shall prevent the Company from merging into or with
any other company or selling all or substantially all of the assets of
the Company, or transfer this Agreement or any obligation under this
Agreement. In the event of any change in the ownership interest or the
control of the Company, the provisions of this Agreement shall
continue to apply and shall be binding upon any successors.
Notwithstanding and subject to the foregoing, this Agreement shall be
valid and binding upon, and inure to the benefit of, the successor,
representative, heirs and permitted assigns of each party, and shall
not vest in any other individual or entity any interest.
14.7 Notice. All notices or other communications under this Agreement shall
be made in writing and delivered to the following addresses or any
other addresses designated by each party in writing from time to time:
To the Company:
Address: 3055 Fuxing Middle Road, Baoding City, Hebei Province, China
Postal Code: 071051
Fax: _______________________
Attention of: _______________________
To the Executive:
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Address: _______________________
Fax: _______________________
Attention of: _______________________
Any notice shall be deemed to have been delivered:
(a) If by hand or courier, on the date of actual delivery;
(b) If by prepaid and registered mail, on the fourth business days
after the date of dispatch; or
(c) If by fax, on the date on which the fax is transmitted (as
evidenced by the confirmatory report with fax number, pages
transmitted and date of transmission).
14.8 Severability; Enforceability. If all or any portion of any provision
of this Agreement as applied to any person, to any place or to any
circumstance shall be ruled by an arbitration commission or a court of
competent jurisdiction to be invalid, illegal or incapable of being
enforced, the same shall in no way affect (to the maximum extent
permissible by Law) that provision or the remaining portions of that
provision as applied to any parties, places or circumstances or any
other provisions of this Agreement or the validity or enforceability
of this Agreement as a whole.
14.9 Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the People's Republic of China.
14.10 Language. This Agreement is written and executed in Chinese.
14.11 Originals. This Agreement is executed by the parties in two
originals. Each of the parties will hold one original, and the two
originals shall be equally valid.
The Executive acknowledges that (a) he/she has consulted or has the
opportunity to consult with independent counsel of his choice regarding this
Agreement, and the Company has suggested that he do so and (b) he/she has read
and understands this Agreement, fully understands its legal effect, and has
entered into this Agreement voluntarily in his/her own judgment. The Executive
hereby agrees that the obligations under Articles 7, 8 and 9 hereof and the
definition of the Proprietary Information contained in those provisions shall
also apply to the Proprietary Information relating to any work performed for the
Company prior to the execution of this Agreement.
[Signatures on the Next Page]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the date first written above.
EXECUTIVE
By:
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Name:
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YINGLI GREEN ENERGY HOLDING COMPANY LTD.
By:
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Name:
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Title:
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