EMPLOYMENT AGREEMENT
Exhibit
10.1
THIS
EMPLOYMENT AGREEMENT is made and effective as of the 29th day of August 2005,
by
and between Diodes Incorporated, a Delaware corporation (the "Company"),
and XX.
XXX-XXXX LU (the "Employee"), with respect to the following facts:
The
Company desires to be assured of the continued association and services of
the
Employee in order to take advantage of his experience, knowledge and abilities
in the Company's business, and is willing to employ the Employee, and the
Employee desires to be so employed, on the terms and conditions set forth
in
this Agreement.
ACCORDINGLY,
on the basis of the representations, warranties and covenants contained herein,
the parties hereto agree as follows:
1. EMPLOYMENT
1.1 Employment.
The
Company hereby employs the Employee as President and Chief Executive Officer,
and the Employee hereby accepts such employment, on the terms and conditions
set
forth below, to perform during the term of this Agreement such services as
are
required hereunder.
1.2 Duties.
The
Employee shall render such services to the Company, and shall perform such
duties and acts, as reasonably may be required by the Company's Board of
Directors in connection with any aspect of the Company's business.
1.3 Performance
of Duty.
The
Employee shall devote such reasonable time, ability and attention to his
duties
hereunder as may be necessary to discharge such duties in a professional
and
businesslike manner.
1.4 Indemnification.
The
Company shall, to the maximum extent permitted by applicable law, indemnify,
defend and hold harmless the Employee from, against and in respect of any
and
all payments, damages, claims, demands, losses, expenses, costs, obligations
and
liabilities (including, but not limited to, attorney's fees and costs and
the
costs of investigation and preparation ) which, directly or indirectly, arise
or
result from or are related to the fact that the Employee is or was an employee,
officer, director or agent of the Company. By way of evidencing such obligation
and not limitation, the Company and Employee have previously entered into
an
Indemnification Agreement, a copy of which is attached hereto as Exhibit
A.
1.5 Trade
Secrets.
The
Employee shall not, without the prior written consent of the Company's Board
of
Directors, disclose or use in any way, either during his employment by the
Company or thereafter, except as required in the course of such employment,
any
confidential business or technical information or trade secret of the Company
acquired in the course of such employment, whether or not patentable,
copyrightable or otherwise protected by law, and whether or not conceived
of or
prepared by him (collectively, the "Trade Secrets"), including, without
limitation, any confidential information concerning customer lists, products,
procedures, operations, investments, financing, costs, employees,
purchasing, accounting, marketing, merchandising, sales, salaries, pricing,
profits and plans for future development, the identity, requirements,
preferences, practices and methods of doing business of specific parties
with
whom the Company transacts business, and all other information which is related
to any product, service or business of the Company, other than information
which
is (or becomes, other than as a result of the breach hereof by the Employee)
generally known in the industry in which the Company transacts business or
is or
may be acquired from public sources; all of which Trade Secrets are the
exclusive and valuable property of the Company.
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1.6 Noncompetition.
(a) As
used
in this Agreement, the term "Competitive Activity" shall mean any participation
in, assistance of, employment by, ownership of any interest in, acceptance
of
business from or assistance, promotion or organization of any person,
partnership, corporation, firm, association or other business organization,
entity or enterprise which, directly or indirectly, is engaged in, or
hereinafter engages in, the development, production, marketing or selling
of any
product which is the same as or in competition with any line of business
in
which the Company is engaged, whether as an agent, consultant, employee,
officer, director, investor, partner, shareholder, proprietor or in any other
individual or representative capacity, but excluding the holding for investment
of less than five percent (5%) of the outstanding securities of any corporation
which are regularly traded on a recognized stock exchange. Competitive Activity
shall not be deemed to include personal investment (including venture capital)
activities of the Employee.
(b) During
his employment by the Company and for two (2) years from the beginning of
the
LOA (as set forth in Section 3.2 hereof), the Employee shall refrain, without
the prior written consent of the Company in each instance, from engaging
in any
Competitive Activity which would be reasonably likely, as determined by the
Company in its reasonable discretion, to result in the disclosure or use
of any
Trade Secrets.
1.7 Tangible
Items.
All
files, accounts, records, documents, books, forms, notes, reports, memoranda,
studies, compilations of information, correspondence and all copies, abstracts
and summaries of the foregoing, and all other physical items related to the
Company, other than a merely personal item, whether of a public nature or
not,
and whether prepared by the Employee or not, are and shall remain the exclusive
property of the Company and shall not be removed from the premises of the
Company, except as required in the course of employment by the Company, without
the prior written consent of the Company's Board of Directors in each instance,
and upon the request of the Company the same shall be promptly returned to
the
Company by the Employee on the expiration or termination of
his
employment by the Company or at any time prior thereto upon the request of
the
Company.
1.8 Solicitation
of Employees.
During
his employment by the Company and for two (2) years from the beginning of
the
LOA (as set forth in Section 3.2 hereof), the Employee shall not, directly
or
indirectly, either for his own benefit or purposes or the benefit or purposes
of
any other person, employ or offer to employ, call on, solicit, interfere
with or
attempt to divert or entice away any employee or independent contractor of
the
Company (or any person whose employment or status as an independent contractor
has terminated within the six (6) months preceding the date of such
solicitation) in any capacity if that person possesses or has knowledge of
any
Trade Secrets of the Company.
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1.9 Injunctive
Relief.
The
Employee hereby acknowledges and agrees that it would be difficult to fully
compensate the Company for damages resulting from the breach or threatened
breach of Sections 1.5, 1.6, 1.7 or 1.8 and, accordingly, that the
Company
shall be entitled to temporary and injunctive relief, including temporary
restraining orders, preliminary injunctions and permanent injunctions, to
enforce such provisions. This provision with respect to injunctive relief
shall
not, however, diminish the Company's right to claim and recover
damages.
2. COMPENSATION
2.1 Compensation.
As the
total consideration for the services which the Employee renders hereunder,
the
Employee shall be entitled to the following:
(i) an
annual
base salary of Three Hundred Thousand Dollars ($300,000.00), subject to such
periodic increases, if any, as the Board of Directors may determine, less
any
applicable deduction therefrom for income tax or other applicable withholdings,
payable in accordance with the Company's standard practices and
procedures;
(ii) participation
in any executive bonus plan sponsored by the Company;
(iii) prompt
reimbursement of any and all reasonable and documented expenses (including,
but
not limited to, air fare, car rental, lodging, meals, business telephone
and
related travel expenses) incurred by the Employee from time to time in the
performance of his duties hereunder, which reimbursement shall be made in
accordance with the Company's policies and procedures as the same may be
amended
from time to time;
(iv) such
paid
vacation as may be provided in accordance with the vacation policy of the
company applicable to Employees in general, as the same may be amended from
time
to time;
(v) participation
in all plans or programs sponsored by the Company for employees in general,
including, but not limited to, participation in any group health plan, medical
reimbursement plan, life insurance plan, pension and profit sharing plan,
or
stock option plan;
(vi) a
life
insurance policy with a death benefit in an amount equal to that existing
on the
date of this Agreement, payable as directed by the Employee;
(vii) a
disability insurance policy in the maximum insurable amount as defined by
the
policy.
2.2 Illness.
If the
Employee shall be unable to render the services required hereunder on account
of
personal injuries or physical or mental illness, he shall continue to receive
all payments provided in this Agreement; provided, however, that any such
payment may, at the sole option of the Company, be reduced by any amount
that
the Employee receives for the period covered by such payments as disability
compensation under insurance policies, if any, maintained by the Company
or
under government programs.
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3. TERM
AND
TERMINATION
3.1 At
will Relationship.
(a) The
Employee and the Company each hereby acknowledges and agrees that, except
as
expressly set forth in this Article 3, (i) the Employee's relationship
with
the Company under this Agreement is AT WILL and can be terminated at the
option
of either the Employee or the Company in his or its sole and absolute
discretion, for any or no reason whatsoever, with or without cause, (ii) no
representations, warranties or assurances have been made concerning the length
of such relationship or the aggregate amount of compensation to be received
by
the Employee and (iii) after the termination of his employment by
the
Company, the Employee shall have no right, title or interest in or claim
to any
revenues received by the Company from any person for any goods sold or services
rendered by the Company to such person, whether or not the Employee was the
cause, in whole or in part, for such person to purchase such goods from the
Company or to retain the Company to perform such services.
(b) The
term
"cause" shall mean:
(i) the
willful and continued refusal of the Employee to substantially perform his
duties in accordance with this Agreement (other than any such failure resulting
from incapacity due to physical or mental illness), after a written demand
for
substantial performance is delivered to the Employee by the Board of Directors
of the Company which specifically identifies the manner in which the Board
of
Directors believes that the Employee has not substantially performed such
duties
and the Employee shall have had a reasonable opportunity to remedy the same;
or
(ii) the
conviction of, or a plea of nolo contendere by, the Employee to a felony;
or
(iii) a
charge
or indictment of a felony, the defense of which renders the Employee
substantially unable to perform his duties under this Agreement.
3.2 Duties
Upon Termination.
In the
event that the Employee's employment under this Agreement is terminated by
the
Company without “cause” (as defined above), or the Company breaches the
provisions of this Agreement, the Employee shall either (at the option of
the
Employee) immediately begin a one year paid leave of absence (the “LOA”) or the
Employee may forego the LOA and other benefits set forth in this Section
3.2 and
terminate this Agreement in its entirety. During the LOA, Employee shall
continue as a full time employee of the Company and shall continue to receive
the salary, benefits and other compensation (except for the benefits set
forth
in Section 2.1(ii) above, which shall terminate at the beginning of the LOA)
being received by the Employee immediately prior to the beginning of the
LOA.
Any benefits under Section 2.1(ii) shall be prorated as of the beginning
of the
LOA. During the LOA, the Employee shall not be required to perform any services
for the Company, but shall have all other obligations (such as the duty of
loyalty) owed by an employee to an employer, including those duties imposed
by
Sections 1.5, 1.6, 1.7, and 1.8 of this Agreement. The Company shall have
no
obligation to grant new stock options to the Employee during the LOA. At
the
expiration of the LOA, neither the Company nor the Employee shall have any
remaining duties or obligations hereunder, except that (i) the Company
shall continue to pay or provide to the Employee, or his estate, the amount
specified in Section 2.1(i) during the period commencing on the expiration
of
the LOA and ending on the first anniversary of such expiration (ii) all
stock-based compensation previously granted to the Employee (including, but
not
limited to, all stock options, stock appreciation rights, bonus units and
stock
grants) shall continue to vest pursuant to the vesting schedule in effect
when
the stock based compensation was granted and shall remain fully exercisable
for
the full term thereof determined, both as to vesting and exercisability,
without
regard to the termination of employment and (iii) the Employee shall continue
to
be bound by Sections 1.5, 1.6, 1.7 and 1.8. Notwithstanding the foregoing,
all
such stock based compensation granted to Employee shall vest immediately
(and be
exercisable for the full term thereof) upon the occurrence of a Change in
Control (as defined below) of the Company. As used herein, the term Change
in
Control shall have the same meaning as set forth in Section 2 of the Diodes
Incorporated 2001 Omnibus Equity Incentive Plan. To the extent necessary
to
conform to this Section 3.3, the Company shall amend its 1993 Incentive Stock
Option Plan (as amended and restated) and its 2001 Omnibus Equity Incentive
Plan.
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3.3 Non-Exclusivity
of Rights.
Nothing
in this Agreement shall prevent or limit the Employee's continuing or future
participation in any plan, program, policy or practice provided by the Company
or any of its affiliated companies and for which the Employee may qualify,
nor
shall anything herein limit or otherwise affect such rights as the Employee
may
have under any contract or agreement with the Company or any of its affiliated
companies. Amounts which are vested benefits or which the Employee otherwise
is
entitled to receive under any plan, policy, practice or program of or any
contract or agreement with the Company or any of its affiliated companies
at or
subsequent to the date of termination shall be payable in accordance with
such
plan, policy, practice, program, contract or agreement except as explicitly
modified by this Agreement.
3.4 Full
Settlement.
The
Company's obligation to make the payments provided for in this Agreement
and
otherwise to perform its obligations hereunder shall not be affected by any
set-off, counterclaim, recoupment, defense or other claim, right or action
which
the Company may have against the Employee or others; provided, however, that
in
the event the Employee shall obtain employment within one year from the date
of
termination, any amount payable by the Company to the Employee under Section
3.2
shall be reduced by any amount received by the Employee during such one year
in
connection with such other employment. In no event shall the Employee be
obligated to seek other employment or take any other action by way of mitigation
of the amounts payable to the Employee under any provision of this Agreement.
4. MISCELLANEOUS
4.1 Severable
Provisions.
The
provisions of this Agreement are severable, and if any one or more provisions
may be determined to be illegal or otherwise unenforceable, in whole or in
part,
the remaining provisions, and any partially unenforceable provisions to the
extent enforceable, shall nevertheless be binding and enforceable.
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4.2 Successors
and Assigns.
(a) All
of
the terms, provisions and obligations of this Agreement shall inure to the
benefit of and shall be binding upon the parties hereto and their respective
heirs, representatives, successors and assigns. Notwithstanding the foregoing,
this Agreement is personal to the Employee, and neither this Agreement nor
any
rights hereunder shall be assigned, pledged, hypothecated or otherwise
transferred by the Employee (other than by will or the laws of descent and
distribution) without the prior written consent of the Company in each
instance.
(b) The
Company shall require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
or assets of the Company to assume expressly and agree to perform this Agreement
in the same manner and to the same extent that the Company would be required
to
perform it if no such succession had taken place. As used in this Agreement,
"Company" shall mean the Company as hereinbefore defined and any successor
to
its business or assets as aforesaid which assumes and agrees to perform this
Agreement by operation of law, or otherwise.
4.3 Governing
Law.
The
validity, construction and interpretation of this Agreement shall be governed
in
all respects by the laws of the State of California applicable to contracts
made
and to be performed wholly within that State.
4.4 Headings.
Section
and subsection headings are not to be considered part of this Agreement and
are
included solely for convenience and reference and in no way define, limit
or
describe the scope of this Agreement or the intent of any provisions
hereof.
4.5 Entire
Agreement.
This
Agreement constitutes the entire agreement between the parties hereto pertaining
to the subject matter hereof, and supersedes all prior agreements,
understandings, negotiations and discussions, whether oral or written, relating
to the subject matter of this Agreement. No supplement, modification, waiver
or
termination of this Agreement shall be valid unless executed by the party
to be
bound thereby. No waiver of any of the provisions of this Agreement shall
be
deemed or shall constitute a waiver of any other provisions hereof (whether
or
not similar), nor shall such waiver constitute a continuing waiver unless
otherwise expressly provided.
4.6 Notices.
Any
notice or other communication required or permitted hereunder shall be in
writing and shall be deemed to have been given (i) if personally delivered,
when so delivered, (ii) if mailed, one (1) week after having been
placed in
the United States mail, registered or certified, postage prepaid, addressed
to
the party to whom it is directed at the address set forth below or (iii) if
given by e-mail or telecopier, when such notice or other communication is
transmitted to the e-mail or telecopier number specified below and the
appropriate answerback or telephonic confirmation is received. Either party
may
change the address to which such notices are to be addressed by giving the
other
party notice in the manner herein set forth.
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4.7 Mediation.
The
parties agree to mediate any dispute or claim between them arising out of
this
Agreement before resulting to court action. The mediation fees, if any, shall
be
divided equally among the parties and each side shall bear their own attorney’s
fees.
4.8 Attorneys'
Fees.
In the
event any party takes legal action to enforce any of the terms of this
Agreement, the unsuccessful party to such action shall pay the successful
party's expenses, including attorneys' fees and expenses, incurred in such
action.
4.9 Third
Parties.
Nothing
in this Agreement, expressed or implied, is intended to confer upon any person
other than the Company or the Employee any rights or remedies under or by
reason
of this Agreement.
4.10 Termination
of Prior Agreements.
The
rights and obligations of the Company and the Employee, if any, under any
and
all prior agreements, understandings and arrangements in respect of the
Employee's employment by the Company ("Prior Agreements") hereby are terminated
effective as of the date hereof. From and after the date hereof, neither
the
Company nor the Employee shall have any further rights or obligations whatsoever
under the Prior Agreements.
4.11 Consent
to Jurisdiction.
Each
party hereto, to the fullest extent it may effectively do so under applicable
law, irrevocably (i) submits to the exclusive jurisdiction of any
court of
the State of California or the United States of America sitting in the City
of
Los Angeles over any suit, action or proceeding arising out of or relating
to
this Agreement, (ii) waives and agrees not to assert, by way of motion,
as
a defense or otherwise, any claim that it is not subject to the jurisdiction
of
any such court, any objection that it may now or hereafter have to the
establishment of the venue of any such suit, action or proceeding brought
in any
such court and any claim that any such suit, action or proceeding brought
in any
such court has been brought in an inconvenient forum, (iii) agrees
that a
judgment in any such suit, action or proceeding brought in any such court
shall
be conclusive and binding upon such party and may be enforced in the courts
of
the United States of America or the State of California (or any other courts
to
the jurisdiction of which such party is or may be subject) by a suit upon
such
judgment and (iv) consents to process being served in any such suit,
action
or proceeding by mailing a copy thereof by registered or certified air mail,
postage prepaid, return receipt requested, to the address of such party
specified in or designated pursuant to Section 4.6. Each party agrees
that
such service (i) shall be deemed in every respect effective service
of
process upon such party in any such suit, action or proceeding and
(ii) shall, to the fullest extent permitted by law, be taken and held
to be
valid personal service upon and personal delivery to such party.
4.12 Construction.
This
Agreement was reviewed by legal counsel for each party hereto and is the
product
of informed negotiations between the parties hereto. If any part of this
Agreement is deemed to be unclear or ambiguous, it shall be construed as
if it
were drafted jointly by the parties. Each party hereto acknowledges that
no
party was in a superior bargaining position regarding the substantive terms
of
this Agreement.
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as
of the date and year first set forth above.
| Company: |
DIODES
INCORPORATED
|
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| |
|
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| By: | /s/ Xxxx Xxxxx | |
|
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||
|
Authorized
Representative
XXXX
XXXXX,
Chief
Financial Officer
|
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|
Employee:
|
By: | /s/ Xx. Xxx-Xxxx Lu |
|
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||
| XX. XXX-XXXX LU | ||
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